What Will Be the Role of Big Pharma in Medical Marijuana?

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Holly Whitman

Holly Whitman is a writer and journalist based in Washington DC. She loves to share her thoughts on the intersection of politics and culture, and writes on everything from feminism and human rights to climate change and technology.

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  1. Avatar Oscar Gordon
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    says:

    One has to wonder, if MJ is so effective, why hasn’t Pharma pushed for access to explore ways to monetize it? There are a lot of people who would much prefer to use MJ in a way that does not leave them reeking like a stale hippy, or binge on chocolate treats, which strikes me as a prime opportunity for Pharma.Report

    • Avatar Jaybird in reply to Oscar Gordon
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      says:

      It’s not just chocolate treats anymore! Cannabutter, for example, allows for all sorts of possibilities.Report

    • Avatar Morat20 in reply to Oscar Gordon
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      says:

      Because you can’t charge an arm and a leg for it.

      There’s a built in price ceiling for pot, because it’s a ridiculously easy plant to grow (all that messing about with lights and stuff is necessary if you’re growing indoors. Outdoors, it’s practically a weed. It’s a challenge to NOT grow it). You can’t charge 500 bucks for a month’s supply of THC because there’s a simple “Screw THAT alternative”.

      And even if they don’t want to grow, acquiring it from someone else is…cheap and easy even right now, as it’s illegal.

      And lastly, I’m not sure if you can really patent it effectively, so you might not even get a fun monopoly period to recoup costs.

      Legal pot, whether THC pills or edibles or whatever, would basically be like entering the market as a generic drug maker when the “name brand” is incredibly cheap to get already and there’s a flood of other generics entering the market with you.

      Low profit business. REALLY low profit business — that would eat into your MUCH more lucrative painkiller business.

      Big Pharma HATES pot because they’d replace a lot of high-profit painkiller sales with very low profit pot sales. They’ll suck it up and do it to mitigate their losses as best they can if it becomes legal, but until then they’ll fight tooth and claw to prevent it.

      Legal pot is a big money loser for them.Report

      • Avatar Joe Sal in reply to Morat20
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        says:

        Spot on.Report

      • Avatar Oscar Gordon in reply to Morat20
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        says:

        I’m looking at it as a thing similar to Opium. Anyone can grow poppies, but Pharma has found ways to make the base compounds way more effective. Opium still isn’t legal, but it’s derivative products can be had with an Rx.

        BioChemically, how is MJ significantly different from an Opium?Report

        • Avatar Morat20 in reply to Oscar Gordon
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          says:

          I think you’re asking the wrong question. The right one, I believe, is “how much processing (ie, work) is needed to obtain the required end result from opium versus MJ”?

          I believe turning poppy seeds into medical grade painkillers is a lengthy and exacting process. (Turning it into the kind of heroin that’ll kill you not as difficult, but does require a lot more poppy plants than you’d think). To get to low-side effect painkillers, you need a real lab. To get to heroin that won’t kill you relatively quickly, you need at least a lot of space and a decent amount of work. (And people addicted to opium and it’s various children tend to not be patient people on that).

          Turning a cannabis plant into something that gets you the (currently known) benefits of MJ? It requires yanking bits off a plant, removing seeds and then either lighting on fire or baking into food. In short, you can remove seeds in moments and baking takes no longer than baking already did. No lab required, no risk of dying.

          I suspect that’s one of the problems with classification of pot. It’d be like trying to schedule a tobacco plant instead of scheduling nicotine.

          In any case, the difference between poppy plants->painkillers and MJ->pot is that one requires a lab and a lot of plants if you don’t want to die*, and the other requires a single plant and about five minutes. Plus another hour if you like brownies.

          *If you do want to die, I believe you take a ton of seeds, mush them for the oils, boil those in water, and then you have heroin that’s as likely to kill you as not. if you want painkiller stuff, you get a real lab and a ton of chemicals.Report

          • Avatar dragonfrog in reply to Morat20
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            says:

            If you get some poppy seed pods, grind them to a suitable consistency, and brew a tea with them, and drink it, that works just fine. The morphine and codeine in the pods don’t need any special treatment to become effective, and they’re water soluble.

            Overdose deaths from heroin are mainly due to the wildly unpredictable strength and even ingredient list of street dope – not in the range of what a low-sophistication production facility will give, but over a range only achievable by a totally wild-west underground market free and strongly motivated to label and sell anything as anything else.

            – Back in the day, heroin crossed borders at close to 100% purity, and was cut by successive middlemen after arrival, until end users bought it at far-sub-50% purity. When a batch occasionally reached street dealers without being cut, users would be mis-estimating their dose by an very large factor.

            – More recently, “heroin” may be a mix of fentanyl and whatever more or less inert stuff. Fentanyl is crazy strong, so a slightly uneven mixing can produce some doses vastly stronger than others.

            Just plain heroin manufactured in sketchy labs near the poppy fields, sold in its state as it left the factory, at a markup consistent with other processed agricultural goods (that don’t need to support small armies and clandestine distribution networks with their own submarine factories) – that wouldn’t be nearly as bad as street heroin at street prices.

            Plain old opium would probably be even less dangerous.

            Of course a proper pharmaceutical lab would be able to produce even more predictably pure stuff, which would be quite useful. But that would be icing on the cake. It took more than just a lack of pharmaceutical labs, it needed a complex interlocking edifice dysfunctions given decades of reliable and exorbitant funding, to drive street opiates to their current state of peril.Report

        • Avatar dragonfrog in reply to Oscar Gordon
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          says:

          I kind of suspect that if opium were just now being discovered as a potential medicinal plant, the pharmaceutical industry would fight just as hard against it.

          The basic model of developing patentable compounds related to the various opioids, and patentable combinations of those compounds with time-release agents etc., is well enough established to be business as usual, but it had to be developed.

          The opioid receptors seem also to be fairly well understood, or maybe just more predictable, so when new drugs are found that interact with them, they behave more or less like the natural opiates.

          The cannabinoid receptors are seemingly weirder – synthetic cannabinoids discovered so far do not do good things, and really aren’t comparable to pot. They often have dangerous physical overdose symptoms that are totally absent with natural cannabis, there have been cases of severe psychotic episodes arising from them (way out of proportion to the psychological side effects of natural cannabis), and some have serious physical withdrawal symptoms more like narcotic drugs.Report

          • Avatar Morat20 in reply to dragonfrog
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            says:

            So that’s another reason — Big Pharma can make an opium derivative that’s safer and more effective than the plant. They can’t make one of cannabis that works more effectively.

            You can’t really market that.

            “Buy our THC pills. 75% as effective as making a pot brownie off a plant that grows like a weed, with only 23 more side effects than the plant!”

            That’s….nobody’s going to buy that, and even if they did they’d likely just switch to the plant because it’s cheap, easily available, and ends up working better. (Not to mention your initial PR battle is uphill — take our chemical that costs money, instead of getting free seeds with a dime bag, and getting the rest from a plant that grows like crazy and is almost impossible to screw up”)Report

            • Avatar Oscar Gordon in reply to Morat20
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              says:

              That isn’t what @dragonfrog said. He said synthetic cannabinoids are poor, not cannabinoids derivatives. And since the DEA has MJ under hard lock, building up a body of research that could reveal useful derivatives that require a professional lab to produce is a big lift.

              Which makes me wonder if the industry knows (or think it knows) something about how well it can use MJ as a pharmaceutical stock, or if it’s just not interested in opening up that can of worms.Report

              • Avatar Morat20 in reply to Oscar Gordon
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                says:

                I think it still boils down to cheapness — grown yourself, you have a fairly effective painkiller, anti-nausea medication, and appetite enhancer. (And, well, a low-addiction recreational drug).

                I suspect you’re not going to be able to make it much better along any of those three axis, not without huge amounts of investment.

                I mean sure, protecting their current IP and not wanting to have their models disrupted is part of it, but I think one real issue is that medically (not recreationally) pot sits in something of a really sweet spot.

                It’s really effective for certain types of problems, it has very, very small side effects (few seemingly serious and none that appear to be long-term damaging), it’s difficult to get addicted to, and dosage can be increased a surprising amount. I’m not sure about tolerance problems, but I get the impression that even that’s only an issue for heavy-using recreational enthusiasts.

                Where’s the market “in”? It might simply be that no pot derivative is going to be more effective than the current product for what it does. And failing that, it really looks like you’d have to sink a lot of money and effort to produce something like that — and you’d still have most of your potential customer base doing fine on what’s basically free.

                “This pill is 20% more effective than a joint”.

                “Can’t I just, you know, smoke something 20% more potent? Or just smoke a joint and a half?”

                “Well yes, but we’d really like you to pay 200 bucks a month for the pills”.

