Litigating the psychedelic renaissance: 5 Questions for attorney Matt Zorn
Zorn on the role of litigation in the so-called psychedelic renaissance.
Matt Zorn didn’t set out to be a psychedelic lawyer. He started law school at Columbia University just as MAPS released the results of its first phase 2 trials with MDMA-assisted therapy. He dove into the legal history and science of psychedelics, but it remained a side-interest. When he graduated in 2012, he took a job at a big firm writing briefs and learning the ins and outs of litigation. Psychedelic law wasn’t a thing then. “There was barely cannabis law,” Zorn says.
Then in 2019, he attended South by Southwest and saw a talk by Sue Sisley, a doctor conducting a clinical trial studying marijuana as a treatment for veterans with post-traumatic
stress disorder. Sisley said the government-issued weed she was mandated to use for research was of poor quality, and that she wanted to grow her own, but that the U.S. Drug Enforcement Administration wouldn’t process her application to do so. Zorn and his colleague Shane Pennington took on her case pro-bono and sued the DEA. In 2020, Sisley’s application was approved.
Taking on the DEA has become a sort of specialty for Zorn. He’s now representing patients suing the agency for access to psilocybin-assisted therapy under federal Right to Try laws; he’s part of a suit alleging the agency for “abuse and unlawful diversion of legitimate Freedom of Information Act requests;” and in late July, the DEA announced it was scrapping plans to schedule five previously unscheduled psychedelic tryptamines after pressure from Zorn and other psychedelic researchers, companies, and lawyers. Zorn also co-writes On Drugs, a newsletter about drug regulation. The Microdose spoke with Zorn about the role of litigation in the so-called psychedelic renaissance.
A lot of your work revolves around psychedelics, but you don’t like to call yourself a psychedelic lawyer. Why?
Being a psychedelic lawyer isn't going to teach you how to litigate a case, and it’s certainly not going to teach you how to litigate against the Department of Justice or state governments. The idea that someone could train to be a psychedelic lawyer doesn’t resonate; you could train to be a classically trained lawyer and be involved in psychedelic issues. Being a classically trained lawyer is learning the meat and potatoes of what it means to be a lawyer. If you want to win in court and you want to change the legal system, you need to learn how to work that legal system, and then you can learn how to improvise. Your audience is not other people in this movement. If you're in court, your audience is a federal or state court judge.
In your newsletter, On Drugs, you’ve taken a series of deep dives into the psychedelic patent wars. What do you see as the role of patents in this space?
Roland Griffiths got a government grant in 1998 to study psilocybin, and that study has grown into an entire family of research. Now you have mouths to feed. If you take the position that there should be no psychedelic patents, you’re starving a lot of mouths. Capital and patents, for better or worse, are a currency in this space. Companies are able to raise money by saying, “Hey, we have something proprietary.” Capital allows you to accelerate the research process, and it creates a body of research that I can cite in proceedings against the DEA. Psychedelic patents cannot be uniformly bad.
There has never been a more exciting – or bewildering – time in the world of psychedelics. Don’t miss a beat.
It seems the threat of litigation might have played a role in the DEA’s now-scrapped plan to schedule five tryptamines. Some have expressed surprise that the agency changed course, since they usually don't take public opinion into account. As the agency is facing more pushback, do you think this is a turning point, or a one-off decision?
It's hard to know because in this case, there is a glaring legal problem: they were relying on a Health and Human Services evaluation that was almost ten years old. We really hammered that point over and over again. I always felt like it was super odd that the DEA went forward on this. They could have just asked HHS for an updated evaluation. They needed to get that but they chose not to get it, and I don't know why. Perhaps there's some stuff going on behind the scenes that I just don't know about; part of me wonders whether HHS would be willing to give them an updated recommendation. I'm not sure that they would.
If HHS comes back with an evaluation that says, “Yeah, these drugs should be put into schedule,” we’ll cross that bridge when we come to it.
Many of your recent cases involve the DEA. Is that strategic, or is it just that challenging the DEA on these issues is the only route forward on these issues?
The psychedelic community, as well as the cannabis and prescription drug communities, are in a relationship with the DEA. They are your regulator and you are the regulated. In any relationship, you need to have healthy boundaries. The unfortunate result of drug policy, regulation, and the War on Drugs is that there isn't the healthiest relationship between DEA and the regulated community.
That's not entirely because of the DEA; some of it has to do with the fact that this area is like the primordial soup of administrative law. At agencies like the EPA, there's a lot of litigation and moneyed interests, and that develops discourse and understanding. Norms develop. You don't see that in the drug policy space; a lot of issues remain untested. The FOIA suit I just filed is an example of that. [Editor’s note: The suit alleges that the DEA has been characterizing all FOIA requests requiring communication with another agency as “complex” or raising “unusual circumstances,” and that their responses to such cases are delayed compared with other requests.] I don't know if it's malicious, but I certainly think it's unlawful — this is not how things should work.
So lawsuits are the way to enact those changes?
I am not necessarily of the view that the lawsuits are a way to get change in every case; sometimes that’s the work of legislators or journalists. But it's part of a puzzle. There's no well-functioning industry that brings about meaningful change, in my view, that doesn't have a litigation component to it. People in the psychedelic industry need to wake up to that reality. People talk about big pharma swallowing psychedelics alive; I don't know if there's anything that can prevent that, but certainly if you're looking for a fair and equitable future, you're going to have to use the courts in one way or another. We need to be thinking about litigation as part of a toolkit.
This interview has been edited and condensed for clarity and length.