Today the U.S. Court of Appeals for the D.C.
Circuit heard
oral arguments in a case challenging the Drug Enforcement
Administration’s
refusal to reclassify marijuana so it can be legally used as a
medicine. Since 1970, when Congress passed the Controlled
Substances Act, marijuana has remained on Schedule I, a category
supposedly reserved for drugs with a high abuse potential and no
accepted medical value that cannot be used safely even under a
doctor’s supervision. The National Organization for the Reform of
Marijuana Laws (NORML) first challenged marijuana’s legal status in
1972, eventually winning the support of an administrative law
judge, Francis Young, who in 1991 declared it
"abundantly clear" that the drug has "a currently accepted
medical use." Young, who called marijuana "one of the safest
therapeutically active substances known to man," was overruled by
DEA Administrator John Lawn. In 1995 former NORML Executive
Director Jon Gettman filed a second rescheduling petition, focusing
on marijuana’s abuse potential, which the DEA rejected in 2001. The
latest petition,
filed a year later by a coalition of activists, cited state laws
allowing patients to use marijuana as well as recent research
confirming its therapeutic value. As usual, the DEA dragged its
feet, finally rejecting the petition last year. Now Americans for
Safe Access is appealing
that decision.

This is the first time in nearly two decades that a federal
appeals court has heard arguments about marijuana’s Schedule I
status, which a group of researchers at the University of
California Center for Medicinal Cannabis Research politely
called "untenable" in a recent review of the literature.
Perhaps more than any other policy, the Obama administration’s
continued defense of this classification, which puts marijuana in a
more restrictive category than cocaine, morphine, or
methamphetamine, belies the president’s
avowed commitment to sound, unpoliticized science. California
NORML coordinator Dale Gieringer notes that the DEA "summarily
discounted substantial scientific evidence showing that cannabis
has medical efficacy." He says the agency insists that "only
expensive, ‘Phase 3’ FDA efficacy studies are acceptable, while at
the same making such studies impossible by blocking approval of the
necessary research facilities." Although other Schedule I drugs are
produced by private, DEA-licensed labs, when it comes to marijuana
the agency has refused
to allow competition with the National Institute on Drug Abuse,
researchers’ only legal source of the drug. That policy is also the
target of federal
litigation.

A medical marijuana
advocate urged a federal appeals court to require the U.S. government
to relax, or at least rethink, a more-than-40-year-old rule that treats
marijuana as a highly dangerous drug with no medical value.

Federal
drug regulators "have failed to weigh the evidence" from a growing
number of medical studies showing that marijuana is effective for
relieving pain and nausea, said Joe Elford, counsel for Americans for
Safe Access.

In his legal brief, he said the Drug Enforcement
Administration displayed a "bias" against marijuana by ignoring its
medical benefits and exaggerating its danger. That is the only way to
explain how the "federal government could conclude that marijuana is as
harmful as heroin and PCP and even more harmful than methamphetamine, cocaine and opium," he told the court.

Elford was challenging the
DEA’s insistence that marijuana is properly classified as a Schedule I
drug, meaning it has no accepted medical benefits and has a high
potential for abuse. This classification means, for example, that
doctors at the Veterans Administration may not give marijuana to a
disabled veteran to treat his chronic pain, he said, citing the plight
of one of the plaintiffs in the case. If marijuana were reclassified,
Elford said, it would help doctors and patients by permitting its use
under medical supervision.

Marijuana’s classification as a
Schedule I drug dates to 1970, when Congress passed the Controlled
Substances Act. On two occasions since then, marijuana advocates have
petitioned the DEA to reconsider the classification, citing the medical
benefits of cannabis. They also noted that 16 states and the District of
Columbia have opted to allow medical use of marijuana in some
instances.

But the DEA turned down the most recent petition last
year and made no change in the classification schedule. By way of
explanation, the agency said there was not a scientific consensus on the
medical benefits of marijuana. It also said marijuana has many
"chemical components" that are not well understood.

During Tuesday’s argument, a Justice Department
lawyer said the government remained convinced of the danger of
marijuana. "It’s the most widely abused drug in the United States," said
Lena Watkins, the government lawyer.

