Legal Analysis of Response from Board of Pharmacy

Analysis of the July 16, 2018, Response from the Iowa Board of Pharmacy

POINT #1:

The Iowa Board of Pharmacy (board) responds that Iowa Code chapter 17A does not establish a right or a procedure for an individual to petition for agency action of this nature.

Quoting from McMahon v. Iowa Board of Pharmacy, Case No. CV7415 (Polk County, April 21, 2009):

Petitioners were entitled to a written explanation of the reasons for the Board’s decision regardless of whether the agency action at issue was taken in response to a request for the adoption of agency rules, taken in response to a request for a declaratory order, or taken in a contested case proceeding.  See Iowa Code §§ 17A.7(1), 17A(4)(d), 17A.16; Ward v. Iowa Dept. of Transp., 304 N.W.2d 236, 238 (Iowa 1981).

Slip opinion, at 4.

My petition did not ask for the adoption of a rule, a declaratory order, or a contested case, but the petition I filed in 2008 was accepted and ruled on by the board.  The court accepted the petition for judicial review in 2009 and made the 2009 ruling in response to my scheduling petition.

The Iowa Supreme Court also made a ruling on it in 2010.  Quoting from McMahon v. Iowa Board of Pharmacy, No. 09-1789 (Iowa Supreme Court, May 14, 2010):

The petitioners and the intervenor are appealing from the district court’s ruling denying them additional judicial review of the pharmacy board’s denial of their requests to recommend marijuana’s reclassification as a controlled substance under Iowa Code chapter 124.  On February 17, 2010, while this appeal was pending, the pharmacy board recommended that the legislature reclassify the scheduling of marijuana as a controlled substance under Iowa Code chapter 124 (2009).  The board ultimately made the reclassification recommendation sought by the petitioners and the intervenor.

Slip opinion, at 1-2.

Because the only existing religious exemption is included in the list of schedules and because the legislature has determined that the board should make recommendations for changes to the schedules, the board is the proper authority to petition for another religious exemption.

Quoting from State v. Bonjour, 694 N.W.2d 511 (Iowa 2005):

That procedure is to defer to the Board of Pharmacy Examiners, which is far better equipped than this court — and the legislature, for that matter — to make critical decisions regarding the medical effectiveness of marijuana use and the conditions, if any, it may be used to treat.

Id. at 514.

Because the legislature placed a religious exemption in the schedules and because the legislature gave the board the duty of reviewing the schedules and making recommendations for changes, a petition for a second religious exemption must begin with the board.

Iowa Code § 17A.19(3) (2018):

In cases involving a petition for judicial review of agency action other than the decision in a contested case, the petition may be filed at any time petitioner is aggrieved or adversely affected by that action.

POINT #2:

The Iowa Board of Pharmacy (board) responds that Iowa Code chapter 124 requires the board to make recommendations based on scientific and medical evidence.

Failure to cite any scientific or medical reason, such as abuse potential, as justification to deny the request for a religious exemption could (and should) be interpreted to mean the state has no compelling interest in denying the religious exemption.

POINT #3:

The Iowa Board of Pharmacy (board) responds that it cannot evaluate religious practices.

The petition clearly says the petitioner is not asking the board to evaluate a religious practice.  The petitioner is asking for the same exemption that already exists for medical use under the same terms as that medical use.  The petitioner would either buy the cannabis extract from an authorized dispensary in Iowa or obtain it from an out-of-state source.

The question in Bonjour was whether marijuana had medical use, and, if so, “defining the parameters to place on it.” Id. at 513.

But, the parameters are no longer undefined.

Iowa, 2014 Acts, Chapter 1125, S.F. 2360, Sec. 3(1) defined what form of cannabis was allowed in 2014:

a nonpsychoactive cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof that is essentially free from plant material, and has a tetrahydrocannabinol level of no more than three percent.

