Breaking News:Dangerous Delays: What Washington State (Re)Teaches Us About Cash and Cannabis Store Robberies [REPORT]

Federal Fake Marijuana Ban Challenged

A Duluth man is now part of the first lawsuit challenging a federal ban on several ingredients found in synthetic marijuana products. Jim Carlson owns Last Place on Earth in downtown Duluth. He was already challenging the city's ban on fake pot ingredients. (Link to Story)

An objection to notice was submitted to DEA within 30 days

Good news. I hope Jim Carlson will use the Freedom Of Information Act to learn of the existence and contents of any objections submitted to DEA as some may be helpful. The validity of the November 24 notice (along with other briefly addressed matters) was objected to by email to DEA on December 20. The Subject line was "Docket No. DEA-345N". The objection was sent as an attachment in Word format and does not entirely display properly here. E.g.,  bold vs. non-bold, cells were lost after copying to Notepad for pasting here, some links to UN web pages do not show here but do in submitted document. Interestingly the email address in the November 24 notice bounced.

<blockquote>This message was created automatically by mail delivery software.</blockquote>

<blockquote>A message that you sent could not be delivered to one or more of its recipients. This is a permanent error. The following address(es) failed:</blockquote>

  <blockquote>[email protected]</blockquote>
    <blockquote>Unrouteable address</blockquote>

However the Cc: copy to the normal address for DEA Federal Register Representative/ODL apparently went through as did a blind copy sent to self as documentation of the objection. No response from DEA has been received at this time.


Christine A. Sannerud, Ph.D., Chief,
Drug and Chemical Evaluation Section,
Office of Diversion Control, Drug
Enforcement Administration, 8701
Morrissette Drive, Springfield, VA
22152, telephone (202) 307–7183, fax
(202) 353–1263, e-mail
[email protected].

DEA Federal Register Representative/ODL
ODL, 8701 Morrissette Drive,
Springfield, VA 22152.
[email protected]

December 20, 2010


Re: Docket No. DEA-345N
Schedules of Controlled Substances:
Temporary Placement of Five
Synthetic Cannabinoids Into
Schedule I

PERSONAL IDENTIFYING INFORMATION. I do not want my name, my email address, postal address, city, county, zip code or other residential information posted online or made available in a public docket. This information should be redacted.

I am a person properly seeking and entitled as of right to be admitted as a party in this agency proceeding. All persons normally entitled to object, contest facts asserted, inform the agency of facts it is unaware of or otherwise comment on a notice of proposed rulemaking are similarly entitled. DEA’s Notice concerning this matter is defective in a manner grossly prejudicial to the rights of the public and I petition that it be withdrawn.

The DEA-345N notice does not comply with mandatory provisions of 21 U.S.C. 811 and is invalid.

21 U.S.C. 811(a) states:

(a) Rules and regulations of Attorney General; hearing
The Attorney General shall apply the provisions of this
subchapter to the controlled substances listed in the schedules
established by section 812 of this title and to any other drug or
other substance added to such schedules under this subchapter.
Except as provided in subsections (d) and (e) of this section, the
Attorney General may by rule -
(1) add to such a schedule or transfer between such schedules
any drug or other substance if he -
(A) finds that such drug or other substance has a potential
for abuse, and
(B) makes with respect to such drug or other substance the
findings prescribed by subsection (b) of section 812 of this
title for the schedule in which such drug is to be placed; or
(2) remove any drug or other substance from the schedules if he
finds that the drug or other substance does not meet the
requirements for inclusion in any schedule.
Rules of the Attorney General under this subsection shall be made
on the record after opportunity for a hearing pursuant to the
rulemaking procedures prescribed by subchapter II of chapter 5 of
title 5. Proceedings for the issuance, amendment, or repeal of such
rules may be initiated by the Attorney General (1) on his own
motion, (2) at the request of the Secretary, or (3) on the petition
of any interested party.

The notice falsely states:

The Comprehensive Crime Control
Act of 1984 (Pub. L. 98–473), which was
signed into law on October 12, 1984,
amended section 201 of the CSA (21
U.S.C. 811) to give the Attorney General
the authority to temporarily place a
substance into Schedule I of the CSA for
one year without regard to the
requirements of 21 U.S.C. 811(b) if he
finds that such action is necessary to
avoid imminent hazard to the public

21 U.S.C. 811(h) actually states:

(1) If the Attorney General finds that the scheduling of a
substance in schedule I on a temporary basis is necessary to avoid
an imminent hazard to the public safety, he may, by order and
without regard to the requirements of subsection (b) of this
section relating to the Secretary of Health and Human Services,
schedule such substance in schedule I if the substance is not
listed in any other schedule in section 812 of this title or if no
exemption or approval is in effect for the substance under section
505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355].
Such an order may not be issued before the expiration of thirty
days from -

21 U.S.C. 811(h) also states:

(3) When issuing an order under paragraph (1), the Attorney
General shall be required to consider, with respect to the finding
of an imminent hazard to the public safety, only those factors set
forth in paragraphs (4), (5), and (6) of subsection (c) of this
section, including actual abuse, diversion from legitimate
channels, and clandestine importation, manufacture, or

Unlike 21 U.S.C. 811 (d) and (e), 21 U.S.C. 811 (h) does not state "without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section." The wording of 21 U.S.C. 811 very clearly distinguishes between the modified requirements to schedule a substance under subsections (d) and (e) and the modified requirements to temporarily schedule a substance under subsection (h). 21 U.S.C 811 (h) lessens the requirements of findings and proceedings only to the extent it states it does; all other mandatory provisions of 21 U.S.C. 811 remain mandatory. If Congress had intended to allow the Attorney General to issue an order under 21 U.S.C. 811 (h) entirely "without regard to the requirements of subsection (b) of this section" if would not have qualified the statement as "relating to the Secretary of Health and Human Services."

