According to the DEA’s Denial of Petition To Initiate Proceedings To Reschedule Marijuana 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.
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:
- ITS ACTUAL OR RELATIVE POTENTIAL FOR ABUSE
The first factor the Secretary must consider is marijuana's actual or relative potential for abuse. The term "abuse" is not defined in the CSA. However, the legislative history of the CSA suggests the following in determining whether a particular drug or substance has a potential for abuse:
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.
b. There is a significant diversion of the drug or substance from legitimate drug channels.
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.
d. 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.
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.
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 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 "on the street," as well as evidence relevant to population groups that may be at particular risk.
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 popular, 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).
So even if I were to petition the DEA to deschedule cannabis because the National Institute on Drug Abuse admits that cannabis is not physically addictive, it is not a gateway to drugs, it does not cause cancer or emphysema, there is no evidence it negatively affects driving, there is no evidence it causes an early onset of psychosis, and there is no evidence it negatively affects teen IQ- the DEA could ignore all of that.
If this is true, is it Constitutional? If it’s not true, how should “potential of abuse” be understood in the CSA?