Iowa, 2014 Acts, Chapter 1125, S.F. 2360, Sec. 7(1)(b) defined how cannabis could be obtained and used in 2014:

shall be obtained from an out-of-state source and shall only be recommended for oral or transdermal administration

Iowa, 2017 Acts, Chapter 162, H.F. 524, Sec. 5(6) defines what form of cannabis is currently allowed:

any pharmaceutical grade cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof that has a tetrahydrocannabinol level of no more than three percent and that is delivered in a form recommended by the medical cannabidiol board, approved by the board of medicine, and adopted by the department pursuant to rule

Iowa, 2017 Acts, Chapter 162, H.F. 524, Sec. 16 defines how cannabis may be currently obtained:

if not legally available in this state or from any other bordering state, shall be obtained from an out-of-state source

The petitioner is asking for equal or greater protection, so the board knows exactly what is being requested.  The petition is asking for a religious exemption to use cannabis extracts under the same or greater terms as an authorized medical user has.

Employment Division v. Smith, 494 U.S. 872, 884 (1990):

our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason

POINT #4:

The Iowa Board of Pharmacy (board) responds that the petitioner does not have a federal exemption for the religious use of cannabis.

Medical users in Iowa do not have a federal exemption for medical use of cannabis extract.  See, United States v. Schostag, No. 17-2530, slip op. 4 (8th Cir. July 13, 2018) (“Although some medical marijuana is legal . . . as a matter of state law, the state’s law conflicts with federal law”).  The board is placing an undue burden on religion by requiring federal authorization.  Unlike medical use which is forbidden under federal law, the federal government has guidelines for requesting religious exemptions.  See, Guidance Regarding Petitions for Religious Exemptions (last updated: February 26, 2018).  The petitioner will get a federal exemption, but without state authorization a federal exemption would be of no use.  The petitioner has to reside somewhere in the United States.

In the Smith case, the U.S. Supreme Court said a state can deny a religious exemption for a controlled substance as long as the state does not allow any other use of that controlled substance.  Since the Smith case was decide in 1990, a total of 46 states, including Iowa, have now accept varying degrees of cannabis use.  Only Iowa is directly relevant, but the other 45 states do provide some context as far as any claimed compelling interest in denying a religious exemption is concerned.

Conclusion

The petitioner is not asking the board to evaluate a religious practice.  The religious practice is the same as the medical use, so the board already knows what the religious practice is.

The board does have expertise that it must use in determining whether any compelling state interest exists in denying the religious exemption, which is on equal terms with the accepted medical use.

Finally, the petitioner notes that the accepted medical use is broad.  Obtaining a product from an out-of-state source, without federal authorization, consisting of any cannabinoid, as long as the THC content is 3% or less, is an extremely broad exemption indicating the compelling interest in denying a religious exemption is somewhere between extremely low and non-existant.

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Board of Pharmacy responds to Petition for Religious Exemption

Iowa Board of Pharmacy Logo
Iowa Board of Pharmacy
ANDREW FUNK, PHARM.D.
EXECUTIVE DIRECTOR

July 16, 2018

Carl Olsen
PO Box 41381
Des Moines, IA 50311

Sent via email only to: Carl Olsen and Colin Murphy

RE: Petition for Scheduling Recommendation

Mr. Olsen,

On July 5, 2018, you submitted a Petition for Scheduling Recommendation to the Board, which asked the Board to make a recommendation to the Iowa general assembly to exempt bona fide religious use of cannabis by Rastafari from Iowa Code chapter 124.  On July 6, 2018, you indicated that attorney Colin Murphy was representing you regarding this Petition.  The Board has not received any documentation from Mr. Murphy.  The Iowa Administrative Procedure Act (Iowa Code chapter 17A) does not establish a right or a procedure for an individual to petition for agency action of this nature.

Specifically, your Petition asks the Board to recommend the following new section be added after Iowa Code section 124.204(8): “Nothing in this chapter shall apply to the bona fide religious use of cannabis by Rastafari; however, persons supplying the product to the church shall register, maintain appropriate records of receipts and disbursements of cannabis, and otherwise comply with all applicable requirements of this chapter and rules adopted pursuant thereto.”