                “Well, I can buy enough weed for a month for 100 bucks, or like…nothing if it’s legal to stick a few plants in my backyard or on my balcony”.

                “What if we made one twice as effective?”

                “Um, can’t I eat two brownies instead?”

                “Crap”.Report

              • Avatar Oscar Gordon in reply to Morat20
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                says:

                All of this assumes a lot of facts not in evidence, evidence that can not readily be generated because schedule I.

                Also, and please correct me if I’m wrong, but if the cannabinoids are so complex, how in the hell is potency of even the legal pot anything but a highly subjective measure? How do you tell ditch weed from Acapulco Gold? Is it THC per gram? What about all the other stuff that seems very important to the effects?

                Again, there is a whole lot of very large question marks about the medicinal value of MJ that Pharma could answer, possibly to their profit. Big enough that I can understand why they don’t want it legal, but not why they don’t want it further down the schedule?Report

              • Avatar Morat20 in reply to Oscar Gordon
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                says:

                I have no idea how to judge various potencies. I don’t use it. I know that indeed, it does exist in various potencies. I don’t know how effective it as a medicine. Judging from a relative with cancer, it really didn’t matter when it came to reducing chemo-side effects and restoring appetite.

                More potent was, you know, more potent but even ditchweed was better than the prescribed drugs and effective.

                (Tangentially: He’s probably the only person I know that gained weight on chemo. That’s because the cancer, while not bad, had really screwed up lung function. He had a partially collapsed lung from a tumor displacing it for months. Being able to breath and sleep again helped a lot).

                In the end, I still think it’s money: Legal pot and pot derivatives cuts into an already established market with good returns. Creating medical derivatives of pot, especially in an atmosphere of legalizing it recreationally, means your derivatives are going to compete both with recreation pot use AND home-grown.

                I think Big Pharma looks at it and sees question marks on how much more effective pot-derived compounds can be, sees very large dollar signs for researching it, and sees a firm price ceiling that’s a lot lower than they’d like due to competition from the plant.

                And lastly — the see any derivative of pot is going to be cannibalizing their own market. It’s going to cut into painkillers, anti-nausea meds and a few other areas.

                I think the best case, barring some sort of home run discovery, is a much lower profit-per-pill situation.

                Healthier, happier consumers most likely….but less profit per pill. They’re gonna fight that tooth and nail, and will only invest in the research if it alternative is “no profit per pill” on their old stuff. Until then, they’ll fight for the status quo.

                And they’re not big companies because they tossed tens of millions at long-shots. They led universities do that.Report

              • Avatar Oscar Gordon in reply to Morat20
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                says:

                That’s a great explanation for keeping it a controlled substance, but it still fails to explain why they would be opposed to moving it down the schedule, so the Universities could play with it.Report

              • Avatar Morat20 in reply to Oscar Gordon
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                says:

                Because they can’t compete with home grown pot.

                I mean that literally. If a university synthesizes a subcompound that does what THC does without the high (which actually may not be possible, as the actual high might be part of the mechanism that makes it so useful), they’ll still be marketing it against….home grown pot.

                Even if recreational pot doesn’t become legal, even if medical marijuana reverts to “Only pills sold by companies with THC compounds that don’t get you high”, they’re still competing against the plant and forced to price accordingly.

                That’s the root problem: Their price point for ANY THC-derivative is competing against the most widely available black market drug, which is trending towards decriminalization at least.

                Which means their price-per-pill is going to be capped at a much lower number than they’d like.

                So why would they want ANYONE — even universities — to experiment with it? Almost every outcome is “less profit” because just the plant does a darn good job and is widely available even where it’s illegal.

                It’s money. Legal weed takes money away from big pharma in some very lucrative areas. THC-derived substitutes — if they can find one — might lessen the losses, but they’d still be losses.Report

              • Avatar Oscar Gordon in reply to Morat20
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                says:

                This still relies upon pot being legal.

                You can only make the argument that “growing your own” is a threat if it is totally legal to grow your own.

                I accept that they have an incentive to keep it scheduled, but I fail to see the incentive to keep it at the tippy top of the schedule.Report

              • Avatar Morat20 in reply to Oscar Gordon
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                says:

                No, it doesn’t, because the illegality of pot doesn’t stop anyone from getting a hold of it pretty much at anytime. Pot may be illegal, but it’s very easy to get and society has been moving towards more acceptance not less — and that’s just recreationally.

                If they were competing with heroin, cocaine, or meth? That’d be a different argument.

                Pharma has to take a long view (research to product pipeline is long), and society is moving the wrong way — the betting odds are very heavily that by the time they had a product, at best the status quo right now will remain unchanged — which means that weed might be illegal, even medically, but easy to get and low-risk for most people.

                Most likely, medical marijuana will be widespread and legal recreational use is a possibility.

                Keeping it at the top of the schedule does a handful of things: It keeps enforcement from dropping even lower (FYI, pot’s listed in the CSA itself as schedule 1. Derivatives can be scheduled lower, but legalizing pot’s gonna take an act of Congress). It keeps research from happening that opens the doors up to more widespread use and acceptance of medical marijuana (which cuts into their current markets). It keeps them from having to ditch their own current pills and research lower-profit THC derivatives.

                None of Big Phrama’s cost analysis requires pot to become legal. It’s a bad investment even if the status quo remains. Pot derivatives would make sense if they thought the government would and could crack down on pot heavily, driving up the price and consequences.

                But that is unlikely to happen, and nobody wants to bet a few billion on it.Report

              • Avatar Jaybird in reply to Morat20
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                says:

                Now that it is easier than it used to be to run tests on pot, they’re going to find a lot of inconvenient things to be true.

                It’s helpful for people who are in chemo, who have PTSD, who have glaucoma, who have anxiety (well, certain strains will help with that), people who suffer from various ailments that make them not wish to eat (few and far between but I understand that these people exist), and people who suffer from insomnia.

                Side effects exist but the worst side effects are the ones that make the drug attractive to recreational users.

                If you overdose on the drug, like eat waaaaaaaaaaay too many edibles or smoke waaaaaaaaaaaay too large a dab, the drug does not kill you and does not put you in a coma. I wouldn’t say that violence has never resulted from an overdose (somebody freaking out, say) but the overwhelming number of people who did waaaaaaaaaaaaay too much whatever it was were in a position where bedrest helped.

                Even now, do this thought experiment in your head:

                Person getting a shot of heroin ready and you know that there is too much heroin in the needle. This is terrible. You’re probably thinking “that guy is going to die… why am I watching this? Who would put this on youtube?”

                Now imagine someone saying “okay, I bet my friend that I could smoke an entire gram of wax and he bet I couldn’t!” and then goes on to smoke an entire gram of wax. If you are similar to me, your thoughts are “what a knucklehead, what an idiot, what a waste of wax, I hope his friend puts on some good tunes, that guy is going to be useless until two or three days from now… I hope he has bottles of water nearby… how in the heck does he have an entire youtube channel dedicated to him smoking wax?”

                That sheer difference in outcomes from taking too much of the drug is going to come to light in the tests as well.Report

              • Avatar dragonfrog in reply to Oscar Gordon
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                says:

                Potency of pot is fairly subjective.

                THC is the biggest single active compound that gets a person high. It has medicinal effects useful for some conditions.

                CBD doesn’t get you high (and in fact somewhat reduces the effect of whatever THC is present, because it binds to the same receptors, leaving fewer available for the THC to interact with). It also has medicinal effects useful for a partially overlapping set of situations, as well as mitigating some of the undesirable effects of THC, such as increased anxiety, that some folks experience.

                There are lots of other compounds, terpenes and whatnot, that influence the overall effect of pot.

                In Canada, it’s looking like recreational pot will likely be taxed on the basis of THC content alone, which seems sensible. If for no other reason than it’s a single thing a producer can measure, pay the tax amount the formula calls for, and get on with their business.

                The synthetic cannabinoids I’m talking about are not found in pot at all – they interact with the same receptors, but aren’t necessarily otherwise chemically similar to THC or CBD. One I’m aware of, abn-CBD is being researched mostly as an anti-inflammatory, but the rest are THC analogs and mostly used in “legal high” products. Medicinal effects are not the priority of the organizations currently producing the stuff.

                Youtube is full of videos of people who have over-consumed this stuff. I’ve had too much pot before, and it was kind of awkward because I had a hard time keeping up with the conversation, missed some social cues, only understood and laughed at jokes after the conversation had moved on a beat.

                These videos are not like that. They are frightening.Report

              • Avatar Morat20 in reply to dragonfrog
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                says:

                That’s kind of my thought on weed in general.

                It’s really hard to overdose on, it’s low-addiction, and it’s effective medically for several conditions. And it’s really, really cheap to make.

                Some of the derivatives not so much.

