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the CSA.  It is dronabinol which is in Schedule II, not just the

FDA approved product Marinol®.

     In 1986, when marijuana became the source of an accepted and

useful medication, dronabinol, it should have been transferred

into the same schedule of the CSA, Schedule II, as the other

plants, coca and opium, which are the sources of the accepted and

useful Schedule II medications cocaine and morphine.  It would be

illogical for the DEA to place a plant in a higher schedule than

the drug which caused it to be scheduled in the first place,

especially when there is no difference between Schedule I and

Schedule II with regard to enforcement of the drug laws (the

DEA's only valid concern).



     The Administrator's decision that synthetic dronabinol in

sesame oil and encapsulated in soft gelatin capsules, but not

dronabinol itself, has been rescheduled, and that dronabinol is

not obtained from marijuana, is beyond the scope of the DEA's

authority.  This distinction is strictly a function of the Food

and Drug Administration, and only with regard to the marketing of

a drug, not its scheduling.

     In enacting the CSA, "Members of the House repeatedly stated

that the Department of Justice should make judgments based on law

enforcement considerations, while HEW should have the final say

with respect to medical and scientific determinations."  NORML v.

DEA, 559 F.2d at 746.  The Department of Justice "may not

                             - 11 -

schedule a substance under the CSA without first obtaining the

recommendation of the FDA, through its parent agency, HHS, 21

U.S.C. § 811(b), and providing an 'opportunity for a hearing

pursuant to rulemaking procedures prescribed by [the

Administrative Procedures Act].' 21 U.S.C. § 811(a)."  Grinspoon

v. DEA, 828 F.2d 881, 890 (1st Cir. 1987).  "This request is

filed with the Commissioner of FDA, who has the responsibility

for coordination of activities within [HHS]."  NORML v. DEA, 559

F.2d at 749 n.59.

     As this Court stated in 1977:

          Our interpretation of Section 201(d) ensures proper
     allocation of decisionmaking responsibility between the
     Attorney General and the Secretary of HEW, in accordance
     with their respective spheres of expertise.  Section 201(d)
     directs the Attorney General, as an initial matter, to make
     a legal judgment as to controls necessitated by
     international commitments.  He then establishes a minimum
     schedule or level of control below which placement of the
     substance may not fall.  Determination of a minimum schedule
     ensures that the Secretary's recommendation, which
     ordinarily would be binding as to medical and scientific
     findings, does not cause a substance to be scheduled in
     violation of treaty obligations.  However, once that minimum
     schedule is established by the Attorney General, the
     decision whether to impose controls more restrictive than
     required by treaty implicates the same medical and
     scientific considerations as do scheduling decisions
     regarding those few substances not controlled by treaty.
     The Secretary of HEW is manifestly more competent to make
     these nonlegal evaluations and recommendations.

NORML v. DEA, 559 F.2d at 747.

     Although the FDA has approved a New Drug Application (NDA)

for Marinol® (synthetic dronabinol in sesame oil and

encapsulated in soft gelatin capsules), this does not qualify as

a recommendation, pursuant to 21 U.S.C. § 811(b), to keep the

                             - 12 -

dronabinol found in the marijuana plant in Schedule I.  FDA did

not recommended that the dronabinol found in marijuana remain in

Schedule I when Marinol® was placed in Schedule II, nor did it

say that synthetic dronabinol was superior to the dronabinol

found in marijuana.  [App., p. 15]

     This is not the first time the DEA has tried to follow

verbatim text of FDA marketing approval for a New Drug

Application (NDA) in making a scheduling determination.  As this

Court stated in 1991:

