Friday was a great day for psychedelics. More generally, Friday was a great day for science and medicine, the rule of law and rational inquiry. This is because the DEA backed down on its clumsy attempt to ban five more psychedelic substances (tryptamines), which it had moved to place on Schedule I of the federal Controlled Substances Act.
If you’d like to read about the substances at issue– and our view of DEA’s attempt to ban those substances based on “a lot of very conclusory statements and logical jumps”–we covered that back in January. January was when DEA initially published its proposed rule.
Friday’s announcement was somewhat surprising, despite the fact that the Office of Administrative Law Judges (an internal government court) had issued an order back in February decreeing that hearings were needed prior DEA’s scheduling the tryptamines. The order ensued after: 1) DEA received over 600 separate comments overwhelmingly opposing its land grab and 2) an outfit called Panacea Plant Sciences (“Panacea”) filed a document containing a formal Request for Hearing.
Had DEA not backed up, Panacea et al. would have continued to impeach DEA’s lazy thinking and opaque processes. The hearing would have given the petitioners a platform to broadcast that the proposed scheduling was based more in ideology than evidence. A hearing also might have offered Panacea an opportunity to put the Schedule I status of other psychedelics on trial. Several of these compounds are currently the subject of medical study under FDA purview, some with preliminary promising results. Ultimately, a strong argument can be made that no psychedelic drug should be embargoed to Schedule I.
With all of that said, why do I think the announcement was surprising? First, DEA historically does not seem to have been influenced by public input, let alone the rulings of administrative law judges. The classic example is Judge Francis Young’s ruling nearly 35 years ago in “the Matter of Marijuana Rescheduling.” DEA ignored Judge Young’s determination that DEA had wrongly placed marijuana in Schedule I of the CSA, and that DEA should reschedule the plant. You can also look at shambolic “emergency” drug scheduling processes such as that undertaken by DEA with MDMA in 1985. That one concluded with DEA placing MDMA in Schedule I, again ignoring a judicial recommendation to the contrary.
DEA’s bullheaded scheduling efforts, coupled with its historical blockade of controlled substances research (in tandem with NIDA) show a preference to criminalize substances and maintain punitive drug laws. DEA is a law enforcement body, after all. Given the record, DEA cannot persuasively argue that it makes drug control decisions based on scientific recommendations or evidence.
The second reason DEA’s announcement was surprising, at least to this observer, is how little precedent exists for DEA backing away from a drug scheduling proposal. We did see the Administration reverse course on kratom back in 2016. DEA’s about face was described as “shocking” at the time. No other DEA reversal features prominently in the record, at least to my knowledge.
If you’re the type to indulge schadenfreude, I encourage you to read Friday’s DEA filing. The relevant portion states that Panacea’s filing “is moot because the Agency filed… a Withdrawal of Proposed Rule” and “the Federal Register accepted the filing.” That was plenty to put the matter to bed. Still, the DEA careened forward, maligning Panacea’s filing as “meritless” and “based on misstatements of the record in the case.” DEA further complained of “mere allegations in an unrelated proceeding” and “selective quotation.” Etc., etc. The legal term for all of this is “cry me a river.”
So what’s next? Well, let’s hope the tryptamines at issue are properly studied. Better still would be findings of medical utility. At the very least, we can expect that none of these psychedelic compounds has a “high potential for abuse”, which is a criterion needed to place a drug in Schedule I. Ironically, the data cited in Section 1 of DEA’s January scheduling order already seems to confirm this.