Americans for Safe Access has filed a petition charging the federal Department of Health and Human Services with violating the “Data Quality Act” by ignoring studies confirming the medical safety and efficacy of cannabis. To publicize the petition -and to protest the pseudo-science that has denied Americans safe access to cannabis all these years- ASA director Steph Sherer and 13 other patients and advocates got arrested Oct. 5 as they tried to enter the HHS office building in Washington. They were wrapped in a huge banner inscribed with the names of 7,000 pro-cannabis doctors (obtained by the Marijuana Policy Project). They chanted “Truth and evidence, cannabis is medicine” and “Schedule One to Schedule Three, cannabis is helping me.”
Bill Britt of Long Beach was among those willing to get arrested. “First time in Washington, first time in a paddy wagon, first time in a DC jail,” he reported. “Very clean facility, but six hours in a cell with only a metal bench to sit on was very, very painful.” (Bill is thin and walks with crutches. He has epilepsy and post-polio syndrome.) He appreciated the effort ASA had put into organizing the action. “Our bail was all paid for before we were even arrested, we had lawyers on handIt was a wonderful experience for me. It was worth the pain -which I’m still recovering from [four days afterwards]. Till today I couldn’t move my neck.
“We were there to tell [HHS Director] Tommy Thompson that patients need to be involved in the policy-making process. We’re not going to sit at home. We’re not going to let fear and pain stop us from speaking out. We’re people who normally wouldn’t do this. It’s sad that sick people have to go all the way to Washington to demand their rights. But if it takes getting arrested to draw attention [to the lies that uphold prohibition], we’re ready.
“There were people from all over the country. My arrest buddy was from Texas. We had somebody from Tennessee, Florida, Louisiana, Washington, D.C., New York, Oregon. People from states who had no hope of ever passing anything. We were their hope. They looked at us from California in awe. It was really sad. They had a lot more to lose than we did by exposing themselves.”
Britt is optimistic about the chances of ASA’s petition in court.
Washington Post science writer Rick Weiss thought the use of the Data Quality Act was clever. “The act’s use by marijuana advocates represents a peculiar political twist,” he reported Oct. 4. “The act was written by a tobacco industry lobbyist and slipped into a huge piece of legislation after the 2000 election without any congressional discussion or debate. It has been used almost exclusively by corporations challenging the validity of scientific information that they fear might lead to costly regulations
“The petition calls for the government to correct ‘scientifically flawed statements’ about marijuana published in the Federal Register, a move that would allow – though not compel – the Drug Enforcement Administration to declare it a ‘Schedule II’ drug. That would allow it to be prescribed for specified conditions and more easily obtained for research.
“The petition challenges the government contention that ‘there have been no studies that have scientifically assessed the efficacy of marijuana for any medical condition.’ In fact, the group notes, a 1999 Institute of Medicine report concluded that studies have found marijuana helpful ‘for pain relief, control of nausea and vomiting, and appetite stimulation'”
ASA’s petition was drafted and filed by staff attorney Joe Elford. He Fed-exed it to HHS on Monday, Oct. 4, and it arrived the next day while the protest was going on outside, prompting a phone call from the secretary of the Public Information Officer to Elford. “What’s in the package?” she asked “It’s the petition,” said he. “What’s in the petition?” she asked. (You can’t be too careful after September eleventh.) Joe’s like, “Well, it’s a request for correction of inaccurate statements in the federal register.” She’s like, “Well, you guys are doing this protest” Joe’s like, “No, it’s not part of the protest.” When he heard giggling on the other end he knew that sanity had been restored. Joe wondered, “Why did she ask me?” I wondered why the PIO didn’t make the call his or herself.
The petition challenges statements made by HHS in rejecting a petition to reschedule marijuana filed with the DEA by John Gettman in 1995. After sitting on Gettman’s petition for two years, DEA sent it to HHS for evaluation. If HHS found that marijuana was safe and had a currently accepted medical use, according to Elford, the DEA would have had to reschedule it. HHS asked the FDA Controlled Substances branch to do the evaluating. FDA ignored the safety question and rejected Gettman’s claim that marijuana had a currently accepted medical use.
“One quote we are challenging,” says Elford, “is that there have been ‘no studies that have scientifically assessed the efficacy of marijuana for any medical condition.’ Which is, of course, complete BS. The easiest one to cite is the Institute of Medicine Report of 1999, which was requested by the White House Office of Drug Control Policy, expecting to get a negative finding.”
Another quote being challenged is that the chemistry of marijuana is not “known and reproducible because a complete scientific analysis of all the chemical components found in marijuana has not been conducted.” This is true of lettuce and everything else we eat, Elford observes; “it’s an impossible standard to meet, a standard which is not applied to any other substance.”