                I just can’t see a market in “We have something more effective than dose X of pot proper, but with a higher risk of overdoes and negative effects” really selling well when someone can just…get a more potent strain of weed (or eat another brownie or smoke another half joint) to get the same end result, with fewer risks.

                Medically, that is. I mean ideally you could make something synthetic that worked just like weed, without the high. Assuming the high isn’t part of the effective mechanism in the first place. In which case, you’d still be pricing it against a plant you can grow in your backyard that’s ALSO recreational.

                I can see a market for that — people with jobs, for instance, where the high is a major hassle — but even then you’d have to weigh pricing against the plant. (And you’d still be eating into your current pills on the market, which are probably a lot more profitable).Report

    • Avatar Michael Cain in reply to Oscar Gordon
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      says:

      (1) Why doesn’t Big Pharma push for access to explore ways to monetize nicotine, or ethanol? Because the primary market is recreational, not medicinal. So long as the recreational forms can deliver all/most/some of the medicinal benefits, it puts a significant ceiling on prices for the medicinal form.

      (2) Big Pharma has a business model that works very well for them: synthesize a single complex molecule in quantity, obtain IP protection, conduct the tests required by the developed countries, sell through a tightly controlled market. The combination of a hundred or so cannabinoid molecules are a poor fit for that model, and they know it.Report

  2. Avatar Jaybird
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    says:

    Holly, this was a great article.

    If I had to guess, I’d say that I *HOPE* that there isn’t a big pharma conspiracy behind the FDA’s stupidity on the whole rescheduling thing (though there probably is a Baptists/Bootleggers/Big Pharma conspiracy behind Congress’s reluctance).

    There *MIGHT* be one, though. And it’d make sense if there were… imagine, if you will, someone saying that they’ve stopped buying medical-grade Prilocam and have started making Prilocam at home. I find the very though somewhere between funny and horrifying.

    But imagine someone saying that they’ve stopped buying medical-grade marijuana and have started cultivating a handful of plants in a grow room in their own basement. That thought got me saying “yeah, I can see someone doing that… hell, I probably know a couple of people who have started doing that.”

    And I can see a mega-corporation in charge of selling me my medical-grade Prilocam getting all weird when they discover that a plant that I can grow in my own basement using equipment that I can purchase at Ace Hardware gives me the same, if not better, results than my $10/month, $120/year prescription of Prilocam.Report

    • Avatar dragonfrog in reply to Jaybird
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      says:

      I love the image of a conspiracy of Baptists, bootleggers, and big pharma execs.

      [A speakeasy in the back room of a Baptist church. Viagra posters and needlepoint scripture quotes decorate the room. Conspirators drink whiskey from teacups. Choral music is heard in the background]

      New conspirator: So a Baptist preacher, a bootlegger, and a pharma executive are out hunting ducks…

      Old hand: Yeah, get it out of your system.Report

  3. Avatar Kolohe
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    says:

    The Department of Health and Human Services recommended the naturally-occurring component of marijuana, THC, be moved from Schedule 1 to Schedule 3 for the Controlled Substances Act. The change would make pot more accessible — for both doctors and users. A pharmaceutical company that creates synthetic THC wrote to the Drug Enforcement Administration in opposition to the change. The DEA rejected the Schedule change without reason or discussion.

    So, the implication is that the drug companies (or singular, a drug company) lobbied the DEA to quash the resked of THC.

    How does that mesh with an earlier discussion on this site that President Obama had insufficient authority and discretion in regards to the resked of Marijuana and associated products?Report

    • Avatar Jaybird in reply to Kolohe
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      says:

      How does that mesh with an earlier discussion on this site that President Obama had insufficient authority and discretion in regards to the resked of Marijuana and associated products?

      Please stop criticizing President Obama.
      This has nothing to do with Him.Report

    • Avatar Morat20 in reply to Kolohe
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      says:

      It meshes quite nicely. Regulatory decisions aren’t made at whim. There’s a lengthy (and legally required) bunch of stuff, including things like sufficient public comment periods, etc.

      You can tell the DEA and the FBI to deprioritize enforcement (spending decisions don’t require regulatory approval), but changes to existing regulations (and drug scheduling is a regulation) take years due to the relevant laws — laws designed, by and large, to make sure that President’s don’t snap their fingers and change regulations at a whim without public input — and the ability of Congress to prevent it. (After all, the Executive implements as regulations the broad laws Congress passes. There’s plenty of wiggle room in implementation, so making sure you have sufficient notice that someone is playing silly buggers is common sense. Double so if you can have stakeholders — like lobbyists — keeping an eye on it for you).Report

      • Avatar Kolohe in reply to Morat20
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        says:

        Regulatory decisions aren’t made on a whim – but *the* whim of the drug companies.

        Got it.Report

        • Avatar Morat20 in reply to Kolohe
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          says:

          Did you confuse my meaning of “on a whim” (as in “The President gets the idea on Tuesday, snaps his fingers, new regulations on Wednesday”) with something else? I mean whim in the sense of “Sudden, impulsive decision implemented immediately”.

          Because the DEA’s latest decision was from, IIRC, a petition filed years ago.

          I’m gonna say the same thing I said to Jaybird: I’m all for legalized pot, and I think the DEA’s decisions are wrong on scheduling. That doesn’t mean the regulatory process doesn’t take years absent an act of Congress.Report

          • Avatar Kolohe in reply to Morat20
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            says:

            Based on Whitman’s post, at some point, an identifiable human being made the decision to ignore the recommendation made by another federal agency, and instead followed the advice provided by a drug company. Then, the same or another identifiable human being made the decision to cover up that fact, by issuing the decision without disclosing the reason or methodology for the decision.

            If President Obama doesn’t have the power to fire either of the these human beings, who have taken the side of the drug company over the expert opinion of a federal government agency and then covered it up…

            ..then it really doesn’t matter that Trump got into the White House, does it? Trump can’t actually do anything, the system will keep on keeping on.Report

            • Avatar Morat20 in reply to Kolohe
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              says:

              Actually, it was most likely the product of a committee, after meeting numerous times over a multiple year period — possibly with turnover on the committee proper. This also includes public comment periods (which yes, includes the comments of drug companies.)

              If President Obama doesn’t have the power to fire either of the these human beings, who have taken the side of the drug company over the expert opinion of a federal government agency and then covered it up…

              He probably doesn’t, as they’re likely to be civil servants not appointed folks.

              You’re adding a lot of simplifying assumptions to a complex apparatus, which is not the most stable method of determining cause and effect. Francis (below) goes into a bit more detail on how it works.

              For instance, you’re imagining a single “decider” instead of committee meetings, you’re imagining three stakeholders (“the decider, the drug lobby, one federal agency” instead of many), and a single point of decision instead of multiple ones over a period of years.Report

            • Avatar PD Shaw in reply to Kolohe
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              says:

              How would we distinguish what she posted from a conspiracy theory? She posted three facts that might be true, but the conclusion she wants the reader to infer still may not be true.Report

            • Avatar Oscar Gordon in reply to Kolohe
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              says:

              by issuing the decision without disclosing the reason or methodology for the decision

              This bugs me and is something that shouldn’t be allowed. The reasoning & methodology should always be public, even if it’s as simple as a 1 page statement to the effect of, “We’ve been around this maypole before, see our decision from 20xx.”Report

              • Avatar PD Shaw in reply to Oscar Gordon
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                says:

                I haven’t followed this, but is this the reason?

                The Federal Food, Drug and Cosmetic Act requires that before a new drug is allowed to enter the U.S. market, it must be demonstrated through adequate and well-controlled clinical trials to be both safe and effective for its intended uses. Congress long ago established this process, recognizing that it was essential to protect the health and welfare of the American people.

                Although no drug product made from marijuana has yet been shown to be safe and effective in such clinical trials, DEA – along with the Food and Drug Administration (FDA) and the National Institutes of Health (NIH) – fully supports expanding research into the potential medical utility of marijuana and its chemical constituents.

                Federal Register notice approving more marijuana for research purposes.Report

              • Avatar Oscar Gordon in reply to PD Shaw
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                says:

                That statement is circular.

                And yes, I know they are approving more for research, it’s a positive sign.Report

    • Avatar Francis in reply to Kolohe
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      says:

      A. Agencies have a great deal of discretion in choosing not to act. The decision as to where to focus an agency’s attention is a key aspect of Executive power.

      B. When agencies do decide to take an action, the process and the outcome are powerfully driven by the Administrative Procedure Act, the substantive law under which the agency is proposing to take an action, and the organic statute by which the agency was created and given direction.

