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D.C. Circuit Upholds Tough DEA Pot Label

(CN) - The Drug Enforcement Agency properly shot down a request to reclassify marijuana for medical purposes, the D.C. Circuit ruled, finding "no currently accepted medical use for marijuana in the United States."

Marijuana still bears DEA classification as a "Schedule I" drug, even though 17 states and the District of Columbia have legalized it for medicinal purposes, and Colorado and Washington recently became the first states to certify its recreational use.

Doctors cannot write prescriptions for Schedule I drugs, a class that also includes heroin, LSD and ecstasy. Sale of such drugs also carry the highest punitive sentences.

The Coalition to Reschedule Cannabis and other nonprofit groups petitioned the DEA in 2002 to reclassify marijuana as a Schedule III, IV or V drug.

Nine years later, the agency rejected the petition, finding that "there is no currently accepted medical use for marijuana in the United States."

It also said that "the limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the" Controlled Substances Act, or CSA.

A divided three-judge panel of the D.C. Circuit affirmed Tuesday, finding that the DEA's order does not merit review because it was neither arbitrary or capricious.

"The DEA's regulations, define 'currently accepted medical use' to require, inter alia, 'adequate and well-controlled studies proving efficacy,'" Judge Harry Edwards wrote for the majority. "We defer to the agency's interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist."

While marijuana defenders furnished peer-reviewed, published studies suggesting the medical efficacy of marijuana, the DEA insisted that its threshold requires "something more scientifically rigorous."

"The DEA interprets 'adequate and well-controlled studies' to mean studies similar to what the Food and Drug Administration requires for a new drug application" (NDA)," Edwards wrote.

But the Department of Health and Human Services "found that 'there have been no NDA-quality studies that have scientifically assessed the efficacy of marijuana for any medical condition,'" according to the ruling.

Edwards said there is "good reason" for the DEA to demand something more than "peer-reviewed" studies.

"The DEA's construction of its regulation is eminently reasonable," he added.

As a threshold matter, the court found that one of the petitioners, Michael Krawitz, a veteran of the U.S. Air Force, had standing to pursue the appeal because the DEA's classification prevents him from obtaining medical marijuana through the Veterans Affairs hospital.

The plaintiffs advanced this claim for standing in supplemental briefing requested by the court.

Judge Karen Henderson challenged this submission as improper in a dissenting opinion. Without it, she said the case would have been dismissed for lack of standing.

"Perhaps it is too late to blow the whistle but I do not share the solicitude my colleagues show the petitioners - no novices on their merits claim - here, especially in view of the fact that their standing theory for the lone petitioner with standing is, post-argument, brand new," Henderson wrote (Emphasis in original).

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