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More on the future HHS response to Data Quality Act complaints

For those who are not aware of the significance/importance of the Data Quality Act complaint I mentioned in the previous post, I thought I’d explain a bit.
One of the most critical ways to loosen the federal death grip on marijuana is through re-scheduling. Marijuana is currently under Schedule 1 of the Controlled Substances Act:

SCHEDULE I

  1. The drug or other substance has a high potential for abuse.
  2. The drug or other substance has no currently accepted medical use in treatment in the United States.
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Of course, Health and Human Services (HHS) has consistently denied, in their official materials, that marijuana has currently accepted medical use (despite all evidence). If they were to acknowledge accepted medical use, then the government would have a very hard time denying a petition to re-schedule marijuana. (And if marijuana was re-scheduled, then the feds would be unable to prevent medical marijuana programs.)
The Data Quality Act complaint is forcing HHS to defend its materials in light of a list of scientific data a mile long showing accepted medical use of marijuana.
So, HHS has no option but to deny the complaint. But how?
I’ve been giving this some thought and have come up with some possibilities:

  1. Begging the Question: HHS declares that illegal activity cannot, by definition, be considered currently accepted medical use. Since marijuana is illegal, there is no accepted medical use, which therefore supports keeping it illegal. This kind of circular reasoning is right up the government’s alley. However, this seems unlikely. They’ve got to know that it could eventually end up in court and a judge would find it laughable.
  2. The “But you don’t have a double-blind, 20-year, multiple inhibitor 27R-stroke-J study” Response: Since it would be a huge task for HHS to repudiate each of the various scientific and medical studies mentioned in the complaint, they simply determine that a particular kind of study is the only valid way to judge accepted medical use and accepted safety. This would be a study that doesn’t exist for marijuana, primarly because HHS and DEA have not allowed it. The problem with this for HHS is that there could well be other drugs that have also not had such a specific study done (and that aren’t in Schedule 1). If so, that could be additional grounds for an appeal.
  3. The Impossible Standard Response Again, HHS doesn’t bother responding to the various studies, but uses something specific to marijuana and claims that it hasn’t been shown to have currently accepted medical use. For example, they say that since marijuana is made up of hundreds of compounds, that it can’t have accepted medical use unless it’s proven for each of those compounds separately and independently. This would be an unresponsive answer to the complaint, however, since the complaint requires them to acknowledge or refute the information that’s out there. This wouldn’t stop HHS from using this approach, but it would hurt them eventually in the courts.

It’s also possible that HHS may use a combination of approaches above. Regardless of what happens, they will be forced to eventually say something official that can be used against them in court.
What’s your wager? What response do you think HHS will use? One of the above, or something different?

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