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Feature: ASA in Federal Appeals Court Seeking to Force Government to Correct Medical Marijuana Misinformation

Submitted by Phillip Smith on (Issue #581)
Drug War Issues
Politics & Advocacy

The medical marijuana advocacy group Americans for Safe Access (ASA) was in federal appeals court Tuesday arguing that it and its members had the right to force the federal government to correct inaccurate statements about the therapeutic properties of marijuana. Lawyers for the Obama administration opposed them.

In 2004, ASA filed a petition under the Data Quality Act seeking to force the Department of Health and Human Services (HHS) to correct its statements that marijuana has no accepted medical use in the United States. The Data Quality Act requires federal government agencies to use reliable science when making regulations and disseminating information.

After two years of delays, HHS rejected ASA's petition. The group then filed suit in federal district court to force HHS to comply, but the trial judge threw out the lawsuit, finding that the act did not provide for judicial review. ASA then appealed to the US 9th Circuit Court of Appeals in San Francisco, which is where Tuesday's hearing took place.

"The science to support medical marijuana is overwhelming," said ASA executive director Steph Sherer. "It's time for the federal government to acknowledge the efficacy of medical marijuana and stop holding science hostage to politics."

The Obama administration has vowed to make science -- not ideology -- the basis for federal government policies. On March 9, President Obama issued a memorandum to all executive department and agency heads saying: "The public must be able to trust the science and scientific process informing public policy decisions," and calling for "transparency in the preparation, identification, and use of scientific and technological information in policymaking."

But it had other concerns last Tuesday, when Justice Department lawyers argued against ASA in court. Assistant US Attorney Alisa Klein told a three-judge panel of the 9th Circuit that the law allowing private citizens to seek correction of government information had "no judicially enforceable rights" and that it requires only that agencies review such requests -- not that they act on them. Otherwise, she said, the courts would be swamped with requests to second-guess government decisions on a multitude of subjects.

The government's position would make the law meaningless, retorted Alan Morrison, founder of Public Citizen's Litigation Group, who argued the case along with ASA chief counsel Joe Elford. While some disputes are too subjective for courts to intervene, others can be measured objectively. "Two plus two is four, not five," Morrison noted. The law provides judges a role in keeping the government honest, he added.

Members of the three-judge panel seemed torn. "The statute is amazing and troubling," said Judge Marsha Berzon. But she told Klein that the law appears to allow people affected by government misinformation to get it corrected, under court order if necessary.

"The case before the 9th Circuit is about the right of private parties to seek action to challenge the government's dissemination of false information," said ASA spokesman Kris Hermes. "When HHS says on its web site that there is no currently accepted medical use of marijuana in the US, we and our members suffer by having to counter that disinformation. We have to educate the public, public officials, physicians, and lawyers on the reality of medical marijuana, and we are using that as giving us standing for the lawsuit."

ASA executive director Sherer herself claims to have suffered from government misinformation. In the group's brief to the appeals court, it relates how Sherer rejected medical marijuana as a treatment for her condition based on government statements it had no medical value. Only after suffering serious side effects from conventional medications and at her physician's urging did she finally try medical marijuana, and then found it brought her relief.

"Our aim is to correct the misinformation that the federal government is disseminating about medical marijuana, specifically that marijuana has no medicinal value," said ASA spokesman Kris Hermes. "We are using an administrative mechanism -- the Data Quality Act -- in order to achieve that, but the government has so far refused to respond substantively to our petition."

A victory at the 9th Circuit would mean that the ASA lawsuit could move forward. That would most likely mean the case would be remanded back to district court to force the federal government to issue a substantive response to the ASA petition.

"If they agree their information is inaccurate and not based on scientific evidence, they would simply correct the statements they are making," said Hermes. "But if they do not choose to admit that they are disseminating unscientific information, we may have to challenge them on the merits again in district court," he said.

While an eventual victory in the case would have no immediate impact on federal medical marijuana policy, said Hermes, it could help lay the foundations for moving marijuana off Schedule I as a dangerous drug with no accepted medical use. "That could be the first domino in a series of falling dominos that will affect federal policy," he said.

