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Is senior care going to pot?

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[Editor’s note: This is part two of a two-part series. For part one, see Medical marijuana: Hashing out the legal issues.]

Since July 2016, a number of significant developments have altered the legal landscape regarding medical marijuana. One of those developments was the decision by the U.S. Drug Enforcement Administration (DEA) to not reclassify marijuana from its status as a Schedule I controlled substance, which the DEA has deemed as having “no accepted medical use.” Another development was a landmark decision from a federal appeals court. Both issues are discussed below in addition to some pending legislation regarding medical marijuana.

In November 2011, the governors of Rhode Island and Washington petitioned the DEA to have marijuana removed from Schedule I of the Controlled Substances Act (CSA) and rescheduled as Schedule II. On August 11, 2016, Acting DEA Administrator Chuck Rosenberg denied the petition to reclassify marijuana. However, the DEA stated, “We fully support legitimate medical and scientific research on marijuana and its constituent parts and we will continue to seek ways to make the process for those researchers more efficient and effective.”[i]

Those who support the use of medical marijuana were outraged by DEA’s decision. According to the Cannabis Business Alliance Executive Director Mark Slaugh, “Cannabis has been objectively and scientifically determined to be safer than many medications, such as the opioids, which have caused an epidemic. States with legal marijuana understand the safe nature of this plant and its therapeutic benefit to many patients.” Slaugh adds, “We hope that the increased amount of cannabis research on a federal level will lead to the DEA acknowledging what we already know: that cannabis is a relatively harmless crop and should be recognized as such by full de-schedule and through sensible regulation.”

Samer Abilmona, the Director of Operations for Ambary Gardens, a licensed grower and distributor of high quality CBD industrial hemp products, noted, “The DEA's decision not to reschedule cannabis is unfortunate but not surprising. Hopefully the tide of change and the spread of knowledge will force their hand." If the anticipated increase in research yields positive results, it will be difficult for the DEA to continue to classify marijuana as a Schedule I controlled substance.

Ninth Circuit rebukes the DOJ

On August 16, 2016, within days of the DEA’s decision, the United States Court of Appeals for the Ninth Circuit breathed new life into the medical marijuana movement and dealt a blow to the Department of Justice (DOJ). The case of United States v. McIntosh (McIntosh) highlighted the tension between federal and state laws involving medical marijuana.[ii] The Court held that a Congressional rider to the appropriations bill precluded the DOJ from using federally-approved funds to prosecute individuals who “strictly comply” with their state laws concerning medical marijuana.


Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...