     The First Circuit in Grinspoon v. Drug Enforcement
     Administration, 828 F.2d 881, 891-92 (1st Cir. 1987), upon
     which petitioners rely, had held that earlier criteria the
     Administrator had employed to define "currently accepted
     medical use" were contrary to the statute because they were
     a carbon copy of those used by the FDA in licensing new
     drugs.  The present criteria, it is argued, duplicate a
     number of those original criteria.  But the criteria
     challenged in Grinspoon included several elements, such as
     the availability of patent information or FDA-required
     labeling, which were necessary only to market the drug in
     interstate commerce.  These criteria are clearly relevant to
     the FDA's mission, but not the DEA's, see Grinspoon, 828
     F.2d at 887.  The First Circuit never suggested the DEA
     Administrator was foreclosed from incorporating and relying
     on those standards employed by the FDA that are relevant to
     the pharmaceutical qualities of the drug.  The court merely
     held that while FDA approval is sufficient to establish the
     existence of an accepted medical use, the converse is not
     true -- that absent FDA approval, commonly accepted medical
     use cannot be proven.  Id. at 890.  Nor can we conceive of a
     reason the Administrator should be barred from employing
     notions developed by a sister agency insofar as those
     notions serve the missions of both agencies.

ACT v. DEA, 930 F.2d at 939-40.

     In 1987, the First Circuit said,

     [W]e find no necessary linkage between failure to obtain FDA
     interstate marketing approval and a determination that the
     substance in question is unsafe and has no medical use.
     Indeed, the FDCA does not even mention the term 'medical

                             - 13 -

use.'  In short, it is plainly possible that a substance may
     fail to obtain interstate marketing approval even if it has
     an accepted medical use.

Grinspoon, 828 F.2d at  887.  "Thus, it is possible that a

substance may have both an accepted medical use and safety for

use under medical supervision, even though no one has deemed it

necessary to seek approval for interstate marketing."  Id.

     By definition, a synthetic drug is the same as its naturally

occurring twin.  Under this Court's order of June 4, 1982, in

NORML v. DEA, No. 79-1660, the Department of Health and Human

Services (DHHS) was required to submit reports on the status of

its recommendations for the scheduling of THC and marijuana

plants.  In reference to the DEA's rescheduling order of May 13,

1986 (51 Fed. Reg. 17,476) the DHHS stated that, "Dronabinol is

structurally the same as THC."  [App., p. 8]

     In his final order on NORML's petition, the Administrator

adopted in their entirety the findings of the former

Administrator.  57 Fed. Reg. at 10,507.  The former

Administrator, in his final order on NORML's petition,  stated,

"There is no difference in the pharmacological effect between the

THC isolated from cannabis and the synthetically produced THC

which is now marketed in the United States."  54 Fed. Reg. at

53,774.  As this Court noted in 1991, "The First Circuit never

suggested the DEA Administrator was foreclosed from incorporating

and relying on those standards employed by the FDA that are

relevant to the pharmaceutical qualities of the drug."  ACT v.

DEA, 930 F.2d at 939.  The former Administrator, in agreement

with HHS, recognized that the pharmaceutical qualities of

                             - 14 -

synthetic dronabinol are the same as those of the dronabinol

found in marijuana.

     In his final order of March 26, 1992, the Administrator

stated, "There are scientific studies showing pure THC (Delta-9-

Tetrahydrocannabinol), one of the many chemicals found in

marijuana, has some effect in controlling nausea and vomiting.

Pure THC is pharmaceutically made in clean capsule form, called

Marinol, and is available for use by the medical community.  More

information on Marinol can be found in the 'Physicians' Desk

Reference,' available in most libraries."  57 Fed. Reg. at

10,500.  The 1993 Physician's Desk Reference describes Marinol as

follows: "Dronabinol, commonly known as delta-9-THC, is one of

the major active substances in marijuana."  Id. at p. 2076.  The

Physician's Desk Reference makes no distinction between synthetic

dronabinol and the dronabinol found in marijuana.

     In a letter dated July 13, 1993, the FDA states that, "A

synthetic drug ... is identical in all respects to the product

isolated from a plant source.  Such a product can be marketed

under the same name....  A synthetic drug would be in the same

schedule as its naturally occurring twin."  Letter from the FDA,

July 13, 1993 [App., p. 16].

