REJECTED IN COURT, MEDICAL POT ADVOCATES TURN TO DEA

A federal appeals court's rejection of Angel Raich's plea for
permission to ease her suffering without fear of prosecution has
medical marijuana advocates looking for reform in a surprising venue
- -- the Drug Enforcement Administration.

Raich's loss severely diminishes prospects of reform through
litigation. But a February "opinion and recommended ruling" by a DEA
administrative law judge holds out the possibility that prescription
marijuana will be developed and approved by the Federal Drug
Administration, ending the long federal-state standoff over medical pot.

Mary Ellen Bittner, a Department of Justice appointee who hears
regulatory cases for the DEA, tentatively ruled it "would be in the
public interest" to let Lyle E. Craker, a medicinal plant specialist
at the University of Massachusetts, Amherst, grow pot for use by
DEA-registered scientists in prescription drug research and clinical
trials authorized by the FDA.

If Bittner's ruling becomes final, it could punch a hole in the wall
that federal agencies -- the DEA and the National Institute on Drug
Abuse -- have erected around legal marijuana, stymieing research into
an effective, legal pharmaceutical. Doctors could be prescribing pot
as easily as methadone, codeine or morphine, perhaps in seven or eight years.

That would be a long time for Raich, whose serious ailments include
an inoperable brain tumor, and for other people who depend on
marijuana to stay alive or ease the pain of dying. But it would be a
short time in the myth-driven history of marijuana regulation that
began in the United States with the Marihuana Tax Act of 1937.
Passage of the Controlled Substances Act in 1970 imposed a ban on pot
production, distribution and use that remains almost absolute because
of the federal government's stubbornly held position that pot poses
extreme risks and has no proven medical value.

Evidence to the contrary has been building. In 1999, the Institute of
Medicine of the National Academy of Sciences reported that most
regulatory concerns could be overcome by developing marijuana
delivery systems, such as vaporization, that should avoid the lung
damage caused by smoking. As recently as two months ago researchers
reported that HIV-positive patients at San Francisco General Hospital
who smoked marijuana found relief from searing pain in their hands
and feet. Other studies have shown that pot can stimulate appetite
and reduce nausea and muscle spasticity.

Yet as Bittner noted, scientists have been winning federal approval
to conduct promising medical marijuana research projects only to be
denied access to the sole legal pot supply in the country, grown for
NIDA at the University of Mississippi. NIDA specifies how much shall
be grown each year. The professor in charge in Mississippi testified
in 2005 that he had grown no marijuana for three years because he had
enough inventory to cover research needs.

California researchers have received pot produced in Mississippi for
use in state-authorized safety and efficacy studies, but they are not
developing a prescription drug. John Vasconcellos, the former state
senator whose legislation established the University of California
Center for Medical Cannabis Research, testified before Bittner that
the purpose was not to get FDA drug approval but "to demystify the
roaring contentions of contrary viewpoints and to find out by science
. whether in fact (marijuana is) of any use."

Bittner concluded that more research-grade pot is needed and that
competition to supply it is inadequate. She will make her final
recommendation to the DEA -- which will have the last word -- on the
basis of comments submitted by lawyers for the DEA and for Craker.

A final recommendation in favor of Craker almost certainly would have
been doomed in years past and may still be. The Multidisciplinary
Association for Psychedelic Studies, which would fund research,
estimates chances of success at one in three. But medical pot
advocates vow to make a strong push for support from the new
Congress, where the atmosphere for marijuana reform should be more
hospitable than it's been in a long time. Although the lobbyists
don't expect a major drug law overhaul before the 2008 elections,
they see friends in key leadership positions.

Among those listed in a recent article by Bill Piper, director of
national affairs for the Drug Policy Alliance, are Ohio Democrat
Dennis Kucinich, chairman of the House Government Reform and
Oversight Committee, which oversees the White House drug czar's
office, the coordinator of national drug control policy. Kucinich has
gone on record in support of removing medical pot users from the
criminal justice system. Piper also pointed to Michigan Democrat John
Conyers, the new chairman of the House Judiciary Committee; Virginia
Democrat Robert C. Scott, chairman of the House Subcommittee on
Crime; and Wisconsin Democrat David Obey, chairman of the House
Appropriations Committee. Even in 2006, when putting pressure on the
DEA had to be taken as a futile gesture, 163 members of the House
voted to end federal raids on patients complying with their states'
medical marijuana laws.

By contrast, prospects for reform through the courts look dimmer than
at any other time since California passed the nation's first
Compassionate Use Act in 1996.

The ruling last month against Raich by the 9th U.S. Circuit Court of
Appeals, the nation's most progressive federal appellate court, seems
to close the door to the strongest common-law and constitutional
arguments for peaceful coexistence of the state and federal marijuana
regulatory schemes.

The 9th Circuit ruled on several grounds.

Though the judges didn't doubt Raich's suffering -- the Oakland woman
has regularly appeared in their courtroom looking X-ray thin -- they
rejected an argument that federal authorities should be enjoined from
busting her because her marijuana use is a medical necessity. If the
DEA does prosecute her, that would be the time to assert her medical
necessity defense, the judges said.

They also ruled that Raich has no fundamental due-process right to
use marijuana "to avoid intolerable pain and preserve life and bodily
integrity," though they predicted legal recognition of such a right
once more states pass medical marijuana laws. New Mexico's
legislature approved a medical marijuana law the day before the 9th
Circuit issued its decision, making that state the 11th to follow
California's lead.

The 9th Circuit also found that California has no 10th Amendment
right as a sovereign state to have its own marijuana laws prevail
over conflicting federal law.

The 10th Amendment argument isn't quite dead yet. It's now being
asserted by the city of Santa Cruz as a plaintiff in federal court in
San Jose. The city may have a stronger case because its own ordinance
authorizes it to provide marijuana to its residents who qualify to
use the drug under the state law.

However, the U.S. district judge in the Santa Cruz case is Jeremy
Fogel, a by-the-book jurist who's not likely to adopt a novel legal
theory. The Santa Cruz case had been on hold pending the Raich
decision and soon will move toward resolution.

Finally, the 9th Circuit's opinion held out a possibility that
medical pot users could claim an exemption from federal penalties
under the "plain language" of the Controlled Substances Act. For the
time being that's probably a meaningless concession.

The federal statute permits possession of a controlled substance if
it's obtained "pursuant to a valid prescription or order" by a
physician. But "order" has been interpreted to mean "prescription,"
and the federal government doesn't let doctors prescribe pot. Under
California's Compassionate Use Act, the state's doctors can only
"recommend" it to qualifying patients.

This is where Craker comes in. Pot grown by him would be subsidized
by the Multidisciplinary Association for Psychedelic Studies, a
nonprofit pharmaceutical company that would sponsor the development
of marijuana as a prescription medicine within the framework of the
FDA drug approval process. The research likely would include pot
vaporization studies that MAPS has been trying to get under way for
at least four years.

FDA approval of a marijuana drug that doctors can prescribe seems to
be no pipe dream. While the agency has opposed state medical
marijuana laws as premature, its official position for several years
has been to encourage research needed to take a marijuana drug
through the approval process.

Robert Meyer, head of the FDA's Office of Drug Evaluation II,
testified in 2004 congressional hearings that his agency and its
parent Department of Health and Human Services "recognize the need
for objective evaluations of the potential merits of cannabinoids
(the 66 compounds unique to pot) for medical uses."

"If the scientific community discovers a positive benefit," said
Meyer, "HHS also recognizes the need to stimulate development of
alternative, safer dosage forms."