Licensing Marijuana Cultivation in Compliance with the Single Convention on Narcotic Drugs ( 2018 )

(Slip Opinion)
Licensing Marijuana Cultivation in Compliance
with the Single Convention on Narcotic Drugs
Under the Controlled Substances Act, the Drug Enforcement Administration may register
an applicant to cultivate marijuana only if the registration scheme is consist ent with
the Single Convention on Narcotic Drugs. To comply with the Single Convention,
DEA’s licensing framework must provide for a system in which DEA or its legal agent
has physical possession and ownership over the cultivated marijuana and assumes con-
trol of the distribution of marijuana no later than four months after harvesting.
June 6, 2018
MEMORANDUM OPINION FOR THE ACTING CHIEF COUNSEL
DRUG ENFORCEMENT ADMINISTRATION
Under the Controlled Substances Act, the Attorney General is author-
ized to license marijuana cultivation if he determines that it would be
“consistent with the public interest and with United States obligations
under international treaties, conventions, or protocols in effect on May 1,
1971.” 21 U.S.C. § 823(a). Such obligations include those under the
Single Convention on Narcotic Drugs (“Single Convention”), Mar. 30,
1961, 18 U.S.T. 1407. As relevant here, the Single Convention requires
parties either to prohibit marijuana cultivation altogether or, if they permit
cultivation, to establish “a single government agency” to oversee marijua-
na growers and generally to monopolize the wholesale trade in the mari-
juana crop. Id. arts. 22, 23(3), 28(1). That single agency must strictly
regulate any lawful cultivation of marijuana by, among other things, “pur-
chas[ing] and tak[ing] physical possession of [the] crops as soon as possi-
ble, but not later than four months after the end of the harvest.” Id. art.
23(2)(d).
This opinion considers whether the Drug Enforcement Administration
(“DEA”), which exercises the Attorney General’s licensing authority,
must alter existing licensing practices to comply with the Single Conven-
tion. At present, DEA does not purchase or take physical possession of
lawfully grown marijuana at any point in the distribution process. Instead,
the only currently licensed marijuana cultivator grows and distributes the
marijuana itself pursuant to a contract with, and under the supervision of,
the National Institute on Drug Abuse (“NIDA”), a component of the
Department of Health and Human Services’ National Institutes of Health.
In 2016, DEA revised this process and announced that it would increase
the number of licensees and supervise the additional growers itself.
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Opinions of the Office of Legal Counsel in Volume 42
See Applications To Become Registered Under the Controlled Substances
Act To Manufacture Marijuana To Supply Researchers in the United
States, 81 Fed. Reg. 53,846, 53,848 (Aug. 12, 2016) (“Applications To
Manufacture Marijuana”). Under the new policy, DEA would not pur-
chase or possess the marijuana before licensees distributed it to govern-
ment-approved researchers. Several entities have applied for licenses
under the new policy, but no applications have been approved.
We conclude that DEA must change its current practices and the policy
it announced in 2016 to comply with the Single Convention. DEA must
adopt a framework in which it purchases and takes possession of the
entire marijuana crop of each licensee after the crop is harvested. In
addition, DEA must generally monopolize the import, export, wholesale
trade, and stock maintenance of lawfully grown marijuana.1 There may
well be more than one way to satisfy those obligations under the Single
Convention, but the federal government may not license the cultivation of
marijuana without complying with the minimum requirements of that
agreement.
I.
The Single Convention entered into force for the United States on June
24, 1967, after the Senate had given its advice and consent to the United
States’ accession. See Single Convention, 18 U.S.T. 1407. The Conven-
tion requires parties to impose stringent controls on the cultivation, manu-
facture, and distribution of narcotic drugs, including “cannabis,” which it
defines as “the flowering or fruiting tops of the cannabis plant (excluding
the seeds and leaves when not accompanied by the tops) from which the
1In preparing this opinion, we considered the views of DEA, the Office of the General
Counsel of the Department of Health and Human Services, and the Department of State’s
Office of the Legal Adviser. See Applications To Manufacture Marijuana, 81 Fed. Reg. at
53,846–48 (discussing requirements of the Single Convention applicable to licensing
marijuana cultivation); Lyle E. Craker, PhD, 76 Fed. Reg. 51,403, 51,409–11 (DEA Aug.
18, 2011) (same); Lyle E. Craker, 74 Fed. Reg. 2101, 2114–18 (DEA Jan. 14, 2009)
(same); Memorandum for Steven A. Engel, Assistant Attorney General, Office of Legal
Counsel, from Matthew S. Bowman, Deputy General Counsel, Department of Health and
Human Services (Apr. 13, 2018) (“HHS Mem.”); Office of Law Enforcement and Intelli-
gence and Office of Treaty Affairs, Single Convention Analysis (Jan. 29, 2018) (“State
Mem.”); Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel,
from Jennifer G. Newstead, Legal Adviser, Department of State (Apr. 17, 2018) (“State
Supp. Mem.”).
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Licensing Marijuana Cultivation
resin has not been extracted, by whatever name they may be designated.”
Single Convention art. 1(1)(b). Parties must, among other things, establish
quotas on the import and manufacture of cannabis, generally prohibit the
possession of cannabis, and adopt penal provisions making violations of
those controls punishable offenses. Id. arts. 21, 33, 36.
Article 28 of the Single Convention requires that any lawful cultivation
of the cannabis plant be subject to the same system of strict controls “as
provided in article 23 respecting the control of the opium poppy.” Id. art.
28. The cross-referenced provisions in Article 23 provide as follows:
1. A Party that permits the cultivation of the opium poppy for the
production of opium shall establish, if it has not already done so,
and maintain, one or more government agencies (hereafter in this
article referred to as the Agency) to carry out the functions re-
quired under this article.
2. Each such Party shall apply the following provisions to the culti-
vation of the opium poppy for the production of opium and to
opium:
a. The Agency shall designate the area in which, and the plots of
land on which, cultivation of the opium poppy for the purpose
of producing opium shall be permitted.
b. Only cultivators licensed by the Agency shall be authorized to
engage in such cultivation.
c. Each license shall specify the extent of the land on which the
cultivation is permitted.
d. All cultivators of the opium poppy shall be required to deliver
their total crops of opium to the Agency. The Agency shall pur-
chase and take physical possession of such crops as soon as
possible, but not later than four months after the end of the har-
vest.
e. The agency shall, in respect of opium, have the exclusive right
of importing, exporting, wholesale trading and maintaining
stocks other than those held by manufacturers of opium alka-
loids, medicinal opium, or opium preparations. Parties need not
extend this exclusive right to medicinal opium and opium prep-
arations.
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Opinions of the Office of Legal Counsel in Volume 42
3. The governmental functions referred to in paragraph 2 shall be
discharged by a single government agency if the constitution of
the Party concerned permits it.
