Cannabis in Court: Did the Federal Government Violate the Law in Cannabis Scheduling Evaluation?


It looks like the federal government--or at least some of its agencies--is in hot water over its 2016 decision to continue cannabis’ status as a Schedule I substance. This status is one of the major limitations to making cannabis widely available to patients and individuals that could benefit from its medicinal applications, and also limits researchers’ ability to study how and why cannabis affects patients and determine possible future applications.

The Situation with Cannabis Scheduling

In 2015, the U.S. Department of Health and Human Services (HHS) sent the Drug Enforcement Administration (DEA) a letter about the medical value of cannabis that ultimately served as the basis for its ongoing status as a Schedule I drug (i.e. the same category as cocaine).

In a formal filing submitted Wednesday, June 12th, 2019 , the Competitive Enterprise Institute (CEI)--a libertarian think tank--asserted that the letter HHS submitted to the DEA in 2015 lacked important elements that ultimately played a central role in the DEA’s continued (possibly incorrect) categorization of cannabis as a Schedule I drug. As a “highly influential scientific assessment” that played a central role in maintaining marijuana’s strict prohibition, HHS was required to conduct a scientific peer review of evidence on cannabis and its therapeutic potential--unfortunately, the HHS did not conduct the necessary peer review.

At the time, the DEA relied heavily upon the HHS evaluation (which did not include the required scientific peer review). In 2016, the DEA heavily cited the agency’s findings in its denial of a petition to consider cannabis rescheduling because the findings “concluded that marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision.”

The Major Problems

According to CEI, there are two major problems with the 2015/2016 decision around cannabis scheduling:

  1. The HHS should have formally withdrawn its evaluation and informed the public that the information disseminated should not be used for regulatory or other purposes until a proper peer review was conducted;

  2. The HHS should have informed the DEA that they did not follow the proper procedures for being relied upon in a regulatory proceeding.

CEI’s attorney weighed in on the topic following the group’s filing last week as well:

“Given that 33 states have legalized medical marijuana, it’s clear that federal policy could be significantly changed by a reassessment of this subject.

“The peer review required by the Information Quality Act could play a major role in a reassessment of medical marijuana and would ensure that agencies cannot use uninformed opinion to claim a scientific basis for public policies. Independent experts should evaluate the opinion of the agency and inform the agency when it is mistaken.”

What’s Next?

Because of the CEI’s filing, the U.S. Department of Health and Human Services now has 120 days to respond to the group’s request for correcting the scheduling status of cannabis.

Cannabis researchers and advocates are hopeful that this oversight will pave the way for a scientific review that will paint cannabis’ medicinal potential in a much more favorable light. At this point, no pundit realistically expects full adult-use legalization, but hopefully allowing science into the discussion will yield a decision that allows for more rigorous scientific research. A national policy more in line with the recent recommendations by the United Nations and World Health Organizations that cannabis be either de-scheduled or decriminalized would place the United States  on equal footing with countries like Canada, the Netherlands, South Africa and Uruguay, each of which has legalized or decriminalized cannabis, and would allow us to accelerate research initiatives, find new applications and properly evaluate long-term side effects of cannabis.

Read the full letter from CEI requesting the cannabis scheduling correction here, and as always please don’t hesitate to reach out to the team here at Doctor Jane with any questions you may have on this topic!

Today’s blog post is written by Rick Liogier-Weyback, MD, founder and president at Doctor Jane and our licensed medical cannabis physician. If you are considering cannabis treatment or are wondering if medical cannabis may be right for you, please contact our team at your earliest convenience.

About Doctor Jane

Doctor Jane is South Florida’s most discreet, professional, and convenient concierge medical cannabis practice. Dr. Luis Enrique R. Liogier-Weyback and his wife, Katie Liogier-Weyback, B.S., R.N., founded Doctor Jane on the core tenets of bringing personal, convenient, professional and discreet patient care to the medical cannabis treatment process. Doctor Jane provides South Florida patients and their caregivers with a safe space where they can exercise their right to access medical cannabis therapy in an environment of their choosing, free from stigma and complications.

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