In this episode of Psychedelica Lex, I offer a quick summary review of Dr. Aggarwal’s victory at the 9th Circuit Court of Appeals.
October 2023 brought potential good news to psilocybin in an unpublished memorandum decision from the 9th Circuit Court of Appeals. In Aggarwal v. United states Drug Enforcement Administration, Dr. Sunil Aggarwal petitioned for review of the Drug Enforcement Administration’s denial of his petition to transfer psilocybin from schedule 1 to schedule 2, pursuant to its authority under 21 U.S.C. § 811a. The United States Court of Appeals for the Ninth Circuit granted the petition, holding that the Drug Enforcement Administration failed to consider relevant factors and made a clear error of judgment in denying the petition. The court ordered the Drug Enforcement Administration to reconsider the petition and to provide a reasoned explanation for its decision. The court also held that the Drug Enforcement Administration’s interpretation of the statutory phrase “currently accepted medical use” was unreasonable and that the Drug Enforcement Administration’s decision was arbitrary and capricious.
The court’s decision is significant because it could pave the way for the rescheduling of psilocybin, which is the active ingredient in “magic mushrooms,” from a schedule 1 drug to a schedule 2 drug. Schedule 2 drugs have a high potential for abuse but also have accepted medical uses. Dr. Sunil Aggarwal, co-founder of the aims institute, has filed several lawsuits against the Drug Enforcement Administration on behalf of the institute.
In March 2021 lawyers filed a petition for review in the United States Ninth Circuit Court of Appeals of the Drug Enforcement Administration’s written decision to deny aims institute’s request for right-to-try access to psilocybin from a duly licensed producer. The Drug Enforcement Administration rejected the team’s petition in February 2021, determining that the Drug Enforcement Administration had no authority to waive any of the Controlled Substances Act’s requirements for medical use of psilocybin.
In March 2021 Dr. Sunil Aggarwal and the Advanced Integrative Medical Science Institute (AIMS) filed a lawsuit against the Drug Enforcement Administration over its refusal to accommodate right-to-try laws to permit terminally ill patients to use psilocybin, a schedule 1 drug, for end-of-life care. However, in January 2022, the United States Court of Appeals for the Ninth Circuit dismissed the petition for review of the Drug Enforcement Administration’s response to an attorney’s letter seeking advice and guidance on how a physician could administer psilocybin to a terminally ill patient without incurring liability under the Controlled Substances Act. The court determined that the Drug Enforcement Administration’s letter stating that such psilocybin treatment was not allowed, the document that prompted the lawsuit, was not a “final” decision of the attorney general that the court had jurisdiction to review. Despite petitioners’ noble cause, the case turned on a technicality.
In October 2023, Dr. Aggarwal petitioned for review of the Drug Enforcement Administration’s denial of his petition to transfer psilocybin from schedule 1 to schedule 2, pursuant to its authority under 21 U.S.C. § 811a4. The United States Court of Appeals for the Ninth Circuit granted the petition, holding that the Drug Enforcement Administration failed to consider relevant factors and made a clear error of judgment in denying the petition. The court ordered the Drug Enforcement Administration to reconsider the petition and to provide a reasoned explanation for its decision.
The Drug Enforcement Administration’s written decision is expected in 2024.
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