The agency’s “exclusive right[s]” over the harvested marijuana need not
extend to “medicinal” marijuana or marijuana “preparations,” but the
national cannabis agency must still purchase and take physical possession
of all marijuana grown for such purposes. Id. art. 23(2)(d)(e); see Report
of the International Narcotics Control Board for 2014, at 35 (Mar. 3,
2015) (“2014 INCB Report”); Secretary-General of the United Nations,
Commentary on the Single Convention on Narcotic Drugs, 1961, at 284,
314 (1973) (“Commentary”).2
Three years after the United States acceded to the Single Convention,
Congress in 1970 enacted the Controlled Substances Act (“CSA”), 21
U.S.C. § 801 et seq., “a comprehensive statute designed to rationalize
federal control of dangerous drugs.” Nat’l Org. for Reform of Marijuana
Laws (NORML) v. DEA, 559 F.2d 735, 737 (D.C. Cir. 1977). “[A] number
of the provisions of [the CSA] reflect Congress’ intent to comply with
the obligations imposed by the Single Convention.” Control of Papaver
Bracteatum, 1 Op. O.L.C. 93, 95 (1977); see, e.g., 21 U.S.C. §§ 801(7),
811(d)(1), 958(a); see also S. Rep. No. 91-613, at 4 (1969) (“The United
States has international commitments to help control the worldwide drug
traffic. To honor those commitments, principally those established by
the Single Convention on Narcotic Drugs of 1961, is clearly a Federal
responsibility.”).
The CSA imposes strict controls on marijuana, which is defined to in-
clude “all parts of the plant Cannabis sativa L.” and all compounds and
derivatives thereof, with certain exceptions not relevant here. 21 U.S.C.
§ 802(16). The statute classifies marijuana as a schedule I substance, the
most stringent classification available, reflecting a determination that
marijuana “has a high potential for abuse” and “no currently accepted
medical use.” 21 U.S.C. § 812(b); see Craker v. DEA, 714 F.3d 17, 19
(1st Cir. 2013); 21 C.F.R. § 1308.11. The CSA makes the unauthorized
2The United Nations’ Economic and Social Council requested that the Secretary-
General prepare the Commentary “in the light of the relevant conference proceedings and
other material” in order to aid governments in applying the Single Convention. Economic
and Social Council Resolution 1962/914(XXXIV)D (Aug. 3, 1962).
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Licensing Marijuana Cultivation
possession, manufacture, and distribution of marijuana a crime punishable
by severe penalties. 21 U.S.C. §§ 841, 844.
Although federal law recognizes no currently accepted medical use for
marijuana, see United States v. Oakland Cannabis Buyers’ Co-op., 532
U.S. 483, 491 (2001), it does permit the cannabis plant to be cultivated
lawfully for research purposes pursuant to a DEA license. See 21 U.S.C.
§§ 822(a)(1), 823(a); 21 C.F.R. pt. 1301.3 Since its founding in 1973,
DEA has licensed only one such grower to supply researchers with mari-
juana—the National Center for Natural Products Research (“National
Center”), a division of the University of Mississippi. See Lyle E. Craker,
74 Fed. Reg. at 2104; Applications To Manufacture Marijuana, 81 Fed.
Reg. at 53,846. The National Center cultivates marijuana pursuant to a
contract administered by NIDA. Besides overseeing the cultivation of
marijuana, NIDA also plays a role in determining which researchers may
obtain marijuana for medical or scientific use. See 21 U.S.C. § 823(f );
Announcement of Revision to the Department of Health and Human
Services Guidance on Procedures for the Provision of Marijuana for
Medical Research as Published on May 21, 1999, 80 Fed. Reg. 35,960(June 23, 2015).
The current contract between NIDA and the National Center, which
became effective on March 23, 2015, provides that the National Center
will, among other things, “cultivate and harvest, process, analyze, store,
and distribute cannabis . . . for research.” Award/Contract Issued by Nat’l
Inst. on Drug Abuse, to the University of Mississippi, Contract No.
HHSN271201500023C, at 4 (effective Mar. 23, 2015) (“2015 NIDA
Contract”). The National Center must also “[p]rovide an adequate DEA
approved storage facility” for the harvested cannabis and may ship it to
researchers only “as required by NIDA.” Id. at 17. All work under the
contract is to be “monitored” by the Government Contracting Officer’s
Representative, an employee at NIDA’s headquarters in Bethesda, Mary-
land. Id. at 16, 34. The contract requires the NIDA representative to
monitor technical progress based on the National Center’s monthly pro-
gress reports, to evaluate the National Center’s work, to perform technical
evaluations and inspections of a sample of the marijuana shipped to
NIDA, and to assist in resolving technical problems. Id. at 17, 26, 34.
3 Sections 822(a) and 823(a) vest authority over registration for such licenses in the
Attorney General. Pursuant to 21 U.S.C. § 871(a), the Attorney General delegated this
function to DEA. 28 C.F.R. § 0.100(b).
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Opinions of the Office of Legal Counsel in Volume 42
In 2016, in response to increasing public interest in marijuana research,
DEA announced a new policy reflecting its intention to increase the
number of federally authorized growers. See Applications To Manufacture
Marijuana, 81 Fed. Reg. at 53,846–48. Under the new policy, a grower, if
approved for a license, would “be permitted to operate independently,
provided the grower agrees (through a written memorandum of agreement
with DEA) that it will only distribute marijuana with prior, written ap-
proval from DEA.” Id. at 53,848. NIDA would not be involved in moni-
toring the additional licensees. We understand that DEA has several
currently pending requests from entities that seek to register as marijuana
growers under that policy.
II.
Under the CSA, DEA may register an applicant to cultivate marijuana
only if the registration scheme is consistent with the Single Convention.
We address whether DEA’s practices and policy for licensing marijuana
cultivation comply with the Single Convention and, if not, what changes
DEA must make to conform to the treaty.
A.
An international agreement has the force of domestic U.S. law if it
is self-executing or if Congress has implemented it by legislation. See
Medellín v. Texas, 552 U.S. 491, 504–05 (2008). Here, Congress has
executed the Single Convention in the CSA. In that Act, Congress provid-
ed that the Attorney General “shall” license the cultivation of marijuana
“if he determines that such registration is consistent with . . . United
States obligations under international treaties, conventions, or protocols
in effect on May 1, 1971.” 21 U.S.C. § 823(a).4 The Attorney General is
thus required to determine that the licensing scheme is consistent with the
Single Convention before exercising his authority to register an applicant
to cultivate marijuana. See Control of Papaver Bracteatum, 1 Op. O.L.C.
at 99; Memorandum for John E. Ingersoll, Director, Bureau of Narcotics
and Dangerous Drugs, from Mary C. Lawton, Deputy Assistant Attorney
General, Office of Legal Counsel, Petition to Decontrol Marihuana—
4 The Single Convention was amended by a 1972 protocol, but the amendments are not
material to the obligations discussed in this opinion. See Protocol Amending the Single
Convention on Narcotic Drugs, Mar. 25, 1972, 26 U.S.T. 1439.
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Licensing Marijuana Cultivation
Interpretation of Section 201 of the Controlled Substances Act of 1970,
at 4 (Aug. 21, 1972) (“[I]n making determinations as to the fitness of
registrants to receive licenses for manufacture or export and import of
controlled substances, the Attorney General is instructed to ensure con-
sistency ‘with United States obligations under international treaties.’”).
Article 23(2) of the Single Convention, made applicable to marijuana
cultivation by Article 28, contains five requirements for the supervision,
licensing, and distribution of marijuana. See Single Convention art.
