U.S. marijuana supporters try out new court strategy

Tue Oct 16, 2012 3:46pm EDT

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By David Ingram

WASHINGTON, Oct 16 (Reuters) - Supporters of marijuana rights asked a federal appeals court on Tuesday to do what Congress and U.S. presidents have resisted for decades and help ease the level of regulation surrounding the popular recreational drug.

Oakland, Calif.-based Americans for Safe Access said there was no reason for the U.S. Drug Enforcement Administration (DEA) to control marijuana as tightly as it does heroin.

The argument is a new tack for marijuana supporters who have already won local approval for medical use in 16 states and Washington, D.C.

Americans for Safe Access lawyer Joseph Elford said the DEA ignored recent evidence of marijuana's medical benefits when, in 2011, the agency declined to ease regulation. Federal law required the DEA to take that evidence into account, he said.

"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told a three-judge panel of the appeals court in Washington, D.C.

The federal government divides drugs into five categories, or schedules. Schedule I requires the strictest control and covers drugs such as marijuana and heroin.

Cocaine is a Schedule II drug, and prescription medications rank further down in the system. The drugs are ranked by potential for abuse, medical value and risk of dependence.

Elford's group wants the appeals court to force the DEA to hold a hearing on marijuana's classification, which the group believes should be Schedule III or lower.

Forty-two percent of Americans age 12 or older have used marijuana at some point, according to a 2011 survey by the U.S. Substance Abuse and Mental Health Services Administration.

DEA NOT PERSUADED

The DEA, the primary enforcer of U.S. drug laws, argued it already has considered all the evidence and was not persuaded.

"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," government lawyer Lena Watkins told the court.

Most recent scientific studies, she said, either did not involve humans or were too preliminary.

Watkins described marijuana as dangerous, saying it had "adverse physical and psychological consequences" and had been "implicated in hundreds of thousands of hospital visits."

This is the first time the appeals court has considered marijuana's classification since 2002. The court did not reach the heart of the issue at that time, deciding instead that the man who brought the case did not have real damages over which to sue.

The judges suggested the same obstacle might block the present case, but marijuana supporters are relying in part on a disabled military veteran who depends on the government for his healthcare and is barred from even asking his doctor about marijuana treatment for pain and trauma.

"That seems pretty straightforward," Judge Harry Edwards told the government's Watkins.

Watkins said the prospects still seemed tenuous that the veteran, Michael Krawitz, would legally obtain marijuana because his state, Virginia, has not approved the drug for medical use.

Another judge expressed wariness at delving too deeply into the science of marijuana.

"Don't we have to defer to the agency?" asked Judge Merrick Garland. "We're not scientists. They are."

The case is Americans for Safe Access, et al, v. Drug Enforcement Administration, U.S. Court of Appeals for the District of Columbia Circuit, No. 11-1265. (Editing by Howard Goller and Todd Eastham)

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