The case was heard by a
veteran panel of three judges who questioned whether they were in a
position to reject the DEA’s determination.

"Don’t we have to
defer to their judgment" on what the medical studies show? asked Judge
Merrick Garland. "We’re not scientists. They are."

"The real
question is to what extent we have to defer to the agency," added Judge
Harry Edwards. The two judges said they could not overturn the DEA’s
decision unless they found it to be "arbitrary and capricious."

Elford
responded that the judges should send the case back to the DEA to
require the agency to hold a hearing to consider research over the last
decade on the benefits of marijuana.

Judge Karen Henderson, the
third member of the panel, noted that changing the classification of
marijuana would not decriminalize it. "It would still be illegal," she
said.

For the first time in nearly 20 years, the issue
of medical marijuana goes before a federal court today. Right now,
federal law list marijuana as a Schedule I drug, along with most
dangerous drugs such as heroine and LSD, as having a potential for
abuse.

Today, medical marijuana advocates will try to change that and
reclassify pot so it can be used for treating diseases. The group argues
it should be on schedule III drugs, with other more common medications
like Vicodin and Tylenol with codeine. Similar attempts have failed in
the past. But this time, the advocacy group Americans for Safe Access
feels they have a shot.

This morning on "Early Start," Americans for Safe Access’s executive
director Steph Sherer explains why medical marijuana should be
reclassified.

Supporters of marijuana rights asked a federal appeals court on Tuesday
to do what Congress and U.S. presidents have resisted for decades and
help ease the level of regulation surrounding the popular recreational
drug.

Oakland, Calif.-based Americans for Safe
Access said there was no reason for the U.S. Drug Enforcement
Administration (DEA) to control marijuana as tightly as it does heroin.

The argument is a new tack for
marijuana supporters who have already won local approval for medical use
in 16 states and Washington, D.C.

Americans for
Safe Access lawyer Joseph Elford said the DEA ignored recent evidence of
marijuana’s medical benefits when, in 2011, the agency declined to ease
regulation. Federal law required the DEA to take that evidence into
account, he said.

"This game of ‘gotcha’ will
continue indefinitely unless this court intervenes," Elford told a
three-judge panel of the appeals court in Washington, D.C.

The federal government divides drugs into five categories, or
schedules. Schedule I requires the strictest control and covers drugs
such as marijuana and heroin.

Cocaine is a Schedule
II drug, and prescription medications rank further down in the system.
The drugs are ranked by potential for abuse, medical value and risk of
dependence.

Elford’s group wants the appeals court
to force the DEA to hold a hearing on marijuana’s classification, which
the group believes should be Schedule III or lower.

Forty-two percent of Americans age 12 or older have used marijuana at
some point, according to a 2011 survey by the U.S. Substance Abuse and
Mental Health Services Administration.

DEA NOT PERSUADED

The DEA, the primary enforcer of U.S. drug laws, argued it
already has considered all the evidence and was not persuaded.

"They don’t have the type of study that would allow them or
any other expert to reach a conclusion about the medical utility of
marijuana," government lawyer Lena Watkins told the court.

Most recent scientific studies, she said, either did not involve humans or were too preliminary.

Watkins described marijuana as dangerous, saying it had
"adverse physical and psychological consequences" and had been
"implicated in hundreds of thousands of hospital visits."

This is the first time the appeals court has considered
marijuana’s classification since 2002. The court did not reach the heart
of the issue at that time, deciding instead that the man who brought
the case did not have real damages over which to sue.

The judges suggested the same obstacle might block the present case,
but marijuana supporters are relying in part on a disabled military
veteran who depends on the government for his healthcare and is barred
from even asking his doctor about marijuana treatment for pain and
trauma.

"That seems pretty straightforward," Judge Harry Edwards told the government’s Watkins.

Watkins said the prospects still seemed tenuous that the
veteran, Michael Krawitz, would legally obtain marijuana because his
state, Virginia, has not approved the drug for medical use.

Another judge expressed wariness at delving too deeply into the science of marijuana.

