So, What Kind of HHS Analysis Passes Muster
Less than you may think.
Months ago, HHS released its 255-page analysis after some jerk filed a FOIA lawsuit demanding its release:
Following the release, the evaluation has been the talk of the town in the Marijuana Cinematic Universe. Everyone from U.S. Senators to twitter trolls have an expert opinion. Depending on which of these experts you listen to, the 255-page report is either “the science” or a political hack job. Nuance isn’t a prevailing sentiment. Take the following from Congressmen that surfaced a few days ago, which describes the HHS analysis as not “adequate” to support rescheduling:
I disagree with the letter, on its merits, for a variety of reasons. But let me first state this: reasonable minds can disagree about certain conclusions and omissions in the HHS analysis. Whether one supports or opposes rescheduling, it is counterproductive to dismiss valid criticisms on account of who or where those criticisms come from. Neither does intent matter much. Nor do I presume bad faith on either side in any event. It shouldn’t be difficult to say say that reasonable minds can disagree about certain medical or scientific conclusions of the report. Saying so isn’t an admission that the report is legally doomed or otherwise “flawed” as a whole. Far from it.
I’m not going to go point-by-point and refute every assertion in this opposition letter, (even if I could rather easily in a spare afternoon). My main criticism—a criticism that applies not only with this letter but the HHS analysis itself—is that neither properly analyzes relative harms as the CSA requires.
Marijuana use can cause harms. But under the CSA, that—or that marijuana can be “abused”—is merely a predicate to placement anywhere on the schedules. To determine where a substance is to be placed, if one accepts that marijuana has an accepted medical use (some do not), the inquiry is on relative dangers. In other words, what does marijuana “abuse” look like relative to other substances like cocaine (Schedule II), methamphetamine (Schedule II), ketamine (Schedule III), benzodiazepines (Schedule IV), and more. That “there are significant health concerns associated with marijuana use,” as the letter asserts, is no less true of benzodiazepine use. Yet, benzodiazepines are in Schedule IV. To assert that marijuana is two schedules above benzodiazepines given what we know about the drug class seems far-fetched.
As the above letter illustrates, inevitably, the sufficiency of the HHS analysis will be scrutinized—not only in comments/potential hearings, but in subsequent litigation. That invites the question: what is a sufficient analysis? Does HHS need to consider every speck of research available in an eight-factor analysis? Surely, that can’t be the case. Drop the word “cannabis” into PubMed and 35,000+ articles come up with nearly 15,000 in the past few years alone. Let me answer the question.
First, as a general principle of administrative law, federal agencies need to consider important aspects of the problems before them. And, they need to provide reasonable explanations for their decisions. Findings of fact cannot be arbitrary or capricious. Agencies don’t need to go down every rabbit hole and illuminate every nook and cranny, however. In practice, what these principles amount to in different contexts varies. Therefore, precedent is instructive.
And as it happens, there is some good precedent.