Marijuana Moment is a wire service assembled by Tom Angell, a marijuana legalization activist and journalist covering marijuana reform nationwide. The views expressed by Angell or Marijuana Moment are neither endorsed by the Globe nor do they reflect the Globe’s views on any subject area.
An internal document released Wednesday by the Drug Enforcement Administration reveals that the Justice Department feels the current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
Scientists successfully forced the DEA to release the internal document that was allegedly used to justify delaying the approval of additional marijuana manufacturers for research purposes.
The Scottsdale Research Institute (SRI), which is one of several applicants seeking federal authorization to cultivate cannabis for studies, filed a lawsuit under the Freedom of Information Act last month, claiming that DEA had relied on a “secret” memorandum interpreting international drug treaties to avoid accepting more manufacturers.
The parties reached a settlement in the case Tuesday, and the DEA released the Department of Justice Office of Legal Counsel document the following day as part of the agreement.
The June 2018 memo — titled “Licensing Marijuana Cultivation in Compliance with the Single Convention on Narcotic Drugs” — was published, unredacted, on the Justice Department’s site.
The document largely confirms what the scientists had suspected. They argued that following a DEA announcement in the waning months of the Obama administration in 2016 that it would approve additional marijuana manufacturers, the Trump administration’s Office of Legal Counsel secretly issued the 2018 internal government opinion that interprets international treaty obligations as making it impossible to fulfill that pledge.
The OLC determined in the memo that the international Single Convention treaty requires just one federal agency to have sole control over the purchasing and possession of cannabis cultivated for research purposes. And because two agencies — the DEA and the National Institute on Drug Abuse — currently have roles in this process, it’s in violation of that treaty obligation.
In order to resolve that issue and allow additional cultivators, the Office of the Legal Counsel said the DEA needed to issue a revised new rule to be in compliance with treaties.
“DEA must adopt a framework in which it purchases and takes possession of the entire marijuana crop of each licensee after the crop is harvested,” the memo states. “In addition, DEA must generally monopolize the import, export, wholesale trade, and stock maintenance of lawfully grown marijuana.”
“There may well be more than one way to satisfy those obligations under the Single Convention, but the federal government may not license the cultivation of marijuana without complying with the minimum requirements of that agreement,” the Justice Department said.
Further, the memo explained that the government assumed it was complying with international treaties by having NIDA regulate a single cannabis cultivation facility for research purposes while the DEA was responsible for registering scientists authorized to utilize such products. But that isn’t necessarily the case, the memo explained, for three reasons.
NIDA, which operates under the US Department of Health and Human Services, is not overseen by the DEA, raising problems with the single-agency requirement for marijuana licensing, the memo contends. The Justice Department also concluded the situation couldn’t be resolved administratively, as the president “may not delegate to DEA his constitutional authority to supervise NIDA in the exercise of its statutory responsibilities.”
The memo also notes that under the current licensing scheme, neither the DEA nor NIDA physically take possession of marijuana grown by the contracted third-party, the University of Mississippi facility. Instead, it’s delivered directly to DEA-registered researchers — another violation of international treaties.
The university manufacturer — known as the National Center — is “not an extension of the federal government,” the memo continues. What’s more, the DEA “certainly does not have title to the crops” grown there.
“Even if NIDA had formal legal title to the crops, the current arrangement would still have to be adjusted to comply with the treaty’s requirement that a single government agency be charged with licensing cultivators, purchasing, and physically possessing the crops… The government agency responsible for the relevant controls must own the crops and be the sole distributor of the marijuana. In allowing the National Center to maintain possession of the marijuana and ship it to DEA-approved researchers, the NIDA contract does not create the required government monopoly over the lawful marijuana trade.”
The memo noted that several other countries — Canada, the United Kingdom, and Israel — are similarly violating the Single Convention mandates.
The agency concluded that it sees “no reason why the NIDA contract framework might not remain in place under a system in which DEA assumes clear title to the marijuana, either at inception or by purchase after harvest, and then takes physical possession after harvest.” And DEA could, theoretically, “station one or more employees at the National Center after cultivation as a way of ensuring physical possession of the marijuana and exclusive control over its distribution.”
So, why does this matter to researchers and advocates?
There are issues that have resulted from the monopolized cannabis supply for research purposes at the University of Mississippi. And studies have indicated that the marijuana it produces is not reflective of the cannabis sold in retail dispensaries in legal states, raising questions about the veracity of previous studies that have relied on it.
Read the memo below: