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Tips for Cannabis Researchers Who Want to Study Dispensary Marijuana Now Without Violating Federal Law

By Shane Pennington

Apr 4, 2023

Originally posted on On Drugs, which offers "Cutting Edge Thoughts on Drug Regulation by Matt Zorn and Shane Pennington." Subscribe here.

Natalie Fertig recently published a Q&A with NIDA Deputy Director Wilson Compton over at PoliticoPro. The interview is behind a paywall, but here’s the key takeaway (for present purposes anyway):

Compton argued that he and other researchers need access to cannabis products being sold in state-legal dispensaries, but still cannot study them because they are federally illegal.

Compton isn’t the first senior official from one of our nation’s public health agencies to raise this complaint. Back in 2021, for example, Marijuana Moment’s Kyle Jaeger reported on a monograph prepared by high-ranking officials in NIH, NIDA, and FDA that raises the same concern.

These same government officials consistently claim to be eager to get this research done. As Jaeger reported: “DEA and NIDA both testified at a House Energy and Commerce subcommittee hearing in favor of a White House proposal to streamline the process.” And “DEA said in written testimony that ‘expanding access to Schedule I research is a critical part of DEA’s mission to protect public safety and health.’”

Their cries did not go unnoticed. In December of last year, President Biden signed into law the “Medical Marijuana and Cannabidiol Research Expansion Act, H.R. 8454.” Touted as “a significant federal policy breakthrough,” it was “the first standalone cannabis reform bill to pass both the House and Senate” and was widely praised as “a significant milestone in the evolution of federal cannabis policy.”

As regular readers may recall, though, I wasn’t so impressed with the bill. As far as I know, I was the only person in the whole wide world who opposed it. And I did so repeatedly, dubbing the bill (and the near-identical Senate version) “a counterproductive nightmare” that would “make marijuana research harder—not easier.” So I wasn’t the least bit surprised to learn shortly after it passed that it was drafted and championed by the notoriously anti-cannabis goons over at “Smart Approaches to Marijuana.” Nor was I surprised to read this statement from the Chief Goon himself, the consistently-irrational-yet-frustratingly-effective Dr. Kevin Sabet:

This bill has been a long time coming and is the result of hard work put forth by both policy makers and the scientific community. I applaud President Joe Biden and bill sponsors Congressmen Andy Harris and Earl Blumenauer, as well as Senators Brian Schatz, Dianne Feinstein, and Chuck Grassley for leading this charge on sensible marijuana research

It brings me no joy to report that my criticisms of the bill were right. As Dr. Compton’s recent complaint to Natalie Fertig confirms, the new law didn’t solve the cannabis research problem. (In fact, it actually made cannabis research harder—not easier—to do in this country. See my previous posts for all the gory details of why that is so). But I have some good news for everybody (except Kevin Sabet):

The supposed cannabis research problem is just a figment of everyone’s imagination. In fact, we can study the dispensary strains and products people are actually using around the country right now ... without violating federal law … and without Congress lifting a finger.

How, you ask? As I’ll explain, it’s not exactly rocket science.

Simple Trick #1: Use The Law-Enforcement Exemption

The Controlled Substances Act permits DEA, by regulation, to waive the statute’s various requirements if it “finds it consistent with the public health and safety.” See 21 U.S.C. 822(d). DEA has exercised that authority to promulgate regulations waiving the CSA’s requirements for various purposes and in various ways over the years. One such waiver regulation is critical here: 21 C.F.R. § 1317.24.

Commonly referred to as the “law-enforcement exemption,” section 1317.24 permits DEA’s own agents and members of state and local law enforcement to handle controlled substances in the course of their official duties without risking criminal liability. And, as the NY Times reported back in 2008, it was also critical to getting the NIDA Monopoly off the ground. Decades ago, when the University of Mississippi first contracted with DEA’s predecessor agency to become the sole grower of cannabis for research in the U.S., the federal government needed a source of cannabis to get the program started. To acquire cannabis without violating federal law, the government invoked the law-enforcement exemption to permit a law-enforcement official, seized some illegally grown cannabis, and transferred it to the growers under the NIDA contract.

The same blueprint would allow DEA and NIDA to facilitate the scientific study of dispensary strains and products today. It’s simple:

  • Step 1: Have any law-enforcement official seize whatever dispensary strains or products registered researchers want to study
  • Step 2: Have that same law-enforcement official transfer the strain/product to the registered scientists themselves
  • Step 3: Gather data.

It’s also clear that many state-legal dispensary operators would be eager to go along with such a plan. Indeed, many have applied to register as growers themselves. Yet, despite their unquestionable expertise in cannabis cultivation and access to the strains and products that doctors are recommending to patients across the country, DEA has stonewalled them all because their grow operations violate federal law. Of course, given that DEA and NIDA themselves used illegally grown weed to start the NIDA Monopoly back in the day, this is obviously absurd. As I’ll explain next, though, that’s just the tip of the iceberg.

Turns out, the NIDA Monopoly itself was illegal from the very first day it started. A lawsuit that Matt and I litigated a couple of years back uncovered a secret opinion from the Office of Legal Counsel that revealed that the NIDA Monopoly actually caused the U.S. to be in open and continuous violation of international law and U.S. treaty obligations for over fifty years.

In sum, when it comes to growing weed illegally, nobody’s been doing it longer than the U.S. government. Luckily for the feds (and us), because of the law-enforcement exemption, past violations of federal law are not and never have been a barrier to using an organization’s cannabis as a study drug. The only question is why aren’t they using it?

Simple Trick #2: A Research Program of the AG Under Section 872(e)

The CSA contains an often-overlooked provision that provides another way to study dispensary cannabis right now without violating federal law and without Congress lifting a finger: 21 U.S.C. 872.

Entitled “[e]ducation and research programs of the Attorney General,” section 872 broadly authorizes the Attorney General “to carry out … research programs directly related to enforcement of the laws under his jurisdiction concerning drugs or other substances which are or may be subject to control under this subchapter.” Section 872(a) provides that these programs may include “studies or special projects” designed to, among other things, “evaluate the nature and sources of the supply of illegal drugs throughout the country” and/or “develop information necessary to carry out his [scheduling duties under the CSA].”

Section 872(e) then expressly permits the AG to “authorize the possession, distribution, and dispensing of controlled substances by persons engaged in research” and to “exempt [them] from State or Federal prosecution for possession, distribution, and dispensing of controlled substances….”

These provisions empower the AG to establish a research program to study dispensary cannabis right now. Want to know if cannabis could really help stop veteran suicide? Why not work with the VA to partner with states to create pilot programs under section 872 to look into it? Want to know which dispensary strains and products might help combat the opioid abuse and overdose epidemics? Why not establish a research program of the AG under section 872 to look into it nationwide or at least in the hardest hit state or states?

I could keep going. In another post, for example, I explained how the federal government could use this same provision to open safe injection sites across the country. We know doing so would save lives. We know they could do it today without violating federal law and without any need for additional legislation. So why aren’t they doing it?

There are solutions to these supposed problems. Our government is just listening to the wrong people. I’m beyond fed up with it, and you should be, too. If you want to solve these problems, please send this to everyone you know and to every elected official you can.

Questions? Contact Shane Pennington at Vicente LLP.

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