Judge denies petition to remove marijuana from schedule 1

Des-Moines-20100822-070

Polk County Cour­t­house, Des Moines, Iowa

In pre­dictable fash­ion, Iowa dis­trict court judge Eliza Ovrom denied my peti­tion for judi­cial review in a rul­ing pub­lished on Decem­ber 10, 2014. You don’t have to read very far to get the sense the judge is read­ing her own bias into the rul­ing. She starts by accus­ing me of try­ing to clear the way for med­ical use of mar­i­juana in Iowa, which is clearly not how this law works. The law sim­ply says a sub­stance must be removed from sched­ule 1 if it has “accepted med­ical use in treat­ment in the United States.” The law says noth­ing about clear­ing the way for any­thing “in Iowa.” I tried to ham­mer that point in my legal mem­o­ran­dum, but it just didn’t pen­e­trate the judge’s pre­con­ceived notions and bias.

Judge Ovrom makes what has become a clas­sic mis­take of claim­ing that sched­ule 2 allows for med­ical use, when that is clearly false. Sched­ule 2 sub­stances can­not be pre­scribed in Iowa unless they have fed­eral FDA approval, so sim­ply mov­ing them to sched­ule 2 does not allow their med­ical use in Iowa. All it does is rec­og­nize that mar­i­juana does have accepted med­ical use in treat­ment in the Unite States. Mar­i­juana now has accepted med­ical use in treat­ment in thirty-four (34) states, includ­ing Iowa. Iowa enacted a med­ical mar­i­juana extract law ear­lier this year (with­out mov­ing mar­i­juana to sched­ule 2 — and which the chair of the Iowa Board of Phar­macy now says is a legal error). States can, and states have, accepted the med­ical use of mar­i­juana with­out mov­ing it to sched­ule 2. The only thing mov­ing mar­i­juana to sched­ule 2 actu­ally does is rec­og­nize a statu­tory con­di­tion that requires any­thing with accepted med­ical use in treat­ment in the United States be removed from sched­ule 1. So, the judge has the cart before the horse. Accepted med­ical use comes first. Remov­ing mar­i­juana from sched­ule 1 is required because of that accepted med­ical use, not the other way around. The judge would have us believe the sched­ule comes first and then the accepted use, which is impos­si­ble and can never happen.

Polk County Courthouse, Des Moines, Iowa

Polk County Cour­t­house, Des Moines, Iowa

As for my con­tri­bu­tion to this mess, I made the stu­pid mis­take of sub­mit­ting sci­en­tific stud­ies. Courts do not eval­u­ate sci­en­tific stud­ies with­out expert wit­nesses who can tes­tify as to their authen­tic­ity and mean­ing. If the only experts who looked at the evi­dence are the mem­bers of the board who denied the peti­tion, then the judge only has those experts to rely on. You can’t pos­si­bly win an appeal from a sit­u­a­tion like that. And, unless you have unlim­ited cash reserves, argu­ing sci­ence in a court room is pro­hib­i­tively expen­sive. You have to hire expert wit­nesses to inter­pret the sci­en­tific stud­ies and explain them to the judge. With­out unlim­ited cash reserves, argu­ing sci­ence is not a good strategy.

For­tu­nately, the law pro­hibits any­thing with accepted med­ical use in treat­ment in the United States from being clas­si­fied in sched­ule 1 in Iowa. How­ever, I did not stick to that argu­ment and made the stu­pid mis­take of sub­mit­ting sci­en­tific stud­ies. There’s a real les­son here, because the only time I ever won a unan­i­mous rul­ing from the board was when I filed a peti­tion with the board in 2008 that did not have any sci­en­tific stud­ies attached to it. At that time, there were twelve (12) states that had accepted the med­ical use of mar­i­juana in treat­ment in the United States and my sole argu­ment was those twelve state laws prove mar­i­juana has been accepted for med­ical use in treat­ment in the United States. I filed another peti­tion exactly like it ear­lier this year, based on thirty-four (34) states that have now accepted the med­ical use of mar­i­juana in treat­ment in the United States, and I actu­ally got a sub­com­mit­tee report on Novem­ber 19, 2014, rec­om­mend­ing the board once again grant my peti­tion. So, this demon­strates that when I peti­tion for resched­ul­ing with­out any sci­en­tific stud­ies, I always win. When I peti­tion with sci­en­tific stud­ies, I always lose. I can’t stress this enough. It’s an impor­tant les­son that we all need to learn.

Argu­ing sci­ence also sends a mes­sage that you don’t think the issue has already been resolved by thirty-four (34) state state laws. If the con­di­tion for remov­ing mar­i­juana from sched­ule 1 has been met by the enact­ment of thirty-four (34) state laws, then mar­i­juana can no longer be legally clas­si­fied as sched­ule 1 with­out any con­sid­er­a­tion of sci­en­tific stud­ies. Sub­mit­ting sci­en­tific stud­ies sends a mes­sage that there is doubt as to whether mar­i­juana actu­ally has been accepted for med­ical use in treat­ment in the United States. I hope oth­ers can now learn from the mis­take I made.

Never intro­duce evi­dence to prove a fact that has already been proven — it will con­fuse the judge.

The judge pur­posely omit­ted any men­tion of the plants in sched­ule 2 when list­ing some of the sub­stances in sched­ule 2. She listed sev­eral drugs in sched­ule 2 which are made from plants in sched­ule 2, but she never men­tions those plants, opium and coca plants. She insists that mar­i­juana must be approved as a pre­scrip­tion drug before it can be deemed to have med­ical use and removed from sched­ule 1, in spite of the fact that opium and coca plants are not pre­scrip­tion drugs. We can­not allow courts to hold mar­i­juana plants to a dif­fer­ent stan­dard than opium and coca plants. This is the rea­son the law appears to make no sense, because courts are lying about it.

The judge fails to men­tion that fed­eral sched­ule 3 does not include dron­abi­nol derived from cannabis plants (fed­eral sched­ule 3 only includes syn­thetic, not nat­ural, dron­abi­nol) and there are no ANDAs approved for it even though she claims there are approved ANDAs for it. The Iowa law clearly has nat­u­rally derived dron­abi­nol in sched­ule 3 that is not legal any­where in the United States and is cur­rently in fed­eral sched­ule 1, prov­ing beyond any doubt that down sched­ul­ing does not clear the way for med­ical use of a sub­stance in Iowa. It also proves this judge is dishonest.

I’m going to appeal from this rot­ten deci­sion, because it should not be allowed to stand.

Posted in States | 9 Comments

Response to the Board’s decision to Table my Petition

Carl Olsen
130 E. Aurora Ave.
Des Moines, Iowa 50313–3654

Decem­ber 1, 2014

Des Moines 20100822 066

The Iowa Board of Pharmacy

Iowa Board of Phar­macy
400 SW Eighth Street, Suite E
Des Moines, Iowa 50309–4688

To the Iowa Board of Pharmacy:

Thank you for con­sid­er­ing my peti­tion for mar­i­juana sched­ul­ing on Wednes­day, Novem­ber 19, 2014.  I would like to thank the mem­bers of the sub­com­mit­tee, Edward Maier, Sharon Meyer, and LaDonna Gra­tias, for their out­stand­ing work which is both accu­rate and detailed.  I am pleased with the subcommittee’s pro­posed rul­ing and ask that the full board adopt it as your rec­om­men­da­tion to the Iowa leg­is­la­ture at your next reg­u­larly sched­uled board meet­ing on Jan­u­ary 5, 2015.

At the meet­ing on Novem­ber 19, 2014, some mem­bers of the board asked for more time to con­sider the subcommittee’s pro­posal and expressed con­cern with the rela­tion­ship between state and fed­eral sched­ul­ing.  I’m pleased that the board wants to take a closer look at this proposal.

1.  BACKGROUND INFORMATION

I will start by men­tion­ing some of the his­tory involved in marijuana’s clas­si­fi­ca­tion at the inter­na­tional, national, and state level.  I sub­mit­ted a doc­u­ment for the sub­com­mit­tee hear­ing from the Expert Com­mit­tee on Drug Depen­dence (ECDD) of the World Health Orga­ni­za­tion (WHO) that gives a good sum­mary of the his­tor­i­cal back­ground at the inter­na­tional level.  I hope you have taken the time to review it.

Our national and state con­trolled sub­stances acts were writ­ten to com­ply with these inter­na­tional treaties, the Sin­gle Con­ven­tion on Nar­cotic Drugs, 1961, and the Con­ven­tion on Psy­chotropic Sub­stances, 1971.  Mar­i­juana was added to sched­ules 1 and 4 of the Sin­gle Con­ven­tion in 1961 and THC was added to sched­ule 1 of the Con­ven­tion on Psy­chotropic Sub­stances in 1971.  The first thing to note is that THC (the prin­ci­ple psy­choac­tive ingre­di­ent in mar­i­juana) was sched­uled less restric­tively than mar­i­juana when it was added in 1971.  Inter­na­tional sched­ule 4 is the equiv­a­lent of our state sched­ule 1, and inter­na­tional sched­ule 1 is the approx­i­mate equiv­a­lent of our state sched­ule 2.  So, THC was clas­si­fied as good for lim­ited med­ical use in 1971, after mar­i­juana had been clas­si­fied as being good for noth­ing in 1961.

To pro­vide some con­trast, the opium plant, the coca plant, mor­phine, and cocaine were all placed in sched­ule 1 of the Sin­gle Con­ven­tion in 1961, because all of them had some lim­ited med­ical use at that time.  When THC was added to inter­na­tional sched­ule 1 in 1971, the sched­ul­ing of mar­i­juana was not adjusted accord­ingly by remov­ing it from inter­na­tional sched­ule 4.  When THC was down sched­uled to inter­na­tional sched­ule 2 in 1991, mar­i­juana still got left behind in inter­na­tional sched­ule 4 (the most restric­tive schedule).

Trans­fer of delta-9-THC and its stere­o­chem­i­cal vari­ants from Sched­ule 1 to Sched­ule 2 of the Con­ven­tion on Psy­chotropic Sub­stances, 1971:

https://www.unodc.org/documents/commissions/CND/Drug_Resolutions/1990–1999/1991/CND_Decision-34-2_XXXIV.pdf

https://cms.unov.org/llsulinkbase/contenttree.aspx?nodeID=1832

Sched­ule 4 of the inter­na­tional treaties is for sub­stances that have no med­ical use, which raises the obvi­ous ques­tion of where THC comes from if you’re not get­ting it from a mar­i­juana plant.  Marijuana’s clas­si­fi­ca­tion has not been reviewed by the inter­na­tional health orga­ni­za­tion since 1935.  The World Health Orga­ni­za­tion is cur­rently review­ing the clas­si­fi­ca­tion of mar­i­juana.  I’m fairly opti­mistic the WHO is going to rec­om­mend down sched­ul­ing of mar­i­juana at the inter­na­tional level in 2016, but that’s hard to deter­mine at this time.  Obvi­ously, the United States is mov­ing us in that direction.

At the fed­eral level, mar­i­juana and THC were both placed in sched­ule 1 in 1970, and at the state level here in Iowa, mar­i­juana and THC were both placed in sched­ule 1 of the Iowa Uni­form Con­trolled Sub­stances Act in 1971, con­sis­tent with both hav­ing no accepted med­ical use in treat­ment any­where in the United States at that time.

THC (syn­thetic only) has been down sched­uled twice at the fed­eral level, to sched­ule 2 in 1986, and to sched­ule 3 in 1999. 51 Fed. Reg. 17476 (May 13, 1986); 64 Fed. Reg. 35928 (July 2, 1999).  Syn­thetic THC has also been down sched­uled twice at our state level here in Iowa, to sched­ule 2 in 1986, and to sched­ule 3 in 2000. 1986 Iowa Acts Chap­ter 1037 § 4 (April 7, 1986); 2000 Iowa Acts Chap­ter 1140 § 10 (April 25, 2000).

The unusual thing about THC’s sched­ul­ing is that both fed­eral and state law made a dis­tinc­tion between nat­u­rally occur­ring THC and syn­thetic THC, leav­ing the nat­u­rally occur­ring THC in sched­ule 1 and trans­fer­ring only syn­thetic THC to sched­ule 2 and then to sched­ule 3.  This dis­tinc­tion has never existed at the inter­na­tional level.  Both nat­u­rally occur­ring and syn­thetic THC were trans­ferred to inter­na­tional sched­ule 2 in 1991.  Iowa has since that time cor­rected this dis­tinc­tion by trans­fer­ring nat­u­rally occur­ring THC to state sched­ule 3 here in Iowa in 2008.  Iowa Code § 124.208(9) (2014)2008 Iowa Acts Chap­ter 1010 § 4 (March 5, 2008).  The fed­eral gov­ern­ment pro­posed mov­ing nat­u­rally extracted THC in 2010, 75 Fed. Reg. 67054 (2010), but nat­u­rally occur­ring THC remains in fed­eral sched­ule 1 as of this date.  So, here you have an exam­ple of where Iowa is not fol­low­ing fed­eral sched­ul­ing on nat­u­rally occur­ring THC.  Iowa is lead­ing instead of fol­low­ing.  If you read the fed­eral pro­posal you’ll see the rea­son­ing the fed­eral gov­ern­ment makes is that a mol­e­cule is still that same mol­e­cule whether it occurs nat­u­rally or it’s made synthetically.

The recent Med­ical Cannabid­iol act our state enacted on July 1, 2014, is another exam­ple of where our state is not fol­low­ing fed­eral sched­ul­ing.  Cannabid­iol (CBD) is the main non-psychoactive chem­i­cal com­po­nent of mar­i­juana.  The US Depart­ment of Health and Human Ser­vices (HHS) was awarded United States Patent #6,630,507 for CBD and other cannabi­noids on Oct. 7, 2003.  Cannabid­iol is in fed­eral sched­ule 1.  The fed­eral chem­i­cal code for cannabid­iol is 7372. See:

http://www.deadiversion.usdoj.gov/drugreg/reg_apps/225/225_instruct.htm

http://www.deadiversion.usdoj.gov/fed_regs/imprt/app/2008/fr08064.htm

Iowa is lead­ing instead of fol­low­ing the fed­eral sched­ul­ing of cannabid­iol.  This is not just some mishap or con­sti­tu­tional abnor­mal­ity; it’s a pattern.

You can see a sim­i­lar pat­tern at the inter­na­tional level where it was the United States that requested the down sched­ul­ing of THC in 1991.  Report on the 27th ses­sion, Expert Com­mit­tee on Drug Depen­dence (1991), at pages 9–12: http://whqlibdoc.who.int/trs/WHO_TRS_808.pdf?ua=1.  The inter­na­tional, national, and state sys­tems of sub­stance con­trol are not designed to be top down.  It’s a com­pre­hen­sive sys­tem dri­ven from the bot­tom up.  Local gov­ern­ment rep­re­sents the peo­ple and this is where the process begins.  The inter­na­tional treaties all have lim­i­ta­tion clauses in them which pro­tect con­sti­tu­tional due process of the sig­na­tory parties.

Marijuana’s place­ment in fed­eral sched­ule 1 in 1970 was so con­tro­ver­sial that Con­gress appointed a com­mis­sion to study it.  “The Com­mis­sion rec­om­mended that ‘the United States take the nec­es­sary steps to remove cannabis from the Sin­gle Con­ven­tion on Nar­cotic Drugs (1961), since this drug does not pose the same social and pub­lic health prob­lems asso­ci­ated with the opi­ates and coca leaf prod­ucts.’”  NORML v. DEA, 559 F.2d 735, 751 n.7 (D.C. Cir. 1977).

Mar­i­juana is the only sub­stance in sched­ule 1 with a long his­tory of med­ical use in treat­ment in the United States.

First, while Cal­i­for­nia in 1996 became the first of the six­teen states that cur­rently legal­ize med­ical mar­i­juana, the his­tory of med­ical mar­i­juana goes back much fur­ther, so that use for med­ical pur­poses was not unthink­able in 1990.  At one time, “almost all States … had excep­tions mak­ing law­ful, under spec­i­fied con­di­tions, pos­ses­sion of mar­i­huana by … per­sons for whom the drug had been pre­scribed or to whom it had been given by an autho­rized med­ical per­son.”  Leary v. United States, 395 U.S. 6, 17, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).  What’s more, the Fed­eral gov­ern­ment itself con­ducted an exper­i­men­tal med­ical mar­i­juana pro­gram from 1978 to 1992, and it con­tin­ues to pro­vide mar­i­juana to the sur­viv­ing par­tic­i­pants.  See Conant v. Wal­ters, 309 F.3d 629, 648 (9th Cir. 2002).  The exis­tence of these pro­grams indi­cates that med­ical mar­i­juana was not a con­cept utterly for­eign to Con­gress before 1996.

James v. Costa Mesa, 700 F.3d 394, 409 (9th Cir. 2012) (Berzon, J., dis­sent­ing).  And, of course, mar­i­juana is the only sub­stance in sched­ule 1 that has been accepted for med­ical use in treat­ment in any state since 1970.  Mar­i­juana now has accepted med­ical use in treat­ment in thirty-four states and in two fed­eral juris­dic­tions, DC and Guam.

2.  OUR LEGISLATURE HAS GIVEN THE BOARD EXPLICIT INSTRUCTIONS

Our state leg­is­la­ture has given the board the fol­low­ing instruc­tions.  If a sub­stance has a high poten­tial for abuse, it must be placed in either sched­ule 1 or sched­ule 2.  Iowa Code §§ 124.203(1)(a) and 124.205(1)(a) (2014).  If a sub­stance has accepted med­ical use in treat­ment in the United States, it can­not be placed in sched­ule 1 and must be placed in one of the other four sched­ules or removed from the sched­ules entirely.  Iowa Code §§ 124.203(1)(b) and 124.203(2) (2014).  If a sub­stance has both accepted med­ical use in treat­ment in the United States with severe restric­tions and a high poten­tial for abuse, then it must be placed in sched­ule 2.  Iowa Code §§ 124.205(1)(a) and 124.205(1)(b) (2014).

This is not the first time the board has con­sid­ered marijuana’s clas­si­fi­ca­tion.  As the result of a peti­tion for mar­i­juana sched­ul­ing I filed with the board in 2008, the board held a series of pub­lic hear­ings in four cities across the state.  These hear­ings were prompted by an Iowa Dis­trict Court rul­ing in McMa­hon v. Iowa Board of Phar­macy, Polk County No. CVCV007415 (April 21, 2009) (judi­cial review of my 2008 peti­tion for mar­i­juana sched­ul­ing).  “Both Sched­ule 1 and Sched­ule 2 con­trolled sub­stances share the same char­ac­ter­is­tic of hav­ing a high poten­tial for abuse.  A find­ing of accepted med­ical use for treat­ment in the United States alone would be suf­fi­cient to war­rant rec­om­men­da­tion for reclas­si­fi­ca­tion or removal pur­suant to the lan­guage of Iowa Code sec­tion 124.202.”  Id. at 4 n.1.  “The Board must deter­mine whether the evi­dence pre­sented by Peti­tioner is suf­fi­cient to sup­port a find­ing that mar­i­juana has accepted med­ical use in the United States and does not lack accepted safety for use in treat­ment under med­ical super­vi­sion.”  Id. at 5.

The only evi­dence I pre­sented in 2008 was the exis­tence of twelve state laws defin­ing mar­i­juana as med­i­cine.  I said that the exis­tence of state laws defin­ing mar­i­juana as med­i­cine proves that mar­i­juana has accepted med­ical use in treat­ment in the United States as a mat­ter of law.  The board was obvi­ously uncom­fort­able with accept­ing a legal argu­ment with­out look­ing at the eight fac­tors our leg­is­la­ture has instructed the board to con­sider in mak­ing sched­ul­ing deci­sions.  Iowa Code § 124.201(1)(a)-(h) (2014).  The board decided to take input from the pub­lic over a period of four months (from August of 2009 through Novem­ber of 2009) and in four pub­lic hear­ings held in var­i­ous cities across the state.  On Feb­ru­ary 17, 2010, the board voted unan­i­mously to rec­om­mend our leg­is­la­ture remove mar­i­juana from state sched­ule 1 in Iowa.

Our state leg­is­la­ture has not autho­rized the board to con­sider fed­eral sched­ul­ing in deter­min­ing whether mar­i­juana con­tin­ues to meet the con­di­tions for place­ment in sched­ule 1.  Fed­eral sched­ul­ing is not one of the eight fac­tors the leg­is­la­ture has instructed the board to con­sider.  Iowa Code § 124.201(1)(a)-(h) (2014).  The only instance where the leg­is­la­ture requires the board to con­sider fed­eral sched­ul­ing is when the fed­eral gov­ern­ment adds a new sub­stance to the fed­eral sched­ules.  Iowa Code § 124.201(4) (2014).  When the fed­eral gov­ern­ment does add a new sub­stance to the fed­eral sched­ules, the board is not legally bound to make that same rec­om­men­da­tion to the Iowa leg­is­la­ture.  Iowa Code § 124.201(4) (2014); 657 IAC 10.37(3).  Sim­i­larly, the Iowa leg­is­la­ture is not legally bound to fol­low fed­eral sched­ul­ing deci­sions.  Iowa Code § 124.201(4) (2014).  This is no mere acci­dent on the part of our leg­is­la­ture, it is a con­sis­tent pattern.

In our fed­eral sys­tem, the National Gov­ern­ment pos­sesses only lim­ited pow­ers; the States and the peo­ple retain the remain­der.”  Bond v. United States, 572 U.S. ___, ___, 134 S. Ct. 2077, 2087 189 L. Ed. 2d 1, 10 (2014).  “It is incum­bent upon the fed­eral courts to be cer­tain of Con­gress’ intent before find­ing that fed­eral law over­rides the usual con­sti­tu­tional bal­ance of fed­eral and state pow­ers.”  Gre­gory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991) (quot­ing Atas­cadero State Hos­pi­tal v. Scan­lon, 473 U.S. 234, 243, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985).  “Con­gress nor­mally pre­serves ‘the con­sti­tu­tional bal­ance between the National Gov­ern­ment and the States.’”  Bond v. United States, 564 U.S. ___, ___, 131 S. Ct. 2355, 2364, 180 L. Ed. 2d 269, 280 (2011).

The CSA explic­itly con­tem­plates a role for the States in reg­u­lat­ing con­trolled sub­stances, as evi­denced by its pre-emption pro­vi­sion.”  Gon­za­les v. Ore­gon, 546 U.S. 243, 251 (2006) [foot­note 1].  “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.”  Id. at 258.  “Con­gress did not del­e­gate to the Attor­ney Gen­eral author­ity to carry out or effect all pro­vi­sions of the CSA.  Rather, he can pro­mul­gate rules relat­ing only to ‘reg­is­tra­tion’ and ‘con­trol,’ and ‘for the effi­cient exe­cu­tion of his func­tions’ under the statute.”  Id. at 259.  “As for the fed­eral law fac­tor, though it does require the Attor­ney Gen­eral to decide ‘[c]ompliance’ with the law, it does not sug­gest that he may decide what the law says.  Were it oth­er­wise, the Attor­ney Gen­eral could author­i­ta­tively inter­pret ‘State’ and ‘local laws,’ which are also included in 21 U.S.C. § 823(f), despite the obvi­ous con­sti­tu­tional prob­lems in his doing so.”  Id. at 264.  “The statute and our case law amply sup­port the con­clu­sion that Con­gress reg­u­lates med­ical prac­tice inso­far as it bars doc­tors from using their prescription-writing pow­ers as a means to engage in illicit drug deal­ing and traf­fick­ing as con­ven­tion­ally under­stood.  Beyond this, how­ever, the statute man­i­fests no intent to reg­u­late the prac­tice of med­i­cine gen­er­ally.  The silence is under­stand­able given the struc­ture and lim­i­ta­tions of fed­er­al­ism, which allow the States ‘great lat­i­tude under their police pow­ers to leg­is­late as to the pro­tec­tion of the lives, limbs, health, com­fort, and quiet of all per­sons.’  Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (quot­ing Met­ro­pol­i­tan Life Ins. Co. v. Mass­a­chu­setts, 471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985)).”  Id. at 269–270.