"Don’t we have to defer to the agency?" asked Judge Merrick Garland. "We’re not scientists. They are."

The case is Americans for Safe Access, et al, v. Drug
Enforcement Administration, U.S. Court of Appeals for the District of
Columbia Circuit, No. 11-1265.

The Drug Enforcement Administration "acted arbitrarily and
capriciously" in denying a petition to reclassify cannabis as a less
harmful substance, a lawyer for medical marijuana advocates told a
federal appeals court on Tuesday.

Arguing on behalf of Americans for Safe Access, Joseph Elford called
on the court to force the DEA to reconsider its classification of
cannabis as a dangerous drug without therapeutic benefits, saying the
agency ignored 200 well-controlled studies showing cannabis has
legitimate medical uses.

At issue is a petition filed by public interest organizations back in
2002 that requested that cannabis — currently defined as a Schedule I
drug with "a high potential for abuse" and "no currently accepted
medical use in treatment" — be reclassified. For context, heroine and
LSD are classified alongside marijuana as Schedule I, while cocaine,
opium and methamphetamine are classified as Schedule II, meaning they
have "some accepted medical use."

Justice Department lawyer Lena Watkins said a DEA review found "no
substantial evidence" of acceptable medical use, adding that the agency
rejected the studies cited by Elford because they did not meet the
standard of double-blind FDA approval trials. Watkins said that the
results are still pending from 15 government-approved studies.

That, Elford countered, is because the agency is deliberately
"stymying" research. "DEA’s played a game of ‘gotcha,’" he told the
judges. "They won’t allow additional research to be conducted."

The case, Americans for Safe Access v. Drug Enforcement
Administration, was heard by a three-judge panel for the U.S. Court of
Appeals for the D.C. Circuit.

A federal appeals court in Washington is considering whether
marijuana should be reclassified from its current status as a dangerous
drug with no accepted medical use.

Last year, the Drug Enforcement Administration rejected a
petition by medical marijuana advocates to change the classification,
which kept marijuana in the same category as drugs such as heroin. The
DEA concluded that there wasn’t a consensus opinion among experts on
using marijuana for medical purposes. The petition had been filed in
2002.

A medical marijuana group, Americans for Safe Access,
want the U.S. Court of Appeals for the District of Columbia Circuit to
force the agency to hold a hearing and conduct findings based on the
scientific record.

The group’s lawyer, Joe Elford, said that the DEA had
misapplied the law. He added there are numerous studies that show
marijuana is effective as a medical treatment. The group’s legal brief
said marijuana could help people with chronic pain and the negative side
effects of chemotherapy, among other things.

Marijuana is classified under "Schedule I" of controlled
substances, meaning it has a high potential for abuse and no currently
accepted medical use. It’s lumped in with drugs like heroin, LSD and
ecstasy. Americans for Safe Access want to see it reclassified to a less
restrictive schedule.

Justice Department lawyer Lena Watkins said that marijuana is properly classified.

"It’s the most widely abused drug in the United States," she said.

Tuesday’s hearing was packed to capacity with many medical marijuana supporters in the audience.

The judges who will decide the case are Karen LeCraft
Henderson, a Republican appointee, and Harry T. Edwards and Merrick B.
Garland, both Democratic appointees.

Tomorrow, for the first time in more than 20 years, a court
will consider whether the federal government has improperly ignored
evidence of marijuana’s medical value in continuing to classify it as a
Schedule 1 narcotic, the category of dangerous drugs with no medicinal
value.

It started with a coalition of disgruntled Americans, then a handful of governors took up the cause last year, and
now — for the first time in nearly 20 years — a federal court will
hear oral arguments in a lawsuit challenging the classification of
cannabis as a dangerous drug without medical benefits.

In the case, Americans for Safe Access v. Drug Enforcement Administration,
the court will be presented with scientific evidence regarding the
medicinal effects of marijuana, and is expected to rule on whether or
not the Drug Enforcement Administration acted appropriately in denying a
petition to reclassify cannabis, filed by a collection of public
interest organizations back in 2002.