23(2)(a)–(e). Under current regulations and practice, DEA satisfies the
first three requirements. The Convention specifies that the agency must
designate the land on which cannabis cultivation is permitted, limit culti-
vators to those licensed by the agency, and specify the extent of the land
on which cultivation is permitted. Id. art. 23(2)(a), (b), (c). Federal regula-
tions implement those requirements by mandating that a marijuana manu-
facturer obtain a DEA license annually for each physical location at which
marijuana is grown. 21 U.S.C. § 822(a)(1); 21 C.F.R §§ 1301.11(a),
1301.12(a). DEA establishes annual production quotas for lawful mari-
juana cultivation, and it has exercised that authority by setting the annual
quotas for the National Center, the only entity ever registered by DEA to
grow marijuana to supply researchers in the United States. 21 U.S.C.
§ 826; 21 C.F.R. § 1303.11. DEA has ample authority under this frame-
work to specify the areas and circumstances under which a licensee may
cultivate marijuana and in fact satisfies the first three requirements of
Article 23(2) of the Single Convention in registering applicants under the
CSA pursuant to those requirements.
Article 23 of the Single Convention also imposes control requirements
beyond those currently carried out by DEA. Under Article 23(2)(d), “all
cultivators shall be required to deliver their total crops” to the agency, and
the agency “shall purchase and take physical possession of such crops as
soon as possible, but not later than four months after the end of the har-
vest.” Article 23(2)(e) requires the agency to “have the exclusive right of
importing, exporting, wholesale trading and maintaining stocks.” The
United States currently attempts to comply with those requirements
through NIDA’s contract with the National Center, under which NIDA’s
contracting officials supervise the National Center’s cultivation of marijua-
na and distribution of marijuana to researchers. Article 23’s final require-
ment, however, provides that the “governmental functions” in Article
23(2) must be “discharged by a single government agency if the constitu-
tion of the Party concerned permits it.” Single Convention art. 23(3).
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Opinions of the Office of Legal Counsel in Volume 42
We conclude that the existing licensing framework departs from Article
23 in three respects. First, the division of responsibilities between DEA
and NIDA, a component of the Department of Health and Human Services
(“HHS”), contravenes Article 23(2)’s requirement that all Article 23
functions be carried out by a single government agency. Second, neither
of the two government agencies “take[s] physical possession” of the
marijuana grown by the National Center, as required by Article 23(2)(d).
Third, no federal agency exercises a monopoly over the wholesale trade in
marijuana, as required by Article 23(2)(e). We discuss each departure in
turn.
1.
Current practice diverges from the Single Convention’s requirement
that a single agency undertake each of the listed control functions unless
the constitution of the treaty party forbids it. As explained, DEA is re-
sponsible for the controls required by Article 23(2)(a), (b), and (c) be-
cause it effectively designates the area where marijuana cultivation is
permitted, limits cultivators to those licensed by the agency, and speci -
fies the extent of the land on which cultivation is permitted. NIDA, for
its part, attempts to satisfy the physical-possession and government-
monopoly-control requirements of Article 23(2)(d) and (e) by supervising
cultivation under its contract with the National Center. That division of
authority is contrary to Article 23(3), because nothing in the Constitution
would preclude the United States from discharging all of those controls
through one government agency.
DEA agrees that “the United States fails to adhere strictly” to the single
government agency provision because “both DEA and HHS carry out
certain functions set forth in article 23, paragraph 2.” Lyle E. Craker,
PhD, 76 Fed. Reg. at 51,409.5 For the current framework to be in compli-
5 Members of Congress and the American Bar Association have also recognized that
the division of regulatory responsibilities among federal agencies fails to comply with the
Single Convention. See 129 Cong. Rec. 7434 (Mar. 24, 1983) (Rep. McKinney) (recog-
nizing that the current division of responsibilities is in “violation of the [S]ingle
[C]onvention” and introducing a bill that would create an “Office for the Supply of
Internationally Controlled Drugs” within the Department of Health and Human Services
to “comply[] with the [S]ingle [C]onvention on [N]arcotic [D]rugs”); Report No. 1 of the
Section of Administrative Law, 109 Ann. Rep A.B.A. 447, 482 (1984) (noting that the
Single Convention “requires that a single government agency license all domestic pro-
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Licensing Marijuana Cultivation
ance with the single-agency requirement of the treaty, we would have to
view NIDA as performing the physical-possession and government-
monopoly functions on behalf of DEA. See State Mem. at 5. But we do
not believe that NIDA acts for DEA, and it is unlikely that DEA could
lawfully supervise NIDA in the performance of its functions. We are
aware of no statute that gives DEA that authority. And the President may
not delegate to DEA his constitutional authority to supervise NIDA in the
exercise of its statutory responsibilities. See Centralizing Border Control
Policy Under the Attorney General, 26 Op. O.L.C. 22, 24–25 (2002).
2.
We turn next to the requirement that the single government agency
“purchase and take physical possession” of the marijuana. Single Conven-
tion art. 23(2)(d). As noted above, NIDA contracts with, and partially
oversees, the cultivation of marijuana by the National Center, which is
licensed by DEA. But under that contractual arrangement, neither NIDA
nor DEA takes physical possession of the marijuana. Rather, the National
Center itself stores the marijuana on the premises of the University of
Mississippi and ships it to researchers approved by DEA. Neither NIDA
nor DEA accepts delivery of the harvested crops. That contractual ar-
rangement does not satisfy the United States’ obligations under Article
23(d). The contract at most results in a federal government agency’s hav-
ing constructive, rather than physical, possession of the marijuana crop.
a.
The Single Convention does not define “physical possession.” In con-
struing that term we should “begin with the text of the treaty and the
context in which the written words are used.” Water Splash, Inc. v. Men-
on, 137 S. Ct. 1504, 1508–09 (2017) (internal quotation marks omitted);
see also Restatement (Third) of the Foreign Relations Law of the United
States § 325(1) (Am. Law Inst. 1987) (“Restatement of Foreign Rela-
tions”) (“An international agreement is to be interpreted in good faith
according to the ordinary meaning to be given to its terms in their context
and in light of its object and purpose.”); Vienna Convention on the Law of
duce[r]s of marijuana, specify the particular plots of land on which it is to be grown, and
collect the crops of all domestic producers of marijuana” and that “at present the authority
to control marijuana production is split between” government agencies).
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Opinions of the Office of Legal Counsel in Volume 42
Treaties art. 31(1), opened for signature May 23, 1969, 1155 U.N.T.S.
331(“Vienna Convention”) (similar).6
We think it evident from the treaty’s text and context that “physical
possession” requires growers licensed under the CSA to transfer the crops
to the physical, and not merely legal, control of the federal government.
Article 23(2)(d) says that “cultivators” must “deliver their total crops” to
the government—a clear indication that the treaty contemplates the physi-
cal transfer of control from one party to another. The Single Convention’s
Commentary reinforces that point in emphasizing that “the time between
the harvest and delivery of the crop should be as short as possible” and
recommending that parties “set a final date after which possession of
harvested [crops] by a private cultivator is in any event illegal and [the
crop] subject to confiscation.” Commentary at 283 (emphasis added). And
this understanding of the words used in the Single Convention is further
confirmed by the decisions of U.S. courts, which have consistently distin-
guished constructive possession from physical possession, with the latter
requiring direct physical control over the item in question.7
One might argue that NIDA, through its contract, satisfies the treaty
requirements of physical possession via the pervasive influence and
control NIDA exercises over the National Center’s cultivation operations.
