Sadly, but not surprisingly, a New York federal district court judge dismissed a lawsuit at the end of February against Attorney General Jeff Sessions, the Department of Justice (DOJ) and the Drug Enforcement Administration (DEA) that challenges the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA).
Judge Alvin K. Hellerstein outlined in a 20-page ruling that the plaintiffs — which include former NFL player Marvin Washington, a 7-year-old from Georgia with Leigh syndrome (an inherited neurodegenerative condition) and the Cannabis Cultural Association — lacked any “fundamental right” to use cannabis as a medicine, and that they had failed to exhaust all potential administrative remedies available prior to challenging the constitutionality of the federal law in court.
“Judicial economy is not served through a collateral proceeding of this kind that seeks to undercut the regulatory machinery on the Executive Branch and the process of judicial review in the Court of Appeals,” ruled the 85-year-old Clinton-appointed judge.
Meanwhile, many cannabis advocates disagree that this case puts things squarely with the executive branch as suggested. The executive branch does not legislate, explains Rod Kight, a lawyer who represents cannabis businesses. “That being said, as the enforcer of laws it can and, in fact, must prioritize how it allocates its resources with respect to enforcement,” Kight told Truthout.
Sessions issued a memo early in the new year that rescinded the famous “Cole” and “Ogden” memos on marijuana issued under the Obama administration. While the memos did not change federal law, they did downgrade enforcement of marijuana laws under certain circumstances by stating that certain acts involving illegal marijuana were to be treated as a low priority relative to the enforcement of other, more important, laws. Given this information, Kight says that the current powers-that-be are less likely to deschedule marijuana now than at any time in the recent past.
The “petitioning administrative process,” meanwhile, generally consumes an average of nine years to complete, according to a press release issued by the plaintiff’s attorney Hiller, PC, on February 26, 2018.
This country is seemingly created with built-in loopholes. Big ones. Was Hellerstein’s ruling a way to buy time because his own hands are tied, or to buy time until the Federal Drug Administration (FDA) and Big Pharma usher in fake THC/CBD medicines?
“The time has come for the courts to abandon decades-old precedent, notched with obsolete legal technicalities, and catch up with modern science and contemporary principles of constitutional law,” said lead counsel Michael Hiller of Hiller, PC, in a statement. “Resigning the plaintiffs to the petitioning administrative process is tantamount to a death sentence for those patients who need cannabis to live.”
Their original July 2017 complaint reads:
The entire Schedule I classification as it pertains to Cannabis constitutes a completely and utterly irrational legislative construct and thus violates the Due Process Clause of the Fifth Amendment. Specifically, under the CSA, Schedule I drugs are classified as so dangerous that they generally cannot be tested safely; however, in order to obtain the evidence necessary to persuade the Federal Government that Cannabis is safe enough to be rescheduled or de-scheduled, it must be tested.
By imposing as a precondition to re-classification, the testing of a purportedly untestable drug, Congress created a legislative Gordian Knot — a statute that functions as a one-way, dead-end street.
The plaintiffs vow to appeal. A win would prohibit the DEA, DOJ and all other federal agencies from enforcing 1970s CSA as it pertains to marijuana.
”We are in the process of appealing the court’s decision, and, if need be, we will take this case all the way to the Supreme Court,” Hiller told Truthout. “We have no doubt that proving the unconstitutionality of cannabis’s classification under the Controlled Substances Act will be a defining moment in [the US’s] history for millions of medical patients, and for principles of social justice — a moment which, in retrospect, will forever have people asking, ‘why didn’t it happen sooner?'”
Drug hypocrisy: Profits over people
The day before Thanksgiving, “Dronabinol,” a drug developed by the pharmaceutical company Insys Therapeutics, was granted Schedule II classification, which applies to drugs with a moderate to low potential for leading to physical and psychological dependence. Schedule III drugs’ abuse potential is said to be less than Schedule I drugs’. While the announcement slipped past the radar of the mainstream media, the rescheduling had been expected for a few months after the substance, known as delta-9-Tetrahydrocannabinol (THC), was approved by the FDA over the summer.