Iowa Code section 124.204(8) states: “Peyote.  Nothing in this chapter shall apply to peyote when used in bona fide religious ceremonies of the Native American Church; however, persons supplying the product to the church shall register, maintain appropriate records of receipts and disbursements of peyote, and otherwise comply with all applicable requirements of this chapter and rules adopted pursuant thereto.”  This language is nearly identical to the language in DEA regulations that also contain this exemption.  See 21 C.F.R. § 1307.31.

Iowa Code section 124.201(1) states:

The board shall administer the regulatory provisions of this chapter.  Annually, within thirty days after the convening of each regular session of the general assembly, the board shall recommend to the general assembly any deletions from, or revisions in the schedules of substances, enumerated in section 124.204, 124.206, 124.208, 124.210, or 124.212, which it deems necessary or advisable.  In making a recommendation to the general assembly regarding a substance, the board shall consider the following:

  1. The actual or relative potential for abuse;
  2. The scientific evidence of its pharmacological effect, if known;
  3. State of current scientific knowledge regarding the substance;
  4. The history and current pattern of abuse;
  5. The scope, duration, and significance of abuse;
  6. The risk to the public health;
  7. The potential of the substance to produce psychic or physiological dependence liability; and
  8. Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

As the factors demonstrate, any recommendations made by the Board would be based on scientific and medical evidence, and not based on religious practices.  The Board does not have any expertise in analyzing the use of controlled substances for religious purposes.  Therefore, it would be inappropriate for the Board to make any scheduling recommendations that are specific to any religion.  In addition, there is no exemption in DEA regulations for religious use of cannabis by Rastafari.  Ultimately, any change to Iowa Code section 124.204 must be made by the legislature.  The Iowa legislature is the appropriate body to lobby for the change to Iowa Code section 124.204 that you are seeking.  The board declines to take any action in response to your Petition.

Sincerely,

Andrew Funk, Pharm.D.
Executive Director
Iowa Board of Pharmacy

400 S.W. EIGHTH STREET, SUITE E • DES MOINES, IA 50309-4688 • PHONE: 515-281-5944
https://pharmacy.iowa.gov • FAX: 515-281-4609

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Sacramental use of cannabis

I’m a member of a Jamaican Rastafarian church incorporated in Jamaica as the Ethiopian Zion Coptic Church (EZCC) in 1976, Act No. 11.  The sacrament of the EZCC is cannabis.

I was arrested in 1978 with 100 pounds of cannabis in Muscatine County in Iowa, and my appeal was heard by the Iowa Supreme Court in 1984.  The Iowa Supreme Court found that the EZCC is a bona fide religion under the First Amendment to the Constitution of the United States, but found that the sacramental use of cannabis is not equally protected with the sacramental use of peyote by the Native American Church (NAC).  The court found there were restrictions on the sacramental use of peyote by the NAC that did not exist for the sacramental use of cannabis by the EZCC.

Immediately after the Iowa Supreme Court ruling in 1984, I incorporated the church in Iowa, Iowa Business No. 111308.  I later obtained a federal trademark on the name in 2016, U.S.P.T.O. Reg. No. 5,039,494 (First Use, March 30, 1984).

To understand what the Iowa Supreme Court was talking about, both the Iowa and the federal law contain exemptions for the sacramental use of peyote by the NAC.  A carefully reading of these two exemptions reveals what the court was talking about.

Iowa Code § 124.204 (2018)

8. Peyote. Nothing in this chapter shall apply to peyote when used in bona fide religious ceremonies of the Native American Church; however, persons supplying the product to the church shall register, maintain appropriate records of receipts and disbursements of peyote, and otherwise comply with all applicable requirements of this chapter and rules adopted pursuant thereto.

21 C.F.R. § 1307.31 (2018)

Native American Church.  The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.