See State Mem. at 5; State Supp. Mem. at 2. NIDA’s contract does pro-
vide that the National Center serves as “NIDA’s cannabis drug reposito-
ry.” 2015 NIDA Contract at 16. DEA regulations also include detailed
specifications for the material, size, and accessibility of the storage facili-
ty. See 21 C.F.R. §§ 1301.71–1301.76. The contract further specifies
particular temperatures for the storage facility and notes that “[l]ocal DEA
agents will determine the exact type of security required.” 2015 NIDA
6 The United States is not a party to the Vienna Convention, but this Office has relied
on Article 31 as generally reflecting customary international law and practice. See Inter-
pretation of Article 17 Bis of the US-EU Air Transport Agreement, 40 Op. O.L.C. __,
at *5 (Apr. 14, 2016); “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, 28 Op. O.L.C. 35, 53 n.21 (2004).
7 See, e.g., United States v. Hunter, 558 F.3d 495, 503–04 (6th Cir. 2009) (“Actual
possession exists when an individual knowingly has direct physical control over a thing at
a given time[.]”); United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (defining
“actual possession” as “physical possession or . . . actual personal dominion over the thing
allegedly possessed”); United States v. Raper, 676 F.2d 841, 848 (D.C. Cir. 1982) (find-
ing constructive possession even though the drugs were in another’s “physical posses-
sion”); United States v. Moreno, 649 F.2d 309, 313 (5th Cir. Unit A June 1981) (same).
10
Licensing Marijuana Cultivation
Contract at 17. And the contract provides for federal monitoring of com-
pliance by the NIDA representative, although that supervision occurs
primarily from NIDA’s headquarters in Bethesda, Maryland. Id. at 16, 26,
34. But the control that NIDA exercises through these contractual provi-
sions amounts at most to constructive possession of the marijuana, and is
thus insufficient to meet the treaty requirement of physical possession by
the federal government.
In particular, this requirement demands that the government have phys-
ical control over the crop. Because a government acts through its agents,
that mandate means the marijuana must be delivered to government
agents who must have personal and direct physical access to the crops in
question, and not simply the ability or power to obtain access to them.
b.
It could be argued that the National Center’s employees are acting as
federal government agents, and that the federal government physically
possesses marijuana grown by the National Center through those employ-
ees. But in a similar context, for purposes of asking whether the federal
government is liable for the actions of a contractor under the Federal Tort
Claims Act, the Supreme Court has emphasized that requiring compliance
with “federal standards and regulations” or contract terms that “fix specif-
ic and precise conditions to implement federal objectives” does not suf-
fice to “convert the acts of [contractors] into federal governmental acts.”
United States v. Orleans, 425 U.S. 807, 815–16 (1976). A contractor’s
employees may become federal agents only if the government has the
authority “to control the detailed physical performance of the contractor”
and supervise its “day-to-day operations.” Id. at 814–16 (internal quota-
tion marks omitted).
For analogous reasons, the National Center’s employees are not agents
of the federal government. The parameters of the contract do not provide
for DEA or NIDA to supervise closely the day-to-day physical operations
of the National Center’s distribution and storage functions. And the NIDA
contract disavows the notion that it creates an agency relationship. It
provides that the National Center operates “[i]ndependently, and not as an
agent of the Government” and, further, that the National Center “shall be
required to furnish all necessary services, qualified personnel, materials,
equipment, and facilities, not otherwise provided by the Government.”
2015 NIDA Contract at 15 (emphasis added). There is simply no indica-
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Opinions of the Office of Legal Counsel in Volume 42
tion that the federal government, rather than the National Center, exercis-
es the kind of close supervision of the National Center’s employees that
would make them federal agents.
We are also not persuaded by a similar line of argument contending that
the National Center “could be considered an extension of ” the federal
government. Applications To Manufacture Marijuana, 81 Fed. Reg. at
53,847. The suggestion is that the National Center itself operates as the
federal government in carrying out the controls required by the Single
Convention. The question of whether an entity is part of the federal gov-
ernment turns on a variety of factors, including whether the government
owns the entity; whether the government appoints its officers and direc-
tors; whether Congress has defined its corporate purposes or appropriated
funds for its operations; and whether the entity is controlled by or oper-
ates for the benefit of the federal government. See Dep’t of Transp. v.
Ass’n of Am. Railroads, 575 U.S. 43, 51–55 (2015); United States v. New
Mexico, 455 U.S. 720, 739–40 (1982); Memorandum for Edward A.
Frankle, General Counsel, National Aeronautics & Space Administration,
from Randolph D. Moss, Assistant Attorney General, Office of Legal
Counsel, Re: Applicability of Government Corporation Control Act to
Gain Sharing Benefit Agreement at 7–9 (Sept. 18, 2000).
Under those factors, the National Center is not an extension of the fed-
eral government. The National Center is part of the University of Missis-
sippi, located on campus in a university-owned building, and run by its
own employees. It does not operate solely for a federal purpose, but
instead was established to help the University conduct “research to dis-
cover and develop natural products for use as pharmaceuticals, dietary
supplements and agrochemicals, and to understand the biological and
chemical properties of medicinal plants.” National Center for Natural
Products Research, About NCNPR, https://pharmacy.olemiss.edu/ncnpr/
about-ncnpr/ (last visited June 6, 2018). While the federal government
pays the National Center to grow marijuana and exercises some supervi-
sion over its growing operations, the government does not generally fund
or control the National Center. That the National Center may physically
possess the marijuana it grows, then, does not satisfy the federal govern-
ment’s obligation to do so.8
8 The Supreme Court has cautioned against applying “background principle[s] of
American law” that are “relevant to the interpretation of federal statutes” but were not
necessarily adopted by the signatories to a treaty (for example, the presumption in favor
12
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c.
In addition to taking “physical possession,” Article 23(2)(d) requires
that the national agency “purchase” the marijuana from the cultivator.
That requirement provides for the government to pay for and take legal
title to the marijuana. The Commentary advises that the payment of mon-
ey was meant to encourage the delivery of the crops because “[p]rompt
payment, a good price and other favourable conditions of purchase may
be incentives to producers to deliver speedily their total” crops to the
agency. Commentary at 283. The exchange of payment for the harvested
crops encourages each grower to deliver its full inventory to the govern-
ment.
Neither NIDA nor DEA “purchases” the harvested crops from the
National Center, but it could be said that NIDA does not need to do so if
it already has title to the marijuana. See State Mem. at 4–5; HHS Mem.
at 5–6. Although the contract between NIDA and the National Center
includes some provisions discussing government property, they do not
expressly address or otherwise make clear where title to the marijuana
crops lies.9 But we need not decide whether NIDA has title to the crops.
