                                                                         M ay 9, 1977


77-24      MEMORANDUM OPINION FOR THE
           ADMINISTRATOR OF THE DRUG
           ENFORCEMENT ADMINISTRATION
           Control of Papaver bracteatum —Drug Enforcement
           Administration


   This is in response to your request for our opinion whether the Drug
Enforcement Administration (DEA) 1 has the authority to control the
production of the plant Papaver bracteatum, and, if so, whether its
production may be prohibited. In general, we support the Administra­
tor’s authority on both these questions because we believe that there
exists a reasonable basis for that authority. But we also recognize that
reasonable contrary arguments can be advanced, so that it is uncertain
whether the Administrator’s authority, if challenged, would be sus­
tained in court.
   Papaver bracteatum is the great scarlet poppy. Bracteatum contains
and produces thebaine, which is chemically identical to the thebaine
produced by the opium poppy, Papaver somniferum L. Thebaine may be
converted into other drugs, including codeine. Both thebaine and co­
deine are currently subject to control pursuant to the Comprehensive
Drug Abuse Prevention and Control Act of 1970, as amended, 21
U.S.C. § 801 et seq. (hereafter referred to as the Controlled Substances
Act or CSA). Bracteatum, itself, however, is not presently a controlled
substance because it is not listed in any of the schedules of 21 U.S.C.
§812, or 21 CFR § 1308. Although bracteatum contains thebaine, there
will be no effect “in the traditional sense of having an abuse potential”
upon an individual who chews, smokes, or ingests bracteatum.

    I.   Control
   It is our opinion that the Administrator may control the production
of bracteatum, either (1) pursuant to delegation of the Attorney G ener­
al’s authority to regulate the manufacture of thebaine under the Con-
  1 T he A ttorney G eneral has delegated the functions vested in him under the C om pre­
hensive D rug A buse Prevention and C ontrol A ct to D E A . 28 C F R 0 .100(b).

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trolled Substances Act o r (2) pursuant to United States obligations
under the Single Convention on Narcotic Drugs, 18 U.S.T. 1407, 30
T.I.A.S. No. 6298. But in the case o f control pursuant to treaty obliga­
tion, such control must be predicated upon certain findings by the
appropriate United States officials, and we have some doubt whether
the requisite findings can be made.
A. Regulation of the Manufacture of Thebaine
  The first ground on which the Administrator may rely to control the
production of bracteatum derives from authority under the Controlled
Substances A ct providing for the registration of and control of the
manufacture of the drug thebaine.
  The term “manufacture” is defined expansively in 21 U.S.C. § 802(14)
to mean:
      the production, preparation, propagation, compounding or processing
      o f a drug or other substance, either directly or indirectly or by
      extraction from substances of natural origin, or independently by
      means of chemical synthesis or by a combination of extraction and
      chemical synthesis, and includes any packaging or repackaging of
      such substance or labeling or relabeling of its container; except that
      such term does not include the preparation, compounding, packag­
      ing, or labeling of a drug or other substance in conformity with
      applicable State or local law by a practitioner as an incident to his
      administration or dispensing of such drug or substance in the
      course o f his professional practice. [Emphasis added.]2
A “m anufacturer” is defined in the same section as “a person who
manufactures a drug or other substance.” The term “production,”
which, as noted above, is included in the definition of the term “manu­
facture,” is defined in 21 U.S.C. § 802(21) to include “the manufacture,
planting, cultivation, growing, or harvesting of a controlled substance.”
Neither o f these terms has been the subject of judicial construction.
   In our opinion, the growth of bracteatum —which contains and pro­
duces thebaine—for the purpose o f extracting thebaine it produces,
constitutes the “manufacture” of thebaine within the meaning of
§ 802(14). It would be difficult to imagine a definition of manufacture
more broadly draw n than § 802(14), especially when taken in conjunc­
tion with paragraph (21) defining production. The statute appears to
include each step in the development o f a controlled substance prior to
its distribution and dispensation—thus even packaging and labeling
were included.
   Applying the statutory definitions to bracteatum, it appears that the
plant itself would first be “propagated” and then the thebaine “extract­

  • T his definition is m uch broader th an that found in the N arcotic M anufacturing A ct of
I960, 74 Stat. 55, § 3(0=
  T h e term “ m anufacture” means th e production o f a narcotic drug, either directly or
indirectly by extraction o f substances o f vegetable origin, o r independently by m eans o f
chem ical synthesis o r by a com bination o f extraction and chem ical synthesis.