      I don’t know enough about the DEA’s refusal to act on the DHS letter to comment in detail. Depending on when the letter was written, it’s possible that the DEA thought that acting on the letter alone would be duplicative of its work on the petitions that led to the 2016 decision. I would also note that in its 2016 decision the DEA held that the US’s treaty obligations would prevent the DEA from moving cannabis or cannabis resin to Sched III.

      or, you could just accuse any agency making any decision you don’t like of being stupid. We’re not really a nation of laws, after all. Everything the govt does is solely at the whim of the President. Just how many bloggers became expert in the FBI’s decision-making process when Comey did not recommend that H. Clinton be prosecuted?

      That’s not actual reality, of course, and if Trump tries to act that way I suspect that the federal district and appellate court in DC will be very busy. But since reality doesn’t seem to matter any more, just go with it.Report

      • Avatar PD Shaw in reply to Francis
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        says:

        To A. and B. I would add:

        C. When Congress delegates decisionmaking power to an agency, its policy priorities can be observed in the agency chosen. If Congress wants to pass regulations on genetically modified crops, all other things equal, it makes a big difference if it selects the EPA or the Department of Agriculture to implement it. Here, Congress delegated power to the Attorney General, not HHS.Report

    • Avatar Gaelen in reply to Kolohe
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      says:

      Pd Shaw makes a good point.

      But this again has almost nothing to do with Obama (other than that he didn’t make this a priority in his DEA appointment).

      This is a separation of powers issue. Congress has delegated some of their legislative power to the executive branch in the form of agency rulemaking (eg. rescheduling drugs). Said very simply, Congress cannot delegate to the President their legislative authority as that violates the Constitutions separation of powers. That means that the quasi-legislative authority to make regulations granted to the agencies cannot be directly controlled by the President.

      Now, exactly what authority the President has gets very complicated very fast, and is well above my pay grade. But, basically, the President has either taken/been given the authority to review major new rulemakings (think cost benefit analysis), but cannot direct the outcome.Report

      • Avatar Jaybird in reply to Gaelen
        Ignored
        says:

        From Wikipedia:

        Cannabis could be rescheduled either legislatively, through Congress, or through the executive branch. Congress has so far rejected all bills to reschedule cannabis. However, it is not unheard of for Congress to intervene in the drug scheduling process; in February 2000, for instance, the 105th Congress, in its second official session, passed Public Law 106-172, also known as the Hillory J. Farias and Samantha Reed Date-Rape Drug Prohibition Act of 2000,[21] adding GHB to Schedule I.[22] On June 23, 2011, Rep. Barney Frank and Rep. Ron Paul introduced H.R. 2306,[23] legislation that would completely remove cannabis from the federal schedules, limiting the federal government’s role to policing cross-border or interstate transfers into states where it remains illegal.

        The Controlled Substances Act also provides for a rulemaking process by which the United States Attorney General can reschedule cannabis administratively. These proceedings represent the only means of legalizing medical cannabis without an act of Congress. Rescheduling supporters have often cited the lengthy petition review process as a reason why cannabis is still illegal.[9] The first petition took 22 years to review, the second took 7 years, the third was denied 9 years later. A 2013 petition by two state governors is still pending.

        Presidential candidate Hillary Clinton supports transferring cannabis to Schedule II,[24] while Bernie Sanders has introduced a bill to remove it from the schedules altogether.[25]

        Report

        • Avatar Francis in reply to Jaybird
          Ignored
          says:

          So you’ve proved that rescheduling cannabis historically has been a low priority. So what?

          Here’s a much tougher research assignment:

          a. What discretion did the DEA have in each of those years to work on the pending petitions without an appropriation?
          b. What were the annual appropriations for working on those petitions?
          c. How has consensus science on the medical benefits of cannabis evolved over those years?

          Here is what I am not saying: the DEA is a great agency and the CSA is a great law.

          Here is what I am saying: where Congress has passed a substantive law governing how an agency is to operate, Executive discretion is at its weakest. Rescheduling cannabis cannot be done on a whim. It requires (a) a single product which can be analyzed for medical benefit, (b) science which demonstrates the effectiveness of that particular compound, (c) Executive leadership and (d) Congressional cooperation.

          The simple fact, which I’m dearly hoping that you’ll admit some day, is that Congress has a major role to play in the scheduling and rescheduling of cannabis. Even if you can’t get the CSA amended, you’ll need Congress to cooperate on funding research into strains of marijuana for medical uses, and on funding a new rescheduling effort once the research is sufficient.

          Come now, you’ve repeatedly contended that the 2016 DEA decision was stupid. Surely you can get the votes to put a process in place to fix it, can’t you? (If not, you may want to consider that your view of stupidity may not necessarily be shared by Congressional majorities.)Report

          • Avatar Jaybird in reply to Francis
            Ignored
            says:

            Oh, I agree that Congress does.

            But I also can’t help but notice that Congress is not the only avenue.

            I mean, let’s look at the following claim:
            “Cannabis ought to be regulated like alcohol.”

            Pretty uncontroversial, right? I mean, I could find an example of Obama saying this, if you’d like.

            Do you think that it’s possible to find someone who is suitable to be the Attorney General who would say that and act on it?

            Is it the case that every single person who might make a decent Attorney General would disagree with that statement?

            If every single person suitable to be Attorney General would disagree with that statement, should we re-evaluate the statement?

            *SHOULD* cannabis be regulated like alcohol?

            Seems to me that, yeah, it should. I can even find Obama saying such a thing. (Granted, it was to Rolling Stone and he might have been hoping to sound “cool” even though he disagreed with the statement.)

            Assuming that Obama was lying gets us to a place where we understand why the executive didn’t exercise options it had.

            Which brings us back to Congress being the main hope.

            Though I suppose it is theoretically possible for Trump to do something about it… but the main target of vitriol, at this point, should be Congress.Report

            • Avatar Francis in reply to Jaybird
              Ignored
              says:

              “Do you think that it’s possible to find someone who is suitable to be the Attorney General who would say that [cannabis ought to be regulated like alcohol] and act on it?”

              Well, it depends if you consider Albo Gonzalez suitable and what you mean by “act”.

              Unlawful acts are all the things we’ve been talking about for days — like firing DEA staff who refuse to comply with an unlawful direction.

              Lawful acts include:

              (a) directing the DEA to consider whether to reschedule particular strains of cannabis and requesting the cooperation of other agencies;

              (b) publicly and forcefully argue for a revision to the CSA that puts cannabis in its own category, kind of like tobacco has its own laws;

              (c) assemble budget requests that follow the direction given by DEA in the 2016 rulemaking, ie, develop the science needed to put distinct strains on Sched II, so that the rulemaking at (a) is more likely to stand up in court.

              I have to reiterate here that the judiciary plays an important role in this. Trump and Sessions could hypothetically bully DEA staff into issuing a rule that puts cannabis on Sched II. But I haven’t seen a shred of argument from you that such a rule would stand up in court. Sessions is no dummy; he’s not going to want to get embarrassed over a judicial reversal of a rule to make pot easier to get.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                I’m pretty sure that someone as unethical as Alberto Gonzales would do what, apparently, the law *TECHNICALLY* allows him to do… if directed to do it.

                Maybe not Alberto Gonzales himself, who probably has too many principles to reschedule marijuana, but someone similar to him who lusts for power.

                I have to reiterate here that the judiciary plays an important role in this. Trump and Sessions could hypothetically bully DEA staff into issuing a rule that puts cannabis on Sched II. But I haven’t seen a shred of argument from you that such a rule would stand up in court. Sessions is no dummy; he’s not going to want to get embarrassed over a judicial reversal of a rule to make pot easier to get.

                All I have is the statute itself.

                If you go to page 10, the part where it is titled “PART B—AUTHORITY To CONTROL;”

                and read this part:

                SEC. 201. (a) The Attorney General shall apply the provisions of
                this title to the controlled substances listed in the schedules established
                by section 202 of this title and to any other drug or other substance
                added to such schedules under this title. Except as provided in subsections
                (d) and (e),the Attorney General may by rule—
                (1) add to such a schedule or transfer between such schedules
                any drug or other substance if he—
                (A) finds that such drug or other substance has a potential
                for abuse, and
                ( B ) makes with respect to such drug or other substance the
                findings prescribed by subsection (b) of section 202 for the
                schedule in which such drug is to be placed; or
                (2) remove any drug or other substance from the schedules
                if he finds that the drug or other substance does not meet the
                requirements for inclusion in any schedule.

                I’m just guessing that a drug that everybody knows should be regulated like alcohol could probably withstand the Attorney General transferring the drug between schedules, given the wording here.

                Do I need to find the specific wording for section 202?

                I mean, hey. Maybe we’ve all been wrong this entire time.

                Marijuana might *NEED* to be in Schedule I, depending on how that part is phrased.Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                You realize that act was discussed in the last thread on this? I point you to sections: 201(b), 201(c) and 201(d):

                Note the language: The AG must consider those factors, which (per other laws) specifies what that means — it doesn’t mean he sits in his thinking pose for ten minutes, btw.

