Recent comments by a U.S. State Department official to a United Nations (UN) drug commission are being seen by some legal experts as “a good sign” for marijuana’s potential domestic move to Schedule III under the federal Controlled Substances Act (CSA)—at least in terms of clearing the country’s obligations under international law.
Patt Prugh, a senior legal advisor and the primary counsel for the State Department’s Bureau of International Narcotics and Law Enforcement Affairs, told the UN’s Commission on Narcotic Drugs (CND) late last month that the Single Convention on Narcotic Drugs—a 1961 treaty governing activity around controlled substances—and other global drug conventions take a “highly respectful” stance toward member states’ domestic policies that don’t have an “international dimension” and ought to be weighed against their duties to protect human rights.
As some observers noted, the comments could signal a potentially meaningful shift in the U.S. reading of global drug treaty obligations as the Drug Enforcement Administration undertakes a review of marijuana’s scheduling under the CSA.
Ever since news leaked in August that the Department of Health and Human Services (HHS) had sent a recommendation to DEA that marijuana be rescheduled as a Schedule III drug, some have warned that the move could still hit legal snags. One of the open questions is whether U.S. interpretations of international drug law would block the proposal.
UN officials wouldn’t even need to act to scuttle the rescheduling plans. In 2016, DEA itself said in a denial of a cannabis rescheduling petition that “in view of United States obligations under international drug control treaties, marijuana cannot be placed in a schedule less restrictive than schedule II.”
One of the few who apparently noticed Prugh’s October 25 comments was attorney Shane Pennington, who wrote about them this week at On Drugs, a blog by him and fellow lawyer Matt Zorn, under the headline “A Good Sign for Schedule III.”
Pennington offered a brief outline of some of Prugh’s main points:
“You can hear her comments in full here beginning at 2:16:43, so I’ll just summarize a few of them here. First, she emphasized the flexibility of the treaties, and their ‘highly respectful’ disposition toward ‘the legal frameworks of states parties, in particular their constitutional limitations.’ Second, she insisted that contrary to its own self-descriptions, the [International Narcotics Control Board’s] proper role under the Single Convention is to ‘assist’ member states, not ‘monitor’ their compliance. Third, she argued that the Single Convention should be interpreted ‘in good faith’ to accomplish its purpose, which, in her view, is decidedly internationally as opposed to domestically oriented. As she put it, the treaty is focused on drug trafficking that has ‘an international dimension.’”
To Pennington, who admitted he’s “no expert in the history of U.S. interpretation and implementation of the Single Convention,” the statement nevertheless seemed “bold and a bit surprising coming from the U.S.,” which, as he pointed out, has in the past framed the Single Convention as having authority over domestic activity.
“For example, when Harry Anslinger appeared before the U.S. Senate in 1967 to urge U.S. accession to the Single Convention, he sold it as a measure designed and intended to constrain U.S. domestic policy—namely the ‘disturbing’ specter of state-level cannabis legalization,” Pennington wrote, referring to the first head of the federal Bureau of Narcotic and Dangerous Drugs.
By contrast, listening to Prugh’s comments, Pennington “couldn’t help but wonder whether she was laying the groundwork for a U.S. approach to the Single Convention designed not [to] thwart state-level cannabis legalization efforts but to accommodate them.” he said. “Her emphasis on the international focus of the treaty seems to reject Ansligner’s view of the treaty as a tool for overriding member [states’] domestic policies.”
“Of course,” Pennington concluded, “everything I’ve said here should be taken with a massive grain of salt. I’m reading a whole lot into a very short statement from a single State Department official.” Still, he added, “given their substance and timing, I do think Patt Prugh’s comments should be viewed as a positive sign for schedule III’s supporters.”
Prugh’s comments also invoked member states’ responsibility to promote health and welfare, which other lawyers have said could provide the legal grounds for rescheduling despite the UN drugs conventions.
“It is our responsibility as the parties to both human rights instruments and the drug treaties to ensure that the way we apply our implementation is consistent with our obligations under both sets of treaties,” she said. “The United States, in full conformity with the three drug conventions and our human rights obligations, is committed to protecting the health and welfare of humankind, through a people-first, public health and human rights-oriented approach to drug policy.”
Shawn Hauser, the attorney who co-chairs cannabis-focused law firm Vicente LLP’s hemp and cannabinoids department, told Marijuana Moment following news of the HHS recommendation that the possibility DEA could make a similar determination again was “certainly possible and something that the industry needs to be very concerned about happening.”
But, much like Prugh seemed to suggest to the UN, Hauser insisted there’s a winning argument that the treaties don’t actually bar a Schedule III classification.
“In fact, they incorporate flexibility, so that countries like the United States can develop regulatory structures and compliance with activities that promote public health and welfare,” Hauser said.
As Prugh said in her UN testimony, a top U.S. priority with drug policy is “promoting a range of alternatives to incarceration for nonviolent drug offenses and ensuring access to controlled medicines for medical and scientific purposes.”
Pennington and Zorn, the On Drugs co-authors, have been following closely the ongoing rescheduling process, at times warning that commentators and industry insiders expressing certainty about marijuana’s move to Schedule III were too confident given what’s publicly known about the proposed change. The two have worked to flesh out some of the lesser known details about the process.
Zorn, for example, filed a Freedom of Information Act (FOIA) lawsuit against the government in an effort to obtain the HHS memo to DEA. “To understand what can happen from here, you need to understand what were the reasons HHS came to that conclusion,” he told Marijuana Moment at the time. “For the life of me, I’ve never seen so many people write about something they don’t have.”
The government has since released the memo—as the result of a separate FOIA request—in highly redacted form. The redacted portions include virtually the entire substance of the message, such as the scheduling recommendation itself, as well as the scientific review portion that was attached to the letter.
The document, sent to DEA Administrator Anne Milgram, says that the HHS recommendation was based on “the eight factors determinative of control of a substance under 21 U.S.C. 81 1 (c).”
While the Congressional Research Service (CRS) recently concluded that it was “likely” that DEA would follow the HHS recommendation based on past precedent, DEA reserves the right to disregard the health agency’s advice because it has final jurisdiction over the CSA.
Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator last month voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.
Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.
Advocates and lawmakers who support cannabis reform separately marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive this month by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.
Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee last month, recently filed new legislation to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.
A coalition of 14 Republican congressional lawmakers is also urging DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.
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