The requirement that the federal government physically possess the mari-
juana crops is distinct from the requirement that it “purchase” the crops
and thus secure title. See Single Convention art. 23(d). Physical posses-
sion is not conferred by mere “transfer of title or risk of loss.” In re World
Imports, Ltd., 862 F.3d 338, 344 (3d Cir. 2017) (interpreting the Bank-
ruptcy Code’s reference to “receipt of goods” as requiring “physical
of equitable tolling of federal statutes of limitations). Lozano v. Montoya Alvarez, 572
U.S. 1, 12 (2014). Here, we have sought help from analogies drawn from U.S. law to
interpret the Single Convention “in good faith in accordance with the ordinary meaning to
be given to its terms in their context and in light of its object and purpose.” Restatement
of Foreign Relations § 325(1).
9 The current NIDA contract incorporates a clause of the Federal Acquisition Regula-
tion dealing with government title to property. 2015 NIDA Contract at 55. That clause
states that “[t]itle to property (and other tangible personal property) purchased with funds
available for research and having a unit acquisition cost of less than $5,000 shall vest in
the Contractor upon acquisition or as soon thereafter as feasible; provided that the Con-
tractor obtained the Contracting Officer’s approval before each acquisition .” 48 C.F.R.
§ 52.245-1 Alternate II (2012). If the unit acquisition cost is $5,000 or more, title vests
“as set forth in this contract.” Id. The application of this clause to marijuana the contrac-
tor grows rather than purchases is ambiguous and the contract does not otherwise express-
ly address title to the crops.
13
Opinions of the Office of Legal Counsel in Volume 42
possession”); see Matter of Brio Petroleum, Inc., 800 F.2d 469, 472 (5th
Cir. 1986) (same); Matter of Marin Oil, Inc., 740 F.2d 220, 225 (3d Cir.
1984) (same). Moreover, DEA certainly does not have title to the crops.
Even if NIDA had formal legal title to the crops, the current arrangement
would still have to be adjusted to comply with the treaty’s requirements
that a single government agency be charged with licensing cultivators,
purchasing, and physically possessing the crops. In the course of making
those adjustments, DEA could enter into a contract that expressly states
that it owns the marijuana crops, should the agency seek to obviate the
need for a purchase and claim ownership in the marijuana from its incep-
tion, rather than buying back the crops shortly after the harvest.
3.
Finally, we do not believe that the current arrangement provides for the
federal government to exercise “the exclusive right of importing, export-
ing, wholesale trading and maintaining stocks” in the drug, as required by
Article 23(2)(e). DEA has authority to control the lawful distribution of
the crops in certain respects. But just as with the physical possession
requirement, the Single Convention contemplates that the government
monopoly will involve more than the exercise of regulatory authority. The
Commentary on the Convention stresses that wholesale trade “must be
undertaken by governmental authorities,” rather than private parties,
because of the risk of diversion. Commentary at 278. The Convention
contemplates an actual “monopoly,” id. at 284, i.e., “[t]he market condi-
tion existing when only one economic entity produces a particular product
or provides a particular service.” Black’s Law Dictionary 1160 (10th ed.
2014). The government agency responsible for the relevant controls must
own the crops and be the sole distributor of the marijuana. In allowing the
National Center to maintain possession of the marijuana and ship it to
DEA-approved researchers, the NIDA contract does not create the re-
quired government monopoly over the lawful marijuana trade.10
10 The government monopoly need not extend to “medicinal” marijuana. Single Con-
vention art. 23(e). But that exception is not available under current federal law. As noted
above, the federal government has not recognized any accepted medical use for marijua-
na. See Oakland Cannabis Buyers’ Co-op., 532 U.S. at 491. As a result, “there is current-
ly no such thing in the United States as ‘medicinal cannabis’” for purposes of the Single
Convention. Lyle E. Craker, 74 Fed. Reg. at 2116. Moreover, anyone who wished to
produce medicinal marijuana or marijuana preparations would still be required to pur-
14
Licensing Marijuana Cultivation
For the reasons discussed above, the National Center does not play the
role of the government monopolist. See supra Part II.A.2.b. Indeed, that
conclusion is buttressed here by a constitutional concern. If the National
Center were viewed as exercising significant authority in establishing a
federal government monopoly over the lawful distribution of marijuana,
in conformity with the international obligations of the United States, its
officials might be viewed as officers of the United States, who would
need to be appointed consistent with the Appointments Clause. See Ass’n
of Am. Railroads, 575 U.S. at 55–56; Officers of the United States Within
the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 87–93, 100–
110, 121 (2007). If any National Center officials were officers of the
United States, they would have to be appointed either by the President
with the advice and consent of the Senate, or, pursuant to statutory author-
ity, by a court of law, a department head, or the President alone. See U.S.
Const. art. II, § 2, cl. 2. We are not aware that any National Center offi-
cials are so appointed, but because, as discussed above, we do not believe
that the National Center is exercising the sovereign authority of the Unit-
ed States, such concerns do not arise.
B.
Even if the current framework departs from Article 23, it would still
comply with the Convention if it satisfied Article 39, which provides that,
“[n]otwithstanding anything contained in this Convention, a Party shall
not be, or be deemed to be, precluded from adopting measures of control
more strict or severe than those provided by this Convention.” We there-
fore must consider whether the NIDA contract system may be viewed as
resulting in a “more strict or severe” system of controls than one where
the government physically possesses the marijuana crops and monopoliz-
es their distribution. See State Mem. at 4–6.
Article 39 permits a party to the Single Convention to impose substitute
measures that result in tighter controls than those otherwise required. See
Commentary at 449. But as the Commentary explains, such “substitute
measures should clearly be ‘more strict or severe’ to prevent any . . .
doubts” about their validity. Id. (emphasis added). As examples of “[p]er-
missible substitute controls,” the Commentary identifies “the prohibition
chase cannabis stocks from the national cannabis agency that purchases and takes physical
possession of the marijuana crop grown by licensees. See Commentary at 284.
15
Opinions of the Office of Legal Counsel in Volume 42
of manufacture of and trade in certain drugs instead of subjecting them to
a system of licensing, or the imposition of the death penalty in place of
‘imprisonment or other penalties of deprivation of liberty.’” Id. at 449–50.
The close regulation of the National Center is not clearly more strict or
severe than the controls in Articles 23 and 28. The Office of the Legal
Adviser points out that the NIDA contract, unlike the controls required by
Article 23(2), addresses the risk of diversion during the cultivation pro-
cess in addition to diversion that may occur after the crops are harvested.
See State Mem. at 5; State Supp. Mem. at 1.11 For example, the National
Center must maintain its registration for working with scheduled drugs,
2015 NIDA Contract at 13, which requires certain security measures for
manufacturing activities, see, e.g., 21 C.F.R. § 1301.73(b) (“Manufactur-
ing activities with controlled substances shall be conducted in an area or
areas of clearly defined limited access which is under surveillance by an
employee or employees designated in writing as responsible for the area.”).
