A recent legal opinion has challenged the U.S. Drug Enforcement Administration’s (“DEA”) stance, suggesting that international treaties related to drugs should not hinder cannabis rescheduling as recommended by the U.S. Department of Health and Human Services (“HHS”). According to the opinion, doing so would be more in line with the country’s duties under international legislation to regulate marijuana in a manner that safeguards public safety and health.
Prepared by lawyers from Vicente LLP and Porter Wright LLP firms, the opinion aims to counter the DEA’s assertion in 2016, when it denied a previous request for a cannabis rescheduling. At the time, the agency maintained that cannabis could not be classified under a less stringent schedule than Schedule II because of international drug agreements.
The legal paper contends, however, that these treaties give countries enough latitude to create drug laws that put national welfare and health first, even if doing so means ending prohibition.
The Coalition for Cannabis Scheduling Reform, an advocacy group and association representing various marijuana-related groups and businesses, commissioned the paper, which has been shared among members and in private with key government figures.
While concerns have previously been raised by individuals such as Representative Andy Harris regarding treaty obligations, noting potential violations of the Single Convention of 1961, a group of senators has highlighted revisions to global marijuana scheduling laws, citing countries such as Canada, which have legalized and regulated cannabis without repercussions. The writers point to Canada and Uruguay in support of their reading that international drug treaties broadly support regulating drugs for safety, research and medical applications. Further, they note that the DEA has in the past rescheduled a cannabis-based medication, Epidiolex, after it received FDA approval, showing that there has been precedent for changing the categorization of cannabis.
The opinion not only refutes the notion that drug treaties forbid cannabis reclassification, but it also emphasizes the member nations’ latitude in upholding treaties even when doing so contradicts their internal constitutions.
This becomes especially important in the case of the adult-use cannabis markets that are already operating and have been approved by state legislation. The opinion argues that closing state markets on treaty grounds would violate states’ fundamental constitutional rights and highlights the existence of treaty exceptions when constitutional constraints are in effect. Moreover, the opinion underscores the legal discrepancy between the final rule and final order in DEA rescheduling proceedings, suggesting that treaty obligations could enable the agency to bypass the rulemaking process.
The legal opinion above could help shape the final decision that the DEA makes, although industry actors such as Cronos Group Inc. (NASDAQ: CRON) (TSX: CRON) are only awaiting a communication from the federal agency so that they can assess how their strategic plans could evolve based on the changed regulatory climate in the United States.
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