What is immediately apparent is that the sacramental “use” of peyote is exempt, but not its cultivation or distribution.  I was arrested for distribution, which is not an exempt activity under the peyote exemption.  The sacramental exemption for peyote did not provide me with an equal protection argument in the court’s view.

In 1984, I also applied for a federal exemption like the one in 21 C.F.R. § 1307.31 (2018), which was finally denied by the U.S. Supreme Court in 1990, in a case called Employment Division v. Smith, 494 U.S. 872 (1990).  The Smith case did not mention the difference between the peyote and cannabis sacraments.  Instead, the court said the First Amendment did not protect the religious use of peyote as long as Oregon did not allow any other use of peyote.  In other words, the court said only First Amendment claims based on a violation of equal protection will be considered.  The court said that if the law is neutral toward religion and generally applicable in Oregon, then there is no First Amendment right to use peyote for religious purposes in Oregon.

Obviously, in 1990, the state of Iowa did not allow any other use of cannabis and that is why the Smith case was instructional for me.

In 2017, Iowa authorized the cultivation, distribution and use of cannabis for medical purposes in Iowa.  In 2018, cultivation of cannabis began in Iowa and cannabis products will soon be available for distribution this coming December.  We now have the authorized use of cannabis in Iowa, and we have a manufacturer licensed to cultivate and distribute that cannabis.

Even if Iowa law does not allow the manufacturer to distribute cannabis to the EZCC, there are states where anyone can buy cannabis legally and church members would be protected under both state laws (see 14 C.F.R. § 91.19 (2018)) and federal law for traveling in states (check each state first to make sure it’s legal in that state) and purchasing cannabis for sacramental use if there were exemptions, one in the Iowa Code and the other in the federal regulations, for the sacramental use of cannabis by the EZCC. 

The nation of Jamaica legalized the sacramental “use” of cannabis by Rastafarians for religious purposes in 2015, and also created a process for licensing cultivators and distributors to supply Rastafarians with our sacrament.

See DEA publication: Religious Exemption from the Controlled Substances Act

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Has Murphy v NCAA changed anything?

Has the recent U.S. Supreme Court decision in Murphy v. NCAA, 584 U.S. ___ (May 14, 2018), prohibiting Congress from forcing states to outlaw sports gambling, actually changed anything regarding legalization of marijuana in the States?  No, not really, and here’s why.

The decision in Murphy does not change anything since Gonzales v. Raich, 545 U.S. 1 (2015), was decided.  States are, and always have been, free to prohibit, or not to prohibit, activity that the federal government does not allow.

But, we are still left with one fundamental question.  Does state law specifically authorizing activity the federal government does not allow prohibit the federal government from enforcing federal law against an individual in full compliance with the state law?  To be fair, it does matter how the laws (both state and federal) are written (context matters), but let’s proceed to a legal analysis.

Starting with the recent decision in Murphy:

Justice O’Connor’s opinion for the Court traced this rule to the basic structure of government established under the Constitution.  The Constitution, she noted, “confers upon Congress the power to regulate individuals, not States.” 505 U.S., at 166.  In this respect, the Constitution represented a sharp break from the Articles of Confederation.  “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.” 505 U.S., at 163.  Instead, Congress was limited to acting “‘only upon the States.’” 505 U.S., at 162 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)).  Alexander Hamilton, among others, saw this as “‘[t]he great and radical vice in . . . the existing Confederation.’” 505 U. S., at 163 (quoting The Federalist No. 15, at 108).  The Constitutional Convention considered plans that would have preserved this basic structure, but it rejected them in favor of a plan under which “Congress would exercise its legislative authority directly over individuals rather than over States.” 505 U.S., at 165.

Murphy, slip opinion at page 15-16, citing New York v. United States, 505 U.S. 144 (1992).

In Gonzales v. Raich, Raich claimed that federal prohibition of her personal use of marijuana for medical use authorized by California state law violated “the Commerce Clause, the Due Process Clause of the Fifth Amendment, and the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity.”  545 U.S., at 8.