"Medical marijuana patients are finally getting their day in court," Joe Elford, chief counsel with ASA, said in a recent statement.
"This is a rare opportunity for patients to confront politically
motivated decision-making with scientific evidence of marijuana’s
medical efficacy."

Under federal law, a schedule I prohibited substance is defined as
having

Medical marijuana has been legal in California since 1996. But today in
San Diego County, many patients are having trouble getting their hands
on the drug.

That’s because all of the openly operating storefronts that sell
marijuana have been shut down. In response, activists in four local
cities have placed measures to authorize medical marijuana dispensaries
on the November ballot.

But even if the measures win, patients might ultimately lose.

Vey Linville has severe emphysema. He needs bottled oxygen to survive.
When Linville was first diagnosed, doctors told him without a double
lung transplant, he’d soon be dead. Linville got his affairs in order.

Then one day when he was searching on the Internet, he discovered a
treatment for breathing problems that used to be widely prescribed in
the 1800s, Tincture of cannabis. Linville found a recipe for it, and
decided to make it himself.

"And I went out and joined one of the clubs, one of the dispensaries,
and was able to buy approximately a quarter pound of concentrates, that I
put in a small amount of alcohol, and consumed over about 10 weeks,"
Linville recalled. "And instead of dying as expected, here I am, six
years later, doing better and better."

These days, Linville uses just a few drops of the tincture in his tea.
But getting any amount of marijuana is difficult, because nearly all
dispensaries in San Diego County have been closed.

Linville said that puts him in a tough spot.

"It’s immoral to make me choose between suffocating and doing business with a drug dealer," Linville argued.

 Linville is with the group Americans for Safe Access. With the help of
some local activists, they’ve placed a measure on the November ballot
in Imperial Beach. It’s a town of 26,000 people that’s the most southern
beach city in California.  

Prop. S would repeal Imperial Beach’s ban on medical marijuana
dispensaries. It would allow dispensaries to open for business under
specific zoning and operational requirements.

Imperial Beach business owner Marcus Boyd is one of the driving forces behind Prop. S.

Boyd became an advocate back in 2008, when his sister was dying in a
local convalescent home. Boyd says marijuana helped relieve her pain.

One night she asked staff for a joint. She wanted them to call Boyd to get one for her.

"They laughed, and a couple of hours later, she passed away," Boyd
remembered. "When I found that out the next morning by going there, I
made a commitment to myself and to her that I would make sure that
people in need are able to find medicine when they need it."

Boyd says Prop. S limits dispensary operating hours and has more than a
dozen other restrictions to protect patients and the community.

Nonetheless, Imperial Beach Mayor Jim Janney and the majority of the City Council are against it.

Janney’s not opposed to medical marijuana per se. He thinks patients
should be able to get it. But Janney said the authors of Prop. S went
overboard.

"If it was as simple as saying I want to allow for three storefronts in
Imperial Beach, they would have said that. But they didn’t do that,"
Janney pointed out. "We could have up to 19 or 20 of them, or more,
depending on how you locate them. I think that’s way too far. I don’t
think that that was good law. I don’t think that’s really the way it
should work."

Imperial Beach voters won’t be the only ones in November to decide whether to allow dispensaries in their town.

Voters in the San Diego County communities of Solana Beach, Del Mar and Lemon Grove will also weigh in.

But even if these measures pass, there are no guarantees that any medical marijuana dispensaries will be allowed to operate.

That’s because the U.S. attorneys throughout the state have been
aggressive in enforcing the federal ban on marijuana. Over the past
year, they’ve shut down dispensaries in a number of cities, including
Oakland, Los Angeles and San Diego.

In July, U.S. Attorney Laura Duffy sent a letter to the city attorney
in Del Mar. The letter said city employees who conducted activities
mandated by their dispensary ordinance would not be immune from federal
prosecution.

Duffy wouldn’t agree to be interviewed for this story.

Despite the fed’s position, Vey Linville said there are tens of
thousands of sick people in San Diego County who could benefit from
medical marijuana.

"People with AIDS, people with cancer, that really are entitled to safe
access to this medicine, as they would be to any other," Linville said.