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ed.” Both the “propagation” of a controlled substance 3 and its “extrac­
tion” are included within the definitions of “manufacture” and “produc­
tion.”
   These definitions fit in with 21 U.S.C. § 822, which requires that
every person who “manufactures” a controlled substance or who “pro­
poses to engage in the manufacture” of a controlled substance obtain an
annual registration issued by the Attorney General. And 21 U.S.C.
§ 821 authorizes the Attorney General to promulgate rules and regula­
tions “relating to the registration and control of the manufacture, distri­
bution, and dispensing of controlled substances.”
   Accordingly, we believe that these provisions permit the Administra­
tor, in the exercise of his delegated authority, to require persons who
propose to grow bracteatum for the purpose of extracting thebaine to
register as manufacturers of thebaine.4
B. The Single Convention on Narcotic Drugs
   It is also our opinion that the Administrator, acting pursuant to the
Attorney General’s delegated authority, has the power to control the
production of bracteatum pursuant to the obligations imposed on the
United States by the Single Convention if he can make certain findings.
He must determine, first, that bracteatum may be “used in the illicit
manufacture” of thebaine, and, second, that bracteatum is not “easily
convertible” to thebaine or other controlled drugs, although sufficient
support may exist to justify a finding that bracteatum may also be found
to be readily convertible to thebaine.
  The following discussion explains the reasons for our opinion.
  The United States ratified the Single Convention on Narcotic Drugs
in 1967, three years before the enactment of the Controlled Substances
Act, and a number of the provisions of that Act reflect Congress’ intent
to comply with the obligations imposed by the Single Convention. See
21 U.S.C. §§801(7), 811(d), 812(b), 953(a)(1), 958(a). Moreover, both
the House and Senate reports on the Act mention the need to comply
with the international obligations as one reason for Federal legislation
on this subject. S. Rep. No. 613, 91st Cong., 1st Sess. at 4 (1969); H.
Rep. No. 1444, Pt. 1, 91st Cong., 2d Sess. at 29 (1970).
  Accordingly, the Controlled Substances Act authorizes the Attorney
General to control drugs where control is required by treaty. Section
811(d) provides:

   1 It m ight be argued that the production—including planting, cultivation, and g ro w th —
here w ould be that o f bracteatum and not o f the controlled substance thebaine. T h e
portion o f the definition o f m anufacture by cultivation, etc., could therefore be reserved
for cases in w hich a plant itself is controlled—as is the opium poppy. H ow ever, in o u r
opinion, because the plant bracteatum contains a controlled substance (thebaine), the
propagation o f bracteatum for the purpose o f producing this thebaine is the cultivation o r
“ production” o f thebaine.
   * But we do not believe th at the A dm inistrator has the authority to control the g ro w th
o f bracteatum for o th er purposes.

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      If control is required by United States obligations under interna­
      tional treaties, conventions, or protocols in effect on the effective
      date of this part, the Attorney General shall issue an order control­
      ling such drug under the schedule he deems most appropriate to
      carry out such obligations . . . .
   Bracteatum is not scheduled as a drug that must be controlled under
the Single Convention,5 although thebaine and codeine are. But we
must also consider in this connection Article II, paragraph 8, of the
Single Convention. That paragraph imposes an obligation upon the
United States to apply measures of supervision to certain substances not
listed in the schedule of the Single Convention. It states:
      The Parties shall use their best endeavors to apply to substances
      which do not fall under this Convention, but which may be used in
      the illicit manufacture of drugs, such measures of supervision as
      may be practicable.
It could be argued that the requirement that each Party use its “best
endeavors” to apply “practicable” means of supervision allows such a
broad scope of discretion that it cannot be said to create any “obliga­
tion” in any meaningful sense of the word. The official commentary on
the Convention concludes that “ [t]he vagueness of the wording of
paragraph 8 leaves it practically to the discretion of each Party to
decide to what substances it should apply the control provided in this
paragraph, and what measures it would be practicable to take.” Com­
mentary on the Single Convention on Narcotic Drugs, 1961 (prepared
by the Secretary-General o f the United Nations), at 71.
   But we conclude, as did the U.S. Court of Appeals for the District of
Columbia in National Organization fo r the Reform O f Marijuana Laws
(N O R M A L ) v. DEA, No. 75-2025 (April 26, 1977), that D EA may
properly rely upon paragraph 8 as creating a treaty “obligation” for
purposes of 21 U.S.C. § 8 1 1(d). In that case the court upheld D E A ’s
control o f cannabis seeds capable of germination on the basis of para­
graph 8 of the Single Convention and 21 U.S.C. § 811(d). It observed
that the official commentary “assigns a specific purpose to the open-
endedness of the provision.” It concluded that discretion had to be
allowed in determining both the substances subject to paragraph 8
because it was impossible to foresee either all the substances that might
in the future be used for illicit manufacture, or the controls to be
applied, because measures practicable in one country might be impracti­
cable in another where the substance in question is used for legitimate
purposes. Slip opinion, at 43-44. Accordingly, the paragraph 8 require­