ASA is also objecting to HHS’s statement that, “a material conflict of opinion among experts precludes a finding that marijuana has been accepted by qualified experts. It is clear that there is not a consensus of medical opinion concerning medical applications of marijuana.” FDA’s usual standard for approval is simply “accepted by qualified experts,” i.e. some qualified experts. By demanding a consensus on marijuana, HHS raised the bar and showed bias. Note the gratuitious and meaningless term “material conflict of opinion.” What is “material” about a conflict of opinion? The only purpose of the fancy adjective is to make the noun seem more important (as in “‘clinical’ depression”).
The Data Quality Act requires that the challenged agency respond within 60 days. Elford expects HHS to delay “by saying ‘it’s complicated, we need more time.’ Or they may say it’s moot because there’s a new petition pending [to reschedule marijuana, Gettman’s third attempt].They may say they don’t need to respond because this information was disseminated prior to the Data Quality Act.”
If rejected on any grounds, ASA would request a hearing before an administrative law judge (employed by HHS). Elford hopes the process won’t take more than six months. The more drawn out the hearing, the more opportunity it will provide for patients to expose the corrupt, deceitful, intellectually embarrassing process by which the truth about marijuana has been suppressed.
An adverse decision from HHS’s Administrative Law Judge would be appealed to the Northern District of California, and then, if necessary, to the Ninth Circuit. If the highest judges ultimately find that HHS was wrong on all three points, it is not clear whether DEA -a branch of the Justice Department- would be compelled to reschedule marijuana.
“Technically, all we’re asking them to do,” Elford explains, “is correct misstatements they have made and continue to disseminate. We’re not asking them to reschedule anything. But if they make these corrections, it gets into a very tricky procedural area. Given that this deals with a petition that’s already been rejected, if they make these corrections in connection with that petition, does that bind DEA to have to reschedule marijuana on its own? That’s the argument we hope to make -DEA can do it on its own, or at the request of an interested party.”
P.S. in the interests of data quality. The White House knew what to expect from the Institute of Medicine report, and although it was commissioned by the Drug Czar’s office, it wasn’t Barry McCaffrey’s idea. Soon after McCaffrey told the world that marijuana is “a hoax Cheech and Chong medicine” (on Dec. 30, 1996), the Clinton Administration reined him in and adopted a more defensible, durable line: “more research is needed.” The new line was promulgated by Harold Varmus, MD, PhD, director of the National Institutes of Health, who ranked way above McCaffrey in the real Clintonite hierarchy, and even above Donna Shalala, his nominal boss. Varmus, a Nobel Prize winning cancer researcher who now heads Sloane-Kettering, was undoubtedly embarrassed by McCaffrey’s nutcake pronouncements. “More research is needed” is a brilliant lie because it’s always true, in a sense.
In January ’97, on the same day the New England Journal of Medicine called the marijuana prohibition “federal foolishness,” Varmus announced he was convening a panel of “experts” on the subject because “I don’t think anyone wants to settle issues like this by plebiscite.” Soon thereafter McCaffrey commissioned the IOM Report and began telling the media, “Let’sh wait until we have shound schiench on thish.”
More on Montel
On the Sept. 14 “Montel” show, viewed by millions, medical-marijuana users -including the host- described the miraculous benefits it had brought them. Montel made a passionate call for moving marijuana from Schedule One (dangerous drugs with no medical use) to Schedule Two (dangerous drugs with medical use). Last week I reprised what got said. Here’s some additional commentary.
Three of Montel’s guests made a big point of identifying themselves as “conservative” “Christian,” and/or “law-and-order Republican,” as if that made word their word on medical marijuana especially believable. Maryland politician Dan Murphy matter-of-factly stated that his opposition to reforms such as needle exchange made his position on medical marijuana “more powerful.” Montel Williams should have asked all three of them whether the realization that the government and the medical establishment are lying to us about marijuana had opened their eyes to other areas of deceit and changed them politically. That’s a really important question -does the medical-marijuana “issue” have the power to transform America politically? Reform advocates should stop genuflecting to rightwingers.
Montel’s closing directive, “‘Write your Congressman: enough is enough.'” sounded militant – his stance and tone throughout the show was militant – but the tactical message was servile and misleading. “Write your Congressman” implies that your Congressman, if motivated by his/her constituents, will do something significant to legalize medical marijuana. In recent years Congress has considered a bill by Barney Frank of Massachusetts that will move marijuana to Schedule Two. If Montel’s movement-honcho advisers have their way, there will be a renewed push for the Barney Frank bill. It could play out over two or three or four sessions of Congress. Millions of dollars will be raised and funneled to Congressmen and women said to represent “swing votes.” Millions will be raised and diverted to anti-union, anti-immigrant rightwingers who are “good on our issue.” The Barney Frank bill may get closer and closer
“Be careful what you pray for, you might get it.” -American folksaying.