After pressure from activists, the Los Angeles City Council has decided
to overturn a ban on medical marijuana dispensaries it had approved
just months ago.

That means an estimated 1,000 storefronts in the city are operating totally unregulated.

Medical marijuana users will get a long-awaited day in the nation’s second-highest federal court next week, when California-based activists argue for looser regulations.

While voters in Washington and two other Western states are preparing to vote on legalizing recreational pot use, the California activists hope to redefine how the federal government classifies the drug. The case, years in the making, could turn federal law enforcement on its head.

"It’s symbolic, and it’s extremely important," Kris Hermes, spokesman for Americans for Safe Access, said in a telephone interview Friday, "and it will force the federal government to rethink how it addresses this issue."

The drug regulation dispute will be taken up Tuesday by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, which is influential because it oversees many federal agency decisions. The half-hour oral argument, pitting Americans for Safe Access against the Obama administration’s Justice Department, is the latest step in a drug regulation case begun a decade ago.

Based in Oakland, Calif., home base for the nation’s medical marijuana movement, Americans for Safe Access is challenging the Drug Enforcement Administration’s continued classification of marijuana as a Schedule I drug. Schedule I drugs, which also include the likes of heroin, are officially deemed to have a high potential for abuse and no currently accepted medical use.

The DEA last year upheld the agency’s strict marijuana classification following extended review, and the Justice Department argues the appellate court need not second-guess this decision.

"There was no available evidence of adequate, well-controlled studies demonstrating marijuana’s safety and effectiveness as a medicine and no consensus among experts as to these issues," Justice Department attorneys Lena Watkins and Anita J. Gay advised the appellate court in a legal brief. "The enactment of state laws allowing the use of marijuana for medical purposes did not constitute the required science-based evidence."

Watkins and Gay further cited the "extensive illicit domestic and international trafficking of marijuana as evidence of the widespread use and abuse" of the drug.

An estimated 16.7 million U.S. residents currently use marijuana, according to the most recent federal surveys. Among 12th-graders, an estimated one in five had used pot within the past month, according to a 2010 survey.

One user has been Parrish, Fla., resident Cathy Jordan, who says marijuana relieves the debilitating symptoms of amyotrophic lateral sclerosis, also known as Lou Gehrig’s Disease. Another user has been Air Force veteran Michael Krawitz, a Virginia resident in chronic pain from a car accident. A third has been Rick Steeb, a San Jose, Calif., resident in his early 60s who says marijuana has eased the pain of glaucoma.

"I am afraid to cultivate sufficient amounts of marijuana for this purpose because I fear a federal criminal prosecution for doing so," Steeb said in a legal declaration. "If marijuana were rescheduled, I believe I would be afforded a medical necessity defense."

Jordan, Steeb and Krawitz are the human faces put forth on the medical marijuana petition, but their personal stories will likely remain in the background during the Tuesday morning court hearing.

Instead, the three judges – two appointed by Democratic presidents, one appointed by a Republican – will zero in on several key legal disputes.

The first crucial test is whether the medical marijuana advocates have the standing, or legal right, to file the lawsuit in the first place. The Justice Department argues the advocates can’t show they suffered the kind of harm needed to bring a case.

If the judges agree, they can dismiss the challenge and avoid the trickier question of whether the DEA acted "arbitrarily and capriciously" in rejecting the original 2002 petition seeking reclassification of marijuana. It took five years for the Department of Health and Human Services to complete its evaluation and recommendations, and another four years for the DEA to issue its decision.

Advocates say regulators ignored several hundred peer-reviewed studies on the efficacy of medical marijuana, as well as the medical marijuana laws passed by Alaska, California, Washington and 13 other states.

"They just blew it on the science," Americans for Safe Access attorney Joseph D. Elford said in an interview Friday.

The appellate court will probably not rule on removing marijuana from the restrictive Schedule I status. It could, however, order the DEA to take a more in-depth look at the available evidence. If this happens, advocates maintain marijuana could be classified as a potentially useful drug that can be safely used under medical supervision.