So, let’s get this straight: A faux, fake, fabricated THC drug is now suddenly recognized for its medicinal potential as a federally regulated prescription drug, while the real plant remains illegal under Schedule I — implying it’s potentially dangerous and has no medicinal value.
“The DEA notes that FDA-approved products of oral solutions containing dronabinol [have] an approved medical use, whereas marijuana does not have an approved medical use and therefore remains in Schedule I,” according to the Department Of Justice Diversion Control Division.
There have been numerous studies conducted by some of the country’s most respected institutions in recent years which suggest cannabis does, in fact, have medicinal value.
By being a part of the medical mafia’s inner sanctum, Insys Therapeutics, which also makes products containing fentanyl and other opioids, is able to set the price point for its own legal brand of THC, which can range between $1,000 to $2,000 for a month’s supply. A small vial of organic high-quality Cannabidiol (CBD) costs less than $100.
Incidentally, FDA-approved Insys Therapeutics has had an integral role in worsening the opioid crisis. The company’s founder, writes Reuters, was named as an unindicted co-conspirator in “a case accusing six former executives and managers of participating in a scheme that involved bribing doctors to prescribe a fentanyl-based drug.”
Legalization advocates have long speculated that the crackdown on pot is merely an attempt to squelch any competition, and that “Big Pharma” is working behind the scenes to maintain cannabis prohibition. Meanwhile, the classification of substances as conducted by the DEA has been based on a minimal understanding of chemistry or proper facts.
Let’s recall how cannabis got this unjust classification in the first place. The original filing took place in the ’70s when the Nixon administration recognized that African Americans could not legally be arrested on racial grounds, and war protesters could not be prosecuted for opposing the US’s involvement in Vietnam. They decided that cannabis was the drug of choice for these two groups.
“Consequently, they ushered the CSA through Congress and insisted that Cannabis be included on Schedule I so that African Americans and war protesters could be raided, prosecuted, and incarcerated without identifying the actual and unconstitutional basis for the government’s actions,” states the original July 2017 legal complaint.
Couple this with the current administration’s tendency to take public positions on issues it seemingly knows nothing about.
Paper, rock, opioids
Chronic pain is BIG business. Today, approximately 100 million Americans suffer from pain, which costs at least $560 to $635 billion annually, according to the National Institute of Health (NIH). Big Pharma, in the meantime, with its love of single-molecule drugs, continues to spread disinformation and wage war against cannabis.
Case in point: In 2016, Insys Therapeutics donated half a million dollars to help defeat a marijuana legalization measure that appeared on Arizona’s ballot that year, according to US News.
“Big pharma keep pushing back against legalizing medical marijuana because, in many cases, they want to continue to sell addictive drugs and dominate the market for drugs that address chronic pain,” Sen. Kirsten Gillibrand of New York told Truthout. “That’s wrong. It is time to rework our cannabis laws.”
Numerous studies have also shown that legal marijuana access doesn’t lead to opiate use but actually the opposite.
“Marijuana is a far less addictive substance than opioids and the potential for overdosing is nearly zero,” researchers wrote in the Journal of Health Economics. A recent broad prospective study on a large group of medical cannabis patients in Israel shows that cannabis is not only a safe and effective treatment to reduce pain and other symptoms in cancer patients, but is also significantly associated with a reduction of opioid intake, adds Lihi Bar-Lev Schleider, medical director at Tikun Olam Ltd. The study also illustrated that opioid use amongst participants decreased by 45.9 percent.
“People are taking health into their own hands and that is threatening to pharmaceutical companies,” Leland Radovanovic, the founder of Baruch Students for Sensible Drug Policy, told Truthout.