Here, respondents ask us to excise individual applications of a concededly valid statutory scheme.  In contrast, in both United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety.  This distinction is pivotal for we have often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U. S., at 154 (emphasis deleted) (quoting Wirtz, 392 U. S., at 193); see also Hodel, 452 U. S., at 308.

545 U.S., at 23.

The question that was not reached in these two decisions, Murphy and Raich, is a distinction the U.S. Supreme Court mentioned in a footnote in Raich.  After reviewing and upholding the statutory scheme, the court noted that marijuana must be correctly classified to pass constitutional muster, citing, “the accuracy of the findings that require marijuana to be listed in Schedule 1.”  545 U.S., at 28 n. 37.  The court further noted, “[t]he possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution.”  545 U.S., at 28 n. 37.

And, this is precisely the analysis legal experts have overlooked.  Legal experts, without exception, consistently overlook the “accuracy of the findings that require marijuana to be listed in Schedule 1.”

I’ve written on this topic extensively, but it’s worth repeating again.  Marijuana cannot be in Schedule 1 if it has “accepted medical use in treatment in the United States.”  21 U.S.C. § 812(b)(1)(B) (2018).

The requirements for Schedule 1 are listed in 21 U.S.C. § 812(b)(1):

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Legal experts will tell you that the required findings are listed in 21 U.S.C. § 811(c):

In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules:
(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

But, the statute clearly says, “consider.”  Nowhere does the statute say any or all of these factors are determinative.  Nowhere does the statute say other factors, such as state laws, have no relevance.  State law is not explicitly included in the list of findings, but one has to wonder what impact 46 state medical marijuana laws enacted since 1996 might have on a statute that was written in 1970.  How could a federal administrative agency make a finding that a state has not accepted the medical use of a controlled substance?  Are these state laws just totally irrelevant?

There actually are some federal court decisions that address this question, showing that state law is actually determinative.

First, in 1987, The U.S. Court of Appeals for the First Circuit held that solely intrastate medical use of a controlled substance is accepted medical use of a controlled substance in the United States.  Grinspoon v. DEA, 881 F.2d 877 (1987):

Congress did not intend “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state or, as the Administrator contends, approval for interstate marketing of the substance.

Grinspoon, at 886.  And, as recognized by the U.S. Court of Appeals for the District of Columbia Circuit, “neither the statute nor its legislative history precisely defines the term ‘currently accepted medical use’.”  Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991).

The authority of the DEA is not unlimited.  As the U.S. Supreme Court held in 2006:

The Attorney General has rulemaking power to fulfill his duties under the CSA.  The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.

Gonzales v. Oregon, 546 U.S. 243, 258 (2006).

Legal experts are applying federal pre-emption to state laws, when they should be applying state pre-emption to the invalid federal administrative classification of marijuana as a substance without medical use in the States.

To prove the point, the Federal Aviation Administration interpretation of state and federal drug law clearly shows state medical marijuana laws exempt individuals from the enforcement of federal administrative regulations:

Title 14: Aeronautics and Space
PART 91—GENERAL OPERATING AND FLIGHT RULES
Subpart A—General

§91.19  Carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances.

(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.

(b) Paragraph (a) of this section does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.

14 C.F.R. § 91.19 (2018).

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Candidates for Governor 2018

April 28, 2018

Dear Candidates for Governor of Iowa,

In 2017, the Iowa legislature authorized large-scale marijuana cultivation in our state for the purpose of making cannabidiol products, the Medical Cannabidiol Act of 2017, H.F. 524 (Acts Chapter 162, 87th General Assembly, 1st Session).

Cultivation of marijuana is a federal crime.  The federal penalty for cultivation of 1,000 or more marijuana plants is 10 years to life in federal prison and fines of up to $50 million.  21 U.S.C. § 841 (2018).  Federal law also authorizes the death penalty based solely on the quantity of marijuana even in the absence of any accompanying violent crime.  18 U.S.C. § 3591(b)(1) (2018).

