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IN CASE ON PSILOCYBIN ACCESS FOR CANCER PATIENTS, DEA SAYS FEDERAL RIGHT TO TRY
LAW ‘DOES NOT PROVIDE ANY EXEMPTIONS’ FROM CONTROLLED SUBSTANCE ACT


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POLITICS


IN CASE ON PSILOCYBIN ACCESS FOR CANCER PATIENTS, DEA SAYS FEDERAL RIGHT TO TRY
LAW ‘DOES NOT PROVIDE ANY EXEMPTIONS’ FROM CONTROLLED SUBSTANCE ACT

Published

6 seconds ago

on

April 23, 2024

By

Ben Adlin

The Drug Enforcement Administration (DEA) is arguing that a federal law giving
seriously ill people the “right to try” investigational drugs doesn’t apply to
controlled substances like psychedelics. The agency’s claim comes in a new brief
in a lawsuit filed by a Washington State doctor seeking to legally use
psilocybin to treat cancer patients in end-of-life care.

“Because substances in Schedule I are deemed to have no accepted medical use in
under the CSA,” DEA contends, referring to the federal Controlled Substances Act
(CSA), “the law does not provide for any registration that would permit such
drugs to be dispensed in the course of professional practice.”

DEA filed the brief late last week in U.S. Circuit Court of Appeals for the
Ninth Circuit, in response to the latest legal challenge from Dr. Sunil Aggarwal
and the Advanced Integrative Medical Science (AIMS) Institute. Aggarwal and AIMS
have spent years pursuing various legal and regulatory pathways to allow the
clinic to use psilocybin in palliative care.

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Young Americans Are Five Times More Likely To Smoke Marijuana Than Cigarettes
New polling data from Gallup indicates that a significantly higher number of
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adults are over five times more likely to consume cannabis than tobacco. 
Overall, 17% of Americans report smoking marijuana, while only 12% reported
smoking any cigarettes in the past week.  This disparity is particularly notable
among younger age groups.  Among those aged 18-34, 26% reported using cannabis,
compared to just 5% who reported smoking cigarettes.  For adults aged 35-54, 18%
reported marijuana use, which is higher than the 16% who smoke cigarettes. 
However, among adults aged 55 and older, the prevalence of cigarette smoking in
the past week (13%) slightly exceeds that of marijuana use (11%). The survey
question on marijuana use focused on "smoking" the substance, potentially
overlooking other forms of cannabis consumption like edibles and vapes.
“Americans’ reported marijuana smoking has more than doubled since 2013, when
Gallup first added the question in its annual Consumption Habits survey,” the
polling firm said. Support for marijuana legalization has also reached a record
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Conversely, rates of cigarette smoking have declined to historic lows amid
increased awareness of the health risks associated with tobacco.  Additionally,
Gallup's separate survey from last year found that Americans perceive marijuana
to be less harmful than alcohol, cigarettes, vapes, and other tobacco products.
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The clinic generally argues that the CSA must accommodate a path to legally
accessing psilocybin under state and federal right to try (RTT) laws, which are
intended to give patients with terminal conditions the opportunity to try
investigational medications that have not been approved for general use.

Washington State adopted a right to try law in 2017, and then-President Donald
Trump (R) signed the federal Right to Try Act the following year. Dozens of
other states have also enacted right to try policies.



In the years since, AIMS has presented DEA with multiple proposals in order
either to legally cultivate or otherwise obtain psilocybin to treat patients
under RTT. The agency has denied them all.

“DEA has rejected each request,” the clinic argued in its opening brief earlier
this year, “but has never addressed the arguments that Dr. Aggarwal has raised
in support of them.”

“If DEA wants to disclaim authority to grant Dr. Aggarwal access to psilocybin
under the CSA and RTT,” AIMS contined, “it must provide a reasoned explanation
for how that decision comports with the CSA and the agency’s own precedent.”



Eight U.S. states as well as Washington, D.C. have filed a friend of the court
brief in support of AIMS’s effort to use psilocybin under state and federal RTT
laws.

But in its response this week, DEA asserts that the federal RTT Act doesn’t
affect CSA’s prohibition of certain drugs.

“The Right to Try Act does not provide anyone with a right to dispense or
receive controlled substances,” the new brief says. Rather, the primary function
of the federal law was “to relieve qualifying individuals from regulatory
requirements that would otherwise be imposed on eligible investigational drugs
under the” federal Food, Drug and Cosmetics Act (FDCA), DEA argues.

“As DEA explained, the Right to Try Act does not ‘provide any exemptions from
the CSA or its implementing regulations. And it does not ‘give the DEA authority
to waive CSA requirements,'” the government’s brief says. “Indeed, the Right to
Try Act does not even mention the CSA or controlled substances at all.”



If Aggarwal wants to give psilocybin to patients, DEA contends he would need to
be a registered researcher conducting an approved project—which DEA says are
matters handled by different federal agencies.

“The only registration that would permit a physician to dispense a schedule I
controlled substance is registration as a researcher conducting an approved
research project,” its brief says. “DEA cannot issue such a registration unless
the Secretary of Health and Human Services, acting through FDA, determines that
the research protocol is meritorious and the applicant is qualified and
competent to conduct it.”



