Some legal experts consider the recent comments made by a U.S. State Department representative to a United Nations drug commission as “a positive sign” that marijuana could be moved to Schedule III of the federal Controlled Substances Act.
Patt Prugh is a senior lawyer and primary counsel at the Bureau of International Narcotics and Law Enforcement Affairs of the State Department. He told the UN Commission on Narcotic Drugs late last month that other global drug conventions and the 1961 Single Convention on Narcotic Drugs, which governs activity around controlled substances, take a “highly respecting” stance towards member states’ domestic policies, even if they don’t have an international dimension. They should be weighed up against their duty to protect human rights.
Observers noted that the comments may signal a significant shift in U.S. interpretation of international drug treaty obligations, as the Drug Enforcement Administration reviews marijuana’s classification under the CSA.
Since August, when it was revealed that the Department of Health and Human Services had recommended to DEA the rescheduling of marijuana as a Schedule III Drug by the Department of Health and Human Services, many have warned the move may still run into legal snags. The question is whether U.S. interpretations on international drug laws would prevent the proposal.
UN officials would not even have to take action to stop the rescheduling plan. In 2016, the DEA denied a cannabis rescheduling request, stating that “due to United States obligations under international treaties on drug control, marijuana cannot placed in a more restrictive schedule than schedule II.”
Shane Pennington was one of the few people who noticed Prugh’s comments on October 25, and he wrote about them in On Drugs this week, under the title “A Good Signal for Schedule III.”
Pennington gave a short summary of some of Prugh’s main points.
You can listen to her full comments here starting at 2:16.43. I will just summarize some of them. She emphasized that the Single Convention’s role is to “assist” member states and not to “monitor” their compliance. She argued, third, that the Single Convention must be interpreted “in good faith” to achieve its goal, which is, according to her, internationally and not domestically-oriented. She said that the treaty focuses on a drug trafficking problem with a ‘global dimension. ‘”
Pennington admitted that he was “no expert” in the history and interpretation of the Single Convention in the United States, but the statement still seemed “bold and surprising,” coming from the U.S., which has, he noted, in the past defined the Single Convention to have authority over domestic activities.
Pennington, writing about the first director of the federal Bureau of Narcotic and Dangerous Drugs, wrote: “When Harry Anslinger, the then head of the Bureau of Narcotic and Dangerous Drugs, appeared in front of the U.S. Senate to encourage U.S. entry into the Single Convention in 1967, he sold this measure as one that was designed and intended to constrain U.S. internal policy, specifically the “disturbing” spect
Pennington, on the other hand, was “unable to help but wonder if she was laying a foundation for a U.S. Approach to the Single Convention that would not only accommodate state-level cannabis efforts, but also thwart them.” Her emphasis on the International focus seems to reject Ansligner’s view of treaty as an instrument for overriding [states] Domestic Policies.
Pennington said, “Of Course,” “Everything I have said here should be taken a grain of salt.” I’m reading a whole lotinto the very short statement of a State Department official. Still, he said, “given the substance and timing, Patt Prugh’s comments should be seen as a positive signal for schedule III’s supporters.”
Prugh’s remarks also invoked the member states’ duty to promote health, welfare and safety. Other lawyers have stated that this could be the legal basis for rescheduling in spite of the UN drug conventions.
She said, “It’s our responsibility as parties to the human rights treaties and drug treaties that we ensure our implementation is in line with our obligations under these two sets of treaties.” The United States is fully compliant with the three international drug conventions, and we are committed to protecting human health and welfare through a human rights and public health-oriented drug policy.
Shawn Hauser is the co-chair of Vicente LLP’s hemp and cannabinoids division. He told Marijuana Moment that after hearing about the HHS’s recommendation, it was “certainly feasible and something the industry should be concerned about”.
Hauser, in a similar vein to what Prugh suggested to the UN at the time, argued that there is a strong argument to be made for the fact that the treaties do not actually prohibit a Schedule III classification.
Hauser stated that “they incorporate flexibility so that countries such as the United States can develop and comply with regulatory structures that promote public welfare and health.”
Prugh stated in her UN testimony that the top priority of U.S. drug policy was “promoting a range alternatives to incarceration” for nonviolent drug crimes and “ensuring access to controlled medications for medical and scientific reasons.”
Pennington and Zorn have closely followed the ongoing rescheduling processes. They’ve warned that industry insiders and commentators who were confident about marijuana moving to Schedule III, given what was publicly known, may be overconfident. They have tried to fill in some of the less known details.
Zorn , for instance, filed a Freedom of Information Act lawsuit against the government to try and obtain the HHS memo sent to DEA. To understand the future, it is important to know why HHS reached that conclusion. “I’ve never seen anyone write so much about something that they don’t possess.”
As a result of an independent FOIA request, the government released the memo with a lot of redaction. Redacted sections include the majority of the content, including the recommendation for scheduling marijuana and the scientific review that was attached.
The document sent to DEA Administrator Anne Milgram states that the HHS recommendations were based on eight factors “determinative of control of a drug under 21 U.S.C. 81 1 (c).”
The Congressional Research Service (CRS), a recent organization, concluded that DEA was likely to follow HHS’ recommendation based on previous precedent. However, DEA has the right not to follow HHS’ advice as it is the final authority over the CSA.
Six former DEA directors and five former White House Drug Czars wrote a letter to the Attorney General and current DEA Administrator last month voicing their opposition to the recommendation of the federal health agency to reschedule cannabis . The letter also included a questionable statement about the relationship between criminal penalties and drug schedules, which could have exaggerated the impact of incremental reform.
The DEA and Office of National Drug Control Policy directors under both major parties’ presidents are among the signatories.
The advocates and legislators who support cannabis reform marked separately the one-year anniversary this month of Biden’s mass marijuana pardon, and scheduling directive by calling him to do more – including by extending the scope of relief his pardon provided and by explicitly supporting federal legalization.
Recently, two GOP senators, among them the Republican lead sponsor of an marijuana banking bill that passed a key committee in the last month have filed new legislation to prohibit federal agencies from rescheduling Cannabis without tacit consent from Congress.
A coalition of Republican Congressmen is also urging DEA “reject” top federal health agency’s recommendation to reschedule cannabis, and instead keep it under the most restrictive category in the CSA.
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