Federal Appeals Court Dismisses ‘Right-To-Try’ Psilocybin Lawsuit by Cancer Patients

The U.S. Court of Appeals for the Ninth Circuit has dismissed a lawsuit by cancer patients seeking to use psilocybin to treat end-of-life depression and anxiety, Marijuana Moment reports. The lawsuit was filed against the DEA by three Seattle-based patients and their doctor, Dr. Sunil Aggarwal of the Advanced Integrative Medical Sciences (AIMS) Institute, after the agency denied their written request to distribute a synthetic form of psilocybin.

The request had been filed under state and federal right-to-try laws, which allow patients with a terminal illness to access experimental therapies that have completed Phase 1 testing but have not yet been approved by the Food and Drug Administration (FDA).

The three-judge panel on Monday dismissed the case on procedural grounds and said that, because DEA‘s denial was in the form of an informal letter, the court lacked jurisdiction over the matter.

“In short, AIMS’s issue is not with the DEA’s letter, but with the [Controlled Substances Act]’s criminalization of psilocybin use, subject to narrow exemptions. An advice letter recognizing that Congress has not yet made an exception to the CSA to allow for the legal use of psilocybin for therapeutic purposes is not an agency decision.” — Judicial opinion excerpt

The plaintiffs argue that DEA’s position leaves no path forward for accessing psilocybin as an end-of-life treatment.

Attorney Kathryn Tucker, who represents AIMS and other plaintiffs, told Marijuana Moment the team will continue to push for the patients’ right to try psilocybin through other means, starting with a petition to the DEA for rescheduling and waiver request. This should at least push the agency to issue a formal decision, which could then be reviewed in court.