As effective as those contractually imposed diversion controls may be
during marijuana cultivation, however, we cannot say that they clearly
compensate for the absence of the required controls governing the trade in
the crops, which the treaty drafters evidently believed posed greater risks
of diversion. The controls required by Article 23 of the Single Convention
reflect the specific concern that “experience has shown that permitting
licensed private traders to purchase the crops results in diversion of large
quantities of drugs into illicit channels.” Commentary at 278. The treaty
drafters thus concluded that “the acquisition of the crops and the whole-
sale and international trade in these agricultural products cannot be en-
trusted to private traders, but must be undertaken by governmental author-
ities in the producing countries.” Id. The Commentary then explains that
pursuant to Article 23 “[f ]armers should be required to deliver the opium
as soon as the Agency requests it, that is, is in a position to take physical
possession of the crops of the cultivator concerned. . . . The Convention
not only requires that the Agency should take physical possession of the
11 The Office of the Legal Adviser suggests that DEA’s framework is also stricter than
required by the Single Convention because DEA establishes annual quotas for the Nation-
al Center’s marijuana production. See State Mem. at 1, 5. But those quotas not only
indirectly implement the requirements in Article 23(2) for the national cannabis agency to
designate the land on which cultivation is permitted, see Commentary at 281, but also
directly implement Article 21 of the Convention, which requires parties to limit the
annual quantity of drugs lawfully manufactured and imported. DEA’s quotas are therefore
not more strict or severe than the Single Convention otherwise requires.
16
Licensing Marijuana Cultivation
opium, but also that it should ‘purchase’ it as soon as possible.” Id. at 283.
In other words, allowing the National Center, rather than the federal
government, to distribute marijuana replicates in critical respects a system
that the drafters rejected as inadequate, not one that they would have seen
as “clearly more strict.”
We also believe that reliance upon Article 39 here would be hard to
reconcile with other provisions in the Single Convention that expressly
provide parties with discretion to impose appropriate controls. For exam-
ple, Article 28(3) gives parties discretion “to adopt such measures as may
be necessary to prevent the misuse of, and illicit traffic in, the leaves of
the cannabis plant.”12 See also Single Convention art. 2(8) (requiring
parties to “use their best endeavours to apply . . . such measures of super-
vision as may be practicable” to substances that “may be used in the illicit
manufacture of drugs”); id. art. 30(2)(b)(ii) (stating that parties should
require that prescriptions for Schedule I drugs be written on official forms
“[i]f the Parties deem these measures necessary or desirable”); id. art.
30(4) (stating that parties should require certain drug wrappings if the
parties “consider[] such measure necessary or desirable”). Article 23 and
the remaining provisions of Article 28, however, require a party to adopt
very specific controls over the cultivation of marijuana (aside from the
leaves of the plant) and do not give discretion to choose alternative
means, simply because the party believes in good faith that the controls
will accomplish the same purpose. Article 39 thus permits parties to
depart from the specific controls mandated only where the alternatives are
plainly more “strict or severe.” The existing licensing scheme falls short
of that standard.
C.
In considering the appropriate interpretation of the Single Convention,
we have reviewed the statements and practice of the International Narcot-
ics Control Board (“INCB”), the international body established by the
Single Convention to monitor treaty compliance, which we understand
has not objected to the United States’ licensing scheme. While the inter-
pretation of a body charged with monitoring treaty implementation may
12 As noted above, the Single Convention’s definition of cannabis does not include the
leaves when unaccompanied by the top of the plant. Single Convention art. 1(1)(b). The
CSA’s definition of marijuana, by contrast, includes the leaves. 21 U.S.C. § 802(16).
17
Opinions of the Office of Legal Counsel in Volume 42
sometimes help in resolving ambiguities in the treaty’s text, such views
are not authoritative interpretations of the treaty or legally binding on the
United States or other parties.13
Here, the INCB’s failure to object reveals little. The INCB’s mandate
does not require it to note every instance of noncompliance. Rather, the
INCB is charged with identifying situations in which the Convention’s
aims “are being seriously endangered by reason of the failure of any
Party, country or territory to carry out [its] provisions.” Single Conven-
tion art. 14(1)(a). In fulfilling this mandate, the INCB has, for example,
objected to “the legalization of the production, sale and distribution of
cannabis for non-medical and non-scientific purposes in the states of
Alaska, Colorado, Oregon and Washington.” 2014 INCB Report at 25.
But the fact that the INCB has not objected to the federal licensing
scheme does not mean that the INCB views that framework as complying
with the Single Convention.
Indeed, the INCB’s interpretation of the Single Convention appears en-
tirely consistent with ours. For instance, the INCB’s 2014 annual report
advises that “States wishing to establish programmes for the use of can-
nabis for medical purposes that are consistent with the requirements of the
Single Convention must establish a national cannabis agency to control,
supervise and license the cultivation of cannabis crops.” Id. at 35. The
national cannabis agency must “purchase and tak[e] physical possession
of crops” and maintain “the exclusive right of wholesale trading and
maintaining stocks.” Id. While the INCB has not expressly objected to the
United States’ licensing scheme, it has “note[d] that the control measures
in place under many existing programmes in different countries fall short
of the requirements set out above.” Id. at 36. We do not infer from the
INCB’s silence any affirmative approval of the existing licensing scheme
or the licensing schemes of other countries.
13 See INS v. Aguirre-Aguirre, 526 U.S. 415, 427–28 (1999) (guidance issued by
the Office of the UN High Commissioner for Refugees regarding the interpretation of
the Refugee Convention “may be a useful interpretative aid, but it is not binding on
the Attorney General, the [Board of Immigration Appeals], or United States courts”);
Observations of the United States of America on the Human Rights Committee’s Draft
General Comment 35: Article 9, 2014 Digest of United States Practice in International
Law ch. 6, § A(2)(b), at 179 (“The United States believes the views of the Committee
should be carefully considered by the States Parties. Nevertheless, they are neither
primary nor authoritative sources of law.”).
18
Licensing Marijuana Cultivation
D.
We have also reviewed information about executive branch practice
and the practice of other state parties to the Single Convention. As we
have observed, the Executive Branch has long licensed the National
Center to grow marijuana without having a single government agency
purchase and take physical possession of the cannabis crops after harvest.
A number of other state parties to the Single Convention apparently
follow the U.S. practice. See State Mem. at 6–7; State Supp. Mem. at 3.
The practice of the Executive Branch and other state parties is relevant
in treaty interpretation. Courts “find particularly persuasive a consistent
pattern of Executive Branch interpretation, reflected in the application of
the treaty by the Executive and the course of conduct of the parties in
implementing the agreement.” Relevance of Senate Ratification History to
Treaty Interpretation, 11 Op. O.L.C. 28, 36 (1987) (citing O’Connor v.
United States, 479 U.S. 27, 32–33 (1986)); see also Vienna Convention
art. 31(3)(b) (noting that, “together with the context,” treaty interpretation
should take into account “[a]ny subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its
interpretation”). The practices of a treaty’s parties can also be useful
evidence of the parties’ “understanding of the agreement they signed.”
United States v. Stuart, 489 U.S. 353, 369 (1989); see Medellín, 552 U.S.
at 507.
But as the Supreme Court has explained, “where the text [of a treaty] is
clear . . . we have no power to insert an amendment.” Chan v. Korean Air
Lines, Ltd., 490 U.S. 122, 134 (1989) (holding that the text of the Warsaw
Convention controlled where it could not “be dismissed as an obvious
drafting error”).14 Here, Articles 23 and 28 clearly require that the United
14 See Water Splash, 137 S. Ct. at 1511 (“[W]hen a treaty provision is ambiguous, the
Court may look beyond the written words to the history of the treaty, the negotiations, and
the practical construction adopted by the parties.” (internal quotation marks omitted));
Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534–35 (1991) (explaining that treaty
interpretation begins “with the text of the treaty and the context in which the w ritten
words are used,” while “[o]ther general rules of construction may be brought to bear on
difficult or ambiguous passages” (internal quotation marks omitted)); United States v.