     Clearly, the dronabinol found in marijuana was approved for

medical use by the FDA when it approved Marinol®.  "[T]he [DEA]

does not have the authority to impose Schedule I controls on a

drug which has been approved by the [FDA] for medical use."

Grinspoon, 828 F.2d at 890 (citing, 1984 U.S. Code Cong. & Admin.

News 540, 543).

                             - 15 -

When the Economic and Social Council of the United Nations

moved delta-9-THC from Schedule I to Schedule II of the

Convention on Psychotropic Substances, it made no distinction

between synthetic delta-9-THC and delta-9-THC found in marijuana.

     In 1986, then Administrator John C. Lawn improperly took

upon himself the authority to define synthetic dronabinol and

dronabinol found in marijuana as two separate and distinct

substances under the CSA.  51 Fed Reg. 17476 (1986).

     In the course of rescheduling synthetic dronabinol to

Schedule II of the CSA, the original proposal submitted by the

DEA defined it as "the principle psychoactive substance in

Cannabis sativa L., marijuana," 50 Fed. Reg. 42,185 (October 18,

1985) (proposed rule), but this definition was changed to "the

synthetic equivalent of the isomer of delta-9-

tetrahydrocannabinol (THC) which is the principle psychoactive

substance in Cannabis sativa L., marijuana" in the final rule, 51

Fed. Reg. 17,476 (May 13, 1986) (final rule).  Whether this

change was accidental or intentional is hard to discern, but it

clearly exceeded the Administrator's authority.

     Although it is true that "[a]ppellate courts have neither

the expertise nor the resources to evaluate complex scientific

claims," this is not a complex scientific claim.  Grinspoon, 828

F.2d at 896 (citing, Thompson Medical Co. v. FTC, 791 F.2d 189,

196 (D.C. Cir. 1986)).  A synthetic drug must first be the same

as its naturally occurring twin before it can receive FDA

marketing approval for distribution in interstate commerce.  As a

matter of law, the dronabinol found in marijuana was rescheduled

                             - 16 -

to Schedule II of the CSA at the same time as synthetic



     As this Court noted in 1991, "As is apparent, one salient

concept distinguishing the two schedules is whether a drug has

'no currently accepted medical use in treatment in the United

States.'"  ACT v. DEA, 930 F.2d at 938.  It is important to note

that medical use is not the only salient concept.  As this Court

noted in 1977, "However, placement in Schedule I does not appear

to flow inevitably from lack of currently accepted medical use."

NORML v. DEA, 559 F.2d at 748.  "The legislative history of the

CSA indicates that medical use is but one factor to be

considered, and by no means the most important one."  Id.

          Moreover, DEA's own scheduling practices support the
     conclusion that substances lacking medical usefulness need
     not always be placed in Schedule I.  At the hearing before
     ALJ Parker DEA's Chief Counsel, Donald Miller, testified
     that several substances listed in CSA Schedule II, including
     poppy straw, have no currently accepted medical use.  Tr. at
     473-474, 488.  He further acknowledged that marihuana could
     be rescheduled to Schedule II without a currently accepted
     medical use.  Tr. at 487-488.  Neither party offered any
     contrary evidence.


     This Court must review the DEA's final order not to transfer

marijuana to Schedule II in light of the guidelines set forth by

the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d

694 (1984).  In Chevron, the Court explained that a reviewing

                             - 17 -

court must employ a two-step analysis that focuses initially on

the intentions of Congress:

     First, always, is the question whether Congress had directly
     spoken to the precise question at issue.  If the intent of
     Congress is clear, that is the end of the matter; for the
     court, as well as the agency, must give effect to the
     unambiguously expressed intent of Congress.

Id. at 842-43, 104 S.Ct. at 2781 (emphasis supplied).  In the

absence of congressional intent, however, the court must proceed

to a second inquiry:

     If ... the court determines Congress has not directly
     addressed the precise question at issue, the court does not
     simply impose its own construction on the statute, as would
     be necessary in the absence of an administrative
     interpretation.  Rather, if the statute is silent or
     ambiguous with respect to the specific issue, the question
     for the court is whether the agency's answer is based on a
     permissible construction of the statute.

