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Mandamus Petition Brings Government One Step Closer to Authorizing More Cannabis Grows

Updated: Jan 17, 2020

Since 1968, the University of Mississippi has been the only entity authorized by the federal government to grow cannabis. As a result, researchers are forced to rely exclusively on the University of Mississippi for their samples, which, reportedly, are extremely low quality, and sometimes mold-ridden.* Since at least 2014, entities have been applying to the DEA for that same authorization in order to produce higher quality, more consistent samples. Unfortunately, the DEA never acted on these applications.

In response, Congress amended the registration statute, requiring the DEA to publish the Notices of Application (the first step in the review process) within 90-days of submission, and a final decision within 90-days of the end of the comment period. Still, and once again, the DEA refused to act on the pending applications. One applicant, Scottsdale Research Institute (“SRI”), applied to become a cannabis manufacturer on November 29, 2016, after the DEA issued guidance stating it wished to expand research opportunities by authorizing additional cultivation, but the DEA took no action on the application. Left with no alternative, SRI filed a Petition for a Writ of Mandamus ordering the publication of a Notice of Application, contending that the DEA’s unlawful and unreasonable delay harmed not only SRI, but the veterans with PTSD it sought to treat, as well as the public, which would benefit from medicinal-cannabis research.*

The DC Circuit ordered the DEA to respond to the Petition. However, one day prior to filing a response, all 33 of the pending and stalled Notices of Application were published to the Federal Register. The DEA then argued that the case was moot on the grounds that the specific relief requested in the Petition (publication) had been granted.* The court agreed, and dismissed the Petition without prejudice (in case of undue delay in the consideration of the applications).* In the published Notice, the DEA asserted that it intended to review the applications, but only after promulgating rules “in the near future” for the growth of research cannabis. No time limits were set or offered. Since then, there has been only one EO 12866 meeting, and no details of the proposed rules were disclosed to the public.

Given the continued inaction by the DEA, in apparent defiance of the law, more litigation on this front is likely. If the entities do succeed in expanding research — a dearth of which is the primary reason cited by the DEA for refusing to remove cannabis from schedule I under the CSA — there could be broad implications, potentially putting cannabis on the path to reclassification. Please stay tuned for further updates.

*All references to information from the lawsuit, including statements, arguments, or facts contained in the pleadings, can be found on PACER in the docket for DC Circuit case number 19-1120, fees may apply.

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