   5 T h e C om m entary on the Single C onvention on N arcotic D rugs, 1961 (prepared by
the S ecretary G eneral o f the U nited Nations), at 25, expressly notes th at bracteatum is a
species separate from Papaver somniferum, w hich is controlled, and states that the extrac­
tion o f thebaine from bracteatum w o u ld be co ntrolled by the provisions o f the C onven­
tion g overning m anufacture.

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ment is sufficient to create a treaty “obligation” within the meaning of
21 U.S.C. § 811(d).
   Therefore, the Single Convention obligates the United States to apply
measures of supervision to bracteatum if it falls within the scope of
paragraph 8. That paragraph calls for control if a substance “ may be
used in the illicit manufacture of drugs.” 6 “Drugs” are defined by Art.
I, ^l(j) of the Single Convention as substances on schedule I or II of the
Convention; both thebaine and codeine are such scheduled drugs.
   But there is a further problem in determining whether bracteatum
falls within paragraph 8. Both the records of the Convention drafters
and the official commentary support the view that paragraph 8 was not
intended to apply to substances readily “convertible” into narcotic
drugs by traffickers. Commentary at 70, Official Records, United Na­
tions Conference for the Adoption of a Single Convention on Narcotic
Drugs, Vol. II at 77-79.7 Known substances of this nature were includ­
ed in the Single Convention schedules, and Art. Ill, 1]3 (iii) provides a
procedure whereby additional convertible substances may be added to
these schedules and thereby made subject to the specific measures of
control required for scheduled substances.
   6 A narrow interpretation o f the term “obligation” w ould conflict with ilip liv j'l.x iv e
intent expressed in the Senate report, w hich stated that '\t]he Attorney General inusi give
appropriate consideration to the findings and declarations o f certain international bodies
and generally abide by both the letter and the spirit o f our treaty agreements regarding the
control o f d r u g s ” S Rep No. 613, 91st Cong., 1st Sess. 16 (1969) [Emphasis added.]
   7 T he official records o f the drafters reflect that the N etherlands representative raised
the question w hether the substances w ere covered by the more general obligations o f this
section, stating that his delegation believed such substances should them selves be sched­
uled. T he Yugoslavian representative stated that the authors o f this draft paragraph “ had
not been thinking of convertible substances . . . . T h e reference was a general one to
raw materials w hich could be used in m anufacturing synthetic drugs . . .” He agreed
that convertible substances should be scheduled. T he Hungarian representative stated that
this paragraph was intended to cover substances not covered elsew here, and agreed that
convertible substances should be scheduled. A t this point the D eputy E xecutive Secretary
stated that:
      [d]rugs w ere placed under international control either because they w ere addiction-
      producing o r because they w ere convertible into addiction-producing substances.
      D rugs o f the second type w ere not grouped separately, but some w ere included in
      schedule I and some in schedule II; that was in accordance with existing treaties.
      The suggestion that there should be a separate schedule for convertible substances
      w ould involve a fundamental change in the w ay the draft C onvention and the
      existing tieaties w ere set out. It should be made dear that the word “convertible" was
    used to describe substances that could easily be converted into narcotic drugs by a
    trafficker; paragraph J [now Art. 2 1)5] was not intended to refer to convertible substances
    in that sense. I f it were felt that the Convention as worded did not make it clear that the
    substances under control included not only dangerous drugs but also substances which
    were convertible into dangerous drugs, an explicit statement to that effect could be made
    either in the definition o f the word "drug" or in a paragraph in Article 3 laying down the
    criteria fo r deciding that new drugs were to be brought under control. [Em phasis added.]
   T he records indicate that after some further discussion it was agreed that a reference to
convertibility should be inserted, and consideration o f this reference was deferred. As
stated in the text, such a provision expressly noting that convertible substances could be
added to the various schedules was inserted in A rt. Ill, 1j3 (ill). T his appears to com ply
w ith the D eputy Executive S ecretary's suggestion.

