US Cannabis and International Treaties
By Amber Lengacher, Elliot Choi
Jun 15, 2020
The United States Drug Enforcement Administration (DEA) recently released proposed rules to enhance the cultivation of “marihuana” for research purposes in the US. As we discussed in a previous VS Insights post, the DEA is amending its regulations to “comply with the requirements of the Controlled Substances Act (CSA), including consistency with treaty obligations. . .”1
DEA’s reference to treaty obligations necessarily includes requirements contained in the United Nations’ Single Convention on Narcotic Drugs of 1961 (the Single Convention). While often overlooked, the Single Convention has important implications on cannabis reform, including purportedly requiring the US to maintain cannabis on Schedule I of the CSA. In this second post of a series of blogs surrounding these issues, we explore the requirements of the Single Convention and DEA’s attempt to obtain consistency with those requirements.
Requirements Under the Single Convention
The Single Convention requires member states “to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade-in, use, and possession of drugs” listed in the schedules to the Single Convention, including cannabis. The Single Convention also provides a regulatory structure for a member state’s implementation of a medical and/or scientific cannabis research program. Importantly, the Single Convention does not provide allowances for any commercial medical or adult-use cannabis market.”
For regulation of cannabis for medical and scientific research purposes, Articles 28 and 23 of the Single Convention require the following:
“a) The Agency shall designate the areas in which, and the plots of land on which, cultivation of [cannabis] for the purpose of producing [cannabis] shall be permitted.
b) Only cultivators licensed by the Agency shall be authorized to engage in such cultivation.
c) Each licensee shall specify the extent of the land on which the cultivation is permitted.
d) All cultivators of [cannabis] shall be required to deliver their total crops of [cannabis] to the Agency. The Agency shall purchase and take physical possession of such crops as soon as possible, but not later than four months after the end of the harvest.
e) The Agency shall, in respect of [cannabis], have the exclusive right of importing, exporting, wholesale trading and maintaining stocks other than those held by manufacturers....”
In its notice of proposed rulemaking, DEA states that its current policies comply with parts (a)-(c) above, but do not comply with parts (d) or (e), the addition of which DEA assumes would put the US in compliance with the Single Convention. We believe that assumption is incorrect.
Regardless of the compliant oversight of a federal cannabis research program, UN officials have opined that the existence of various state-sanctioned commercial cannabis markets in the US implicates non-compliance with the Single Convention. The Single Convention requires member states “to limit [cannabis production] exclusively to medical and scientific purposes.” Therefore, any adult-use cannabis program, or even a medical cannabis program with commercial sales, is likely violative of the Single Convention. Consequently, efforts to implement a compliant federal cannabis research program will not ensure US compliance with international treaties, which is the purported goal of DEA’s proposed rules. Vicente Sederberg recently addressed this position in a comment submitted to the DEA in response to the proposal of DEA rules.
In the next post in this series, we will discuss alternatives to compliance with the Single Convention, including requests for inter se modification and periods of respectful “non-compliance.”
1 Recently, an internal opinion from the US Department of Justice’s Office of Legal Counsel (the OLC Opinion) indicated current DEA policies governing the federal research of cannabis in the US are inconsistent with the Single Convention. Although unreleased at the time of publication of DEA proposed rules, the OLC opinion was released shortly after publication due to a court action brought by Scottsdale Research Institute against DEA. This case alleged that by refusing to release the interpretive OLC opinion, DEA was violating the Administrative Procedures Act. Upon court order, DEA released the OLC Opinion which indicates a change in DEA policy must occur in order to obtain consistency with the Single Convention.