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 In the MDMA third final order DEA is actually _aking the decision that
 doctors have to make, rather than trying to ascertain the decision which doctors
 have made, Consciously or not, the Agency is undertaking to tell doctors what
 they should or should not accept, In so doing tile Agency is acting beyond the
 authority granted in the Act,
 It-is entirely proper for the Administrator to consider the pharmacology ol
 a drug and scientl?ic test results in connection with determining abuse po.tentia_
 But abuse potentlal Is not In issue in this marijui)Ba proceeding,
 There _s another reason why DEA should not be guided by FDA criteria in
 ascertaining whether or not marijuana has an accepted n_dical use in treatment,
 These criteria are applied by FDA pursuant to Sect_on 505 of the Federal Food,
 Drug and Cosmetic Act (FDCA), as amended. 13 When the FDA is making an inquiry
 pursuant to that legislatlon it is looking at a sy_thetically formed ne__w dr__._L,
 The _rijuana plant is anything bu_._ a new drug, Uncontroverted evidence in this
 record indicates that marijuana _as belng used therapeutically by mankind 2000
 years before the Birth of Chrlsto 14
 Uncontroverted evidence further establishes that in this country today "new
 drugs" are developed by pharmaceutical companies p_ssessing resources sufficient
 to bear the enormous expense of testing a new drug, obtaining FDA approval of
 ll:s efficacy and safety_ and marketing it succ_ssi_ul,ly. _o-_y u_e_kes_.
 the..io_ve_eBt_requlr_ unless _t has _--p_enton the dr_, so it can :recoup its
 development costs and make a profit, At oral argument Government counsel con-
 ceded that _the FDA system is constructed for pharmaceutical companies, I won't
 13 21 U.S.C,  355.
 14 Alice M. O'Leary, direct, par. 9_

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