                Then there’s section (d) which does apply to pot.

                Then there is 202 which specifies marijuana as having to be on Schedule I. I *think* it can be moved per some later changes to the Act, but the fact that it’s listed in the Act as schedule 1 (And all derivatives) is a real difficult bridge to cross. .Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                Fine. We’ll look at them together. Let’s see what the bar might be for moving this substance that everybody knows ought to be regulated like alcohol from Schedule I to Schedule II.

                I point you to sections: 201(b), 201(c) and 201(d)

                (b) The Attorney General shall, before initiating proceedings under
                subsection (a) to control a drug or other substance or to remove a
                drug or other substance entirely from the schedules, and after gathering
                the necessary data, request from the Secretary a scientific and medical
                evaluation, and his recommendations, as to whether such drug or
                other substance should be so controlled or removed as a controlled
                substance. In making such evaluation and recommendations, the Secretary
                shall consider the factors listed in paragraphs (2), (3), (6), (7),
                and (8) of subsection (c) and any scientific or medical considerations
                involved in paragraphs (1), (4), and (5) of such subsection. The recommendations
                of the Secretary shall include recommendations with
                respect to the appropriate schedule, if any, under which such drug or
                other substance should be listed. The evaluation and the recommendations
                of the Secretary shall be made in writing and submitted to the
                Attorney General within a reasonable time. The recommendations of
                the Secretary to the Attorney General shall be binding on the Attorney
                General as to such scientific and medical matters, and if the
                Secretary recommends that a drug or other substance not be controlled,
                the Attorney General shall not control the drug or other substance.
                If the Attorney General determines that these facts and all
                other relevant data constitute substantial evidence of potential for
                abuse such as to warrant control or substantial evidence that the drug
                or other substance should be removed entirely from the schedules,
                he shall initiate proceedings for control or removal, as the case may
                be, under subsection (a).

                Okay, so here’s a list of more than 100 documented studies on the effects of cannabis on cancer. That ought to give the AG enough information to help with a decision when moving from Sched I to Sched II.

                Let’s look at 201(c)

                (c) In making any finding under subsection (a) of this section or
                under subsection (b) of section 202, the Attorney General shall consider
                the following factors with respect to each drug or other substance
                proposed to be controlled or removed from the schedules:
                (1) Its actual or relative potential for abuse.
                (2) Scientific evidence of its pharmacological effect, if known.
                (3) The state of current scientific knowledge regarding the
                drug or other substance.
                (4) Its history and current pattern of abuse.
                (5) The scope, duration, and significance of abuse.
                (6) What, it any, risk there is to the public health.
                (7) Its psychic or physiological dependence liability.
                (8) Whether the substance is an immediate precursor of a substance
                already controlled under this title.

                Pretty sure that this is an attainable standard. I mean, if we’re going from Sched I to Sched II.

                And now, 201(d)

                (d) If control is required by United States obligations under international
                treaties, conventions, or protocols in effect on the effective
                date of this part, the Attorney General shall issue an order controlling
                such drug under the schedule he deems most appropriate to carry out
                such obligations, without regard to the findings required by subsection
                (a) of this section or section 202(b) and without regard to the
                procedures prescribed by subsections (a) and (b) of this section.

                Ah, there’s the rub. A treaty!
                Would Sched II meet the obligations of the treaty?

                This drug that everyone agrees ought to be treated like alcohol is on Sched I rather than Sched II not because of lack of government action, but because of the treaty?

                Man, is that something that even Congress could overcome?

                Would the executive have to withdraw from the treaty in order to overcome this particular bar?Report

              • Avatar Morat20 in reply to Jaybird
                Ignored
                says:

                Jesus, Jaybird.

                Do you think repeating the same wrong point over and over will change reality?

                Because you’ve posted that before and it’s been explained how you’re wrong, and you won’t address anyone else’s points — you just repeat yourself OVER AND OVER. Shouting us down ain’t gonna change the law, but you’re sure acting like if you can JUST get us to agree magic will happen.

                We GET IT. We understand you think cannabis shouldn’t be schedule 1 and you think it’s a no-brainer and that anyone with sense should agree with you. (heck, I do!).

                That doesn’t shortcut the freakin’ law, or allow the AG or anyone else to ignore the bits you really don’t want to admit exist.

                You quote freakin’ snippits of law as if those cut-out sections of a single act are the only relevant bits at all, ignoring all the bits people point out that ALSO relevant, because you don’t want them to be true.

                It’s been explained to you over and over the sorts of things you’re ignoring, which you…continue to ignore. I don’t know why, you don’t seem to be the type to ignore inconvenient facts but I suppose everyone has a subject that makes them irrational.

                And in the end, you’re talking to people who agree with you on the ends in question — do you think we’re lying about the problems? Like we want it to happen, but we just like screwing with you or something?

                I’m done arguing with you on this subject. It’s a waste of my time.Report

              • Avatar Jaybird in reply to Morat20
                Ignored
                says:

                What’s weird is that I keep finding documents that agree with me, linking to them, quoting them, and then linking other documents that agree that my conclusions have grounding…

                And you just assert that I’m wrong.

                You quote freakin’ snippits of law as if those cut-out sections of a single act are the only relevant bits at all, ignoring all the bits people point out that ALSO relevant

                See? What happened here is that I cut out a section, you said that there were bits that were ALSO relevant, so then I quoted those other bits. Scroll up! That’s what I did!

                You’re saying that I didn’t in the face of my having done so!

                Which is a lot like your argument in saying that Obama couldn’t have done anything in the analysis of tons of sources that say, technically, he could.

                For what it’s worth, I think that Congress should do something too.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Obama couldn’t. An agency in which he makes appointments could have but didn’t.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “(2) Scientific evidence of its pharmacological effect, if known”

                Q: What is cannabis?

                A: A plant whose known strains contain an incredibly wide variety of compounds with varying pharmacological effects in vastly different proportions.

                Q: Is it therefore even possible to study meaningfully the pharmacological effects of the thing called “cannabis”.

                A. According to us, the DEA, nope. Bring us a single strain that has a consistent pharmacological profile no matter how and where harvested, prepared and consumed, and then we’ll talk.

                Q: But that’s impossible! We’re talking about a living organism, not a single molecule.

                A. Request for rescheduling denied. If you want to change the law regarding our scope of work in rescheduling cannabis, the doors to Paul Ryan’s and Mitch McConnell’s offices are thataway —->Report

              • Avatar Kim in reply to Francis
                Ignored
                says:

                and thisis why we schedule capsaicin, and not hot peppers.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                The key phrase in that passage is by rule . It’s at the end section 201(a). It’s a term of art, and refers to agency rulemaking under the administrative procedures act.

                Which brings us back to what the DEA did, and what we’ve been discussing.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                It certainly seems to me that moving from Sched I to Sched II is attainable even by rule.

                Because, surely, the rules aren’t set up in such a way that it is impossible to move from one schedule to another.

                Huh. Now I’m wondering if any drug has ever been moved to a lower schedule… how would I even research this…Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Huh. Here’s an essay from the Brookings Institution that talks about this sort of thing.

                Unfortunately, it seems to think that rescheduling is possible from more than just the Congressional angle (though it does hammer home that Congress is the easiest way to do it).Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Of course its possible. It’s the multi year process we have been talking about.Report

              • Avatar Morat20 in reply to Gaelen
                Ignored
                says:

                He’s not listening to anyone. He seems to have it locked into his head we’re against rescheduling pot, instead of just saying “It doesn’t work the way you keep saying it works”.

                He literally linked to an article that says exactly what we’ve been saying like it’s new information. There’s not a better sign he doesn’t pay any attention to anyone who disagrees on the subject.

                I think I’ve said like…five times? Ten? That the regulatory process is slower than heck, requires buy-ins from multiple departments, and is required (by laws other than the CSA) to jump through about a million hoops and would take years even if the heads of every department got back and pushed.

                And that, you know, Congress could fix it tomorrow.

                And now he posts a link that says that like it’s new information. WTF.

                I’m starting to doubt his sincerity on the topic.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                Oh, it’s a multi-year process?

                I guess I can see why Obama wouldn’t have done anything, then.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                It does kind of feel like you’re trolling us.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                This all started back when Obama had an interview in Rolling Stone in which he said:

                1) Marijuana ought to be treated like alcohol
                2) He wished he could have done more

                I’ve merely been saying that Obama could have done more.

                And people are saying that, no, Obama could not possibly have done anything.

                I keep finding sources that say “yeah, it would have sucked, but Obama could have done the following things…” and people are disagreeing with me by asserting I’m wrong.

                They tell me about the law, I quote the law. They say I haven’t quoted enough of the law, I quote more of the law.

