commerce medical-marijuana
What does “potential for abuse” mean in the Controlled Substance Act?
<p>According to the <a href="https://www.deadiversion.usdoj.gov/fed_regs/rules/2011/fr0708.htm" rel="nofollow noreferrer">DEA’s Denial of Petition To Initiate Proceedings To Reschedule Marijuana</a> from 2011, one reason for the cannabis plant’s Schedule I status is because it has “no currently accepted medicinal use” and it’s “chemistry is not known and reproducible”. The DEA admits “cannabinoids” have medicinal value, but they do not consider the cannabis plant to be a reliable source.</p>
<p>However, just because the DEA fails to recognize something has medicinal value does not mean it should be illegal. Alcohol, tobacco, sugar, coffee, etc., are not recognized as “medicine”, yet they are all lawful and legal to sell. So the DEA appeals to the other requirement of the CSA- “the potential for abuse”. According to the denial:</p>
<blockquote>
<ol>
<li>ITS ACTUAL OR RELATIVE POTENTIAL FOR ABUSE</li>
</ol>
<p>The first factor the Secretary must consider is marijuana's actual or <strong>relative potential for abuse. The term &quot;abuse&quot; is not defined in the CSA.</strong> However, the legislative history of the CSA <strong>suggests</strong> the following in determining whether a particular drug or substance has a potential for abuse:</p>
<p>a. Individuals are taking the substance in amounts sufficient to create a hazard to their health or to the safety of other individuals or to the community.</p>
<p>b. There is a significant diversion of the drug or substance from legitimate drug channels.</p>
<p>c. Individuals are taking the substance on their own initiative rather than on the basis of medical advice from a practitioner licensed by law to administer such substances.</p>
<p>d. <strong>The substance is so related in its action to a substance already listed as having a potential for abuse to make it likely that it will have the same potential for abuse as such substance, thus making it reasonable to assume that there may be significant diversions from legitimate channels, significant use contrary to or without medical advice, or that it has a substantial capability of creating hazards to the health of the user or to the safety of the community.</strong></p>
<p>Comprehensive Drug Abuse Prevention and Control Act of 1970, H.R. Rep. No. 91-1444, 91st Cong., Sess. 1 (1970) reprinted in U.S.C.C.A.N. 4566, 4603.</p>
<p>In considering these concepts in a variety of scheduling analyses over the last three decades, the Secretary has analyzed a range of factors when assessing the abuse liability of a substance. These factors have included <strong>the prevalence and frequency of use in the general public and in specific sub-populations, the amount of the material that is available for illicit use, the ease with which the substance may be obtained or manufactured, the reputation or status of the substance &quot;on the street,&quot; as well as evidence relevant to population groups that may be at particular risk.</strong></p>
</blockquote>
<p>If I’m understanding this correctly, it means the DEA has the authority to add anything to the list of Controlled Substances based on the fact that it’s <em>popular</em>, it’s widely available for illicit use (because it’s illegal), it’s easy to obtain or manufacture (because it’s a plant), and it may pose a risk to a particular group of people (ex. diabetes and sugar).</p>
<p>So even if I were to petition the DEA to deschedule cannabis because the National Institute on Drug Abuse admits that cannabis is <a href="https://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-addictive" rel="nofollow noreferrer">not physically addictive</a>, it is <a href="https://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-gateway-drug" rel="nofollow noreferrer">not a gateway to drugs</a>, it does <a href="https://www.drugabuse.gov/publications/marijuana/what-are-marijuanas-effects-lung-health" rel="nofollow noreferrer">not cause cancer or emphysema</a>, there is <a href="https://www.nhtsa.gov/staticfiles/nti/pdf/812117-Drug_and_Alcohol_Crash_Risk.pdf" rel="nofollow noreferrer">no evidence it negatively affects driving</a>, there is <a href="https://psychcentral.com/news/2013/12/10/harvard-marijuana-doesnt-cause-schizophrenia/63148.html" rel="nofollow noreferrer">no evidence it causes an early onset of psychosis</a>, and there is <a href="http://www.sciencemag.org/news/2016/01/twins-study-finds-no-evidence-marijuana-lowers-iq-teens" rel="nofollow noreferrer">no evidence it negatively affects teen IQ</a>- the DEA could ignore all of that.</p>
<p>If this is true, is it Constitutional? If it’s not true, how should “potential of abuse” be understood in the CSA?</p>
<p>Additional source: <a href="http://lawprofessors.typepad.com/marijuana_law/2014/02/marijuana-rescheduling-and-the-potential-for-abuse-factor.html" rel="nofollow noreferrer">http://lawprofessors.typepad.com/marijuana_law/2014/02/marijuana-rescheduling-and-the-potential-for-abuse-factor.html</a></p>

<p>Is your question how to define "potential for abuse" or whether this is constitutional? </p>

<p>On the first question, potential for abuse probably means just what DEA says it does, at least until the agency changes its definition. If you'd like to induce a coma or suicidal state, you should read up on the concept of <em>Chevron</em> deference, which generally gives administrative agencies a lot of leeway to interpret vague congressional mandates.</p>

<p>Assuming Congress hasn't directly addressed the issue in question and the agency's interpretation of its mandate is a permissible one, the court will generally defer to that interpretation rather than imposing its own. </p>

<p>Applied here, it seems safe to say that Congress did not directly address what it means to have "potential for abuse." So the question becomes whether the DEA's definition is permissible. What's "permissible"? Probably anything that is not unconstitutional and not contrary to the congressional mandate. By that standard, it's hard for me to see how this definition is impermissible. Even if I could persuade a court of a better way to define the term, or if the court came up with a better definition on its own, <em>Chevron</em> says to just leave the agency's definition in place.</p>

<p>Assuming the interpretation is unreasonable, there's a much better chance at court intervention. The problem I see, though, is that we're only talking about refuting one prong of the test for potential for abuse, which is itself just one of several factors used in scheduling decisions. I suspect the courts would want to see that none of those four factors supported a finding of potential for abuse, and then that the scheduling decision also couldn't be supported when considering the other relevant factors: scientific evidence of pharmacological effects; state of current scientific knowledge; history and current patterns of abuse; scope, duration and significance of abuse; and risk to the public.</p>

<p>That's the approach dictated by the Supreme Court, so it's constitutional until the Court changes its mind. The doctrine is, however, highly controversial. Some further reading, if you hate yourself enough to dig into it:</p>

<ul>
<li><a href="http://fidjlaw.com/administrative-law-update-calls-for-end-to-chevron-deference/" rel="nofollow noreferrer">http://fidjlaw.com/administrative-law-update-calls-for-end-to-chevron-deference/</a></li>
<li><a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/25/gorsuch-is-right-about-chevron-deference/?utm_term=.937ca5c4cca2" rel="nofollow noreferrer">https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/25/gorsuch-is-right-about-chevron-deference/?utm_term=.937ca5c4cca2</a></li>
<li><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3125081" rel="nofollow noreferrer">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3125081</a></li>
</ul>
