Editor’s note: This article is by Kate Harveston, a frequent contributor to the Kight on Cannabis blog. In it, she discusses the DEA’s recent announcement that it intends to move forward “to facilitate and expand scientific and medical research for marijuana in the United States“. The DEA’s announcement was followed soon after by the USDA interim final rule on hemp production, which requires an analytical laboratory to hold a license from the DEA to test hemp. The DEA has been no friend to the cannabis industry, and many observers worry that the agency will use the authority granted to it by the USDA to put the brakes on the nascent hemp industry. (You can read more about that issue by clicking here.) In the meantime, we hope that the DEA will make good on its stated intention to allow more marijuana production for research. -Rod Kight
WHAT DOES THE DEA’S LATEST ANNOUNCEMENT ON MARIJUANA RESEARCH MEAN?
On August 26th, 2019, the DEA issued a press release stating it would take steps to improve access for researchers to conduct marijuana research. Until now, the University of Mississippi (UM) has been the only facility allowed to cultivate the marijuana that medical researchers need to complete their projects. This has imposed delays and other significant hurdles on researchers who want to study the plant. In this article I will discuss why the DEA made the announcement and how it could affect the future of marijuana research.
THE PRESS RELEASE
According to the DEA’s press release, the number of registered individuals permitted to carry out marijuana research increased by 40% over the last two years. Although the agency doubled the production quota for UM, the revised quota amount is insufficient to keep pace with growing research demands.
Individuals from all over the United States who are willing to grow, cultivate, and supply marijuana for research have registered with the DEA to do so. According to its latest announcement, the DEA will review these applications and add more legally recognized growing facilities to its network. This should take some of the strain off of UM while also providing a wider variety of marijuana genetics to be studied. It also may provide researchers with better quality product. Marijuana produced by UM is alleged to be moldy and to contain low concentrations of cannabinoids.
A LAWSUIT IS PAVING THE WAY
Although the DEA announcement appears to be a step in the right direction, many in the cannabis industry contend that the announcement is a stalling tactic. This is because the DEA made similar statements three times within the last decade and did not follow through with any meaningful changes. The most recent announcement may be different. It was prompted by a lawsuit filed by the Scottsdale Research Institute of Arizona (Scottsdale) through the D.C. Circuit of Appeals in June of this year. Scottsdale’s attorney, Shane Pennington, recently discussed the basis of the lawsuit with NORML:
“In 2016, the DEA said that it recognized, and held to be important, the due process interest of applicants who would respond to its cultivation licensing announcement by spending thousands of dollars and doing the work necessary to get an application in to the agency. Due process here is referring to the due process of law and amendments to the US constitution. Our point was that the agency’s delay had reached a point that it was unlawful under administrative law principles and the Administrative Procedure Act. That’s what made it unlawful. Apart from that, we were emphasizing the government’s own statements, in its own public documents, recognizing that when it asked the public for applications, then charged them money to process those applications, there’s a due process interest in actually seeing that the law is followed and that the applications are processed.”
The DC Court of Appeals dismissed the case in October as moot because the DEA issued a notice of Scottsdale’s application in the Federal Register after the case was filed. The DEA notice was made one day before it announced its intention to expand marijuana research. Generally speaking, an issue is moot when it has been resolved such that the Court cannot render a decision. In this case, the Court found that the DEA’s publication of Scottsdale’s application was the relief that Scottsdale sought. Thus, there was nothing further to litigate. Whether the DEA will follow through on evaluating Scottsdale’s application and the others it received remains to be seen.
THE FUTURE OF MARIJUANA RESEARCH
The DEA has had two chances in the last five years to de-schedule or re-schedule marijuana in response to petitions. It has chosen to take no action. The DEA’s decision to expand research, and the lawsuit that sparked it, could serve as a tipping point for the marijuana industry because it isn’t the agency’s only concern. Right now, the DEA is also trying to reduce opioid use by reducing the production of the most common opioids — fentanyl, hydrocodone, hydromorphone, and oxymorphone — by 19-55% in the next year. In response, marijuana research may receive higher priority as medical professionals and patients look for alternatives to opioid use for a number of health conditions.
I should also note that there is another lawsuit pending in the Second Circuit Court of Appeals, Washington v Barr, in which the court refused to dismiss a lawsuit challenging the constitutionality of the Controlled Substances Act. A favorable decision in the Washington case could, among other things, have far reaching effects on marijuana research.
The marijuana industry is expected to be one of the fastest-growing industries during the next decade. Aside from periodic setbacks such as the ones this past week, we have seen a steady rise in cannabis-related stocks since 2016. Despite this growing economic activity, the federal government still classifies marijuana as a Schedule I drug. As such, it falls in the same class of drugs as heroin and cocaine. Marijuana companies are mostly shut out of the banking industry, face high tax rates that were originally designed to stop drug smugglers from writing off their illicit business expenses on their taxes, and are under constant scrutiny, even in states where marijuana is legal for recreational or medical use.
As states continue to legalize marijuana for recreational and medical use, marijuana research is more important than ever. It is time for the DEA to begin sorting through its applications and allow more cultivation facilities to contribute their crops to marijuana research nationwide. Better yet, it should de-schedule marijuana by removing it from the Controlled Substances Act. The Marijuana Opportunity Reinvestment and Expungement Act of 2019, better known as the “MORE Act”, is scheduled to receive a historic review in the House Judiciary Committee on November 21. For information and an analysis of the More Act, click here.
Let’s hope that the DEA continues to move in a positive direction.
November 19, 2019
This is a guest post by Kate Harveston, a frequent contributor to the Kight on Cannabis legal blog. Kate is a freelance health and wellness writer and cannabis advocate. You can read more of Kate’s writing on cannabis issue by clicking here, here, and here, and also by visiting her personal blog, So Well, So Woman!
Rod Kight is a cannabis attorney who represents lawful cannabis businesses. He wrote the first published book on cannabis business law, speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.