                I admit to being frustrated on this point because, hey, I have found evidence that says “Obama could have done more” and then the articles explain how that could have happened.

                For the life of me, it sure as hell feels like I’ve made my case for Obama being able to do more and the people who argue that it would have been a multi-year process for Obama to have done more have not made their case that I am wrong.Report

              • Avatar Mike Schilling in reply to Jaybird
                Ignored
                says:

                He could have just pushed it through Congress if he’d tried hard enough. Just like the public option and closing Guantanamo.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                I’ve merely been saying that Obama could have done more.

                To reschedule (which is all we are talking about), the only other thing he could have done was make it more of a priority when hiring the head of the DEA/appointing the AG, or fire agency heads if they didn’t reschedule. He does not have any role in the actual decision on whether to reschedule.*

                And people are saying that, no, Obama could not possibly have done anything.

                That is not what people are saying. It’s just what he could do was very limited, and NOT what you wanted him to do.

                I keep finding sources that say “yeah, it would have sucked, but Obama could have done the following things…

                What are those things. Specifically.

                Not what the AG can do. Not what the DEA can do. But what Obama can do to reschedule.

                I mean this is governed by the APA, as well as constitutional and statutory limitations on the power of the executive. It seems to me that you haven’t even read the links provided that show that this is an area where the actual presidents authority is (rightly) very limited. Then you say no one has proved you wrong, because you haven’t read the articles proving you wrong.

                What could Obama have done other than make it a litmus test when appointing agency heads?** Be clear on exactly the actions he could have taken.

                * There is a review of significant regulations by part of the office of management and budget, but that doesn’t really apply here as it is used for looking at the impacts of new Clean Air Act regulations, or a new rule on mandated overtime, etc.

                ** I don’t count firing his way to the rule he wanted as in any way a good option.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “And people are saying that, no, Obama could not possibly have done anything”

                If that comment is directed at me, I’m deeply offended. (and no, that’s not sarcasm.) A few final points and then I’m done:

                A. You have shown a stubborn refusal to learn anything about the procedural law at issue, the APA.

                B. I have repeatedly said that the 2016 rule itself shows the path forward — selecting particular strains of cannabis for movement to Sched II by establishing them as drugs.

                C. Therefore, here’s what Obama could have done lawfully — spend political capital to get more funding out of Congress to accelerate the scientific research into whether particular strains of cannabis qualify as drugs. Or persuade Congress to rewrite the CSA (which is the sole way by which cannabis can actually be regulated like alcohol).

                But that’s too boring and procedural for you. So, in the face of people who actually know this area of the law, you persist in believing in fantasy solutions. In particular, your fantasy about the AG firing senior managers at the DEA until someone is willing to gin up a rescheduling rule is just that — a fantasy. First of all, that’s just plain illegal; we haven’t even discussed civil service rules. Second, the rule produced in that circumstance would be laughed out of court in a heartbeat.

                Is there something that you consider yourself an expert in? How do you feel when people who are not experts insist, repeatedly and even after you’ve explained why they’re wrong, that there is a quick and easy solution to long-standing complex problems?Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Francis, I will just point out, once again, that there are plenty of articles out there that show that it is possible for the path of legalization to flow through the Executive through the AG. An AG who had the attitude “hey, this should be treated like alcohol” (an uncontroversial point) who was working with HHS people who had the attitude “hey, this should be treated like alcohol” could result in a decision that concludes that marijuana does not belong on Schedule I but instead belongs on Schedule II.

                I’m not even arguing that Obama could have made it legal like Colorado on a federal level.

                I’m just talking about rescheduling it down to a Schedule II.

                Yes. I know that Congress could have fixed it. Awesome. We agree on that.

                When it comes to the procedural law, we have had two different opportunities for this pig to make its way through the snake in the last two years and I’m pretty sure that I have demonstrated that there is enough wiggle room for Marijuana to be rescheduled to Schedule II.

                You want to argue that I haven’t proven that marijuana should be treated like alcohol? Fine. I haven’t proven the thing that everybody agrees on and nobody disagrees about.

                I’m pretty sure that there are two conclusions about the rescheduling to Schedule II, though:

                1) There is enough wiggle room to nudge Marijuana from Schedule I to Schedule II

                2) The institution devoted to reviewing the scheduling of drugs is so fundamentally broken that it legally cannot do something as trivial as moving a substance that everybody, even the President, agrees should be treated like alcohol from Schedule I to Schedule II despite reviewing the substance twice in the last ten years

                I appreciate that you are an expert on this and I am completely down with you coming to the conclusion that there was no way for marijuana to have been rescheduled via the executive branch in the last 8 years.

                I’m telling you that you haven’t convinced me that there was no way for marijuana to have been rescheduled via the executive branch in the last 8 years.

                And I can find you all kinds of sources that make the point that there was a path for marijuana to have been rescheduled via the executive branch.

                I appreciate that asking you to find me a source that argues that there is no way for marijuana to be rescheduled via the executive branch would be a jerk move given that you’ve provided yourself, an expert on this topic.

                But look at it from my perspective:
                I’ve got all these sources that say that there is a path that travels through the executive branch
                I’m looking at the laws and how they talk about how there is a path that travels through the executive branch

                And people argue against me by pointing out that it’d be easier to go through Congress.

                Do you see why that might not be particularly persuasive?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                [for heaven’s sake I just can’t help myself]

                “I’m pretty sure that I have demonstrated that there is enough wiggle room for Marijuana to be rescheduled to Schedule II.”

                No, you haven’t. You’re substituting your wishes for what the law should be for what the law is.

                I have pointed you repeatedly to the 2016 rule. In particular, I have pointed out, repeatedly, to the section in the rule in which the DEA asserts that “cannabis” is so many different things that “cannabis”, as a whole, cannot be moved to Sched II, due to a three-part argument. A: Only “drugs” can be on Sched II. B: “Drugs” need a consistent formulation. C: Cannabis does not have a consistent formulation.

                Your response to that issue is to seize on the “or other substance” language in the CSA. Congratulations, you’re now practicing law! Of course, finding helpful statutory language is only the beginning. What was the Congressional intent underlying that language? How have the agencies charged with implementing the statute interpreted that language? What is the process by which an agency can change how it interprets statutory language? If the agency were to change its regulatory interpretation of statutory language in the context of such a politically charged issue, what judicial deference would be given to that decision? What impact did the tobacco wars have on the Office of the AG’s willingness to support the decision of agencies to shift regulatory interpretations in order to achieve preferred outcomes?

                I don’t know the answer to any of those questions. I would need to spend literally hundreds of hours to research it and brief it.

                Many people were disappointed by the agency decision. As best I can tell, though, no litigation has been filed to challenge it. People far more invested than I have decided that the agency was well within its discretion in making the decision that it did. Personally, based on the admin record that the DEA cites I think that the DEA had no choice but to rule the way that it did.

                For the 99th time, history plus admin law plus statutory law has sharply limited the DEA’s discretion. If the DEA were facing an initial petition to list “cannabis”, the opponents of that rule would have the very powerful argument that cannabis is too many different things to be listed as a single entity. But that is not the world we live in. Cannabis is already on the list, and now the agency must decide what do to next.

                Moving on …

                “everybody, even the President, agrees should be treated like alcohol ”

                “You want to argue that I haven’t proven that marijuana should be treated like alcohol? Fine. I haven’t proven the thing that everybody agrees on and nobody disagrees about.”

                and

                “‘hey, this should be treated like alcohol’ (an uncontroversial point)”.

                Bullshit.

                If the point were so uncontroversial you’d be well on your way to amending the CSA. “Everyone”, last I checked, includes the members of the Senate and House. How have the last several bills to address cannabis gone? Check the wikipedia article you cited.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                Now if you’d like me to concede that there is more than enough cover for the FDA/DEA to say “you know what? We’re not going to change” then, cheerfully, I concede that the FDA/DEA covered their butts. They found excuses to not reschedule and deployed them.

                I’m saying that there is more than enough evidence out there for them to have found excuses to say “yeah, this is rescheduleable”.

                Sure, Congress could do it overnight.
                That would be a legislative decision that is not based on any science whatsoever. It’d only reflect the apparent will of the people.

                If the point were so uncontroversial you’d be well on your way to amending the CSA.

                I was wondering if anyone would ever disagree with that part of the argument.

                I admit: one of my priors is that the other substance in question is another substance that ought to be treated like alcohol.

                So we’ve merely reached the point where a congress that has been captured by drug company lobbyists disagrees that marijuana ought to be rescheduled.

                And this is evidence that marijuana was scheduled correctly? (Because it seems to me to be orthogonal to whether it was scheduled correctly.)

                I thought that everybody agreed that it was scheduled incorrectly and now we were just arguing over what was required to schedule it properly.