Even though reg­u­la­tion of health and safety is ‘pri­mar­ily, and his­tor­i­cally, a mat­ter of local con­cern,’ Hills­bor­ough County v. Auto­mated Med­ical Lab­o­ra­to­ries, Inc., 471 U.S. 707, 719, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985), there is no ques­tion that the Fed­eral Gov­ern­ment can set uni­form national stan­dards in these areas.  See Raich, supra, at 9, 125 S. Ct. 2195, 162 L. Ed. 2d 1.  In con­nec­tion to the CSA, how­ever, we find only one area in which Con­gress set gen­eral, uni­form stan­dards of med­ical prac­tice.  Title I of the Com­pre­hen­sive Drug Abuse Pre­ven­tion and Con­trol Act of 1970, of which the CSA was Title II, pro­vides that

[The Sec­re­tary], after con­sul­ta­tion with the Attor­ney Gen­eral and with national orga­ni­za­tions rep­re­sen­ta­tive of per­sons with knowl­edge and expe­ri­ence in the treat­ment of nar­cotic addicts, shall deter­mine the appro­pri­ate meth­ods of pro­fes­sional prac­tice in the med­ical treat­ment of the nar­cotic addic­tion of var­i­ous classes of nar­cotic addicts, and shall report thereon from time to time to the Con­gress.’ § 4, 84 Stat. 1241, cod­i­fied at 42 U.S.C. § 290bb-2a.

This pro­vi­sion strength­ens the under­stand­ing of the CSA as a statute com­bat­ing recre­ational drug abuse, and also indi­cates that when Con­gress wants to reg­u­late med­ical prac­tice in the given scheme, it does so by explicit lan­guage in the statute.”  Id. at 271–272.

Trans­fer­ring mar­i­juana from state sched­ule 1 to state sched­ule 2 does not pro­mote drug abuse, because the poten­tial for abuse of sub­stances in our state sched­ule 1 is iden­ti­cal to the poten­tial for abuse for sub­stances in our state sched­ule 2.  Our state sched­ule 2 does not pro­mote the unau­tho­rized use (abuse) of any con­trolled substance.

Like­wise, our state sched­ule 2 does not cre­ate any pos­i­tive con­flict with fed­eral law, because it does not autho­rize any­one to use, pre­scribe, or dis­pense any con­trolled sub­stance with­out a fed­eral license.  Our leg­is­la­ture was not unaware of the 1970 fed­eral sched­ul­ing scheme when it adopted the Uni­form Con­trolled Sub­stances Act in 1971.  Our state leg­is­la­ture under­stood that state sched­ul­ing can be dif­fer­ent than fed­eral sched­ul­ing and that is exactly what the leg­is­la­ture intended.  This is called due process.

It would be absurd to say that mar­i­juana does not have accepted med­ical use in treat­ment in the United States in the face of thirty-four state laws that accept its med­ical use, as well as the two fed­eral juris­dic­tions of DC and Guam.  Our leg­is­la­ture saw the pos­si­bil­ity of this change in cir­cum­stances when it set the con­di­tions for place­ment in state sched­ule 1 back in 1971.

The fed­eral courts have pro­vided us with instruc­tions on how to inter­pret the fed­eral con­trolled sub­stances act.  “Nei­ther the statute nor its leg­isla­tive his­tory pre­cisely defines the term ‘cur­rently accepted med­ical use.’”  Alliance for Cannabis Ther­a­peu­tics v. Drug Enforce­ment Admin­is­tra­tion, 930 F.2d 936, 939 (D.C. Cir., 1991).  “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 v. DEA, 828 F.2d 881, 886 (1st Cir. 1987).

3.  IOWA’S SCHEDULES ARE NOT IDENTICAL TO THE FEDERAL SCHEDULES

Our state sched­ule 3 includes prod­ucts con­tain­ing nat­ural dron­abi­nol (derived from the cannabis plant), which are in fed­eral sched­ule 1.  Iowa Code § 124.208(9) (2014)2008 Iowa Acts Chap­ter 1010 § 4 (March 5, 2008).  Although the fed­eral gov­ern­ment has pro­posed a rule to trans­fer prod­ucts con­tain­ing nat­ural dron­abi­nol (derived from the cannabis plant) from fed­eral sched­ule 1 to fed­eral sched­ule 3, this rule has never been final­ized.  See Fed­eral Reg­is­ter, Vol. 75, No. 210 / Mon­day, Novem­ber 1, 2010 / Pro­posed Rules, at page 67054, “List­ing of Approved Drug Prod­ucts Con­tain­ing Dron­abi­nol in Sched­ule III,” (“Dron­abi­nol is a name of a par­tic­u­lar iso­mer of a class of chem­i­cals known as tetrahy­dro­cannabi­nols (THC).  Specif­i­cally, dron­abi­nol is the United States Adopted Name (USAN) for the (-)-iso­mer of [Delta]\9\-(trans)-tetrahydrocannabinol [(-)-[Delta]\9\-(trans)-THC], which is believed to be the major psy­choac­tive com­po­nent of the cannabis plant (mar­i­juana).”  Id. at page 67055).  Our leg­is­la­ture approved this change over 2 years before the fed­eral gov­ern­ment even pro­posed mak­ing the same change in the fed­eral sched­ules.  As of this time, the fed­eral gov­ern­ment still clas­si­fies prod­ucts con­tain­ing nat­u­rally derived dron­abi­nol as fed­eral sched­ule 1 substances.

The incon­sis­tency between state and fed­eral sched­ul­ing does not cre­ate any pos­i­tive con­flict between our state and fed­eral law.  No fed­eral law is bro­ken when a state reclas­si­fies a con­trolled sub­stance to a dif­fer­ent sched­ule than the fed­eral gov­ern­ment.  States are not required to have the same sched­ules or even the same cri­te­ria for inclu­sion in the sched­ules.  See, for exam­ple, State v. Eells, 72 Or. App. 492, 696 P.2d 564 (1985), review denied by 299 Ore. 313, 702 P.2d 1110 (1985) (“Although Or. Rev. Stat. § 475.005(6) states that a con­trolled sub­stance is defined by ref­er­ence to the sched­ules under the Fed­eral Con­trolled Sub­stances Act, 21 USC §§ 811 to 812, the statute does not adopt the fed­eral cri­te­ria, as Ore­gon has its own stan­dards for amend­ment of the sched­ule, as set out in Or. Rev. Stat. § 475.035”).

4.  STATE MEDICAL MARIJUANA LAWS ARE NOT PREEMPTED BY FEDERAL LAW UNLESS THEY SPECIFICALLY REQUIRE THE VIOLATION OF FEDERAL LAW

A state can cre­ate exemp­tions from its crim­i­nal laws with­out vio­lat­ing any fed­eral law.  New York v. United States, 505 U.S. 144, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992), and Printz v. United States, 521 U.S. 898, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997).  Exempt­ing med­ical use of mar­i­juana is unique because of the rea­son given for the exemp­tion, “med­ical use.”  “Sim­i­larly, here, there is no con­flict based on the fact that Con­gress has cho­sen to pro­hibit the pos­ses­sion of med­ical mar­i­juana, while Cal­i­for­nia has cho­sen not to.”  Gar­den Grove v. Supe­rior Court, 157 Cal.App.4th 355, 385, 68 Cal.Rptr.3d 656, 677 (2007), cert. denied, 555 U.S. 1044, 129 S. Ct. 623, 172 L. Ed. 2d 607 (2008).  “We fur­ther con­clude, as to the lim­ited pro­vi­sions of the MMP that Coun­ties may chal­lenge, those pro­vi­sions do not pos­i­tively con­flict with the CSA, and do not pose any added obsta­cle to the pur­poses of the CSA not inher­ent in the dis­tinct pro­vi­sions of the exemp­tions from pros­e­cu­tion under California’s laws, and there­fore those lim­ited pro­vi­sions of the MMP are not pre­empted.”  San Diego County v. San Diego NORML, 165 Cal.App.4th 798, 809, 81 Cal.Rptr.3d 461, 468 (2008), cert. denied, 556 U.S. 1235, 129 S. Ct. 2380, 173 L. Ed. 2d 1293 (2009).  “Thus, it appears Jus­tice Scalia’s inter­pre­ta­tion sug­gests a state law is pre­empted by a fed­eral ‘pos­i­tive con­flict’ clause, like 21 U.S.C. sec­tion 903, only when the state law affir­ma­tively requires acts vio­lat­ing the fed­eral pro­scrip­tion.” Id., 165 Cal.App.4th at 821, 81 Cal.Rptr.3d at 477.

Coun­ties appear to argue there is a pos­i­tive con­flict between the iden­ti­fi­ca­tion laws and the CSA because the card issued by a county con­firms that its bearer may vio­late or is immu­nized from fed­eral laws.  How­ever, the appli­ca­tions for the card expressly state the card will not insu­late the bearer from fed­eral laws, and the card itself does not imply the holder is immune from pros­e­cu­tion for fed­eral offenses; instead, the card merely iden­ti­fies those per­sons Cal­i­for­nia has elected to exempt from California’s sanc­tions.  (Cf. U.S. v. Cannabis Cul­ti­va­tors Club (N.D.Cal. 1998) 5 F.Supp.2d 1086, 1100 [California’s CUA ‘does not con­flict with fed­eral law because on its face it does not pur­port to make legal any con­duct pro­hib­ited by fed­eral law; it merely exempts cer­tain con­duct by cer­tain per­sons from the Cal­i­for­nia drug laws’].)  Because the CSA law does not com­pel the states to impose crim­i­nal penal­ties for mar­i­juana pos­ses­sion, the require­ment that coun­ties issue cards iden­ti­fy­ing those against whom Cal­i­for­nia has opted not to impose crim­i­nal penal­ties does not pos­i­tively con­flict with the CSA.

Id., 165 Cal.App.4th at 825–826, 81 Cal.Rptr.3d at 481.

The Med­ical Cannabid­iol act that became effec­tive in Iowa on July 1, 2014, does not require any­one to vio­late any fed­eral law.  641 IAC 154 (2014).  “A neu­rol­o­gist who has exam­ined and treated a patient suf­fer­ing from intractable epilepsy may pro­vide, but has no duty to pro­vide, a writ­ten rec­om­men­da­tion for the patient’s med­ical use of cannabid­iol to treat or alle­vi­ate symp­toms of intractable epilepsy …”  Iowa Admin. Code 641–154.2(1) (2014).  A doctor’s “rec­om­men­da­tion” is not a “pre­scrip­tion” and is pro­tected by the First Amendment’s pro­tec­tion of Free­dom of Speech.  Conant v. Wal­ters, 309 F.3d 629 (9th Cir. 2002), cert. denied, Wal­ters v. Conant, 540 U.S. 946, 124 S. Ct. 387, 157 L. Ed. 2d 276 (2003).

Our deci­sion is con­sis­tent with prin­ci­ples of fed­er­al­ism that have left states as the pri­mary reg­u­la­tors of pro­fes­sional con­duct.  See Whalen v. Roe, 429 U.S. 589, 603 n. 30, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977) (rec­og­niz­ing states’ broad police pow­ers to reg­u­late the admin­is­tra­tion of drugs by health pro­fes­sion­als); Lin­der v. United States, 268 U.S. 5, 18, 69 L. Ed. 819, 45 S. Ct. 446 (1925) (“direct con­trol of med­ical prac­tice in the states is beyond the power of the fed­eral gov­ern­ment”).  We must “show[] respect for the sov­er­eign States that com­prise our Fed­eral Union.  That respect imposes a duty on fed­eral courts, when­ever pos­si­ble, to avoid or min­i­mize con­flict between fed­eral and state law, par­tic­u­larly in sit­u­a­tions in which the cit­i­zens of a State have cho­sen to serve as a lab­o­ra­tory in the trial of novel social and eco­nomic exper­i­ments with­out risk to the rest of the coun­try.” Oak­land Cannabis, 532 U.S. at 501 (Stevens, J., con­cur­ring) (inter­nal quo­ta­tion marks omitted).

Id. at 639.  In Iowa, a pre­scrip­tion drug is defined as, “A sub­stance for which fed­eral or state law requires a pre­scrip­tion before it may be legally dis­pensed to the pub­lic.”  Iowa Code § 155A.3(37)(a).

a.  In a pros­e­cu­tion for the unlaw­ful pos­ses­sion of mar­i­juana under the laws of this state, includ­ing but not lim­ited to chap­ters 124 and 453B, it is an affir­ma­tive and com­plete defense to the pros­e­cu­tion that the patient has been diag­nosed with intractable epilepsy, used or pos­sessed cannabid­iol pur­suant to a rec­om­men­da­tion by a neu­rol­o­gist as autho­rized under this chap­ter, and, for a patient eigh­teen years of age or older, is in pos­ses­sion of a valid cannabid­iol reg­is­tra­tion card.

b.  In a pros­e­cu­tion for the unlaw­ful pos­ses­sion of mar­i­juana under the laws of this state, includ­ing but not lim­ited to chap­ters 124 and 453B, it is an affir­ma­tive and com­plete defense to the pros­e­cu­tion that the per­son pos­sessed cannabid­iol because the per­son is a pri­mary care­giver of a patient who has been diag­nosed with intractable epilepsy and is in pos­ses­sion of a valid cannabid­iol reg­is­tra­tion card, and where the pri­mary caregiver’s pos­ses­sion of the cannabid­iol is on behalf of the patient and for the patient’s use only as autho­rized under this chapter.

2014 Iowa Acts Chap­ter 1125 § 7 (May 30, 2014).  Nowhere in the Iowa Med­ical Cannabid­iol Act of 2014 does it require or autho­rize any vio­la­tion of fed­eral law.

5.  STATE RESCHEDULING DOES NOT MAKE MARIJUANA LEGAL IN IOWAEVEN A CORRESPONDING CHANGE IN FEDERAL SCHEDULING WOULD NOT AUTOMATICALLY MAKE IT LEGAL IN IOWA

Remov­ing mar­i­juana from sched­ule 1 in Iowa will not make it legal for a med­ical prac­ti­tioner to pre­scribe it and it will not make it legal for a phar­ma­cist to dis­pense it.  Take opium plants and coca plants for an exam­ple.  Both of those plants are in both state and fed­eral sched­ule 2, yet there is no law that makes it legal to pre­scribe those plants in Iowa.

Iowa law does not allow the pre­scrip­tion of any sub­stance in fed­eral sched­ule 1 in Iowa (with the lim­ited excep­tion of an FDA approved research study).  Iowa law also pre­vents the dis­pens­ing of any sub­stance in fed­eral sched­ule 1 in Iowa (with the lim­ited excep­tion of an FDA approved research study).  Iowa Code §§ 124.303(1)©, 124.303(1)(f), 124.303(3), 124.303(4), 124.304(1)(b), 124.304(1)©, 124.307 (2014).

In order to prac­tice med­i­cine in Iowa a prac­ti­tioner must com­ply with fed­eral law to main­tain a license in Iowa. Iowa Code §§ 148.6(b), 148.6©, 148.6(d).

In order to prac­tice phar­macy in Iowa a phar­ma­cist must com­ply with fed­eral law to main­tain a license in Iowa.  Iowa Code §§ 155A.15(2)(a), 155A.6(3), 155A.6A(1), 155A.6A(5), 155A.6B(1), 155A.6B(5), 155A.15(2)(a), 155A.15(2)(i), 155A.17(2),155A.24(1)(b), 155A.26, 155A.27(1)(f), 155A.42(4); 657 IAC 10.12(1)©, 657 IAC 10.12(4)©, 657 IAC 10.12(4)(f).

6.  OTHER PLANTS WE USE TO MAKE MEDICINE ARE NOT IN SCHEDULE 1

Both opium plants and coca plants are in Iowa sched­ule 2, and nei­ther of these two plants are approved for pre­scrip­tion under either state law or fed­eral law.  These two plants, opium and coca, are the source mate­r­ial for pre­scrip­tion drugs, mor­phine and cocaine, that are derived from the plants.  Iowa now rec­og­nizes med­ical use of two sub­stances made from mar­i­juana plants, cannabid­iol (mar­i­juana extract) and dron­abi­nol (mar­i­juana extract).  Both of these plant based extracts are in fed­eral sched­ule 1, which says they have no accepted med­ical use in treat­ment in the United States, and, yet, Iowa is a state in the United States which accepts both of them for med­ical use.  Cannabid­iol is now rec­og­nized by Iowa law as a med­i­cine.  Dron­abi­nol (nat­u­rally derived from the mar­i­juana plant) is in state sched­ule 3 in Iowa, which by def­i­n­i­tion means it has accepted use for med­ical treat­ment in the United States (because Iowa is “in the United States”).  Iowa Code §§ 124.207(1)(b), 124.208(9).