This notice of intent's failure to comply with mandatory provisions of 21 U.S.C. 811 (and subchapter II of chapter 5 of title 5) are so substantial, misleading to interested parties, derogatory of civil rights and likely to cause irreparable harm it can have no legal validity. 21 U.S.C. 811(h) does not provide for a full hearing under all of 811(a)(1) but it doesn’t change the fact this is a hearing or procedure of some sort subject to the Administrative Procedure Act or authorize exclusion of interested parties from the partial/incomplete hearing. 21 U.S.C 811(h) also does not create exemption from Subchapter I (21 USC 801-904) requirements, though it also creates exemption from some of section 811’s subsection 811(b) & 811(c) requirements.

DEA's rewriting of 21 U.S.C. 811(h) is plainly erroneous and inconsistent with the regulation. The DEA official(s) responsible for DEA-345N substantially misrepresented the statutory language in a manner that denies interested parties due process. Congress limited the acts and findings required of a full hearing but did not remove the requirements of notice and hearing of interested parties including comments and objections the APA explicitly requires when sanctions, prohibitions, limitations/deprivations of freedom, imposition of criminal penalties are imposed with certain exceptions not met by the notice. Interested parties have the right to be heard on the record (publicly in this matter affecting so many people so severely) during a minimum period of thirty days and DEA has the obligation to inform them how to submit comments in its initial notice. Presumably a right of interested parties to be heard, the public interest in the agency receiving information from the public when it is acting hastily in much ignorance and subjecting the agency’s conduct and reasons for the proposed rule to public scrutiny are main reason’s why 21 U.S.C. 811(h) did not copy the language of 811(d) & (e) which do allow exclusion of public comment.

That said, I must criticize the validity of 811(h). 21 USC 811(h) has no "intelligible principle". There is no definition of "imminent hazard to the public safety" in this context (unlike every other use of "imminent hazard" I have read in the USC). Pub. L. 98-473, Sec. 508 does not define the
term in 21 USC 802 (definitions), 21 USC 811(h) or elsewhere in the CSA. 21 USC 811(h) is not implemented by an impartial official and is an invitation to arbitrary and capricious abuse of power with enormous potential for causing irreparable harm to individuals, members of minority religions and the public safety.

Won’t you rise for the hangman
His pleasure is that you should rise
He’s the judge and the jury
At the jester’s assize 

Additionally there seems to be nothing on record suggesting how placement of a substance in schedule I would avoid an imminent hazard to the public safety when such placement removes it from all realistically enforceable safety regulations states might desire to enact such as minimum age laws or restricting retail sale to stores operated or licensed by a state Liquor Control Board. This is one of many reasons I object to DEA’s proposed scheduling of these five cannabinoids.

It should come as no surprise that I also object to this as an act of a State Religion against members of religious minorities who employ these substances sacramentally. I wish to draw attention to some human rights treaties the United States is signatory to. At the moment I’m too sleepy to do so properly or even check whether it signed these treaties after 1984 which has significance relative to the validity of 21 U.S.C. 811(h). Being unsure whether I’ll be able to submit another comment before December 24 I will direct your attention to .

I wish to draw special attention to
Freedom to worship [20 years mandate practice]  1981 Declaration of the General Assembly Art. 6 (a) : The right to freedom of thought, conscience, religion or belief includes the freedom, "To worship or assemble in connection with a religion or belief [.];". Art. 6 (c) : The right to freedom of thought, conscience, religion or belief includes the freedom, "To make, acquire and use the necessary articles and materials related to the rites or customs of a religion or belief;". Commission on Human Rights resolution 2005/40 4 (d) : The Commission on Human Rights urges States "To ensure, in particular, the right of all persons to worship or assemble in connection with a religion or belief [.]." Human Rights Committee general comment 22 Para . 4 : "The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including [.] the use of ritual formulae, and objects [.]."


State religion [20 years mandate practice]  Human Rights Committee general comment 22 Para . 9 : "The fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26. The measures contemplated by article 20, paragraph 2, of the Covenant constitute important safeguards against infringement of the rights of religious minorities and of other religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or persecution directed towards those groups. The Committee wishes to be informed of measures taken by States parties concerned to protect the practices of all religions or beliefs from infringement and to protect their followers from discrimination. Similarly, information as to respect for the rights of religious minorities under article 27 is necessary for the Committee to assess the extent to which the right to freedom of thought, conscience, religion and belief has been implemented by States parties. States parties concerned should also include in their reports information relating to practices considered by their laws and jurisprudence to be punishable as blasphemous." Para . 10 : "If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it."

Time permitting I will address this more fully.

I will also elaborate on previous comments made in objections to DEA-331 objecting to the CSA scheduling system as unconstitutional violation of both the Estabishment Clause and Free Exercise Clause of the First Amendment as well as violation of other constitutionally guaranteed rights.

I also hope to address the statements and findings of DEA-345N as largely biased, contextless and doubtful propaganda unsupported by any evidence, let alone clear and convincing evidence. There are some genuine problems but it is DEA-345N that poses an imminent hazard to public safety.

In anticipation of possible defense of DEA-345N as merely temporary, I wish to note the internment of Japanese-Americans during World War II was temporary but the victims still suffered great hardship due to imprisonment, loss of property and other deprivation of rights. Also, it was arguably not temporary for those who died during internment.


Gerrard Winstanley 

DEA Ban On Synthetic Cannabinoids

Gerrard Winstanley, you are our hero. "Fight the good fight!" Damn the man!!!




This is a pointless lawsuit.  The DEA can do what they want.  They might as well be suing the DEA over the criminalization of real cannabis.  Same arguments.  And same 100% chance of failure.

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