The 9th Circuit is now considering the case.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

Thanks to all who are working so hard to right such an egregious wrong! Keep hammering away at their ridiculous, hypocritical , moralistic, oppressive "reasoning" to keep fighting a war that does more harm than ANY good. For those of us not in the trenches, PLEASE DONATE to keep ASA, LEAP, MPP and many other educational and non-profit reform groups pushing for a sane drug policy. Maria the lion9, San Diego CA

Fri, 04/17/2009 - 2:49pm Permalink
Anonymous (not verified)

With Obama promising not to prosecute the lawless torturers who were torturing even before the Justice Department issued its memos that falsely claimed that torture is legal, it's bitterly clear that the Obama administration is just another lawless government that serves only the interests of the military-industrial complex. Who loses money if the drug war ends? The military-industrial complex, that's who. Rightly or wrongly, it makes me think about the assassination of JFK. I have long believed that any president who even tries to end the drug war will be promptly assassinated. So we need a willing martyr.

Fri, 04/17/2009 - 3:36pm Permalink
Anonymous (not verified)

"What the Hell is There to Fucking Consider???"

... Politics.

Steph Sherer's got it right: "stop holding science hostage to politics."

Fri, 04/17/2009 - 5:01pm Permalink
freebird (not verified)

HHS are just plain liars. how can they say it has no accepted medical value? Marijuana has been used thousands of years for medical uses. Why don't they pick up a history book.

And I guess to them the U.S. only has 37 states. Otherwise, how could they not see the 13 states that authorized usage of MEDICAL marijuana?

it makes absolutely no sense.

Fri, 04/17/2009 - 6:12pm Permalink
Anonymous (not verified)

Truth is antagonistic to the purveyors of gods & governments... and the purveyors of gods and governments are antagonistic to the truth.

When individual citizens understand and exercise their rights while governing themselves responsibly we reduce the need and harms associated with group dependencies like god & government.

Imagine a judge saying there's no provision for the truth... what a jack-ass!

Truth is treason in the kingdom of lies.

Fri, 04/17/2009 - 7:23pm Permalink
Anonymous (not verified)

We can be sure we still don't know all the info on Torture from just reading the memos that were released yesterday. We should make the DOJ, OLC, DOD, and CIA come clean in the Data it's reporting or not reporting as the case may be.

Fri, 04/17/2009 - 7:23pm Permalink
Anonymous (not verified)

It seems that it was easier for Anslinger to lie and start prohibition. They must know that they are defending a house of cards. Surely the machinations of the court must
wring out the benefits of the marijuana case. This should be good.

Fri, 04/17/2009 - 8:20pm Permalink
Anonymous (not verified)

That means same old shit. How could anyone argue that they need the right to deceive? The FEDs its the main part of their dog and poney show the call the war on drugs I call it the War On US!!!!

Cherokee Fred Jesus

Fri, 04/17/2009 - 10:18pm Permalink
Anonymous (not verified)

Public record folks. Marijuana was made illegal illegally by global corporations and/or drug cartel who intimidate,threaten and carry out violence against any government worker who deny their lobbying(threats of violence)to repeal the fraudulent prohibitions which keeps their fake puppet police force in place. Nowhere in the Constitution,Bill of Rights Or the Declaration of Independence does it allow for law enforcement to commit legalized double standard based terrorism.

Fri, 04/17/2009 - 10:22pm Permalink
Anonymous (not verified)

so, why the hell does the US GOVT hold the patent on marijuana?

and how do you even patent a plant? it's been here for thousands of years!

they look like such idiots here, c'mon.