Jeong, 624 F.3d 706, 711 (5th Cir. 2010) (“Only if the language of a treaty, when read in
the context of its structure and purpose, is ambiguous may we resort to extraneous
information like the history of the treaty, the content of negotiations concerning the treaty,
and the practical construction adopted by the contracting parties.” (internal quotation
19
Opinions of the Office of Legal Counsel in Volume 42
States have a single government agency “purchase and take physical
possession of ” lawfully grown cannabis crops “as soon as possible, but
not later than four months after the end of the harvest,” Single Convention
art. 23(2)(d), and that this agency thereafter “have the exclusive right of
importing, exporting, wholesale trading and maintaining stocks” of mari-
juana, id. art. 23(2)(e).
In addition to the fact that the Single Convention is unambiguous, state
practice does not appear to reflect a conclusive or consistent interpretation
of the controls required. See Memorandum for Edwin Meese, III, Attorney
General, from Charles J. Cooper, Assistant Attorney General, Office of
Legal Counsel, Re: Intent and Constitutionality of Legislation Prohibiting
the Maintenance of an Office of the Palestine Liberation Organization in
the United States at 4 n.5 (Feb. 13, 1988) (declining to depart from the
text of an international agreement based on inconclusive post-ratification
practice). The Office of the Legal Adviser identifies Australia, Canada,
Israel, and the United Kingdom as countries with similar licensing prac-
tices as the United States, in which the government agency does not
purchase or take physical possession of the marijuana, but allows private
growers to distribute it. State Supp. Mem. at 3. But the practices of a
handful of the 186 parties to the treaty are entitled to comparatively little
weight in illuminating the meaning of the treaty, and certainly do not
supply the kind of subsequent practice that “establishes the agreement
of the parties regarding its interpretation.” Vienna Convention art.
31(3)(b).
In fact, the practice of parties regarding lawful marijuana cultivation is
hardly unambiguous. In the Czech Republic, for example, the applicable
legal regime requires licensed cannabis growers to “transfer cannabis
grown and harvested . . . exclusively to the State Institute for Drug Con-
trol,” which is instructed to “buy cannabis harvested within 4 months of
its harvesting.” On Dependency Producing Substances and on Amending
Certain Other Acts, Act No. 167/1998 Coll. sec. 24b(1) (as amended).
And a 2017 report on cannabis legislation in Europe states that in Italy,
“[f ]rom November 2015, the [Ministry of Health] can issue permits for
marks omitted)); Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73, 86 (2d Cir.
2005) (holding that secondary evidence of the parties’ intent “may be useful where the
intentions of the party States cannot be deduced by the treaty’s plain language, but we
need not rely upon such evidence here as the text of Montreal Protocol No. 4 is clear and,
consequently, controlling” (internal citation omitted)).
20
Licensing Marijuana Cultivation
cultivation” of cannabis and that “[l]icensed farmers deliver the canna-
bis to the ministry, which then allocates it for production.” European
Monitoring Centre for Drugs and Drug Addiction, Cannabis Legislation
in Europe: An Overview 8 (2017).15 Currently, it appears that the only
authorized grower in Italy is the Italian Army, see Anna Momigliano,
In Italy, the Army Provides Medical Marijuana. And Some Say That’s
a Problem, Wash. Post, Dec. 1, 2017, which would suggest that a single
Italian government agency has physical possession of the crop and a
monopoly on trade in cannabis, as the text of Articles 23 and 28 requires.
There is also evidence that other parties to the Single Convention have
established a single government agency to administer the controls re-
quired by Articles 23 and 28. See, e.g., Narcotic Drugs Act 1967, Act
No. 53/1967 (Cth) ch 2 pt 2 (as amended) (Austl.) (establishing marijuana
licensing framework operated by the Department of Health); Report of
the International Narcotics Control Board for 2005, at 16 (Mar. 1, 2006)
(noting that “since the last report of the Board was published, the Gov-
ernment of the United Kingdom has established a national cannabis agen-
cy”); David Mansfield, An Analysis of Licit Opium Poppy Cultivation:
India and Turkey 10–17 (Apr. 2001) (describing the regulation of opium
in Turkey under the Grain Marketing Board and in India under the Central
Bureau for Narcotics).
We find relevant as well the practice of countries that license private
growers to cultivate the opium poppy and the coca leaf—both of which
are subject to the same Article 23 regime as the cannabis plant.16 The
practice among countries that permit lawful production of those plants is
consistent with the text of Article 23. In India, Turkey, and Peru, for
15 The report also describes the Netherlands’ regime for medicinal cannabis, which
provides that cannabis producers may be “licenced by the Dutch government and must
sell all produce to the [Office of Medicinal Cannabis], which then distributes it to phar-
macies.” Cannabis Legislation in Europe: An Overview at 7. Although this regime
appears to comply with the text of the Single Convention, the Netherlands has a separate
regime for non-medical cannabis, pursuant to which it licenses coffee shops to sell small
quantities of cannabis. The INCB has objected to this practice and noted that it “is in
contravention of the provisions of the [Single] Convention.” Report of the International
Narcotics Control Board for 2001, at 35 (Feb. 27, 2002).
16 Article 26 provides that Article 23 applies to licit cultivation of the coca leaf except
that the government agency is not required to take physical possession of the crops within
four months, but only “as soon as possible after the end of the harvest.” Single Conven-
tion art. 26(1).
21
Opinions of the Office of Legal Counsel in Volume 42
example, a government agency purchases and takes physical possession of
those crops following the harvest.17
The Office of the Legal Adviser suggests that state practice with regard
to opium may not be instructive as to marijuana because “[t]he vulnerabil-
ities of the two plants” to diversion “are significantly different” owing to
their different properties. State Mem. at 6. But the Single Convention’s
drafters recognized that “the conditions under which the cannabis plant is
cultivated for the production of drugs are very different from those under
which the opium poppy is grown for opium,” and nonetheless “provide[d]
the same regime for both, namely that of article 23.” Commentary at
313.18
While state practice is therefore inconclusive, the Single Convention’s
drafting history would strongly support our interpretation of the text of
Articles 23 and 28 even if the treaty were ambiguous. See Water Splash,
137 S. Ct. at 1511. An earlier draft of the Single Convention would have
provided a less-stringent regime for cannabis than applicable to the coca
leaf, under which a closely regulated private entity could grow marijuana.
Under that draft, a “‘licensed scientific institute’” would have been per-
mitted to “‘produce, manufacture, possess and export under close State
supervision to the government of another Party small amounts of cannabis
. . . for the purpose of scientific research.’” Memorandum for Malcolm R.
Wilkey, Assistant Attorney General, Criminal Division, from Robert
Kramer, Assistant Attorney General, Office of Legal Counsel, Re: Consti-
tutionality of Legislation to Carry Out Certain Provisions of Draft Single
Convention on Narcotic Drugs at 2–3 n.2 (Jan. 20, 1960) (quoting Article
39 of draft Single Convention). With regard to the coca leaf, however, the
draft would have provided for the Article 23 system of controls. See id.
