Tom Price, Secretary of Health and Human Services, resigned his post last week amid public health and personal travel debacles. Mr. Price’s resignation drew very little coverage from cannabis reporters, however, which was sort of strange because the HHS Secretary wields more influence over cannabis law and policy than any other public official besides Attorney General Jeff Sessions, and whomever the new DEA Administrator turns out to be. If marijuana is ever to be re- or descheduled administratively, it will have to go through HHS.
The federal Controlled Substances Act (CSA), at 21 USC §811, provides that the Attorney General may remove drugs from the CSA: (1) on “his” own motion; (2) at the request of the HHS Secretary; or (3) on the petition of any interested party. No. 1 will never happen and No. 3 has often failed, but if a reasonable HHS Secretary were appointed, No. 2 could get people talking. CSA §811 further provides that prior to the Attorney General moving drugs around, he must consult with HHS for scientific and medical findings. HHS recommendations to the Attorney General are binding, including any “do not control” recommendation.
HHS is also senior on its organizational chart to the Food and Drug Administration, a well-known agency with the power to conduct independent research on marijuana and to approve cannabis-based pharmaceuticals. The FDA is the agency that works with HHS whenever “any interested party” makes a petition to remove a drug from the CSA, as referenced above. In fact, the FDA made one such recommendation to HHS and DEA last year on marijuana. Unfortunately, it chose the status quo.
Tom Price was an old-school, War on Drugs hardliner, whose judgment as to cannabis was nearly as bad as his judgment on government travel. Cannabis advocates should be glad to see him go. Given the composition of President Trump’s cabinet, however, it seems unlikely we will have a fair-minded HHS Secretary anytime soon. Most of the candidates being floated as replacements have poor or unascertainable records on marijuana policy.
Ultimately, it seems more likely that marijuana will be re- or de-scheduled through Congressional action than administrative channels. And as it stands today, two of the three most critical cabinet posts on cannabis — the HHS Secretary and the DEA Chief— are oddly vacant. For cannabis professionals and consumers alike, it seems better to have these posts remain vacant, than occupied by the Chuck Rosenbergs and Tom Prices of the world.
Let’s enjoy it while it lasts.
Vince Sliwoski is an attorney at Harris Bricken, a law firm with lawyers in Seattle, Portland, Los Angeles, San Francisco, Barcelona, and Beijing. This story was originally published on the Canna Law Blog.