The U.S. Drug Enforcement Agency recently announced plans to expand cannabis research in the U.S. In late August, after a years-long hiatus in communications between the agency and potential growers, federal officials said they would soon resume contact with groups that have applied to register to manufacture cannabis for researchers.
The DEA said it hopes the addition of qualified applicants will increase the variety of researchable marijuana. Since 1968, due to antiquated federal regulations and a contract with the National Institute on Drug Abuse, only the University of Mississippi has been allowed to cultivate and provide cannabis to medical researchers across the country. As an added complication, the federal government still classifies cannabis as a Schedule I controlled substance, the same classification as LSD, heroin, and methamphetamine.
However, marijuana advocates say the agency’s announcement last month is its latest in a series of stall tactics. It’s the second time in more than three years that the agency has attempted a similar bluff, advocates say — and the third time in more than a decade. In that time researchers have been provided material that looks more like “lawnmower clippings” than quality cannabis, says researcher Sue Sisley, who leads the Scottsdale Research Institute in Arizona. That’s why their group filed a lawsuit in the D.C. Circuit of Appeals in June seeking to speed up the agency’s process of reviewing and issuing licenses. The DEA had until August 28th to respond. They made the cut by three days.
The agency’s hand, it seems, was forced.
Despite that, a press release on the announcement included ample self-congratulations from federal officials: U.S. Attorney General William Barr said he was “pleased” to see the DEA move forward with “its review of applications for those who seek to grow marijuana legally to support research.” DEA Acting Administrator Uttam Dhillon claimed the agency “is making progress to register additional marijuana growers for federally authorized research.” Since the announcement, predictably, knee-jerk media reports echoing similar sentiment — how researching marijuana in the U.S. may soon be easier — have come en masse.
But some experts disagree. Putting so-called progress and back-patting aside, the facts pertaining to what’s expected next from the federal government as a result of the announcement are lacking, they say. For example, the DEA didn’t provide a deadline on when the 33 current applications will be sorted through — much less a timeline for implementation. Neither was there an indication of what the DEA’s proposed regulations might be. Asked for clarification just days after the announcement, a DEA spokesperson told Rolling Stone the agency “intends to publish the proposed regulations in the near future, which will include a notice and comment process.” The spokesperson also noted how “all applications remain under review.”
Weeks later, no applicants had been approved. “Nothing new to announce yet,” according to the DEA spokesperson.
The hurry-up-and-wait routine has proven predictable for some advocates. As Paul Armentano, deputy director of NORML, tells Rolling Stone, DEA Administrative Judge Mary Ellen Bittner ruled more than a decade ago that it would be in the public interest for the DEA to accept more applicants.
Bittner’s ruling dated back to 2004, when the DEA rejected an application to cultivate marijuana from the University of Massachusetts at Amherst. A lawsuit was then filed on behalf of Lyle Craker, a professor at the university who had agreed to grow the marijuana, claiming that the monopolized system of one federally licensed cultivator was unconstitutional. Bittner, whose judgeship presides over trials and claims involving administrative law, ruled in the university’s favor in 2007, saying there was “an inadequate supply of marijuana available for research purposes,” and it was “in the public interest” to allow the privately licensed cultivation of cannabis for research purposes.
But after two years in court, the DEA simply set that ruling aside, Armentano explains. The agency claimed that producing more marijuana in the U.S. could lead to the diversion of product, which thus could be interpreted as a violation of international drug treaties, such as the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. It’s unclear what would happen if the U.S. violated said treaties. It’s also unclear what the penalties for doing so might be, given how Health Canada — the department of the Canadian government that’s responsible for public health care — has cultivated medical cannabis for clinical research since 2001, Armentano notes.
“So either the DEA was lying then and we can, in fact, have multiple licensed entities and not be in violation of the treaties, or this was just never the case,” Armentano says.
Then, in 2016, it seemed as though U.S. federal officials’ stance on the issue might have finally changed. The DEA announced it would adopt new regulation that were “designed to increase the number of entities registered under the Controlled Substances Act to grow marijuana to supply legitimate researchers” in the U.S.
More than three years later, all 33 of the applications that were subsequently submitted in light of the 2016 announcement still sit on the agency’s desk. It’s a fact that caught the attention of a bipartisan group of 30 congressional leaders earlier this year. Led by U.S. Reps. Matt Gaetz (R-Florida), Steven Cohen (D-Tennessee) and Eric Swalwell (D-California), the congressional members authored a letter to DEA officials asking why exactly the agency had so far declined to review the applications.
Even with a congressional push, nothing happened.
But for advocates, the outcome of the DEA not following up on its word — however frustrating it may be —– was anticipated. “It is our position that [the] announcement by the DEA is the equivalent of Lucy holding the ball for Charlie Brown and then taking it away from him,” Armentano says. “They crowed [in the announcement] about the fact that going forward, at least in the immediate future, they expect to continue to do nothing, because they made it clear that before they can review these applications that have been before the agency for more than three years, they have to go ahead and adopt even more regulations before they can begin that evaluation process, without providing an inkling as to why the previous regulations from three years ago suddenly aren’t valid anymore.”
The DEA spokesperson notes that, since publication of the 2016 policy statement, the U.S. Department of Justice and other federal agencies have “been engaged in a policy review process to ensure that the marijuana growers program is consistent with applicable laws and treaties. Over the course of this policy review process, the Department of Justice has determined that adjustments to DEA’s policies and practices related to the marijuana growers program may be necessary.” The spokesperson adds that the DEA “intends to propose regulations in the near future that would, when finalized, supersede the 2016 policy statement and govern the program of growing marijuana for scientific and medical research under a DEA registration, consistent with applicable law.”
For researchers, the path forward is altogether murky. But a win in court is a win, at least for now, says Matthew Zorn, who among the attorneys to file the federal lawsuit on behalf of the Scottsdale Research Institute, which forced the DEA’s hand to make the announcement in August. “An important point of our lawsuit was getting the DEA to do something,” Zorn writes in an email. “We can’t have a conversation when the other side refuses to speak. So even if there is more delay involved in all this, [it] was a big step forward in that regard. For the first time in three years, this program moved forward.” Even so, Zorn admits it’s “premature” to know what’s next.
Sisley, the petitioner in the DEA lawsuit, says she’s staying realistic for now. She says she recently received word from a former DEA official in Arizona on the matter, who claimed that it’s very likely the case that the DEA’s recent announcement is the agency’s latest in a series of stall tactics. “Rule-making process is code word for delay,” Sisley continues. “[The DEA] could slow play us for years. So I’m not celebrating yet.”
Earlier this week, the DEA announced it would increase the amount of marijuana that can be produced for research next year by almost a third of the amount produced in 2019, from 2,450 kilograms to 3,200 kilograms – nearly triple the amount produced in 2018.
Missing from the announcement, however, was mention of newly licensed growers.