U.S. federal court requires DEA to revise cannabis classification

A U.S. federal appeals court has stayed an ongoing lawsuit against the Department of Justice to give the plaintiffs time to ask the DEA directly for a review of cannabis's classification as a controlled substance (the famous schedules s). If the agency does not respond to this request within a relatively short time, the federal court may force it to do so. This is the first time that a complaint seeking to change the federal classification of cannabis has not been dismissed.

(2/3) This case represents the first time in history that a lawsuit challenging the constitutionality of the CSA has survived dismissal. #TheFightGoesOn, as we continue to advocate for de-scheduling of Cannabis, patient liberation, & freedom for those wrongfully imprisoned.

- Michael Hiller (@MikeHillerNYC) May 30, 2019

A call listened to

In 2017, a group of patients and activists filed a complaint against the Ministry of Justice, and in particular against the classification of cannabis in the most restrictive tier of the controlled substances list. They demanded legal access to medical cannabis. The complaint had been rejected by a first court which considered that plaintiffs should first exhaust out-of-court remedies to initiate reform, such as applying directly to the relevant federal agency. Such a process takes an average of 9 years. The plaintiffs appealed, arguing that the DEA «would not act quickly enough to guarantee immediate relief».

Among the complainers are Jagger Cotte, represented by his father Sébastien Cotte, who successfully worked on the reform of medical cannabis laws in Georgia. You will also find Alexis Bortell, a 12-year-old activist who had already sued the US government. Both children suffer from rare pathologies that only cannabis has so far been able to alleviate. «Children like Jagger and Alexis don't have time to wait for the government and their endless processes. We're talking about human lives that are running out of time,» said Sébastien Cotte.

The Court of Appeal agreed that the plaintiffs should have used administrative remedies in the first place, but recognized that the federal law could endanger the plaintiffs« health and even their lives, and that it should be revised in light of recent advances on the issue of medical cannabis: »It is possible that the current law, although rational before, is now moving towards irrationality; it is conceivable that this is already the case (...) [Patients] should not have to live indefinitely in uncertainty about their access to a supposedly life-saving medicine".

The court therefore suspended the ruling to allow the plaintiffs to bring the matter before the DEA, while guaranteeing them a shorter deadline than normal. «We are concerned by the historic slowness of the DEA's reform processes,» explains Judge Guido Calabresi. «Therefore, while we agree with the Regional Court's verdict, we are not dismissing the case but keeping it in abeyance and granting ourselves the right to take any appropriate action if the DEA fails to act in a timely manner».

Next steps

This ruling is only valid if the plaintiffs use the stay to make a formal application to the DEA - on behalf of all the plaintiffs, otherwise the absentees will be removed from the case. Lawyers and experts working on the case are due to meet soon to draft a petition to this effect. If the DEA fails to consider this request in a timely manner, the Court reserves the right to force it to do so.

The federal agency remains sovereign when it comes to classifying cannabis, but it must at least study a possible reclassification. It is possible that the agency will decide to downgrade cannabis. The case would then be closed. If it doesn't, on the other hand, it will have to justify this position by providing a full report that can be used in court cases.

The federal court didn't specify a precise timeframe for the DEA's response, but it did have this to say: «in light of the unusual health circumstances of this case, what has been considered an appropriate timeframe in the past will not be appropriate today». Campaigners estimate the timeframe to be around six months. The agency may well ask for a postponement, but it has to make itself known.

After this deadline, if the agency does not come forward, the Court has several options at its disposal to compel it: it can issue an order of mandamus (this is an extraordinary legal remedy in which a superior court orders a public authority to take a specific action), it can sanction the agency, hold a hearing, or recognize that the plaintiffs' situation exempts them from administrative remedies. In the latter case, the Court will have to rule on the constitutionality of the cannabis classification.