Id. at 843, 104 S.Ct. at 2781-82 (footnote omitted; emphasis


     In this matter, the agency has interpreted the construction

of the statute at issue.  The explanation given by the

Administrator for the placement of coca and opium poppy plants in

Schedule II is that Congress recognized coca and opium poppy

plants "as the source for a variety of accepted and useful

medications."  [App., p. 5].  According to this explanation,

marijuana should have been transferred to Schedule II when it

became the source of an accepted and useful medication.  The U.S.

Congress provided a mechanism for transferring marijuana to

Schedule II (or lower), after its initial placement of marijuana

in Schedule I of the CSA in 1970, and the DEA's interpretation of

the statute is reasonable.

                             - 18 -

It is apparent from reading the CSA that Congress intended

to include coca and opium poppy plants in Schedule II because

useful medications were being derived from these plant sources

when the CSA was created in 1970.  The apparent distinction that

Congress made between marijuana and coca and opium poppy plants,

when the schedules were created in 1970, was that coca and opium

poppy plants were the sources of useful and accepted medications,

while marijuana was not.  The Administrator has provided his

interpretation of the statute by stating "Congress was very much

aware that these plant materials [coca and opium poppy] have

historically been recognized as the source for a variety of

accepted and useful medications."  [App., p. 5].

     The Administrator's interpretation reinforces what is

apparent from the face of the statute, that plants which are the

source of accepted and useful medications are placed in the same

schedule as the drugs themselves.  For example, peyote, a plant

which contains the Schedule I drug mescaline, is also in Schedule

I, while opium poppy, a plant which contains the Schedule II drug

morphine, is in Schedule II.

     Since control for enforcement purposes is exactly the same

under either Schedule I or Schedule II, there is no reason for

the DEA not to move marijuana into Schedule II, since DEA's only

legitimate concern under the CSA is drug diversion.  "Congress

was particularly concerned with the diversion of drugs from

legitimate channels to illegitimate channels."  United States v.

Moore, 423 U.S. 122, 135 (1972).

                             - 19 -

In his final ruling of May 16, 1994, the DEA Deputy

Administrator said, "Whether or not marijuana is a source of

delta-9-THC is irrelevant to the status of marijuana under the

CSA."  Final Order, p. 4 [App., p. 20].  In 1975, the United

States Court of Appeals for the District of Columbia Circuit gave

detailed consideration to this question in the case of United

States v. Walton, 514 F.2d 201 (D.C. Cir. 1975).  The court said,

"Looking at the history of this latter law [the Marijuana Tax Act

of 1937], we find that the definition of marijuana was intended

to include those parts of marijuana which contain THC and to

exclude those parts which do not."  Id. 514 F.2d at 203.  "The

legislative history is absolutely clear that Congress meant to

outlaw all plants popularly known as marijuana to the extent

those plants possessed THC."  Id. 514 F.2d at 203-204.  Although

the Deputy Administrator said, "The classification of delta-9-THC

has no bearing on the classification of marijuana," [Final Order

of May 16, 1994, p. 8; App., p. 24], this Court has already ruled



       Based on the foregoing, I respectfully request this Court to

rule that: (1) as a matter of law, the dronabinol found in

marijuana is in Schedule II of the CSA; (2) as a matter of law,

marijuana is in Schedule II of the CSA; and (3) such other or

further relief be granted as this Court may deem necessary under

the circumstances.

                              - 20 -

Respectfully submitted,


                              Carl Eric Olsen, pro se
                              Post Office Box 4091
                              Des Moines, Iowa 50333
                              (515) 288-5798

                     CERTIFICATE OF SERVICE

     I hereby certify that two copies of the foregoing
Petitioner's Brief were mailed to Harry J. Matz, Narcotic and
Dangerous Drug Section, Criminal Division, P.O. Box 27312,
Central Station, Washington, D.C. 20530, on this 18th day of
September, 1995.

                             - 21 -
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