1 Under the C.S.A., a
drug or substance may not be placed in Schedule II absent findings that:
(A) The drug or other substance has a high potential for abuse;
(B) The drug or other substance has a currently accepted medical use in treatment in the
United States or a currently accepted medical use with severe restrictions;
(C) Abuse of the drug or other substances may lead to severe psychological or physical
dependence. 21 U.S.C. 812(b)(2)(A)-(C).
2 Administrator applied
a five-part test for determining whether a substance had a currently accepted medical use:
(1) the drug's chemistry must be known and reproducible;
(2) there must be adequate safety studies;
(3) there must be adequate and well-controlled studies proving efficacy;
(4) the drug must be accepted by a respectable minority of qualified experts; and
(5) the scientific evidence must be widely available.
57 Fed. Reg. at 10,504-10,507 (1992). After reviewing the evidence in the record,
the Administrator found that marihuana could not satisfy a single one of these
criteria. Id. at 10,507.
3 See e.g.,
A.C.T. v. D.E.A., 15 F.3d 1131 (1994); A.C.T.et. al. v. D.E.A., 930 F.2d 936
(1991); NORML v. D.E.A., 559 F.2d 735 (1977); NORML v. Ingersoll, 497 F.2d
654 (1974). As the history of this controversy clearly demonstrates the D.E.A has
repeatedly made medical and scientific determinations without the advice of H.E.W. NORML,
559 F.2d at 741; NORML v. Ingersoll, 497 F.2d 654.
4 As one legislator
noted, This title vests the authority for control of the substances enumerated under
its provision with the Attorney General. There has been a point of controversy
evident among the professionals involved in drug control and drug research on whether or
not the Justice Department has the expertise to schedule or reschedule drugs since such
decisions require special medical knowledge and training. NORML, 559 F.2d at
746. The Senate report further noted that the provision which requires the D.E.A. to
follow H.E.W. advice during scheduling proceedings alleviates this difficulty.
S.Rep.No.91-613, H.R.Rep.No.91-1444, 91st Cong., 2d sess., pt. 1, at 5, U.S.Code Cong.
& Admin.News 1970, pp. 4566, 4569 (1970).
5 As the language of
the regulation reads, if accepted for filing a petition may be denied if the Administrator
finds the grounds upon which the petitioner relied are not sufficient to justify the
initiation of proceedings.
6 Despite this clearly
stated position, Administrator Green simply ignored the letter.(2-9a) Poignantly, no
mention of this letter is ever made in the respondents brief to the Appeals
Court. Id.
7 Despite this
contention, D.E.A. Deputy Administrator Green proceeded to deny Mr. Olsens petition
by analyzing the scientific and medical issues Mr. Olsen had noted in his petition.
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