US federal judge rejects challenge to marijuana prohibition

By Brendan Pierson

(Reuters) - A federal judge on Monday dismissed a lawsuit seeking to overturn the United States' longstanding prohibition of marijuana on the grounds that the ban was unconstitutional, with the judge finding that the issue could not be decided by the court.

U.S. District Judge Alvin Hellerstein in Manhattan ruled that the lawsuit must be dismissed because the plaintiffs had failed to use administrative procedures within the Drug Enforcement Administration (DEA) to challenge the ban.

Hellerstein said his decision "should not be understood as a factual finding that marijuana lacks any medical use in the United States," but rather that the authority to make that decision lies with the DEA, not with the court.

The plaintiffs include the parents of two children who use marijuana to treat illness, and former National Football League player Marvin Washington, who works with a company that develops marijuana-based products.

Lawyers for the plaintiffs said in a statement that they would appeal the decision, which came nearly two months after U.S. Attorney General Jeff Sessions announced he would abandon a policy of former President Barack Obama that had left regulation of the drug largely up to states.

"Resigning the plaintiffs to the petitioning administrative process is tantamount to a death sentence for those patients who need cannabis to live," said Michael Hiller, an attorney for the plaintiffs.

Several states, including California, Colorado and Washington, have legalized marijuana for recreational use, and 29 states allow some medical use.

One of the children in the lawsuit, Alexis Bortell, successfully treats seizures using the drug, while another, Jagger Cotte, has used it to alleviate pain associated with a neurological condition called Leigh's Disease, according to court filings.

Under the 1970 Controlled Substances Act, marijuana is classified as a 'Schedule I' drug, meaning that it is considered to have a high potential for abuse and no medical use. Other Schedule I drugs include heroin and LSD.

In their lawsuit, filed in July, the plaintiffs claimed that the federal ban on marijuana violates the U.S. Constitution.

Hellerstein said that even if he had the authority to decide the issue, he would have to rule against the plaintiffs because there was no "fundamental right" to use marijuana.

(Reporting By Brendan Pierson in New York, Editing by Rosalba O'Brien)