7.  PRECEDENT

This board ruled unan­i­mously in 2010 that mar­i­juana should be trans­ferred from state sched­ule 1 to state sched­ule 2.  That rul­ing stands as prece­dent as long new infor­ma­tion does not negate the 2010 rul­ing.  Iowa Code 17A.19(10)(h).  In order to reverse posi­tion, the board would have to explain why the evi­dence now shows that mar­i­juana is cor­rectly sched­uled in Iowa.  The pro­posed rul­ing from the sub­com­mit­tee says the evi­dence that mar­i­juana has med­ical use has only got­ten stronger, not weaker, since 2010.  Prior to 2010, the board has never take any posi­tion on whether mar­i­juana is sched­uled cor­rectly in Iowa.

8.  CONCLUSION

State admin­is­tra­tive agen­cies must fol­low state law.  State admin­is­tra­tive agen­cies can­not dis­re­gard the instruc­tions of our leg­is­la­ture.  Our state law rec­og­nizes marijuana’s med­ical use for both the pro­duc­tion of dron­abi­nol and the pro­duc­tion of cannabid­iol, which requires that mar­i­juana be removed from state sched­ule 1.  There is no vio­la­tion of fed­eral law by remov­ing mar­i­juana from state sched­ule 1, and, there­fore, it is required by our state law unless there new evi­dence show­ing that mar­i­juana is sched­uled cor­rectly in Iowa.

Because mar­i­juana now has accepted med­ical use in treat­ment in thirty-four states (includ­ing Iowa), and two fed­eral juris­dic­tions, DC and Guam, the board is bound by law to rec­og­nize that mar­i­juana now has accepted med­ical use in treat­ment in the United States and must be removed from state sched­ule 1.

Thank you for con­sid­er­ing my peti­tion.  If there is any­thing fur­ther I can assist you with in mak­ing your deci­sion on Jan­u­ary 5, 2015, please let me know.

 

Carl Olsen

130 E. Aurora Ave.

Des Moines, Iowa 50313–3654

515–343-9933

carl-olsen@mchsi.com

[foot­note 1] “No pro­vi­sion of this sub­chap­ter shall be con­strued as indi­cat­ing an intent on the part of the Con­gress to occupy the field in which that pro­vi­sion oper­ates, includ­ing crim­i­nal penal­ties, to the exclu­sion of any State law on the same sub­ject mat­ter which would oth­er­wise be within the author­ity of the State, unless there is a pos­i­tive con­flict between that pro­vi­sion of this sub­chap­ter and that State law so that the two can­not con­sis­tently stand together.” 21 U.S.C. § 903 (Pub. L. 91–513, title II, §708, Oct. 27, 1970, 84 Stat. 1284).

Posted in Uncategorized | Leave a comment

Ship of State (fools)

On Novem­ber 17, 2014, the Iowa Board of Phar­macy held a pub­lic hear­ing on my peti­tion to have mar­i­juana removed from sched­ule 1 of the Iowa Uni­form Con­trolled Sub­stances Act.  Dale Wool­ery from the Governor’s Office of Drug Con­trol Pol­icy (ODCP), showed up to argue against me.

dale_woolery_2014_11_19

Dale Wool­ery from the Governor’s Office of Drug Con­trol Policy

Wool­ery takes full advan­tage of the fact that most peo­ple, includ­ing most leg­is­la­tors, don’t under­stand sched­ul­ing of con­trolled sub­stances.  Wool­ery makes his argu­ments as if resched­ul­ing is the same thing as legalization.

Wool­ery started off by say­ing the Food and Drug Admin­is­tra­tion (FDA) has not approved smoked mar­i­juana, and that none of the national health orga­ni­za­tions sup­port smoked mar­i­juana as a method of deliv­ery for med­ical use.  My peti­tion does not ask for the legal­iza­tion of smoked mar­i­juana, or any other form of mar­i­juana.  Remov­ing mar­i­juana from sched­ule 1 would not make it legal for any­thing here in Iowa.

The Governor's Office of Drug Control Policy is located in the Pape State Office Building

The Governor’s Office of Drug Con­trol Pol­icy is located in the Pape State Office Building

Wool­ery goes on to claim that ODCP sup­ports devel­op­ment of safe, tested and effec­tive research-driven marijuana-based med­i­cines (non-smokeable plant deriv­a­tives), but fails to men­tion that none of the plants we cur­rently use to make med­i­cine are in sched­ule 1.  The opium plant, from which mor­phine is made, is in sched­ule 2.  The coca plant, from which cocaine is made, is in sched­ule 2.  Sched­ule 1 is only for plants that have no med­ical use.  You can’t make marijuana-based med­i­cines from a plant that has no med­ical use.

Wool­ery then says he approves of cannabid­iol oil, or CBD, because it’s derived from mar­i­juana instead of smoked and that Iowa is one of 11 states enact­ing a CBD-only law this year, fail­ing to men­tion that this oil hasn’t been tested or approved by the FDA.  Wool­ery says allowance for CBD is being dis­cussed at the fed­eral level by some in Con­gress, but not by the FDA.  How did the FDA sud­denly become irrelevant?

Wool­ery then says we have Mari­nol, but fails to men­tion that Mari­nol is made syn­thet­i­cally because it can’t be made from mar­i­juana.  Wool­ery also men­tions Sativex and Epid­i­olex, which are both made from mar­i­juana and cur­rently under­go­ing FDA approval processes, but those plant deriv­a­tives are made in Great Britain because the mar­i­juana can’t be grown for med­ical use here in the United States.

Finally, Wool­ery con­cludes down-scheduling mar­i­juana would send a dan­ger­ous mes­sage that this addic­tive drug is some­how rel­a­tively safe, fail­ing to men­tion that plants are not drugs and drugs can­not be made from plants in sched­ule 1.  Rel­a­tively safe?  Really?  Rel­a­tive to what?  Sched­ule 2 is where we find opium and coca plants.  Is Wool­ery jok­ing?  Wool­ery thinks that plac­ing mar­i­juana in the same cat­e­gory as mor­phine and cocaine sends a mes­sage that mar­i­juana is safe?  Maybe that explains why we have a pre­scrip­tion drug abuse prob­lem in Iowa, but that’s another story.

Posted in States | Leave a comment

State administrative agencies must follow state law

On Wednes­day, Novem­ber 19, 2014, the Iowa Board of Phar­macy voted to delay the rul­ing on my peti­tion to have mar­i­juana reclas­si­fied in Iowa.

Edward Maier

Iowa Board of Phar­macy Chair Edward Maier reads the sub­com­mit­tee report rec­om­mend­ing the reclas­si­fi­ca­tion of mar­i­juana in Iowa

The board voted unan­i­mously to rec­om­mend reclas­si­fi­ca­tion in 2010, so this is not some­thing new the board has not pre­vi­ously con­sid­ered.  Unless the board votes to recon­sider that 2010 rec­om­men­da­tion, the 2010 rec­om­men­da­tion still stands (but it’s get­ting old and dusty and needs a refresh).  Act­ing in good faith, the board voted unan­i­mously on August 27, 2014, to have a study com­mit­tee revisit this issue.  On Novem­ber 17, 2014, the study com­mit­tee, chaired by Monona phar­ma­cist Edward Maier, held a pub­lic hear­ing.  On Novem­ber 19, 2014, Maier pre­sented the study committee’s rec­om­men­da­tion that the board renew it’s 2010 rec­om­men­da­tion to reclas­sify mar­i­juana as a med­i­cine here in Iowa.

James A Miller

Dubuque phar­ma­cist James A. Miller says the board should fol­low fed­eral admin­is­tra­tive reg­u­la­tions rather than state law.

What caused the delay was an objec­tion from Dubuque phar­ma­cist James A. Miller.  Miller said he hadn’t had time to review the subcommittee’s rec­om­men­da­tion.  Miller said that while the 2010 unan­i­mous rec­om­men­da­tion of the board to rec­om­mend reclas­si­fi­ca­tion in Iowa still stands, he doesn’t agree with it.  Strangely enough, Miller did not cite any evi­dence that mar­i­juana is cor­rectly clas­si­fied.  Rather, Miller’s objec­tion is that the fed­eral gov­ern­ment has mar­i­juana clas­si­fied incon­sis­tently with the board’s 2010 rec­om­men­da­tion and that Iowa should fol­low the out­dated fed­eral sched­ul­ing until the fed­eral gov­ern­ment fixes it.  The Iowa Board of Phar­macy is autho­rized by law to rec­om­mend changes to state sched­ul­ing of mar­i­juana, but has no cor­re­spond­ing autho­riza­tion to rec­om­mend changes in fed­eral sched­ul­ing.  Adding to the con­fu­sion, Miller said the Iowa Board of Phar­macy has no author­ity to rec­om­mend changes in state scheduling.

