norml02 - Page 18
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I erred by using the standards used by the FDA in licensing new
I drugs (id. at $39-940)° 5 While the court did not expressly
address petitioners' claim that adopting the eight factor test
I violated the Freedom of Information Acts that claim was raised by
one petitioner in the prior appeal (see Br. I/li/91 at 17-20)_
I and the court implicitly rejected it when it concluded that "the
I Administrator's interpretation of the statute was in the main
acceptable _' (930 F.2d at 937)°
Petitioners cannot show that continued adherence to the
decision in ACT vo DEA would result in a _'manifest injustice"
I (Christianson, 486 UoS_ at 817) ° Accordingly_ this court's prior
i rejection of petitioners' challenges is binding as law of the
I If. _EN WERE THIS COURT TO CONSIDER TEE ISSUES PETITIONERS
RAISEs IT SHOULD STILL AFFIRM TEE ADMINISTRATOR'S ORDER.
I A. THE ADMINISTRATOR HAS PROPERLY D_iTERMINED TEAT MARIJUANA
KAS NO CURRE_FfLY ACCEPTED MEDICAL USE BY REFERENCE TO FDA
STANDARDS FOR ASSESSING A DRUG'S EFFECTIVENESS.
I Petitioners renew their argument that the Administrator has
unreasonably interpreted the phrase "currently accepted medical
use," 21 U.S.C. 8i2(b) (1988), because he referred to standards
I that the FDA uses to determine the safety and efficacy of drugs
when approving them for interstate marketing. In additions
I petitioners argue that the Administrator has failed to comply
5 The court was unable to _'conceive of a reason the
! Administrator should be barred from employing notions developed
I by a sister agency insofar as tno .... notions serve the missions of
both agencies. _ _Ido at 940.
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