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States N is determined by the medical community and society-ate
large. Indeed, this very issue is frequently the subject of
medical malpractice cases _ is there an accepted medical use fox
a particular drug prescribed in a particular case? I-_/ In this
context, the ultimate decision is made by the jury representing
society-at-large. This approach compo_:s exactly with the
statutory lan_aages legislative history and structure of the
Controlled Substances Act. 2_q/
Regardless of what standard the ALJ selects, however,
the evidence of marijuana_s medical utility is so overwhelming
that the standard is unquestionably satisfied° Clearly, the
medical community overwhelmingly recognizes marijuanaSs medical
utility as an antiemetic and as a drug for the reduction of
intraocular pressure. Likewise, numerous adequate and well
controlled investigations, approved by FDA and DEA, have been
conducted demonstrating marijuanaes medical utility for these
19/ ACT Brief at 12_ 15_16.
__Q/ ACT Brief at I0_16. Without discussing the statute's
language, legislative history or purpose, DEA rejects this
standard as being _clearly inappropriate o H DEA Brief at 84°
The Agency then claims that the Grinspo¢_1 court rejected this
standard by failing to impose it upon DEA. I_. These con-
tentions are meritless. Firsts ACTes approach comports with al3
aspects of the statuteSs language, structure and legislative
history =- none of which are refuted by DEA. Second, to the
extent that the _ court rejected this approach, it did _
i_ _ and through deference to an Agency initially interpret _
ing its own statute_ Since DEA has readopted the efficacy-base_
approach rejected by the First Circuit_ it is unlikely that any
Federal Court would be as willing to defer to the Agency in this
case. Indeed, given DEA_s continued recalcitrance in promul_
gating a legitimate standard, it is doubtful that any court wil3
be willing to defer to this Agency on appeal. See INS v.
Cardoza=Fonsecae 107 S. Ct. 1207, 1221 no30 (1987).
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