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   On that basis, it is our view that the Administrator may control
bracteatum pursuant to paragraph 8 only if he determines that bractea­
tum: (1) may be used in the illicit manufacture of drugs, including
thebaine; and (2) is not a substance readily “convertible” to thebaine or
other controlled drugs by narcotics traffickers.8 However, if bracteatum
is a convertible substance, and the Administrator believes that interna­
tional control is apppropriate, he must follow the procedures in Art. Ill
to have bracteatum added to an appropriate schedule of the Single
Convention.
 C. O ther Bases of Control.
   In our opinion, neither o f the two above theories would authorize the
Administrator to control bracteatum.
   One possible theory is that bracteatum might be controlled as an
 “immediate precursor” of thebaine. Section 811(e) permits the Attorney
General to control the “immediate precursor” of a controlled substance,
and 21 U.S.C. § 802(22) defines an “immediate precursor” as a sub­
stance designated by the Attorney General as “the principal compound
used, or produced primarily for use, in the manufacture of a controlled
substance; . . . an immediate chemical intermediary used or likely to be
used in the manufacture o f such controlled substance. . . . ” [Emphasis
added.] It is our belief that §§ 802(22) and 811(e) were intended to
apply to chemicals, and are not applicable to the plant bracteatum.
   A second theory is that bracteatum might itself fulfill the require­
ments to be listed independently on one of the schedules detailed in 21
U.S.C. §812. Inclusion in any of the five schedules set out in this
section requires a finding o f a degree of potential for abuse of that
substance, ranging from a “ high potential for abuse” in schedules I and
II, to schedule IV, which is characterized by (A) “low potential for
abuse relative to the drugs o r other substances in schedule III,” or (C)
“abuse o f the drug or other substance may lead to limited physical
dependence or psychological dependence relative to the drugs or other
substances in schedule III.” Because, despite the presence of thebaine,
bracteatum —whether smoked, chewed, or ingested—has no effect “in
the traditional sense of having an abuse potential,” it appears that
bracteatum could not fall within any of the schedules of the CSA.

    II.   Prohibiting the Production of Bracteatum
   In view of our conclusion that the production of bracteatum may be
controlled as the manufacture of thebaine, or possibly pursuant to U.S.
treaty obligations under the Single Convention, we reach the question
w hether all domestic production may be prohibited.
   Potentially, there are tw o grounds upon which production may be
prohibited: (1) if production would violate U.S. treaty obligations; or

   8 In this connection it may be useful to com pare the concept o f a convertible substance
w ith the co ncept o f an “immediate p recursor” un d er the C SA . In our opinion, bracteatum
is not an “ im m ediate precursor” o f thebaine. See discussion, p. 10, infra.

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(2) if production would be inconsistent with the public interest. It is our
opinion that a prohibition of all domestic production is not required by
the Single Convention. On the other hand, we believe that if the
Administrator finds that controlled domestic production would result in
a substantial increase in the supply of illicit controlled substances in the
United States, then he may determine that any production at all would
be inconsistent with the public interest.
A. Treaty Obligations
   Section 823 of Title 18 provides that the Attorney General shall not
register an applicant to manufacture a substance on schedule I or II of
the CSA, unless the registration is consistent with United States obliga­
tions under international treaties. It could be argued that domestic
production of bracteatum as a source of licit narcotic drugs is “ in
derogation of the spirit of the Single Convention.”
   The Preamble to the Single Convention states that the Parties recog­
nize that addiction to narcotic drugs is “fraught with social and eco­
nomic danger to mankind” and that they are “conscious of their duty to
prevent and combat this evil” through international coopertion. We do
not think that these general statements in and of themselves create a
treaty “obligation” not to permit the domestic production of bracteatum
as a source of thebaine and other drugs, even if this would disturb the
international balance of supply and demand for these drugs. The pream­
ble states the general considerations that motivated the Parties to agree
to the stringent controls stated in the body of the treaty. The Conven­
tion includes controls on the manufacture of scheduled substances, such
as thebaine and codeine: Article XXI limits the total that may be
manufactured and imported by one country to the sum of the quantity
consumed for medical and scientific purposes, the quantity used for the
manufacture of other drugs, the quantity exported, the quantity added
to stocks to bring them up to standard, and the quantity acquired for
special purposes. The Single Convention therefore requires that the
United States place an appropriate quota on the production of con­
trolled narcotics derived from bracteatum, but does not wholly prohibit
the growth of bracteatum to produce controlled drugs.9
B. Public Interest
   The Administrator may refuse to register an applicant to manufacture
a schedule I or II drug, such as thebaine, if he determines that registra­
tion would not be consistent with the public interest. Section 823(a) of
Title 18 provides:
   (a)   The Attorney General shall register an applicant to manufacture
controlled substances in schedule I or II i f he determines that such registra­