If our state has no constitutional right to authorize cultivation of marijuana in Iowa, we are authorizing a federal continuing criminal enterprise here in our state.  21 U.S.C. § 848 (2018).

Prominent state legislators, both Democrat and Republican, have made public statements declaring that Iowa is openly violating federal law by enacting legislation they voted for.  Forty-six (46) states have enacted medical marijuana laws since 1996.  This has taken on the magnitude of a constitutional crisis.

Where do you stand on this issue?

Thank you!

Carl Olsen
515–343-9933
carl@carl-olsen.com

Here’s how much marijuana you’d need to be eligible for the death penalty under federal law

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Congressional Candidates 2018

April 28, 2018

Dear Candidates for the Third Congressional District of Iowa,

Some candidates, including David Young, are supporting state medical marijuana programs.  However, despite the fact that 46 states now have such programs, there still exists a lack of clarity on whether currently existing federal law prohibits them.

Federalism means that unless Congress preempts a state law, then that state law prevails.

On the question of the accepted medical use of controlled substances in the states, federal courts have found that Congress has not defined the term “accepted medical use.”  See Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991).

The U.S. Supreme Court has interpreted the term “accepted” to mean whatever the state law says it means.  See Gonzales v. Oregon, 546 U.S. 243 (2006).

Federal courts have also found that Congress did not intend the term “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state.  See Grinspoon v. Drug Enforcement Administration, 828 F.3d 881, 886 (1st Cir. 1987).

Nevertheless, confusion still exists and several bills have been filed in Congress to clarify the matter.  David Young, for example, is a co-sponsor of the CARERS Act of 2017, H.F. 2920 (115th Congress), and David Young was also a co-sponsor of the CARERS Act of 2015, H.R. 1538 (114th Congress).

The problem with the CARERS Act is that it defines “cannabidiol” as three tenths of one percent (.3%) “tetrahydrocannabinol” (THC).  In 2017, Iowa enacted the Medical Cannabidiol Act of 2017, H.F. 524 (Acts Chapter 162, 87th General Assembly, 1st Session), which defines “cannabidiol” as three percent (3%) THC.  Cannabidiol (CBD) does not contain any THC.

It is plants and preparations that are being addressed.  Hemp, for example, is defined as three tenths of one percent (.3%) THC by dry weight, 7 U.S.C. § 5940(b)(2) (2017).  Iowa defines “cannabidiol” as products that are three percent (3%) THC by volume.

We now have a conflict between our state law and the CARERS Act of 2017.  I’ve pointed this out to David Young and asked him to withdraw his support for the CARERS Act of 2017.  I’ve also asked him to add his support to the Respect State Marijuana Laws Act of 2017, H.R. 975 (115th Congress), as Rob Blum is doing for the First Congressional District of Iowa.

I’m wondering where you stand on this issue.

I look forward anxiously for your response.

Thank you!

Carl Olsen
515-343-9933
carl@carl-olsen.com

cc: David Young
PO Box 162
Van Meter, Iowa 50261

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Requested Amendments to SF2397 (2018)

Proposed Amendment to SF 2397 (a bill by the Senate Committee on Ways and Means)

 

AN AMENDMENT TO SF 2397

 

Section 124E.1, Code 2018, is amended by adding the following new subsection and renumbering the remaining subsections:

NEW SECTION.  124E.2  Legislative purpose and intent.

The purpose and intent of this chapter is all of the following:

1.  The framers of the United States Constitution, recognizing state sovereignty, secured its protection in the Tenth Amendment to the United States Constitution.

2.  Beginning with California in 1996, a total of forty-six states have now enacted laws defining marijuana or extracts of marijuana as medicine.

3.  Congress did not intend the term “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state, Grinspoon v. Drug Enforcement Administration, 828 F.3d 881, 886 (1st Cir. 1987).

4.  Congress did not define the term “currently accepted medical use” in the federal Controlled Substances Act, Alliance for Cannabis Therapeutics v. Drug Enforcement Administration, 930 F.2d 936, 939 (D.C. Cir. 1991).

