Content Remains Confidential in HHS Letter About Rescheduling

The US Department of Health and Human Services (HHS) recently released the letter sent in August 2023 to the Drug Enforcement Administration (DEA) concerning the federal scheduling of cannabis (1). A Freedom of Information Act (FOIA) request submitted by Law360 reporter Sam Reisman resulted in the letter’s recent release to the public (2).

The letter is dated August 29th, 2023, addressed to Ann Milgram, head of the DEA, and signed by Rachel L. Levine, M.D, ADM, USPHS Assistant Secretary for Health (2). Most of the content in the body of the letter had been redacted (2). The full content of the HHS letter was reportedly seen by Bloomberg, which stated (3), “A top official at the Department of Health and Human Services wrote Drug Enforcement Administration head Anne Milgram calling for marijuana to be reclassified as a Schedule III drug under the Controlled Substances Act, according to a letter dated Aug. 29 that was seen by Bloomberg News.”

Since the news from Bloomberg, several requests to release the letter were submitted, including a lawsuit from attorney Matt Zorn, who has also been active in an effort to reschedule psilocybin (2). None received a complete version of the letter (3).

“I have found that it is reasonably foreseeable that disclosure would harm an interest protected by one or more of the exemptions to the FOIA’s general rule of disclosure and/or that disclosure is prohibited by law; therefore, I am withholding one page in parts, with portions redacted, pursuant to Exemption (b)(5) of the FOIA (5 U.S.C. §552),” wrote William H. Holzerland, Deputy Agency Chief FOIA Officer for HHS, in a response to a FOIA request (3). “Exemption (b)(5) protects inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. This exemption protects documents that would be covered by any privilege an agency could assert in a civil proceeding. These privileges include, among others, the deliberative process privilege, the attorney-client privilege, and the attorney work-product privilege. In this instance, the process privilege applies.”

Read our original coverage of the HHS letter of recommendation to the DEA.

References

1. Meehan, M. Why did the Deptartment of Health and Human Services redact its marijuana recommendation letter to the DEA? https://www.benzinga.com/markets/cannabis/23/10/35448825/why-did-the-deptartment-of-health-and-human-services-redact-its-marijuana-recommendation-letter- (accessed Nov 2, 2023).
2. Jaeger, K. Top federal Health Agency releases highly redacted marijuana scheduling recommendation letter to DEA https://www.marijuanamoment.net/top-federal-health-agency-releases-highly-redacted-marijuana-scheduling-recommendation-letter-to-dea/ (accessed Nov 2, 2023).
3. Simakis, M.; Skodzinski, N. CBT receives heavily redacted HHS Letter to DEA on cannabis reclassification https://www.cannabisbusinesstimes.com/news/hhs-sends-cbt-redacted-copy-of-cannabis-reclassification-recommendation-letter/ (accessed Nov 2, 2023).