Law360 (September 29, 2023, 5:11 PM EDT) — An attorney and journalist filed a Freedom of Information Act complaint Friday alleging the U.S. Department of Health and Human Services has wrongfully suppressed a letter that purportedly recommends cannabis’s status as a Schedule I substance be changed.
In the Aug. 29 letter at issue, the HHS said it had completed its analysis of the science regarding marijuana’s potential risks and benefits and made its recommendation to the U.S. Drug Enforcement Administration about whether to loosen restrictions on the drug
Matthew C. Zorn — a partner at Yetter Coleman LLP who has litigated numerous cases against the DEA and writes a newsletter about drug policy — alleged that while policymakers and advocates have scrambled to respond to the potentially momentous missive, the public has never had the chance to see it.
The existence of the letter was first reported by Bloomberg News one month ago, but it has never been made public. The news agency reported HHS endorsed moving marijuana to Schedule III, down from its current status as a Schedule I substance — the most restrictive tier under the Controlled Substances Act.
Both the HHS and DEA have confirmed the existence of the letter, while declining to respond to queries about the letter’s substance or provide a copy.
HHS Secretary Xavier Becerra confirmed the letter’s existence in a tweet time-stamped 4:20pm on Aug. 30, the day the Bloomberg report broke, saying the department had made its recommendation, but he did not elaborate on what that recommendation was.
Zorn said a letter “leaked to the press and then touted by the HHS Secretary at 4:20 at X (f/k/a Twitter) can’t possibly be FOIA exempt.”
In the weeks following the news of the letter’s existence, cannabis industry advocates, lawmakers, state regulators and congressional researchers have issued statements, reports or proposed legislation in response to a potential Schedule III redesignation for cannabis.
Zorn wrote that “it is unclear whether all these people writing, commenting, investing, bloviating, legislation, or opining on the recommendation have ever seen the document. It appears the remarks are based on bona fide hearsay.”
In response to a Law360 FOIA request for the same document, HHS said the request was “complex” and incurred “unusual circumstances,” necessitating a longer response time.
The Schedule I designation — which has applied to cannabis for more than five decades and endured multiple previous reviews — means marijuana has no recognized medical value and has a high potential for abuse as a matter of federal policy.
Despite marijuana’s federal illegality, it has been legalized for adult nonmedical use in 23 states, plus the District of Columbia, and for medical use in another 15 states.
The HHS letter was sent some 11 months after President Joe Biden ordered federal officials to reevaluate marijuana’s designation.
“As my complaint lays out, it is ludicrous that Bloomberg wrote a story based on a copy it saw, later in the day the HHS Secretary tweets at 4:20, followed one month of news outlets, senators and more praising or admonishing the recommendation — without anyone actually having seen it,” Zorn told Law360 Friday.
“The whole thing is just embarrassing,” Zorn continued. “This lawsuit is entirely unnecessary and can be rectified by the Biden administration — either HHS or DEA — promptly disclosing the document.”
A spokesperson for HHS did not immediately respond to a request for comment Friday.
Matthew Zorn is representing himself.
Counsel information for the Department of Health and Human Services was not immediately available.
–Editing by Caitlin Wolper.