5.  In Gonzales v. Oregon, 546 U.S. 243 (2006) the Supreme Court of the United States acknowledged the decision-making authority to accept the medical use of controlled substances is a police power historically reserved to the states.

6.  The state and federal classification of marijuana as a substance without accepted medical use in treatment in the United States does not apply to the accepted medical use of marijuana in the state of Iowa.

Online Copy: 2018 Amendment One SF2397


 


Proposed Amendment to SF 2397 (a bill by the Senate Committee on Ways and Means)

 

AN AMENDMENT TO SF 2397

 

Amend Senate File 2397 as follows:

By inserting:

<Section 1.  Section 124.204, subsection 4, paragraphs m and u, Code 2017, are amended by striking the paragraphs.

Sec. 2.  Section 124.204, subsection 7, Code 2017, is amended by striking the subsection.

Sec. 3.  Section 124.206, subsection 7, Code 2017, is amended to read as follows:

7. Hallucinogenic substances.  Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, or, for purposes of paragraphs “a” and “b”, which contains any of its salts, isomers, or salts of isomers whenever the existence of such salts, isomers, or salts of isomers is possible within the specific chemical designation (for purposes of this paragraph only, the term “isomer” includes the optical, positional, and geometric isomers):

a.  Marijuana when used for medicinal purposes pursuant to rules of the board.

b.  Tetrahydrocannabinols, meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (Cannabis plant) as well as synthetic equivalents of the substances contained in the Cannabis plant, or in the resinous extractives of such plant, and synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:

(1)  1 cis or trans tetrahydrocannabinol, and their optical isomers.

(2)  6 cis or trans tetrahydrocannabinol, and their optical isomers.

(3)  3,4 cis or trans tetrahydrocannabinol, and their optical isomers.  (Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)

b. c.  Nabilone [another name for nabilone: (+-) -trans-3-(1,1-dimethylheptyl)-6,6a,7,8,10,10a-hexahydro-1-hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9-one].>

Online Copy: 2018 Amendment Two SF2397

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Candidate Questionnaire 2018

HAS IOWA TURNED TO CRIME?

We’ve been hearing some startling comments on Iowa’s new cannabis oil law lately, 2017 Iowa Acts Chapter 162, HF 524.  Iowa’s new law authorizes “production and distribution” in Iowa of products containing “any cannabinoid” found in marijuana plants which contains no more than 3% tetrahydrocannabinol.  Iowa Code § 124E.2(6) (2018).  The previous version of this law, 2014 Iowa Acts Chapter 1125, SF2360, authorized only the “possession and use” in Iowa of products containing “a cannabinoid” found in marijuana containing no more than 3% tetrahydrocannabinol.  Iowa Code § 124D.2(1) (2017).

Here are some quotes from Iowa House Speaker Linda Upmeyer:

She says they are already anticipating doing this bill with the possibility of breaking two federal laws.

KGLO Radio — Mason City, Iowa — March 27, 2017

House Speaker Linda Upmeyer, R-Clear Lake, noted in a statement that no matter what the Legislature had decided, the state still would have been in violation of federal law.

Des Moines Register — Des Moines, Iowa — September 10, 2017

And, here is a quote from State Representative John Forbes:

I mean, we are violating federal law with a cannabis bill here in the state of Iowa.

Iowa Public Television — Johnston, Iowa — December 22, 2017

 

WHAT DO YOU THINK?

  1. Are state lawmakers violating any federal law by authorizing the use and possession of cannabis oil in Iowa?
     
  2. Are state lawmakers violating any federal law by authorizing the cultivation of marijuana in Iowa for the production of cannabis oil?
     
  3. Are state-licensed users of cannabis oil in violation of any federal law for using and possessing cannabis oil in Iowa?
     
  4. Are state-licensed cultivators of marijuana in violation of any federal law for growing marijuana in Iowa?
     
  5. Are state-licensed distributors of cannabis oil in violation of any federal law for distributing cannabis oil in Iowa?
     