Iowa Board of Pharmacy

The Iowa Board of Pharmacy

Although the board fre­quently uses it’s author­ity to rec­om­mend reclas­si­fi­ca­tion when the fed­eral gov­ern­ment adds a new sub­stance to the fed­eral sched­ules, prior to 2010 I’m not aware of any instance where the board has pre­vi­ously used its author­ity to dis­agree with fed­eral sched­ul­ing.  It’s my opin­ion that Miller is going to have to dis­agree with the 2010 rec­om­men­da­tion on its mer­its, because he hasn’t given any valid rea­sons for keep­ing mar­i­juana in it’s cur­rent clas­si­fi­ca­tion here in Iowa.  If the fac­tors the Iowa leg­is­la­ture requires the board to con­sider do not jus­tify keep­ing mar­i­juana in it’s cur­rent clas­si­fi­ca­tion as good for noth­ing, then Miller needs to fol­low that law or con­sider work­ing for a fed­eral admin­is­tra­tive agency.

Posted in States | Leave a comment

Scholars do not understand federalism

On Fri­day, a panel at the Brook­ings Insti­tute took on the issue of inter­na­tional drug law.

brookings_2014-10-17

http://www.brookings.edu/events/2014/10/17-international-impacts-legal-marijuana

As you could have eas­ily pre­dicted, the analy­sis was shal­low. Why would we even be talk­ing about this if any­one under­stood it? What the pan­elists did do well was to explain the role and the his­tory of the United States gov­ern­ment in draft­ing the treaties. The United States played a major role in draft­ing the treaties and con­tin­ues to play a major role in enforc­ing them.

What was glar­ingly absent in the dis­cus­sion was the imple­men­ta­tion of these treaties in the United States and the pro­tec­tion in these treaties for national sov­er­eignty. Not one pan­elist men­tioned the lan­guage that is repeated con­sis­tently in every one of these treaties: Sin­gle Con­ven­tion on Nar­cotic Drugs, 1961, Arti­cle 36: “con­sti­tu­tional lim­i­ta­tions”; Con­ven­tion on Psy­chotropic Sub­stances, 1971, Arti­cle 22: “con­sti­tu­tional lim­i­ta­tions”; Con­ven­tion against Illicit Traf­fic, 1988: “Sub­ject to its con­sti­tu­tional prin­ci­ples and the basic con­cepts of its legal sys­tem”. Appar­ently, none of the pan­elists finds this lan­guage sig­nif­i­cant or relevant.

Here is what wikipedia has to say: http://en.wikipedia.org/wiki/Federalism

Because the states were pre­ex­ist­ing polit­i­cal enti­ties, the U.S. Con­sti­tu­tion did not need to define or explain fed­er­al­ism in any one sec­tion but it often men­tions the rights and respon­si­bil­i­ties of state gov­ern­ments and state offi­cials in rela­tion to the fed­eral gov­ern­ment. The fed­eral gov­ern­ment has cer­tain express pow­ers (also called enu­mer­ated pow­ers) which are pow­ers spelled out in the Con­sti­tu­tion, includ­ing the right to levy taxes, declare war, and reg­u­late inter­state and for­eign com­merce. In addi­tion, the Nec­es­sary and Proper Clause gives the fed­eral gov­ern­ment the implied power to pass any law “nec­es­sary and proper” for the exe­cu­tion of its express pow­ers. Other powers—the reserved powers—are reserved to the peo­ple or the states.

One of the pan­elists did briefly explain sov­er­eignty: http://en.wikipedia.org/wiki/Westphalian_sovereignty

West­phalian sov­er­eignty is the con­cept that all nation-states have sov­er­eignty over their ter­ri­tory, with no role for exter­nal agents in domes­tic structures.

What was miss­ing from the panel’s dis­cus­sion was the imple­men­ta­tion of the treaties in the United States. Inter­na­tional resched­ul­ing was men­tioned, and right­fully so. Mar­i­juana is sched­uled more severely than mor­phine, cocaine, or metham­phet­a­mine under the inter­na­tional treaties.

But, the fail­ure of the panel to talk about state and fed­eral sched­ul­ing was trou­bling. You don’t nego­ti­ate a treaty with­out offer­ing some­thing in exchange for your requested change. State and fed­eral sched­ul­ing need to be changed first.

So, here is how I see it.

Here’s what the Brook­ings insti­tute is proposing:

http://www.brookings.edu/research/reports/2014/10/15-marijuana-legalization-modernize-drug-treaties-bennett-walsh

http://www.brookings.edu/~/media/research/files/reports/2014/10/15-marijuana-legalization-modernize-drug-treaties-bennett-walsh/cepmmjlegalizationv4.pdf

On page 21, the authors sug­gest sev­eral options:

  • amend­ing the drug treaties;
  • denounc­ing them and then acced­ing to them once more, while tak­ing nec­es­sary reser­va­tions to account for legal­ized marijuana;
  • reach­ing an agree­ment inter se, as between the United States and drug treaty states also desir­ing to revamp their domes­tic mar­i­juana policies;
  • or mod­i­fy­ing the sched­ul­ing of mar­i­juana within the treaties.

I would argue these options should be pur­sued in reverse order, start­ing with mod­i­fy­ing the sched­ul­ing of mar­i­juana within the treaties. The rea­son for that is because it is the way the treaties were intended to work. Sched­ul­ing is for flex­i­bil­ity. Resched­ul­ing would sim­ply prove the treaties were writ­ten well and can evolve over time.

It is well set­tled by now that states are not pre­empted by fed­eral law from chang­ing their pol­icy on marijuana.

So, we are not in vio­la­tion of any of these treaties, although these authors and pan­elists seem to think we are. That is sad com­men­tary on the pathetic lack of under­stand­ing schol­ars have today regard­ing our fed­er­al­ist sys­tem of gov­ern­ment and national sovereignty.

Since we have sched­ul­ing at all three lev­els, state, national, and inter­na­tional, that would be the first step to take. If the prob­lem can be solved by sched­ul­ing, and it clearly can since sched­ul­ing includes total removal of any sub­stance from all of the sched­ules, then that has to be tried first.

All of these laws were writ­ten to include flex­i­bil­ity so that the law would not have to be re-written. So, re-writing the law needs to be our last option, not our first.

As stated in the Dec­la­ra­tion of Inde­pen­dence, 1776: http://www.archives.gov/exhibits/charters/declaration_transcript.html

Pru­dence, indeed, will dic­tate that Gov­ern­ments long estab­lished should not be changed for light and tran­sient causes; and accord­ingly all expe­ri­ence hath shewn, that mankind are more dis­posed to suf­fer, while evils are suf­fer­able, than to right them­selves by abol­ish­ing the forms to which they are accus­tomed. But when a long train of abuses and usurpa­tions, pur­su­ing invari­ably the same Object evinces a design to reduce them under absolute Despo­tism, it is their right, it is their duty, to throw off such Gov­ern­ment, and to pro­vide new Guards for their future security.

We can’t ever make a cred­i­ble case for abol­ish­ing these inter­na­tional treaties if we don’t use the mech­a­nisms estab­lished in the treaties for address­ing the evils in them.

So, the dan­ger I am see­ing is focus­ing on top down strate­gies, when our sys­tem guar­an­tees a bot­tom up struc­ture. If we don’t stand up for our rights, then it will become a top down sys­tem by default, because that’s how gov­ern­ment nat­u­rally func­tions. The Brook­ings Insti­tute seems to think this is a top down prob­lem, and that’s con­trary to our sys­tem of government.

Any gap at the bot­tom will be filled in from the top. That’s just how gov­ern­ment oper­ates. But, it’s our own fault if we leave that gap at the bot­tom for the top to fill.

I just don’t see any schol­arly work ade­quately address­ing this topic. Either schol­ars have given up hope in the peo­ple gov­ern­ing them­selves, or they just can’t see it in the first place. What a sad state of affairs.

