vol2 - Page 71

 Discussion
 The Act, at 21 U.S.C. § 812{b){]){C), requires that marijuana be retained
 in Schedule I if "[t]here is a lack of accepted safety for use of [it] under
 medical supervision." If there is no lack of such safety, if it is accepted
 that this substance can be used with safety under _dical supervision, then it
 is unreasonable to keep 'it in Schedule I,
 Again we must ask _ _accepted _ by whom? In the MDMA proceeding the Agency°s
 first Final Rule decided that *accepted _ here meant, as In the phrase "acceptec_
 medical use in treatment _, t:hat the FDA had accepte¢i the substance pursuant to
 the provisions of the Food, Drug and Cosn_t!c Act. 51 Fed. Reg. 36555 (1986).
 The Court of Appeals held that this was error. On remand, in its third Final
 Rule on MDMA, the Agency made the san ruling as before, re]ying essent'ially on.
 the same flndings, and on others of similar nature, just as it did with respect
 to "accepi_ed medlcal use. 53 Fed. Reg. 5156 (1988)_
 The adm'inlstrative law judge finds himself constrained not to follow the
 rationale in that MDHA 1:hlrd Final Order for the sag reasons as set out above
 in Section V wii:h respect to _accept. ed medical use _ in ontology. See pages 30
 to 33, Briefly, the Agency was looking primarily at the results of scientific
 tests and studies re,her than at what physicians had, _n fac_,::.accep_ced.-:.The
 ...... Agency was wrongly basing its declslon on a judgement as to whether or not
 doctors 9ught to have accepted-the substance in question as safe for use under
 medlcal supervision° The criteria the Agency app'Iied in the MDMA third Final
 C;
 Rule are inappropria_:e. The only proper question for the Agency here is: Have a
 slgnlficant minority of h_ans accepted marijuana as safe for use under
 medi cal supervision?