DEA Extends Temporary Placement of Synthetic Cannabinoids; Proposes Permanent Placement in Schedule I

By John A. Gilbert & Larry K. Houck –

On February 29, 2012, the Drug Enforcement Administration (“DEA”), exercising its emergency scheduling authority under 21 U.S.C. § 811(h)(2), extended the temporary scheduling of five synthetic cannabinoids: JWH-018, JWH-073, JWH-200, CP-47,497 and cannabicyclohexanol until August 29, 2012.  77 Fed. Reg. 12,201 (Feb. 29, 2012).  The temporary scheduling was extended while permanent scheduling is pending.  DEA published a Notice of Proposed Rulemaking the next day to permanently place the five chemicals in Schedule I of the Controlled Substances Act (“CSA”).  77 Fed. Reg. 12,508 (Mar. 1, 2012).

DEA stated that numerous products, marketed as “herbal incense” under names like “Spice” and “K2” as legal alternatives to marijuana, have been found to contain the chemicals.  77 Fed. Reg. 12,510.  DEA also noted that “these products are manufactured by spiking plant material with the synthetic cannabinoids and then distributed in a way that poses dangerous consequences to the consumer.”  Id.  DEA stated that the products are being abused for their psychoactive properties.

DEA Administrator Michele M. Leonhart stated in a related press release that “[o]ur efforts have clearly shown that these chemicals present an imminent threat to public safety.  This six month extension is critical and give us the time necessary to conduct the administrative scheduling process necessary to conduct the administrative process for permanent control.”

DEA published a Notice of Intent on November 24, 2010 to temporarily place the five cannabinoids in Schedule I (see our previous post here).  On March 1, 2011, DEA temporarily placed the cannabinoids in Schedule I (see our previous post here).  The temporary scheduling was set to expire February 29, 2012 when DEA extended temporary scheduling until August 29, 2012.

DEA explained in the March 1, 2011 Final Order that a cannabinoid “is a class of chemical compounds in the marijuana plant that are structurally related”, “[t]he cannabinoid Δ9-tretrahydrocannabinol (THC) is the primary psychoactive constituent of marijuana” and “[s]ynthetic cannabinoids are a large family of unrelated structures functionally (biologically) similar to THC, the active principal ingredient of marijuana.”  76 Fed. Reg. 11,075 (Mar. 1, 2011).

Health and Human Services (“HHS”) and DEA considered factors relating to the five cannabinoids that DEA in turn considered in its scheduling decision.  DEA found, based on its own eight-factor analysis, on consideration of the scientific and medical evaluations and recommendations of HHS, “that these facts and all relevant data constitute substantial evidence of potential for abuse” and proposes to place them in Schedule I.  77 Fed. Reg. 12,512.

Drugs and chemicals meet Schedule I criteria if they have a high potential for abuse, no currently accepted medical use in treatment in the United States and lack accepted safety for use under medical supervision.  21 U.S.C. § 812(b)(1).  Handlers of the five cannabinoids are subject to Schedule I regulatory controls that include DEA registration, security, labeling and packaging, quota, inventory, recordkeeping, reporting, and use of DEA-222 order forms.  Administrative, civil and criminal sanctions apply to the  manufacture, distribution, dispensing, importing and exporting of the five chemicals.

DEA noted that 48 states, numerous local jurisdictions and countries control at least one of the five cannabinoids.

Interested persons may submit electronic comments regarding scheduling on or before April 30, 2012; written comments must be postmarked on or before that date.  DEA must receive requests for hearing and waivers of participation on or before April 2, 2012.