^®: CRE Regulatory Action of the Week

Is HHS Afraid That The DQA Is Judicially Reviewable Despite The Salt Decision?
On March 6, 2006, the United States Court of Appeals for the Fourth Circuit rejected the Chamber of Commerce's appeal of a district court decision denying the Chamber judicial review of final HHS action on a Data Quality Act petition. The Chamber's DQA petition sought access to information about the health effects of salt. The Fourth Circuit agreed with the district court that the Chamber had no right to judicial review of HHS' denial of the DQA petition.

In light of the Fourth Circuit decision, CRE cannot understand why HHS continues to refuse to act on another DQA petition filed with the Agency.

The other DQA petition was filed by Americans for Safe Access. Their DQA petition seeks correction of information disseminated by HHS regarding the medical use of marijuana. The Medical Marijuana petition was filed on October 4, 2004. Under the Agency's DQA guidelines, HHS should have ruled on the petition within sixty days of its being filed. Inexplicably, HHS did not issue its initial denial of the petition until April 20, 2005.

On May 19, 2005, the petitioners filed an administrative appeal of the HHS initial denial of their Medical Marijuana petition. Under HHS' DQA guidelines, the Agency should have decided the Medical Marijuana appeal within sixty days of its filing date. As of March 13, 2006, HHS has refused to act on their appeal.

The CRE has reviewed the Medical Marijuana DQA petition. We believe that it has merit. Regardless of substantive merit, we are certain that HHS is denying the petitioners' right to final agency action on their DQA petition.

Why doesn't HHS take final action on the Medical Marijuana petition? There is no legitimate reason for delay. We can only assume that HHS is afraid that a court would review and reverse final agency action denying the Medical Marijuana DQA petition–-even after the Fourth Circuit's Salt decision.

We recommend that all DQA stakeholders closely monitor the Medical Marijuana Petition and HHS' action on it.