DEA Breaks Silence on Marijuana Grower Applications

We previously reported on a unique lawsuit filed this summer by Scottsdale Research Institute, LLC (SRI) against the Drug Enforcement Administration (DEA). By filing a petition for writ of mandamus, SRI sought to compel the DEA to take action on its application to grow cannabis for clinical research, which was filed in 2016. With a deadline to respond to SRI’s petition looming just two days away, the DEA announced on Monday that it is “providing notice of pending applications from entities applying to be registered to manufacture marijuana for researchers.”  Among those applications includes the one filed by SRI. As a result, the DEA has now complied with the requisite next step in the marijuana grower approval process and essentially granted the relief SRI sought in its petition.

In the notice of application, the DEA provided what could be interpreted as a vague attempt at an explanation for the extreme delay in processing the applications. The notice states that since 2016, the Department of Justice (DOJ) has been engaged in consultation with other federal agencies and policy review to ensure that the marijuana growers program is consistent with applicable laws and treaties. That review is still ongoing, but it has now progressed enough to allow the DEA to issue notices of application.

This long awaited move, however, comes with a slight twist. In the same announcement, the DEA declared that through the policy review process, the DOJ determined that certain adjustments to the DEA’s policies and practices pertaining to the marijuana growers program might be necessary. Accordingly, before making any decisions on the pending applications, the DEA intends to propose new regulations that will supersede the 2016 policy statement and govern marijuana growers for scientific and medical research.

Strategically, SRI’s petition for writ of mandamus accomplished what it sought to do, which was to get the DEA to move forward with the application process for marijuana manufacturers. While the DEA did take the small next step in the process for approving the applications, it remains unclear when we will actually see a new federally approved marijuana manufacturer. Finalization of the new regulations is required before the DEA will formally approve of any of the applications. The notice of application states only that the DEA intends to propose regulations “in the near future.” In a press release issued the same day as the notices of application, the DEA Acting Administrator Uttam Dhillon did state that the “DEA is making progress in the program to register additional marijuana growers for federally authorized research, and will work with other relevant federal agencies to expedite the necessary next steps. We support additional research into marijuana and its components, and we believe registering more growers will result in researchers having access to a wider variety for study.” It is likely that the unique strategy employed by SRI to prompt this progress will put added pressure on the DEA not to delay in proposing the new regulations, but ultimately making good on its promise to register additional marijuana growers. Furthermore, the lawsuit could serve as a model for future litigation against federal agencies that have lagged in responding to the rapidly changing marijuana landscape.

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