                And your point is that the agencies in charge of reviewing it aren’t able to schedule it properly and the only way we can possibly schedule it correctly is to have the congress pass a law.

                Which seems to me to be an indictment of the system that schedules/reschedules drugs more than anything else.

                But, hey, if our disagreements are prior to that and your position is that marijuana was properly scheduled when it was put in Schedule I, we can have that debate.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “I’m saying that there is more than enough evidence out there for them to have found excuses to say “yeah, this is rescheduleable”.”

                How, pray tell, does the DEA overcome the section 202(c)(2) issue?

                (which, if anybody still cares at this point, states that “the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:

                (2) Scientific evidence of its pharmacological effect, if known.”)

                What’s your evidence on that particular point?

                Please point me to a reputable resource which states that the DEA could, if it had wanted to, had made a finding that such evidence existed which would have stood up in court (and preferably gets into why).

                And frankly, the “everybody knows” shtick has already gotten old. There are plenty of people who disagree with you, and I expect that many of them would deeply resent the accusation that they are in the pocket of Pharma. Some might even be scientists who take the position of DEA: there are way too many variables in cannabis strains and preparation for us to assert that we have legitimate scientific evidence of the pharmacological effects of all possible formulations of cannabis.

                ___________________

                “one of my priors is that the other substance in question is another substance that ought to be treated like alcohol.”

                Considering that every attempt at both the agency level and legislative level to reschedule cannabis has failed, you may want to consider that your priors are not as widely shared as you might think.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                What’s your evidence on that particular point?

                Well, I already linked to more than 100 studies done.

                Want me to link it again? (Note: that link isn’t the source. That link has more than 100 links to studies that have been done.)

                I could also point out that there are 28 states with legal medicinal marijuana (plus DC!) as anecdotal evidence for its pharmacological effect.

                And frankly, the “everybody knows” shtick has already gotten old. There are plenty of people who disagree with you, and I expect that many of them would deeply resent the accusation that they are in the pocket of Pharma. Some might even be scientists who take the position of DEA: there are way too many variables in cannabis strains and preparation for us to assert that we have legitimate scientific evidence of the pharmacological effects of all possible formulations of cannabis.

                I’m just delighted that we finally have someone willing to argue that Cannabis is scheduled correctly! I honestly thought that we were stuck somewhere around “Hey, I just want everybody to know that *I* think that it’s not scheduled correctly. I just think that the FDA/DEA can be trusted when it comes to the integrity of their process and, really, this is Nixon’s fault and now the FDA/DEA is stuck in a bind of Nixon’s making.”

                If the argument is that Marijuana is like heroin and thus has no medicinal use to the point where it shouldn’t even be in schedule II, we, seriously, need to have that argument downstream. I think that there is a lot of gold in them thar hills.

                Considering that every attempt at both the agency level and legislative level to reschedule cannabis has failed, you may want to consider that your priors are not as widely shared as you might think.

                Oh, I know that the federal government doesn’t share them and I know that the evangelicals don’t share them and, good god, I know that law enforcement doesn’t share them.

                I just think that they’re acting in their own interest rather than in the greater interest of society and ignoring a hell of a lot of data that demonstrates that they’re actively engaging in harm.

                I just thought that that was something that nobody here would have disagreed with.Report

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                Jay,

                First, I think you significantly undersell the opposition to ‘treat it like alcohol.’ If you reviewed the positions of the Republican field that would not be the most common.

                Second, I think you aren’t taking into account that the common sense definition of the applicable standards is vastly different from settled legal definitions of those standards. Only the latter matters. It means no currently accepted medical use is much harder to satisfy than a regular person would assume. This is coupled with the fact that marijuana is caught in a catch-22. It needs to be studied as a ‘drug’ by the FDA, but cannot be studied like a drug by the FDA because it faces unique restrictions that even other drugs on schedule I do not face. So, the DEA didn’t reclassify, but did remove those unique restrictions.

                With that said, I agree with you that it would have been theoretically possible to reschedule if Obama had made marijuana reclassification a litmus test for all those agency appointments. He didn’t for both political and practical reasons. That he didn’t isn’t hard to understand for me. I honestly don’t even know if he could have gotten his DEA head approved if he had made this a big issue.

                This whole ‘treat it like alcohol’ is a statement about the criminal penalties/public health aspect of it. You also talk about legalization, which is kind of separate from rescheduling.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                First, I think you significantly undersell the opposition to ‘treat it like alcohol.’ If you reviewed the positions of the Republican field that would not be the most common.

                For what it’s worth, I’m running with “treat it like alcohol” because that is what Obama said in the Rolling Stone interview. I am well aware that it is a drug that is significantly different from booze and that it has some serious downsides.

                Wanna see a good anti-marijuana commercial?

                https://youtu.be/Ya76HKIQ_Oo

                That’s a good one. Stuff like that needs to be discussed.

                But we’re discussing whether weed should be on the same schedule as Heroin. Schedule I. A schedule that says (blah blah blah). I, personally, think that it should be on schedule V or whatever the harsh laxative schedule is, but I’m not even arguing that.

                I’m arguing for moving it to Schedule II. From the “heroin” schedule to the “cocaine” schedule.

                Second, I think you aren’t taking into account that the common sense definition of the applicable standards is vastly different from settled legal definitions of those standards.

                I’m more than happy enough to allow for wiggle room and terms of art and whatnot. What I am not willing to do is see a phrase like “drugs or other substances” and then spend time arguing about how marijuana doesn’t meet the standard of a “drug”. There’s legalese and then there is “deliberate obfuscation”.

                So, the DEA didn’t reclassify, but did remove those unique restrictions.

                This is a good step. I have confidence that it may now be possible for the DEA to investigate this other substance now that is currently legal to use medicinally in 28 states and DC and determine whether it has any medicinal benefits whatsoever.

                (Yes, yes. The congress could do it overnight.)

                With that said, I agree with you that it would have been theoretically possible to reschedule if Obama had made marijuana reclassification a litmus test for all those agency appointments.

                GREAT I PROMISE TO SHUT UP RIGHT NOW I WON’T EVEN DO THE REST OF THE COMMENTReport

              • Avatar Gaelen in reply to Jaybird
                Ignored
                says:

                I’m sorry man, I couldn’t help myself. Mea culpa.

                For what it’s worth, I find the ‘not one drug’ argument to be kind of a cop out. To me the killer blow to reclassification was the the National Office of Drug Control Policy denying MJ testing. As in it denied petitions to test marijuana that the FDA approved. That lack of testing was then cited by the FDA as a reason it couldn’t be rescheduled. Reading about this stuff can make it feel like I’m taking crazy pills.Report

              • Avatar Jaybird in reply to Gaelen
                Ignored
                says:

                It seems obvious to me that the process to reschedule the drug is corrupt and, very likely, has been captured.

                I suppose that the conclusion we have to reach from there is that the only reasonable option remaining is Congress because the FDA/DEA cannot be trusted.

                Which means… God help us all… we have to trust Congress.Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “It seems obvious to me that the process to reschedule the drug is corrupt”

                yeah, jaybird, preach it! Good faith disagreements about what the law requires are just not possible. Everybody knows that the DEA is both stupid and evil.

                Are there any other topics on which you comment from a position of similar passion and ignorance? It’d be nice to know where not to bother trying. Water markets, maybe?Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                A quick set of questions:

                28 states, plus DC, have legalized medicinal marijuana.

                Are these states actively allowing their citizens to harm themselves?

                Does the federal government have a moral responsibility to kick down doors, shoot dogs, and cart these dispensary workers off to prison? (Note: not a legal one. We both agree that they have the legal obligation to do that (e.g., the Supremacy Clause) and there are merely political reasons that they haven’t that are getting in the way. I’m asking whether they have a moral one.)Report

              • Avatar PD Shaw in reply to Jaybird
                Ignored
                says:

                If the State of Sangamon is representative, medical marijuana is mostly a political matter, not a medical one. The legislature has designated a list of ailments which makes a person eligible to purchase a 2.5 ounces of pot every two weeks. The role of the physician, if he/she accepts, is to fill out the paperwork that the patient indeed has a listed condition. Most physicians in Capitol City refuse to participate as it is non-medical work. Once the illness is certified, it’s good for three years, the physician cannot seek to revoke it. Its taxed as if it is a recreational drug.

                Edit: As originally advertised, the sense was that these were people dying anyway and this was a measure of comfort. The list suggests otherwise, but in theory the people given a license to kill themselves are dying. Aren’t we all?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                Well, I’m dead bored at the office so this is way more fun.

                +++++++

                Yes, I read the linked document. Wow, it looks like lots of neat drugs could be derived from cannabis! I’m really looking forward to seeing drug therapies developed.