Sat, 04/18/2009 - 1:01pm Permalink
Anonymous (not verified)

Whithout rehashing credible points of all the half truths and out right lies previous Presidents have inflicted on us on every subject from A to Z, I would urge the current one to just do the Right thing. Politically or not! Stop treating the Americans that voted him in with disrespect and misinformation. If we are smart enough to vote for Him it would stand to reason we would be smart enough to be trusted with the Truth. An informed public armed with the stone cold facts about the medicinal value of Marijuana should be trusted to have the same " voting sense " to decide the legality issue. The idea implied is we are are wise enough to vote for him but not wise enough to vote for State laws supporting the med. MJ issue. Research isn't even allowed and what results we do have are distorted or secreted away keeping the public misled and uninformed. Obama had no problem disclosing his use of it. So why not tell the whole truth and nothing but the truth? He mentioned how " it helped with the pain of that peroid " in his life. What about the pain currently in the lives of thousands of Obama supporters? Should we Not have access to the same relief ? Zion Richardson

Sat, 04/18/2009 - 2:18pm Permalink
Anonymous (not verified)

HHS doesnt have to prove shit to you people youre low life scum they dont have to prove that pot has no medical value cause it doesnt and i know this all it does is causes you to go molest and rape little children .so stop trying to challenge the government you dont have the rights ur being unamerican just understand that they are protecting you and they need more money in their pockets not U people u all dont deserve shit

Sat, 04/18/2009 - 8:04pm Permalink
mlang52 (not verified)

In reply to by Anonymous (not verified)

HA HA HA HA HA! You so funny, Mr Chan! I see we have to endure another of our ignorant, abusive, childish comments!

Now, see if you can intelligently explain the patent the government holds on the neuroprotective medical effects of cannabis.

Sat, 04/18/2009 - 8:33pm Permalink
Anonymous (not verified)

In reply to by Anonymous (not verified)


Sat, 04/18/2009 - 8:48pm Permalink
Anonymous (not verified)

who pose as local,state,federal and private law enforcers. Everyone knows its true. Now we are demanding at the white house that the terrorists be removed from power and put on trial with their own practices of double standard based violence as evidence against them.Convicted and sentenced to the prisons and execution chambers they had built and not allowed to be able to threaten the judges and juries with violence to have their cases dropped like how they usually do business . Something that has never been truly allowed to happen needs to be allowed and applied universally instead of as double standard to protect fraudulent terrorist leaders posing as government;that being the Constitution,Declaration of Independence,and Bill of Rights. 4/20 see you at the White house!

Sun, 04/19/2009 - 5:25pm Permalink
Anonymous (not verified)

are actually trying to stop organic medical marijuana farmers from utilizing leftover medical marijuana/hemp stems from giant plants to open mills which are ready to start making composite lumber,fiberboard,and all hemp products . Folks this Wall St scam sponsored by your local fake police is a terrorist act to stop so many needed jobs for people to work hard in. Careers in fact all being stopped by global fossil based drug and oil cartel who rely on resource deprivation by fraudulent and unconstitutional protectionism installed by threats of violence from a fraudulently occupying handful of global terrorist holding corporation racketeers.

Sun, 04/19/2009 - 9:08pm Permalink
Anonymous (not verified)

Same as alcohol prohibition. Prohibition had nothing to do with drinking too much. That was just the umbrella for Rockefeller to squash local economies grange co-ops which produced alcohol as motor fuel. Up until 1903 cars ran on water,electricity,and alcohol. Prohibition was a cover operation to replace local alcohol fuel jobs with global corporation controlled fossil fuel jobs. Terrorists have been posing as law enforcement for far too long squashing too many local jobs!

Sun, 04/19/2009 - 9:24pm Permalink
Anonymous (not verified)

Everybody should realize the reason those cowards in our government won't legalize drugs (or even decriminalize them),it's because they are under the control of the "cartels" who promise them misery if they should ever allow changes to our archaic drug laws. When actually we could "protect" them and maybe they could wear a "wire" whenever they meet with those evil people, yeah and then we could give them a new identity and a new life somewhere away from politics where we would all be safer.