17 See Central Bureau of Narcotics, Licit Cultivation, http://www.cbn.nic.in/html/
operationscbn.htm (last visited June 6, 2018) (explaining that licensed opium cultivators
in India “are required to tender their entire produce to the Government”); Mansfield,
An Analysis of Licit Opium Poppy Cultivation at 10–12 (describing the licensing and
control measures for opium cultivation in Turkey, overseen by the Grain Marketing
Board, which takes physical possession of crops); United Nations Office on Drugs and
Crime, Peru Coca Cultivation Survey 8 (June 2005) (explaining that the National Coca
Enterprise (“ENACO”) “has a monopoly on the commercialization and industrialization
of the coca leaves,” such that “the selling of coca leaves to any party other than ENACO
is considered illicit by national law”).
18 Indeed, the Commentary suggests that the regime for opium could, “in practice,”
prove to be inadequate to control cannabis production. Commentary at 313 n.9.
22
Licensing Marijuana Cultivation
at 1–2 n.1 (quoting Article 36 of draft Single Convention). In other words,
the Single Convention’s drafters considered, but rejected, allowing li-
censed private institutions to produce, store, and ship marijuana under
close government supervision, and instead adopted a requirement that the
government take physical possession of the crop and conduct trade in the
drug. That history also shows that the drafters of the Single Convention
considered applying less-stringent controls to marijuana, but declined to
do so and instead applied the same stringent controls to marijuana, opium,
and the coca leaf.
III.
For similar reasons, DEA’s 2016 policy statement also fails to establish
a framework that would fully comply with Articles 23 and 28 of the
Single Convention.
Under that policy, DEA would allow a licensee “to operate independent-
ly” of NIDA, “provided the grower agrees (through a written memoran-
dum of agreement with DEA) that it will only distribute marijuana with
prior, written approval from DEA.” Applications To Manufacture Mari-
juana, 81 Fed. Reg. at 53,848. Such a licensee would also “be subject to
all applicable requirements of the CSA and DEA regulations, including
those relating to quotas, record keeping, order forms, security, and diver-
sion control.” Id. DEA suggests that these requirements would be con-
sistent with the purposes of Articles 23 and 28 of the Single Convention
because these requirements “will succeed in avoiding one of the scenarios
the treaty is designed to prevent: Private parties trading in marijuana
outside the supervision or direction of the federal government.” Id.
While DEA focuses on its view of the broader purposes of the treaty’s
requirements, the Single Convention requires the United States to adopt
specific, listed controls if it licenses cannabis cultivation. A single gov-
ernment agency must purchase and take physical possession of harvested
cannabis, and generally monopolize the wholesale trade in that plant. The
United States cannot satisfy those requirements simply by employing
alternatives that the government believes may prevent unlawful diversion.
As we have explained, Articles 23 and 28 certainly could have given the
parties the discretion to determine the particular controls necessary.
Rather than take that route, the parties to the treaty agreed to certain
specific controls, and Congress has required the Attorney General to
apply those strictures when granting licenses under the CSA. Accord-
23
Opinions of the Office of Legal Counsel in Volume 42
ingly, DEA’s licensing procedures must comply with those choices.
DEA’s announced policy, however, would not comply with Articles 23
and 28 of the Single Convention.
IV.
We conclude that DEA must alter the marijuana licensing framework to
comply with the Single Convention. DEA has discretion to develop a
regulatory framework that meets the requirements of Articles 23 and 28.
In doing so, DEA need not rule out a regime in which DEA purchases or
takes legal title to the marijuana plants prior to their cultivation; adopts a
system of regulation and day-to-day supervision that would create an
agency relationship; or relies upon NIDA’s expertise to assist the agency
in its functions. At a minimum, however, this licensing framework must
provide for a system in which DEA or its legal agent has physical posses-
sion and ownership over the cultivated marijuana and assumes control of
the distribution of marijuana no later than four months after harvesting.
In justifying the current licensing framework, DEA had concluded that
the division of labor with NIDA was “a result of the existing statutes,
regulations, and Congressional appropriations,” and declined to opine on
whether, absent legislation, DEA could carry out all the functions re-
quired by the Single Convention. Lyle E. Craker, PhD, 76 Fed. Reg. at
51,409–10. Having examined DEA’s and NIDA’s authorities, we do not
believe that further legislation is required for DEA to perform those
functions. DEA has statutory authority to do so pursuant to 21 U.S.C.
§ 823(a), which obliges DEA (by delegation from the Attorney General)
to ensure that registrations for the manufacture of marijuana comply with
the Single Convention. That language authorizes DEA to take steps rea-
sonably necessary to ensure that the registration scheme complies with the
Single Convention, which as we have said clearly contemplates that a
single government agency will purchase and take physical possession of
marijuana crops from registrants. The statute thus authorizes DEA to
perform the control functions contemplated by the Single Convention,
including the functions of purchasing (or otherwise securing title over)
and taking physical possession of marijuana crops. Reading the statute
otherwise would preclude DEA from registering any marijuana manufac-
turer because no registration could be in compliance with the Single
Convention, contrary to Congress’s evident intent that DEA administer
the registration system. Congress has also established a fund for DEA’s
24
Licensing Marijuana Cultivation
diversion control program, which includes DEA activities “related to the
registration and control of the manufacture, distribution, [and] dispensing
. . . of controlled substances.” 21 U.S.C. § 886a(2)(B) (emphasis added).
Because Congress has made compliance with the Single Convention a
necessary condition of registration, id. § 823(a), that fund may be used in
purchasing, storing, and monopolizing the wholesale trade in marijuana.
And although HHS has statutory authority to “determine the qualifications
and competency” of the researchers who seek to purchase marijuana from
licensed growers to conduct research, id. § 823(f ), that provision would
not bar DEA from establishing a government monopoly from which those
researchers could purchase marijuana.
The NIDA contract is a longstanding feature of the marijuana licensing
scheme, and the current version of that contract is annually renewable
through March 2020. 2015 NIDA Contract at 27. Although DEA must
discharge the obligations required by Article 23(2), NIDA may still play a
significant role. The relevant statutes require that “[r]egistration applica-
tions by practitioners wishing to conduct research with controlled sub-
stances in schedule I shall be referred to the Secretary [of Health and
Human Services], who shall determine the qualifications and competency
of each practitioner requesting registration, as well as the merits of the
research protocol.” 21 U.S.C. § 823(f ). The Single Convention does not
require that a single government agency be charged with all responsibili-
ties related to marijuana, and the congressional decision to delegate those
responsibilities to HHS is consistent with the Single Convention. Aside
from carrying out its role under section 823(f ), NIDA may continue to
exercise some supervision over certain aspects of the marijuana cultiva-
tion, and DEA may consult NIDA in the process. We see no reason why
the NIDA contract framework might not remain in place under a system
in which DEA assumes clear title to the marijuana, either at inception or
by purchase after harvest, and then takes physical possession after har-
vest. For instance, DEA could station one or more employees at the Na-
tional Center after cultivation as a way of ensuring physical possession of
the marijuana and exclusive control over its distribution.
We would be pleased to advise on these or any other matters concern-
ing implementation of a new licensing framework.
HENRY C. WHITAKER
Deputy Assistant Attorney General
Office of Legal Counsel
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