DEA’s brief criticizes the AIMS lawsuit’s interpretation of the law as “a
fundamental misunderstanding” and “a tortuous account of the interaction between
the two statutes”—RTT and FDCA. Such a reading, it says, “would vest authority
in DEA to allow physicians to provide patients with schedule I substances for
therapeutic purposes, notwithstanding Congress’s determination that the drugs
lack accepted medical use or safety under medical supervision.”

“Petitioners’ posited tensions between the CSA and the FDCA are without basis,”
the agency’s brief says. “While the subject matter of the two statutes overlaps
somewhat (because they both deal with drugs), each statute establishes its own
requirements and prohibitions, and DEA and FDA have complementary spheres of
authority… But that does not mean that one agency has superseded or interfered
with the other’s statutory regime.”

A 2022 amendment to the federal RTT Act created a separate registration process
to facilitate cannabis research, DEA noted in its brief, but “this new process
still requires that new research projects be ‘reviewed and allowed…by the
Secretary of Health and Human Services.'”



“Thus,” the filing says, “even when Congress has acted specifically to enhance
research of a Schedule I drug, it has made researcher registration conditional
on approval by the Secretary.”

Shortly after the lawsuit was filed, Washington State and eight other
jurisdictions—Delaware, Illinois, Michigan, Minnesota, Nevada, Oregon,
Pennsylvania and Washington, D.C.—filed an amicus brief in support of the
clinic’s position, arguing that CSA doesn’t prohibit the use of controlled
substances under RTT. Many of the same states filed an amicus brief in a related
2021 case involving Aggarwal.



“The CSA was intended to combat drug trafficking and abuse,” says the latest
filing, led by the office of Washington State Attorney General Bob Ferguson (D).

“It is easy to make sense of both the CSA and the later, more specific RTT Act,”
it suggests: “neither law facilitates traffic in illicit substances, both laws
emphasize the primacy of states in the regulation of medical practice, and the
RTT Act includes broad immunity from liability.”

“It is irrelevant whether a Schedule I substance has a ‘currently accepted
medical use’ under the CSA in the context of uses authorized by the RTT Act,”
the states’ brief says. “The RTT Act’s purpose is to provide a unique, targeted
exemption from such requirements.”

Aggarwal and AIMS have been working since at least 2020 to find a way to legally
obtain psilocybin for patients in palliative care, initially seeking to win
permission from regulators under state and federal RTT laws.



When DEA rebuffed that request, Aggarwal sued. But in early 2022, a federal
appellate panel dismissed the lawsuit, opining that the court lacked
jurisdiction because DEA’s rejection of Aggarwal’s administrative request didn’t
constitute a reviewable agency action.

The current Ninth Circuit cases stems from Aggarwal’s responses to that ruling.
In February 2022, the doctor filed a formal petition with DEA to reschedule
psilocybin from Schedule I to Schedule II under the federal Controlled
Substances Act (CSA)—the denial of which is a reviewable action. He also applied
for the regulatory waiver to obtain psilocybin.



DEA denied Aggarwal’s petition in September 2022 and rejected the waiver request
the next month. The doctor’s Ninth Circuit cases challenge both decisions.

As Aggarwal’s efforts have made its way through the courts, a number of studies
have strengthened the case for psilocybin’s legitimate medical use. In response,
Congress late last year sent a defense bill to President Joe Biden (D) that
contains provisions to fund studies into the therapeutic use of psychedelics
such as psilocybin and MDMA for military service members.

A recent clinical trial published by the American Medical Association,
meanwhile, found that psilocybin “displayed strong and persistent antidepressant
effects” in people with bipolar II disorder, “with no signal of worsening mood
instability or increased suicidality.”

In September of last year, researchers at Johns Hopkins and Ohio State
universities published a report that linked psilocybin use with “persisting
reductions” in depression, anxiety and alcohol misuse, as well as increases in
emotional regulation, spiritual wellbeing and extraversion.



Those results were “highly consistent with a growing body of clinical trial,
behavioral pharmacology, and epidemiological data on psilocybin,” authors of the
study said. “Overall, these data provide an important window into the current
resurgence of public interest in classic psychedelics and the outcomes of
contemporaneous increases in naturalistic psilocybin use.”

Last August, a separate study from the American Medical Association (AMA) found
that people with major depression experienced “clinically significant sustained
reduction” in their symptoms after just one dose of psilocybin.

And a survey by Canadian researchers published in October said psilocybin
use can help ease psychological distress in people who had adverse experiences
as children. Researchers said psilocybin appeared to offer “particularly strong
benefits to those with more severe childhood adversity.”

Canada, for its part, allowed four cancer patients in 2020 to become the
nation’s first people in decades to legally possess psilocybin after being
granted permission by the country’s health minister to use the substance for
end-of-life care. Later that year, some healthcare professionals also gained the
ability to legally possess and use psilocybin themselves.



A survey published earlier this year found that roughly 8 in 10 Canadians
believe psilocybin is “a reasonable choice” for end-of-life care.

Read the DEA response brief in AIMS v. DEA below:





> Second California Senate Committee Approves Bill To Legalize Psychedelic
> Service Centers



Photo courtesy of Wikimedia/Workman.

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Centers

Ben Adlin


Ben Adlin, a senior editor at Marijuana Moment, has been covering cannabis and
other drug policy issues professionally since 2011. He was previously a senior
news editor at Leafly, an associate editor at the Los Angeles Daily Journal and
a Coro Fellow in Public Affairs. He lives in Washington State.



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