Marijuana plant being grown near Albany for medical use in New York state. (Photo by Drew Angerer/Getty Images)
More than half the states–28, to be exact–including Arkansas, Florida and North Dakota as of the Nov. 8 election, and the District of Columbia have legalized marijuana for certain medical conditions.
And yet, the Drug Enforcement Administration still classifies marijuana as a Schedule I drug, defined by the 1970 Controlled Substances Act as a drug that has a high potential for abuse and no accepted medical use (emphasis is mine) in the United States. Other Schedule I drugs include heroin, LSD and ecstasy.
Only the Food and Drug Administration can determine whether marijuana has an accepted medical use, according to the DEA, and so far, it hasn’t. Because marijuana is a Schedule I drug, doctors can only “recommend” it to patients, not write prescriptions for it that they can fill at a drugstore.
But Congress has the authority to reclassify controlled substances, and the president can ask his attorney general, who oversees the DEA, or his Health and Human Services secretary, who oversees the FDA, to initiate rulemaking to reclassify them, Brookings Institution senior fellow John Hudak told me.
More than half the states–28, to be exact–including Arkansas, Florida and North Dakota as of the Nov. 8 election, and the District of Columbia have legalized marijuana for certain medical conditions.
And yet, the Drug Enforcement Administration still classifies marijuana as a Schedule I drug, defined by the 1970 Controlled Substances Act as a drug that has a high potential for abuse and no accepted medical use (emphasis is mine) in the United States. Other Schedule I drugs include heroin, LSD and ecstasy.
Only the Food and Drug Administration can determine whether marijuana has an accepted medical use, according to the DEA, and so far, it hasn’t. Because marijuana is a Schedule I drug, doctors can only “recommend” it to patients, not write prescriptions for it that they can fill at a drugstore.
But Congress has the authority to reclassify controlled substances, and the president can ask his attorney general, who oversees the DEA, or his Health and Human Services secretary, who oversees the FDA, to initiate rulemaking to reclassify them, Brookings Institution senior fellow John Hudak told me.
Don’t expect Congress or the Donald Trump administration to take those steps, though.
The closest Congress has come recently were identical bills introduced in early 2015 in the House and the Senate, neither of which came up for a vote. The Compassionate Access, Research Expansion and Respect Status, or “CARERS,” Act, which had bipartisan support, would have reclassified marijuana from Schedule I to Schedule II, which includes drugs such as morphine and oxycodone that have a high potential for abuse but also have an accepted medical use. The CARERS Act also would have amended the Controlled Substances Act to say that its provisions related to marijuana did not apply to people complying with state medical marijuana laws.
And while Democratic presidential nominee Hillary Clinton said she would reclassify marijuana as a Schedule II drug, Trump was vaguer during the campaign. At a rally a year ago, he said only that “I think medical should happen” when asked about marijuana.
“This isn’t something that Trump really cares about,” Hudak said of the question of whether marijuana should be reclassified.
When Eric Holder was President Barack Obama’s attorney general, he “basically came out and instructed the state attorneys general not to make this an issue,” Scott Novak, a senior scientist at RTI International in Research Triangle Park, N.C., told me. With a new administration, though, “you could very well see an attorney general with the mandate and support of the White House say, ‘You know what, we are going to make this a federal issue,’” Novak said. “You never know what could happen.”
Trump is said to be considering N.J. Gov. Chris Christie for attorney general and retired Johns Hopkins neurosurgeon Dr. Ben Carson for HHS secretary, both former rivals for the Republican presidential nomination. At a campaign stop in February, Christie called himself an “anti-marijuana guy,” while Carson, at a 2015 campaign rally, said “I have no problem with medical marijuana” but added that he would never legalize it for recreational use.
“I think that a president’s or president-elect’s choice of an attorney general has to do with quite a bit more than marijuana scheduling,” said Hudak, who coauthored a blog post earlier this year about how marijuana could be reclassified. Maintaining marijuana’s status quo “will just be a policy consequence of that choice,” he said.
For now, state laws have no bearing on marijuana’s status under federal law. In August the DEA published its denial of two petitions–one submitted in 2011 by Democrats Lincoln D. Chafee, then governor of Rhode Island, and Christine O. Gregoire, then governor of Washington–to reschedule marijuana. The other petition had been submitted in 2009 by Bryan Krumm, a psychiatric nurse practitioner in Albuquerque, N.M. According to his website, Krumm, an Army veteran who helped draft New Mexico’s medical marijuana legislation, uses marijuana to treat post-traumatic stress disorder.
DEA said it denied the petitions because the Food and Drug Administration had not yet approved a medical use for marijuana. “DEA and FDA believe that the drug approval process is the most appropriate way to assess whether a product derived from marijuana or its constituents is safe and effective and has an accepted medical use,” according to a DEA press release issued when it announced that it had denied the petitions.
“The DEA cannot judge that a drug has some good effects,” Pius Farinu told me. “That has to come from the FDA.” Farinu is a postdoctoral research associate at the National Center for Natural Products Research at the University of Mississippi School of Pharmacy.
Back in 1988, though, the DEA Chief Administrative Law Judge Francis Young ruled that requiring FDA approval before reclassifying marijuana from Schedule I was an unnecessarily high bar for a plant that has been used for medicinal purposes for centuries.
“In this country today, ‘new drugs’ are developed by pharmaceutical companies possessing resources sufficient to bear the enormous expense of testing a new drug, obtaining FDA approval of its efficacy and safety, and marketing it successfully,” Young wrote. “No company undertakes the investment required unless it has a patent on the drug.”
Since marijuana was a plant, not a synthetic drug, Young said, it was “unreasonable” to hold it to FDA standards. His ruling came in response to a petition filed 16 years earlier by NORML–a nonprofit that advocates for legalization of marijuana–which had sought to reschedule marijuana. But Young’s ruling was rejected by John Lawn, the DEA administrator at the time.
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