Sun, 04/19/2009 - 10:08pm Permalink
Anonymous (not verified)

They started lieing so long ago that they really probably belive the crap they spread , not only about the pot plant but about almost all other drugs. We all know that anything can be bad but when the punishment out ways the crime then it should become simple . Change the laws . If this can`t be done change the people we entrust to do these things. America sets the standard and we must change these awful laws. Come on Mr President do what is right , save the economy and creat lots of new jobs, we will cover you. Use the people .

Mon, 04/20/2009 - 1:45am Permalink
Anonymous (not verified)

Nobody mentions the many uses of the Hemp Plant. Our own government produced films Previous to and During the Second World War to get farmers to grow this great natural resource. Why? Because of it natural strength of fiber. No better Rope than that of the hemp plant. Our own Navy used it. It produced some of the Finest Canvas for Sails . It is easily grown . Ecomomically Speaking , think of the uses and revenue which could be generated. Many Business could spring up around the use of this one plant

Mon, 04/20/2009 - 9:54am Permalink
Anonymous (not verified)

They are actually angry that medical marijuana farmers are skilled enough to grow giant plants that are perfect for making every wood and hemp product. Sick terrorist prohibition assholes stopping a whole lot of jobs for people to work in. Mills are shutting down people are out of work and medical marijuana stems can provide much more and far superior product than trees and get people working again. The fake prohibition assholes need to be removed by constitutional real law enforcement so our jobs can be allowed. Fuckers deserve the worst for saying people cant use medical marijuana for medicine or hemp wood/fiber products. Ill just say love and peace before i get to pissed and rant to much im out for now

Mon, 04/20/2009 - 3:47pm Permalink
Anonymous (not verified)

Tear down that unconstitutional prohibitionist wall !

Mon, 04/20/2009 - 3:49pm Permalink
Anonymous (not verified)

Cannabis cures cancer and many other ailments that is just some of the reasons terrorists posing as government make cannabis/hemp illegal. Its called industrial espionage from dupont,monsanto,hearst,dyncorp and many other known terrorist corporations.

Mon, 04/20/2009 - 10:27pm Permalink
Anonymous (not verified)

Youtube Rick Simpson story hemp medicine does cure cancer,internal and skin cancers. Many testimonial of terminal patients who found a way to a clean bill of health.

Mon, 04/20/2009 - 10:29pm Permalink
Anonymous (not verified)

Sounds like another serial killer like btk who works for the fake government.

Mon, 04/20/2009 - 10:32pm Permalink
Giordano (not verified)

Kansas pro-choice Governor Kathleen Sebelius is headed for a Senate vote as the new secretary of health and human services.  Her confirmation could make the ASA lawsuit moot if she is liberal enough to change the current HHS motto about medical marijuana’s alleged lack of effectiveness.

Capitulation on the part of the HHS on this issue would sidestep a legal test of the Data Quality Act, which may not be all that desirable since it would force a legal test of the DQA to a different drug case at a later time.  Either way, a sustained DQA is likely to be very useful to drug law reformers in their future battles against government drug propaganda.


Tue, 04/21/2009 - 6:47pm Permalink
Anonymous (not verified)

The prohibition terrorists hijacked the government and replaced our jobs with toxic pain and suffering!

Thu, 04/23/2009 - 12:55am Permalink
Anonymous (not verified)

The global fossil based drug and oil corporations which have a war and terror based economy took our jobs and replaced them with their toxic dictatorship! Cannabis cures cancer!

Thu, 04/23/2009 - 1:01am Permalink
krautner (not verified)

Harry Anslinger did the world a dirty deed when he invented "reefer madness" and had cannabis outlawed. The claims made go far beyond mere misunderstanding or trivial error. Anslinger and ever drug crusader since has lied and lied and lied about marijuana. Claims of insanity, death, homicidal mania and so on were accepted as fact for many years.


Now that the truth is known---- the liars want to keep their power and hang on to the most absurd claims.


A simple answer to their fictions is- Show  Me The Bodies -- after all if pot is as dangerous as they claim their must be plenty of casualties. But they cannot find them!


A drug crusader is set against man and God Almighty and deserves death.

Floyd Krautner

Thu, 07/29/2010 - 2:59pm Permalink

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