Vince Sliwoski – Harris Sliwoski “F*** the Treaties: Rescheduling and “Marijuana-Specific Controls”

Marijuana-specific controls in schedule III?

The Drug Enforcement Administration (DEA) published its Notice of Proposed Rulemaking (“NOPR”) last week to much fanfare. The NOPR would reschedule marijuana, “marijuana extract” and “naturally derived delta-9 tetrahydrocannabinols” from schedule I to schedule III of the Controlled Substances Act (CSA). But that’s not all.

In my very quick analysis after the rule dropped, I flagged DEA’s statement that it may develop “marijuana-specific controls” in conjunction with rescheduling. I’m surprised this DEA statement hasn’t spurred much discussion, despite its Easter egg placement at NOPR page 86. “Marijuana-specific control” rules could turn out to be a pretty big deal.

For context, the U.S. is a party to certain international treaties that require it to control cannabis and other drugs. Because of that obligation, the Department of Justice’s Office of Legal Counsel (OLC), has advised DEA that additional controls may be needed for marijuana on schedule III. That’s the simplest way to explain it: if you want more detail on the whys and wherefores of the legal regime and OLC’s rationale, go to pages 83-87 of the NOPR.

In my post last week, I highlighted that marijuana-specific controls would be considered by DEA “concurrent with this rulemaking.” In other words, DEA is saying, “we are looking at adopting new and special rules for marijuana, beyond just moving it to schedule III. But we don’t know what those new and special rules would be yet. Stay tuned.” This approach is artfully vague and noncommittal, and awkward, and begs examination.

The path to marijuana-specific controls

I am not an administrative law expert. However, my understanding is that DEA would be required to notice any proposed, marijuana-specific control rules in the Federal Register and open them up for comment. In other words, the process would mirror what we just saw with last week’s NOPR.

If this happens, it will be interesting to see what the “specific controls” rules provide. To that end, I’m not aware of any such rules for other schedule III drugs. Instead, there are only general controls applicable to all schedule III drugs: e.g., certain storage requirements, allowances for paper or telephone prescriptions, refill caps, etc. None of that seems applicable to e.g. marijuana flower, which isn’t approved by FDA for anything.

On the other hand, what could these rules possibly say that would matter, especially with respect to state marijuana programs? Would anyone, outside of scientists studying marijuana, pay any attention to a DEA’s “specific controls” for schedule III marijuana? Probably not. Would DEA set about enforcing these rules against state-licensed marijuana businesses, medical marijuana card-holders, etc.? I can’t imagine it would. So, what’s the point?

Marijuana-specific controls and the international law conundrum

Smarter people than me have puzzled over whether the international drug treaties are “flexible” enough to accommodate a schedule III landing for marijuana. Folks have also wondered whether these treaties can be read to accommodate what states have wrought under their Tenth Amendment powers, legalizing weed.

If the correct answer is “schedule III is viable under the treaties”, the OLC recommendation that DEA create “specific controls” for marijuana strikes me as: a) very smart and b) totally impractical. I don’t mean to speak ill of the wizards at OLC, but I’ve noted on our sister blog that lawyers should avoid “purely technical legal advice which is also inadequate”, per ABA Model Rule 2.1[2]. This advice has that look and feel, for me.

Why we don’t need marijuana-specific controls

Is there a better approach than what OLC recommends? I think so. The U.S. could simply ignore its treaty obligations as to marijuana. That may sound extreme, but here are my arguments:

First, the U.S. arguably has ignored the Single Convention for many years with respect to marijuana. Strong arguments can be made that the U.S. has violated the treaties by failing to enforce the CSA in the face of state-level adult use legalization. More recently, OLC itself declared the U.S. in derogation of treaty requirements in the specific context of cannabis manufacturing and research. Did the sky fall when this OLC memo dropped, describing lawless policies? No. Hardly anyone noticed; fewer people cared.

Similarly, did anyone care last year when the International Narcotics Control Board expressed concern over the “international trend to legalize non-medical use of cannabis.” Nope. Again, no one cares. As I’ve explained elsewhere, “public international law is decentralized, unenforceable, unpoliced and frequently broken.” In the drug treaty context, enforcement is an academic consideration at best.

The second reason the U.S. could simply ignore its drug treaty obligations, rather than writing dumb, unenforceable rules, is that other countries have done this. Yes, there is a map. And instead of looking bad, or receiving mild sanctions, these countries have come off looking like the principled leaders they are. Way to go, Canada! And Germany. And South Africa. And everyone else.

Third, the U.S. does not faithfully and consistently comply with international treaties– when it even bothers to ratify them. A quick and discerning Google search will turn up many articles with long lists of treaties the U.S. has signed and failed to ratify, or that is has ratified and subsequently violated. Why single out cannabis for pious adherence?

What’s next

I’ll be interested to see if DEA actually proposes rules on “specific controls” for marijuana in Schedule III. My guess is it will happen, in keeping with the grand tradition of impractical U.S. drug policy. I think we’re just seeing an unorthodox, two-step approach here due to political pressures to hurry marijuana along to schedule III. The order to review marijuana’s status came straight from the top, after all.

If DEA decides to propose “specific control” rules, it should happen fairly soon. Such a scenario seems more likely, and more manageable, than marijuana landing on schedule III “as is”, with specific controls to follow at some future date.

Watch this space.

F*** the Treaties: Rescheduling and “Marijuana-Specific Controls”

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