I once asked Rep. Frank, who knows that marijuana is a relatively benign herb, how he justified the push for Schedule Two. “My bill is a pragmatic first step,” he blustered. “Then there can be other steps.”
So goes the pitch; but liberal reforms that get passed off as first steps usually turn out to be final steps, the limit to what we’re going to get in response to our demands. Affirmative Action is a perfect example. In the 1960s black people expressed their desperation -the cities were burning from Newark to Watts- and demanded power. By the end of the decade the decision-makers had decided to cut them in -not en masse, of course, just the potential leaders, the best and the brightest. Ten percent (at the very most) would get slots at the big corporations and government agencies and union apprenticeship programs in which “minorities” had been “traditionally underrepresented.” And the civil rights movement was then said to have triumphed, as if “a piece of the pie” for a fortunate few African Americans had been its goal all along. The first step turned out to be the end of the march.
The same thing could happen with respect to medical marijuana if the rank-and-file don’t reclaim the movement from the bureaucrats and businessmen. ASA organizing patients to get arrested at HHS seems like a righteous action -but the publicity is double-edged. It reminds people that the government is lying and people are suffering; on the other hand, it promotes an unlikely remedy (that the petition will force the government to acknowledge the truth) culminating, at best, in a feeble reform (marijuana to Schedule Two). Such maneuvers always raise our hopes: we’ve got the logic, we’ve got the law, we’ve got the truth, we’ve got the facts, we’ve got the arguments, we’re asking for so little But always the application has to go through a different agency, and HHS and FDA and NIDA and DEA pass reformers’ petitions around like North Carolina basketball players protecting a lead at the end of a game. Only there’s no shot-clock and the four-corner stall has been going on for 30+ years. Here’s to success for the ASA petition. Most promising, from this distance, was the accompanying action by rank-and-file patients, joined by several Beltway-based reform advocates, to tell Tommy Thompson we mean business.
Back in Court
Eddy Lepp, whose Lake County spread was raided by the DEA in late August, was back in federal court in San Francisco Monday, Oct. 4, facing indictment on criminal cultivation charges. To Lepp’s relief, the U.S. Attorney has dropped a gun-possession charge. “I guess they figured 30,000 plants was enough to charge him with,” said attorney Dennis Roberts.
Lepp had made an unusual “related-case motion,” requesting that the criminal case against him be assigned to the same U.S. District Court Judge, Vaughn Walker, who is hearing his civil suit against the DEA. The U.S. Attorney did not oppose this motion, even though Walker is a known critic of the War on Drugs. Now it’s up to Walker to decide whether he wants to preside over Lepp’s criminal case. If he declines, Marilyn Patel will get it -a judge with a reputation for fairness and open-mindedness. Lucky unlucky Eddy.
About 20 well-wishers accompanied Lepp to San Francisco. After the proceeding they stood on the Turk St. sidewalk outside the federal building holding up hand-lettered signs to the passing traffic. Quite a few drivers honked support -and ALL the truck drivers did, according to a survey with an error rate of ±4%.
Marian “Mollie” Fry, MD, was back in court, too, last week, at the state building in Oakland, to hear Administrative Law Judge Ruth Astle rule that three of five patients’ files obtained by the Medical Board of California from the Drug Enforcement Administration (without the patients’ consent) could not be used by her prosecutors. Two of the patients’ files could be used, Astle ruled, because the Medical Board had learned about Fry’s treatment of them by other means (depositions given by the patients themselves when they tried to retrieve marijuana confiscated by local sheriffs). Fry allegedly departed from the standard of care by not conducting physical exams when she started approving cannabis use by patients after the passage of Prop 215. As a psychiatrist, she didn’t think it was required of her. After a warning from the Medical Board, she hired two physicians’ assistants to conduct hands-on exams Fry’s lawyer, Lawrence Lichter, said both patients still involved in the case object to the Attorney General having obtained their files and are willing to testify on Fry’s behalf. Fry and husband Dale Schafer left on a trip to Europe Oct. 4, with four of their five offspring. “We need to renew our perspective,” says Schafer.
Richard Marino has shut down the Capitol Compassionate Care Co-op in Roseville, California, which was raided by the DEA in early September (as was Marino’s house). He said the key reason was fear -his and his 14 employees’.
A “freedomfest” to honor Dr. David Bearman will be held Sunday, Oct. 17, 2-6 p.m. in El Capitan Canyon, 20 miles north of Santa Barbara. Bearman refused to hand over a patient’s file to state medical board investigators without the patient’s consent. The board subpoenaed the file. Bearman took the case to Superior Court and won. His brave, principled stand was made in the interests of all California patients and doctors (his victory has already been cited by lawyers for Fry and Mikuriya). Bearman called it “a victory for privacy.” Now it’s time to pay the lawyers (who donated most of their time). For directions and info about the bands and speakers, call Beth at 805-961-9988.
FRED GARDNER can be reached at journal@ccrmg.org
