norml23 - Page 60
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to the state marijuana programs, it is defendant's understanding that
in every instance in which the U.S. government has provided marijuana
or THC to researchers or patients in the past few years, the government
has first tested the marijuana or synthetic THC sample for the level of
THC potency and indicated this on the label. There has never been a
problem in administering a known amount of THC to a patient, because
the THC content is always determined in advance. The variance in the
amount of THC in different marijuana plants does not indicate a lack of
safety to use marijuana under medical supervisio_o HEW's findings on
this criterion are totally inadequate. HEW should have focused on the
experience of the states and approved research projects authorizing
access to marijuana to determine whether it can be used safely under
medical supervision.
As part of its "second reason" for preferring Schedule I over
Schedule 11, HEW pointed out that one criterion for Schedule il is
that: "Abuse of the drug or other substance may mead to severe
psychological or physicam dependence." Section 202(b)(2)(C)o HEW noted
that there was "no convincing evidence to suggest that abuse of
marijuana materials leads to severe psychological or physical de-
pendence." 44 Fed. Reg. at 36126 Colo 2, and concluded that his supports
the placement of marijuana materials in Schedule _, Id., at 36127 Col.
Thus, however anomalous it may seem the lack of
strong evidence of "severe psychological or
physical dependence" militates in favor of
placement in Schedule I rather than ScheduJe IL
(Emphasis added).
If HEW had considered the full range of scheduling options, it
would have been obvious that the reverse is true -o the less the
evidence of dependence, the lower the ScheduJe of control. The criteria
for Schedule Ill refer to "moderate or low physical dependence or high
psychological dependence;" the analogous criterion for Schedule IV is
"limited physical dependence relative to the drugs or other substances
in ScheduSe 011." and the analogous criterion for Schedule V is
"limited physicat dependence or psychological dependence relative to
the drugs or other substances in Schedule W." See, Section
202(b)(3)-(5)o
The lack of evidence of severe dependence from marijuana use must
favor reschedu_ing of marijuana out of Schedule I, not keeping it
there. HEW would have come to this conclusion if it had considered the
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