norml23 - Page 48
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aBternatives indicated in the NORML vo DEA decision.
In considering in which schedule to pJace the different cannabis
materials, HEW considered only Schedules _ and It, and the criteria for
controlling substances in those two Schedules. See, Fed. Reg. at 36127
Cols. 2-3. HEW reviewed the Schedule ! and tl criteria in Section
202(b), and concluded that aJJ marijuana materials could appropriately
be placed in Schedule I or H, but on balance Scheduie I was
preferable. 4.4 Fed. Rego at 36t 27 CoJs. 1-2. HEW therefore recommended
the retention of marijuana materials in Schedule I_ and DEA adopted
this in the final order. 44 Fed. Reg. at 36124 CoL 2.
This NORML w DEA decision was emphatic that DEA and HEW consider the
full range of rescheduling options available, which include Schedules
_, Ii, IH, IV, V, and decontrol for the different cannabis materials.
The Court emphasized the different rescheduling options for each
category of cannabis material in the "Conclusion" of its decision, id.
at 757. Three of the four categories of cannabis materials can be
reclassified below Schedule It. ld. A chart attached to the decision
indicates the different controR mechanisms contained in the CSA for
substances on the various Schedules of Control Id. at 758.
In justifying its refusal to consider rescheduling to Schedules
iIFV, HEW states that: "No placement in Schedule Ill, IV, or V is
possible unless the substances have a currently accepted medicare use in
treatment in the United States." 44 FedoReg. at 36127 Cot. 2. This
interpretation of the CSA was discussed in detail and specifically
rejected by the NORML Vo DEA Court:
If, as respondent contends, a determination that
the substance has no accepted medical use ends the
inquiry, then presumably Congress would have
spelled that out in its procedural guidemines. Its
failure to do so indicates an intent to reserve to
HEW a finely tuned balancing process involving
several medicare and scientific considerations° 8y
shortcutting the referral procedures of Section
201(b)-(c) the Acting Administrator precluded the
balancing process contemplated by Congress.
Admit idly, Section 202(b), 221 U.S.C. Sec.
812(b), which sets forth the criteria for placement
in each of the five CSA schedules, established
medical use as the factor that distinguishes
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