The Justice Department’s Office of Legal Counsel (OLC) released a previously undisclosed memo which sheds light on why the Drug Enforcement Agency (DEA) has repeatedly delayed approving applications from scientists to cultivate cannabis for research purposes, in spite of the agency indicating in 2016 that it would authorize additional manufacturers.
The OLC memo, written in 2018, argues that the DEA’s 2016 announcement to expand the number of cannabis productions facilities would be a violation of the US’s obligation to the UN Single Convention on Narcotic Drugs. What’s more though, according to the OLC, this international treaty further stipulates that a signatory country can only nominate one government agency to manage the production and distribution of a narcotic drug – such as marijuana – for research purposes. But in the US, the DEA and the National Institute on Drug Abuse (NIDA) have shared this responsibility for more than 50 years. Since 1968, the only source of authorized research-grade cannabis in the U.S. is of limited availability and poor quality from one grow facility at the University of Mississippi, who are contracted by the NIDA. The DEA registers the scientists who are authorized to obtain it, and the agency is responsible for ensuring the cannabis reaches them. Seemingly, this interpretation of the UN Single Convention is what prompted the DEA’s recent rule change proposals to expand opportunities for medical and scientific cannabis research under the agency’s sole jurisdiction.
“We conclude that DEA must change its current practices and the policy it announced in 2016 to comply with the Single Convention,” reads the memo. “DEA must adopt a framework in which it purchases and takes possession of the entire marijuana crop of each licensee after the crop is harvested. In addition, DEA must generally monopolize the import, export, wholesale trade, and stock maintenance of lawfully grown marijuana.”
Neither the DEA nor the NIDA explained to scientists applying for authorization to grow research-grade marijuana that the delay in their approval owed to the UN Single Convention, or at least to the Trump administration’s interpretation of its provisions. The inaction led a group of scientists to sue the DEA and a bipartisan coalition of lawmakers to write to the DOJ urging them to allow researchers to source cannabis from state-licensed dispensaries.
The Justice Department under the Obama administration was aware of the UN treaty, but sought to make use of an apparent exception which allows the one government agency responsible for cannabis production and distribution to entrust a third-party under certain conditions. This became known as the third-party grower’s program, signed into law by then-President Obama in late 2016.
Not long after, Donald Trump was elected as president, and he installed Jeff Sessions – a strong supporter of cannabis prohibition – as his attorney general. It is around this time that the Department of Justice (DOJ) formulated the current interpretation of the UN Single Convention, and it has outlasted Session’s short tenure as attorney general.
The OLC disclosed the legal memo in response to a Freedom of Information Act lawsuit filed by the Scottsdale Research Institute (SRI), which has spearheaded legal challenges brought against the DEA over its inaction. The SRI has since responded by sending a letter to members of Congress urging their intervention, arguing that the DOJ can waive certain requirements and permit researchers to source their own cannabis from state-licensed dispensaries.
“That Congress can fix these issues with legislation goes without saying. But what fewer recognize is that this Administration can cut through the regulatory red-tape right now,” SRI’s lawyers wrote.
“DEA could, for example, exempt licensed Schedule I marijuana researchers from having to obtain a separate registration to manufacture marijuana, provided those researchers agree not to distribute any marijuana they manufacture. Alternatively, it could permit licensed Schedule I marijuana researchers to obtain marijuana from state-legal dispensaries. The executive’s authority to grant waivers under [federal code] is broad,” the lawyers’ letter reads.
SRI’s legal team goes on to denounce the secretive nature of the DOJ’s actions and of the OLS memo which left dozens of scientists waiting in the dark for approval to carry out necessary studies on cannabis’s therapeutic potential.
“In the United States, doing robust clinical research with marijuana should not be so difficult,” the letter to members of the House and Senate reads. “Scores of Americans rely on medical marijuana to treat a variety of symptoms, including our nation’s veterans and terminally ill. Not surprisingly, this issue has solid bipartisan support. It also has support among federal agencies including FDA, NIH, and DEA itself.”
“Boiled down, the fact that a secret re-interpretation of an international treaty from 1961 has blocked the advancement of marijuana science in this country for the past three years is absurd,” the letter continues. “Allowing American scientists to cultivate or acquire marijuana grown in this country under strict DEA regulation and supervision is pro-science, pro-veteran, and pro-law enforcement. It puts America First and promotes public health and safety.”
While the blame for this state of affairs does not sit squarely with the Trump administration, it’s clear the DOJ has become less hospitable to cannabis research under his tenure. And while the president may make overtures towards cannabis reform every now and then, when it comes to federal policy Trump’s record errs on the side of prohibition, as indicated by his choice of Mark Meadows as his new chief of staff. His re-election campaign spokesperson made the Trump administration’s opposition to cannabis reform clear a few weeks ago when he said that marijuana legalization is not on the cards under a Trump presidency.