Trump vs. industrial hemp: The latest politics on CBD
The Trump administration also publicized its views on industrial hemp last week. After speaking at the Governor’s Forum on Colorado Agriculture in Denver on February 21, Greg Ibach, undersecretary for the US Department of Agriculture (USDA), told the press that current hemp regulations are “fairly narrow.”
He implied that the administration does not want to see that change when the farm bill is rewritten this year, which will likely include a revision of the industrial hemp provisions, according to an article Kight wrote for Cannabis Law Journal.
“Opening the door wide open nationwide, with no restrictions, may not be in the best interests of the hemp industry. One of the challenges we maybe have in the hemp industry is to make sure that demand and production coincide,” Ibach said during the forum.
Ibach went on to add that oversight of industrial hemp should not be with the USDA. Rather, the administration contends it should be with the DOJ, which includes the DEA.
“In short, the idea that the Justice Department, rather than the USDA, should control industrial hemp is totally ludicrous,” says Kight. “It’s hard not to scoff at how ridiculous this notion is.”
Kight says that one way to view this statement is through the lens of the respective mission statements of the USDA and the Justice Department.
According to its mission statement, the USDA “provides leadership on food, agriculture, natural resources, rural development, nutrition, and related issues based on sound public policy, the best available science, and effective management.”
On the other hand, the Justice Department’s mission is to “enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”
Kight maintains that the USDA is the proper agency to oversee industrial hemp, “a non-psychoactive, non-scheduled, lawful, agricultural product;” and Congress agrees.
In several consecutive appropriations acts, it has specifically denied the use of federal funds to interfere with industrial hemp. In the most recent appropriations act, Congress calls out both the Justice Department and the DEA by name. And, in the amicus brief filed in the pending Ninth Circuit HIA v. DEA case, 28 bipartisan members of Congress called the DEA “unreasonable” with respect to industrial hemp.
“My concern is that there is active lobbying against industrial hemp by two powerful forces, Big Pharma and/or the DEA,” says Kight.
That’s because the plant compound found in hemp offers a wealth of health benefits — which means it cuts into Big Pharma’s profits. Many natural supplements companies have experienced their fair share of hurdles and shutdowns for selling hemp oil.
According to a new report by market intelligence firm Hemp Business Journal, the CBD market is estimated to grow to $2.1 billion by 2020. Moreover, 42 percent of the CBD users said they had stopped using traditional medications like Tylenol pain relievers or prescription drugs like Vicodin and switched to using cannabis instead, as stated in a recent survey from Brightfield Group and HelloMD. The report also found that 80 percent said that they found the products to be “very or extremely effective.”
Currently, there are a handful of pharmaceutical companies actively developing CBD-based medications. For instance, Insys Therapeutics is developing a synthetic CBD to treat epilepsy in children, and is currently in various stages of clinical trials in the FDA’s approval process. GW Pharmaceuticals, associated with none other than Bayer (creator of systemic pesticides shown to kill honeybees), will likely receive FDA approval this year for its CBD drug, Epidiolex.
What remains ahead still remains to be seen, but this is a social justice and a moral issue that Congress will have to eventually address.
“Legalizing marijuana isn’t a matter of if, it’s a matter of when,” Sen. Cory Booker (D-New Jersey) said in response to Sessions’s attempts to start federal crackdowns related to cannabis. He introduced the Marijuana Justice Act of 2017 last August into the House of Representatives.
If passed, the bill would:
• Remove marijuana from the list of controlled substances making it legal at the federal level
• Punish states that disproportionately arrest low-income and minority individuals
• Automatically expunge federal marijuana use and possession crimes
• Allow individuals currently serving time in federal prison to petition a court for a resentencing
• Create a community reinvestment fund to invest in communities most impacted by the failed War on Drugs and allow the money to go toward rehabilitative programs.
The bill would not only amend marijuana regulation but also begin to address the warped distribution of cannabis-related wealth being generated by “legal” markets.