   •In contrast, A rt. XX II requires a P arty to prohibit the cultivation of the opium poppy
(,somniferum), the coca bush, and the cannabis plant in certain circum stances. T he official
com m entary also notes that it w ould be hypothetically possible that a p a rty w ould be
required to prohibit the cultivation o f the cannabis plant to satisfy its obligation in A rt.
X X V III, 1]3, to prevent illicit traffic.

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tion is consistent with the public interest and with United States obliga­
tions under international treaties, conventions, or protocols in effect on
the effective date of this part. In determining the public interest, the
following factors shall be considered:
         (1) maintenance of effective controls against diversion of particu­
      lar controlled substances and any controlled substance in schedule
      I or II compounded therefrom into other than legitimate medical,
      scientific, research, or industrial channels, by limiting the importa­
      tion and bulk manufacture of such controlled substances to a
      number of establishments which can produce an adequate and
      uninterrupted supply o f these substances under adequately competi­
      tive conditions for legitimate medical, scientific, research, and in­
      dustrial purposes;
         (2) compliance with applicable State and local law;
         (3) promotion of technical advances in the art of manufacturing
      these substances and the development of new substances;
         (4) prior conviction record of applicant under Federal and State
      laws relating to the manufacture, distribution, or dispensing of such
      substances;
         (5) past experience in the manufacture of controlled substances,
      and the existence in the establishment of effective control against
      diversion; and
         (6) such other factors as may be relevant to and consistent with the
     public health and safety. [Emphasis added.]
As your memorandum suggests, because registration of bracteatum pro­
ducers is consistent with U.S. treaty obligations, the only other ground
upon which registration could be refused would be § 623(a)(6), namely,
the “ public health and safety” factor.
   This factor should be interpreted, in our judgment, to include consid­
eration o f a predictable increase in the domestic supply of illicit con­
trolled substances from foreign sources. The congressional findings in
21 U:S.C. §801 state that the “illegal importation, manufacture, distri­
bution, and possession and improper use o f controlled substances have a
substantial and detrimental effect on the health and general welfare of
the American people.” There can be no question that the Controlled
Substances A ct reflects not only Congress’ understanding that the avail­
ability of illicit drugs has a serious impact on public health, but also
that illicit drugs are frequently imported rather than domestically pro­
duced. The emphasis throughout the A ct on the control of importation
and the recognition of U.S. treaty obligations intended to impose inter­
national controls bears out this conclusion.
   The materials submitted w ith your memorandum indicate that the
D epartm ent of State has expressed the view that domestic production
of bracteatum would weaken the existing constraints on illicit foreign
narcotics production, and discourage producing countries from attempt­
ing to maintain effective controls. It urges that this will result in the
                                     100
availability of greater narcotic supplies for traffickers, which supplies
will be transported into the United States. This argument is detailed in
the Department of State’s submission for the hearings held by DEA on
this subject.
   Accordingly, in our opinion, if the Administrator finds that a substan­
tial increase in the availability of illicit drugs will result from the
domestic production of bracteatum because of a breakdown in informal
international understandings and because of the loss of licit U.S. m ar­
kets, he could then determine that registration of applicants to grow
bracteatum would not be consistent with the public interest, and deny
registration pursuant to 21 U.S.C. § 823(a)(6).10 O f course, before
making his final determination o f the public interest, the Administrator
would also have to weigh all other comments received and evidence
available in light of the six factors listed in § 823.
                                                       L   eon   U   lm an
                                      Deputy Assistant Attorney General
                                                     Office o f Legal Counsel




   10 W e recognize, how ever, that the language o f § 823(a)(6) is extrem ely broad o r
“im precise.” and thus m ight support m any interpretations, som e contrary to the one
discussed here. We have found nothing in the legislative history to provide specific
guidance as to its interpretation in this circum stance.

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