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The Drug Enforcement Administration’s (DEA) program regulating the legal federal production of cannabis for research purposes has been non-compliant with international drug laws for decades, according to an advisory from the U.S. Department of Justice’s Office of Legal Counsel (OLC).

A recently released 2018 memo from the OLC advises the DEA to “change its current practices and the policy it announced in 2016 to comply with the Single Convention.”

The Single Convention on Narcotic Drugs, an international treaty on scheduled narcotics, requires signatory countries to impose stringent controls on the cultivation, manufacture, and distribution of narcotic drugs, including cannabis. One such control is that governments interested in cannabis research “establish ‘a single government agency’ to oversee marijuana growers and generally to monopolize the wholesale trade in the marijuana crop.” By licensing cultivation to the National Institution on Drug Abuse (NIDA) and the National Center for Natural Products Research at the University of Mississippi, and by never taking sole ownership of the research cannabis produced at the National Center, the DEA is in violation of international law.

The main issue is that the Single Convention has never been strictly observed by the U.S. government. There’s no basis for an argument that legalization and regulation of cannabis would flout the treaty, because federal policy has not been in compliance in the first place, says Omar Figueroa, a cannabis attorney based in California.

“The monopoly granted to the University of Mississippi is not compliant and not required by international law.”

The OLC, which provides legal advice to the President and all executive branch agencies, wrote the memo on June 6, 2018, but it only was released to the public on April 29, 2020, as a result of a Freedom of Information Act (FOIA) lawsuit brought forth by the Scottsdale Research Institute in March demanding documents that would help explain the slow rollout of the federal government’s cannabis research program’s expansion.

While the memo does not explain why there have been no new licensed research groups since the DEA reopened its application process in 2016, it provides context to the draft rules that the DEA proposed in March.

In the March 23 notice of proposed rulemaking, the DEA noted that “DOJ advised DEA that it must adjust its policies and practices to ensure compliance with the CSA [Controlled Substances Act], including the CSA’s requirement that registrations be consistent with the Single Convention.” Among the proposed rule changes, DEA suggested that “[all] registered manufacturers who cultivate cannabis shall deliver their total crops of cannabis to DEA … not later than four months after the end of the harvest.”

In this scenario, “[once] DEA has purchased and taken title to the crop, the material would be maintained, under seal, in DEA’s possession in the manufacturer’s schedule I vault until such time that a distribution is necessary. … DEA may distribute (or export) the marihuana directly or may choose to authorize the grower to distribute marihuana on the government’s behalf.”

A potential solution for the DEA to become compliant with the Single Convention outlined in the OLC memo is the “DEA could station one or more employees at the National Center [and other federally licensed research labs] after cultivation as a way of ensuring physical possession of the marijuana and exclusive control over its distribution.” In its proposed rulemaking changes, DEA states that cannabis “owned by the government is maintained at the DEA-registered manufacturer’s site where DEA would maintain its ability to access the storage location at which such crops are located as it deemed necessary.” (Note: emphasis added.)

In other words, the proposed rule change would grant DEA total access to federal research cannabis reserves as the agency would be the sole owner of said cannabis.

“I don’t like the idea that the DEA now has to take physical possession and acquire title to all cannabis that is lawfully grown [with a federal research license] in the United States,” Figueroa says. “That’s how they see their role.”

But not everyone is opposed to the idea of the DEA taking a larger, more physical presence in the cannabis research field. Albert Gutierrez, CEO of MedPharm, one of the federal research license applicants, said in a statement to CBT, “As a licensed bulk manufacturer we would take no issue with the DEA coming to our facility to take possession of the harvest as they’ve outlined in the proposed rules.”

Gutierrez adds, “We are encouraged by the progress from the DEA and feel this is a great opportunity to align the cannabis research program with international law. As one of the first applicants to apply for the Bulk Manufacturer license, we are eager to begin providing cannabis to researchers around the country.”