 

THE OPINION OF SOME LEGISLATORS IN HAWAII

SB2217: clarifies that medical use of cannabis is not considered to be a state or federal crime

HB2572: clarifies that medical use of cannabis is not considered to be a state or federal crime

HB2031: authorizes interisland transportation of cannabis

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House Concurrent Resolution 104 is a Bad Idea

On January 19, 2018, some Iowa legislators with good intentions filed House Concurrent Resolution 104 (HCR104), asking the federal government to reclassify marijuana.

Although the intention is good, HCR104 is bad.

Iowa needs to clean up its own affairs before making a fuss about the mess the federal government is perpetuating.  Before addressing federal drug law, legislators should consider why we have 50 different state drug laws that all differ from federal drug law and from each other.  It’s called “federalism” and it’s our system of government in these united states.

It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Justice Louis Brandeis’ dissent in New State Ice Co. v. Liebmann (1932)

The scheduling of marijuana in Iowa has not been consistent with federal scheduling since 1979 when the Iowa legislature decided to put marijuana into two schedules, schedule 1 and schedule 2.  Marijuana is only in federal schedule 1, not in two schedules.

Compare Iowa Code § 124.204(4)(m) (2018) and Iowa Code § 124.206(7)(a) (2018) with federal regulation 21 C.F.R. § 1308.11(d)(23) (2017).  And see, State v. Bonjour, 694 N.W.2d 511 (Iowa 2005) (detailing the history of Iowa’s dual scheduling of marijuana).

Furthermore, the scheduling of THC in Iowa has not been consistent with federal scheduling since 2008 when the Iowa legislature decided to put naturally extracted THC products in state schedule 3.  Naturally extracted THC products are in federal schedule 1, not in schedule 3.

Compare Iowa Code § 124.208(9)(b) (2018) with federal regulation 21 C.F.R. § 1308.13(g)(1) (2017).

It is beyond question that Iowa can determine it’s own scheduling on marijuana and THC, and Iowa has consistently done so.

Asking the federal government to reclassify marijuana to federal schedule 2 while leaving marijuana in state schedule 1 is a really bad idea.

Iowa should place marijuana in state schedule 2, as the bill the Iowa Board of Pharmacy filed in 2011 would have done, before asking the federal government to do something we won’t do as an act of good faith.

Iowa must show good faith and leadership by removing marijuana from state schedule 1 and then reminding the federal government that its illegal to violate our state sovereignty.

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Medical Professionals Practicing Law Without Licenses

Iowa has a new health crisis, medical professionals practicing law without licenses.

In an effort to make cannabidiol as unhealthy and risky as possible, medical professionals in the Iowa House of Representatives are claiming the law they just helped enact violates federal law.  This is known in law as criminal intent (known in legal terms as “mens rea” or guilty mind), if it was actually true that cannabidiol violates federal law (which it is not).

For a while, it seemed that the House Speaker, Linda Upmeyer, a registered nurse, was the only elected official making these absurd public statements about the law she just helped enact, but now we have Representative John Forbes, a licensed pharmacist, saying same thing.  At least we can say the effort to betray Iowans is non-partisan, but that doesn’t make it any less repugnant.

Here are the quotes from House Speaker Linda Upmeyer:

She says they are already anticipating doing this bill with the possibility of breaking two federal laws.

KGLO Radio – Mason City, Iowa – March 27, 2017

House Speaker Linda Upmeyer, R-Clear Lake, noted in a statement that no matter what the Legislature had decided, the state still would have been in violation of federal law.

Des Moines Register – Des Moines, Iowa – September 10, 2017

And, here is the quote from Representative John Forbes:

I mean, we are violating federal law with a cannabis bill here in the state of Iowa.

Iowa Public Television – Johnston, Iowa – December 22, 2017

We know this is some kind of an addiction to federal boot licking, but state legislators can do better than this!

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