SAN FRANCISCO (CN) – Legal experts say the U.S. Food and Drug Administration's recent approval of a cannabis-derived medication for epilepsy could undermine the federal government's position that marijuana has no accepted medical use.
"It defeats the argument that a plant-based medicine can't be approved by the FDA," said attorney Zenia Gilg, who has worked in federal cannabis law for 24 years.
The recent move to approve Epidiolex, a cannabis-based treatment for epilepsy without the high-inducing chemical THC, has already given rise to a fresh legal challenge against the federal government's marijuana policy.
Humboldt County resident Emma Nation sued the Trump administration in federal court Monday night, seeking an injunction to stop a local housing authority from evicting her from federally subsidized housing because she uses medical cannabis in edible form.
Nation's lawyer, Frederic Flecther of Eureka, California, said this is the only case he is aware of in which a person has challenged the denial of federal benefits based on a patient's use of medical marijuana.
Unlike prior cases in which courts have upheld the federal government's right to criminalize state-sanctioned medical pot, Fletcher said the FDA's June 25 decision to approve a cannabis-based medication has changed the game.
"The previous problem with a lot of these cases was they were challenging the FDA's assessment that cannabis had no medical use," Fletcher said. "We don't even need to go there. The FDA has already done that part."
The U.S. Department of Justice and FDA declined to comment on the lawsuit.
Nation lives in a federally subsidized housing unit in Arcata, a town of 18,000 people in Humboldt County, located in the heart of Northern California's famous pot-growing region "the Emerald Triangle."
She is set to be evicted on July 10 unless a state court judge in a separate legal action grants her temporary relief, her lawyer said.
According to Nation's lawsuit, a maintenance worker entered her bedroom without permission and found a small bag of medical cannabis, which was reported to the local housing authority that supplies Nation's rent subsidy.
The U.S. Department of Housing and Urban Development requires that the local housing authority evict Nation for possessing medical marijuana, according to her complaint.
Recent cases challenging the federal government's classification of marijuana as a schedule 1 drug, the highest-level category under the Controlled Substances Act, have failed.
Earlier this year, a federal judge in Manhattan dismissed a lawsuit challenging the federal government's position that marijuana has no accepted medical use, finding the U.S. Drug Enforcement Administration has total discretion in the matter.
The biggest hurdle, legal experts say, is proving that the DEA lacks a rational basis for placing pot in the same category heroin and LSD, drugs with "no currently accepted medical use" and a high potential for abuse.
Now that the FDA has approved Epidiolex, the DEA has 90 days to reclassify its core component cannabidoil, or CDB, before it can be sold legally as a medicine in the U.S.
Gilg says whatever step the DEA takes could have a profound effect on legal arguments underpinning its reasoning for deeming marijuana a schedule 1 drug with no accepted medical use.
"Every move they make they are defeating their rational basis," Gilg said of the DEA's pending decision.
But another hurdle also stands in the way of successfully challenging federal marijuana policy in court: the "dosability" of a plant.
Schedule II drugs, like cocaine and oxycodone, contain less than 15 milligrams of hydrocodone per dosage unit. Schedule III drugs, like Tylenol, contain less than 90 milligrams of codeine per dosage unit.
Defining dosage units for a plant is a major obstacle, said Allison Margolin, who has practiced federal cannabis law for 16 years.
"The fact that the plant itself is not dosable, that's an issue when you're considering any kind of scheduling or rescheduling of a drug and considering whether it has medical value," said Margolin, of the Los Angeles-based law firm Margolin & Lawrence.
U.S. drug policies don't just impact medical marijuana patients and their right to access benefits like housing subsidies. They also make it harder for state-sanctioned cannabis businesses to get financing in places like California, where the use of recreational pot was legalized in 2016 and sales began this year.
That's one reason why the Los Angeles City Council passed a unanimous resolution on Tuesday urging Congress to support the SAFE Banking Act, which would prohibit federal regulators from punishing a financial firm for doing business with a California-approved cannabis business.
The bill, S. 1152, would allow banks to make loans to cannabis businesses to set up storefronts, hire workers, and join what the resolution text calls a “booming sector of the California economy.”
The lawsuit filed by Nation on Monday claims federal marijuana policy does more than just restrict the rights of medical cannabis patients. It also wreaks havoc on Humboldt County's environment by encouraging illegal growing operations that divert water, pollute streams, erode hillsides, contaminate soil, and cause other harms, according to the complaint.
The lawsuit alleges violations of the First, Fourth, Fifth, and Ninth amendments and degradation of the environment in violation of the Public Trust Doctrine.
Nation seeks an injunction to block the enforcement of federal laws that criminalize medical use of marijuana and stop HUD from denying medical cannabis users access to subsidized housing.
HUD and the DEA did not immediately respond to emails and phone calls seeking comment Tuesday.
Martin Macias Jr. contributed to this report from Los Angeles.
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