                And based on your other posts, it looks like certain strains of cannabis have shown really positive anti-nausea and anti-anxiety effects in lots of environments! I’m really looking forward to the cannabis community developing a growing / harvesting / processing / delivery protocol that can address all the issues raised in the 2016 rule, so that a future head of the DEA can authorize a Sched II listing for that “other substance” that can survive a challenge in court.

                ++++++++++++

                “We both agree that they have the legal obligation to do that (e.g., the Supremacy Clause)”

                Wait, what? I don’t agree with that at all. Prosecutorial discretion has been an integral part of the judicial system since forever (as the BLM movement has so poignantly pointed out).

                Nor do I believe that the fed govt has a moral obligation to prosecute people involved in the cannabis trade. If drug gangs get violent or pollute the environment, prosecute them for those crimes. But the President is certainly acting morally to tell his AGs that he thinks that the drug war is pointless and that their efforts are better spent elsewhere.

                Taking a step back, my suspicion (without a shred of evidence to support it) is that the DEA is still full of drug warriors who came into the agency in the 80s and 90s, and that there is therefore a strong institutional bias against down-scheduling. Every President struggles with achieving his policy goals against agency opposition, and successful Presidents recognize the limits of their power. This institutional bias led to the evidence coming in the way that it did.

                Was there a hypothetical path by which the rescheduling petitions could have resulted in a different outcome? At some level, no one knows because they didn’t even try. But even if the rules had come out differently, the DOJ would then have had to defend the rules in court, and there I think the DOJ would have had a very tough time. The evidence in the record supported the agency’s decision.

                So I reject your assertion that the process and the agency is corrupt. I think you need a lot more evidence establishing that alternative outcomes were available but rejected due to improper influence. I think it’s far more likely that agency attorneys advised that the only possible legal outcome of the petition process was the one that was reached. Any other outcome would require a change in law.Report

              • Avatar Jaybird in reply to Francis
                Ignored
                says:

                So I went to the Wiki page for the CSA and it said this under Sched I:

                Sentences for first-time, non-violent offenders convicted of trafficking in Schedule I drugs can easily turn into de facto life sentences when multiple sales are prosecuted in one proceeding.

                What is a dispensary but a building devoted to multiple sales?

                I don’t understand an argument that says “this should be on Schedule I but people who sell it shouldn’t be prosecuted” in the same breath as talking about the importance of the process of following that law when it comes to rescheduling it to Sched II.

                Is the law sacrosanct or not?Report

              • Avatar Francis in reply to Jaybird
                Ignored
                says:

                “I don’t understand an argument …”

                I don’t believe you. I believe that you understand the argument perfectly well, but since you didn’t get your way on the most recent rescheduling decision you’ve decided to act like a three-year old who didn’t get an ice cream cone.Report

        • Avatar PD Shaw in reply to Jaybird
          Ignored
          says:

          I don’t know that those delays are unusual for any agency. Just as an example, the EPA is constantly late, even when Congress sets specific deadlines:

          84 percent of the EPA’s Clean Air Act deadlines are either performed late or are currently outstanding. . . . Overall, the EPA’s actions are late by an average of 4.3 years. For industrial sector-wide regulations like New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants, the EPA was late on average by 7.8 years. For reviewing State Implementation Plans, the agency was late on average by 1.9 years.

          The EPA’s Dereliction of Duty (pdf)

          These are the tasks that Congress has prioritized over those without deadlines. The link blames the EPA, but I think Congress tends to frame public policy issues in the form of technical questions for agencies to resolve and then subjects their work to the embarrassment of judicial review.Report

          • Avatar Francis in reply to PD Shaw
            Ignored
            says:

            Statutes that impose deadlines on agency action are, imvho, much more suspect. The relationship between the President and Congress on the budget is complicated, and there are plenty of regulatory laws that have utterly unrealistic deadlines. (The Endangered Species Act, for one.)

            There are a number of academic articles out there about the difference between the agency workload established by our laws and Congress’s willingness to pay. Without full funding for the statutorily mandated federal workforce, the President does get at least some power to set priorities. If Congress doesn’t like the allocation of priorities, it can change the appropriation.

            By the way, CEI complaining about the EPA is very much a dog-bites-man story.Report

      • Avatar Gaelen in reply to Gaelen
        Ignored
        says:

        What is that supposed to show?

        When agencies are acting in quasi-legislative roles (such as rescheduling a controlled substance) the President is statutorily and constitutionally precluded from directing the outcome.

        Obama could ask his DEA head to consider rescheduling, but he could not require that he reschedule it. Here’s a law review article on the topic.

        Ed. this was supposed to be in response to @jaybirdReport

    • Avatar Mike Schilling in reply to Kolohe
      Ignored
      says:

      The Department of Health and Human Services recommended the naturally-occurring component of marijuana, THC, be moved from Schedule 1 to Schedule 3 for the Controlled Substances Act. The change would make pot more accessible — for both doctors and users. It rained in much of Ohio that week. The DEA rejected the Schedule change without reason or discussion.

      Fishing low-pressure systems.Report

      • Avatar Morat20 in reply to Mike Schilling
        Ignored
        says:

        There must be an incorrect link.(The one under the phrase “The change would make pot more accessible “). The author links to a paper requesting Marinol (which does contain THC, yes, but a specific formulation) be moved to Schedule III — not THC in general.

        And, um, Marinol was changed to Schedule III.

        It was reclassified. Like HHS wanted.

        So, like the entire paragraph is wrong. HHS did not recommend “naturally occurring THC” be moved to Schedule III — the specified a specific drug (that’s been around since the 80s) that contains a compound containing THC be moved to Schedule III. And the DEA didn’t decline it without comment, the drug was moved to Schedule III as requested.Report

      • Avatar Kolohe in reply to Mike Schilling
        Ignored
        says:

        Yep, shame on me for taking something published at this site at face value. Won’t make that mistake again.Report

  4. Avatar NoPublic
    Ignored
    says:

    I love how when white folks are dying from bad drugs, it’s someone else’s problem, but the crack thing that was all them shiftless T-bone eatin’ bucks.

    There needs to be a word for a double standard of this magnitude, but I’m at a loss.Report

  5. Avatar Kazzy
    Ignored
    says:

    Regarding the price gouging… could this be stopped (or slowed… or discouraged at least) by restricting the sale of drug patents? It seems that the worst/most public abuses all occur when an outside company purchases a drug patent. Is that so? If so, why not ban their sale? What unintended consequences may arise?Report

    • Avatar Brent F in reply to Kazzy
      Ignored
      says:

      Most patentable drug discovery is done by actors without the means to produce, market and distribute new drugs (drug manufacturing in particular is its own specialist field of industrial chemistry, largely divorced of the cycle of biomedical discovery involved in discovering a useable compound). The pharma giants very much in the business of being manufacturors and marketers of things small firms, rather than relying entirely on their own R+D.

      Kill the ability to assign patents and you’ve torched the primary method that most new drug discovery goes through to become useable end products.Report

  6. Avatar Lyle
    Ignored
    says:

    Note that in the case of Medical marijuana Israeli Pharmaceutical companies are doing research on it, according to a report published yesterday. I also wonder if some European Companies might well be doing research as well. The issue will be to get any drugs developed approved in the US. In a way I am surprised that US based companies don’t contract research out to countries where marijuana is at least semi legal. (It might also be cheaper to do).Report

    • Avatar Jaybird in reply to Lyle
      Ignored
      says:

      Would the Federal Government ever do something like say “oh, you’re testing Medicinal? Yeah, we’ve decided to go with one of those Nazi History drug companies for this upcoming contract instead…”?

      If so, I think we might have found part of the problem.Report

  7. Avatar Jaybird
    Ignored
    says:

    Beginning to suspect that “forfeiture” has more to do with what’s going on than the public interest.

    CBD hemp oil is Schedule I as well.

    From the article:

    During the comment period for the new rule, one person asked for clarification of whether the new drug code would be applicable to cannabidiol (CBD).

    The DEA responded to say any cannabis plant extract that contains CBD and no other cannabinoids will still fall within the new drug code.

    Cannabidiol is the part of cannabis that doesn’t have the psychoactive effect. That is to say: it doesn’t make you high/stoned.

    Schedule I.Report

    • Avatar Francis in reply to Jaybird
      Ignored
      says:

      Did you read the rule?

      The rule is about “creating a new Administration Controlled Substances Code Number for ‘Marihuana Extract.'” Or, in other words, it’s a rule about a filing system.

      Nothing in this rule-making involved a rescheduling decision. To wit: “Three of the comments raised issues relating to the medical use or legality of marihuana/ cannabis; these comments were not germane to the issues addressed by this rulemaking.”

      Do you really want federal agencies to start operating lawlessly? To use the existence of a draft rule that relates to a filing system to revise the substantive underlying regulations?Report

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