Posted in Federal, States | Leave a comment

Legislative Goals for 2015

Sunny-084If you’re like me and you stopped using mar­i­juana 24 years ago (I’ll admit not very peo­ple are like me), then you’d prob­a­bly like to see some progress being made on reform­ing the image and rep­u­ta­tion of mar­i­juana (slan­dered and vil­i­fied in a smear cam­paign best known as “Reefer Mad­ness”) in Iowa. And, if you’re like me, you saw the issue of cannabis extract get­ting seri­ous atten­tion from leg­is­la­tors across the county this year. Eleven states, includ­ing Iowa, enacted cannabis extract laws this year. So, here’s a list of stuff I’d like to see in 2015.

An absolute must in 2015 is reclas­si­fy­ing mar­i­juana in Iowa. Clas­si­fy­ing mar­i­juana as a plant with no med­ical value makes no sense now that Iowa rec­og­nizes the med­ical value this plant has. The Iowa Board of Phar­macy rec­om­mended reclas­si­fy­ing mar­i­juana in 2010 and is going to do it again toward the end of this year in Novem­ber of 2014. A leg­isla­tive study com­mit­tee of ten leg­is­la­tors voted nine to one to rec­om­mend reclas­si­fi­ca­tion of mar­i­juana in Sep­tem­ber of 2014. This is the bot­tom line and it’s essen­tial that mar­i­juana is reclas­si­fied here in Iowa in 2015.

Another rec­om­men­da­tion from the leg­isla­tive study com­mit­tee is cul­ti­vat­ing the mar­i­juana for the cannabis extract here in Iowa. Six of the ten leg­is­la­tors on the study com­mit­tee voted to grow the cannabis in Iowa and the gov­er­nor said he is open to it. Fed­eral law was actu­ally amended ear­lier this year to allow states to cul­ti­vate indus­trial hemp and there’s prob­a­bly a way to make med­ical extracts from it. We need to start this research here in Iowa.

Finally, a lot of folks would like to expand the list of con­di­tions that cannabis extract can be used to treat.

If we could accom­plish any or all of these goals in 2015, we would be well on the way to reform­ing the image and rep­u­ta­tion of mar­i­juana in Iowa as good for some­thing instead of good for nothing.

A poll con­ducted by Quin­nip­iac Uni­ver­sity in March of 2014 found that:
81% of Iowans sup­port med­ical use of mar­i­juana
41% of Iowans sup­port per­sonal use of marijuana
A poll con­ducted by The Des Moines Reg­is­ter in Feb­ru­ary of 2010 found that:
64% of Iowans sup­port med­ical use of mar­i­juana
28% of Iowans sup­port per­sonal use of marijuana
Posted in States | 5 Comments

Rescheduling’s Biggest Opponent Reverses Position

baudlerIf you’ve been fol­low­ing along, you’ll know that when the Iowa Board of Phar­macy rec­om­mended resched­ul­ing mar­i­juana in 2010, the chair of the Iowa House Com­mit­tee on Pub­lic Safety, Green­field Repub­li­can, Rep­re­sen­ta­tive Clel Baudler, filed his own bill in 2011 oppos­ing the Iowa Board of Phar­macy, H.F. 183 (by the Com­mit­tee on Pub­lic Safety), for­merly H.S.B. 4 (by Rep­re­sen­ta­tive Baudler). At the time, Baudler stated, “I still do not under­stand the board of pharmacy’s deci­sion to sup­port med­ical mar­i­juana and I sure as hell don’t agree with it.” Rep­re­sen­ta­tive Baudler’s bill died in com­mit­tee but was reborn again in 2013 as H.F. 168 (by the Com­mit­tee on Pub­lic Safety), for­merly H.S.B. 52 (by the Governor’s Office of Drug Con­trol Pol­icy). The Office of Drug Con­trol Policy’s bill, guided through the Iowa House of Rep­re­sen­ta­tives by Chair­man Baudler, passed in the Iowa House in 2013 but died in sub­com­mit­tee in the Iowa Sen­ate Com­mit­tee on the Judi­ciary in 2014.

What hap­pened to Chair­man Baudler in 2014 was noth­ing short of a mir­a­cle. Par­ents of chil­dren with epilepsy gave Chair­man Baudler an epiphany. Chair­man Baudler became the cham­pion of a mar­i­juana extract law that was later signed by Iowa Gov­er­nor Branstad on May 30, 2014, S.F. 2360. At an interim study com­mit­tee con­ducted by a bipar­ti­san group of Iowa sen­a­tors and rep­re­sen­ta­tives on Sep­tem­ber 11, 2014, Chair­man Baudler was the sin­gle Repub­li­can to vote for grow­ing mar­i­juana in Iowa to make the mar­i­juana extract, and was one of four Repub­li­cans to vote for resched­ul­ing mar­i­juana. All five Democ­rats on the com­mit­tee voted for both pro­pos­als. But, the moral of the story here is that opin­ions change in the blink of an eye.

Another story is the Office of Drug Con­trol Pol­icy, which is an exec­u­tive branch agency with no author­ity to rec­om­mend, or oppose, sched­ul­ing. The Iowa Board of Phar­macy is the sole exec­u­tive branch agency respon­si­ble for rec­om­mend­ing sched­ul­ing to the Iowa Leg­is­la­ture. It’s a vio­la­tion of the exec­u­tive branch’s con­sti­tu­tional duty to faith­fully exe­cute the laws to send one exec­u­tive branch agency to oppose another exec­u­tive branch agency when one of them is autho­rized by the Leg­is­la­ture and the other is not. The Office of Drug Con­trol Pol­icy has seen it’s fund­ing reduced over the past few years, and deservedly so. This agency should be abol­ished by the Iowa Leg­is­la­ture for fail­ure to honor the Con­sti­tu­tion of Iowa.

Posted in States | Leave a comment

An explanation of marijuana’s scheduling is essential

I have filed four peti­tions for mar­i­juana resched­ul­ing with the Iowa Board of Phar­macy (2008, 2012, 2013, and 2014), two with­out any sci­en­tific or med­ical evi­dence (2008 and 2014), and two with sci­en­tific and med­ical evi­dence (2012 and 2013). I won the two that did not include any sci­en­tific or med­ical evi­dence, prov­ing that I am not qual­i­fied to present sci­en­tific or med­ical evi­dence and prov­ing that my legal argu­ments are solid enough to pro­voke action by the board with­out any sci­en­tific or med­ical evi­dence. The rea­son for this appears to be sim­ple. The board does not need my assis­tance in find­ing sci­en­tific and med­ical infor­ma­tion on marijuana.

One of my con­cerns is that the board never issued any expla­na­tion for it’s rul­ing in 2010, and now they admit nobody under­stood it. I’ve asked if they will put a lit­tle more sub­stance into it this time.

Feb­ru­ary 17, 2010 (Scott Galen­beck was the board’s attor­ney and Vern Ben­jamin was the board’s chair)
SCOTT GALENBECK: Vern, I have a ques­tion. Do you have any inter­est in doing some expla­na­tion of why, I mean artic­u­lat­ing in a doc­u­ment that would go to the leg­is­la­ture your rea­sons or your think­ing. I know that’s a lot of work, but…
VERNON BENJAMIN: Well, I was think­ing that when we were doing, when I said we as a board then could talk and give… But, yeah.

March 3, 2010 (Carl Olsen was the peti­tioner and Lloyd Jessen was the board’s exec­u­tive direc­tor)
CARL OLSEN: Do you have any idea when the Iowa Board of Phar­macy will issue its writ­ten expla­na­tion of how it arrived at its con­clu­sions on Feb­ru­ary 17th?
LLOYD JESSEN: The Board has not set a time for the release of a writ­ten explanation.

August 27, 2010 (Ed Maier is the cur­rent board chair)
ED MAIER: I think it’s impor­tant, what­ever we do, that we have a solid cut mes­sage that the peo­ple under­stand. Last time, we were totally mis­un­der­stood, exactly what was happening.

To be fair to all involved, look at the time line of events.

My argu­ment has always been that sched­ule I, both state and fed­eral, inter­feres with the imple­men­ta­tion of state med­ical mar­i­juana laws.

As of July 1, 2014, Iowa is now one of those states with a med­ical mar­i­juana law.

I filed my cur­rent peti­tion on July 7, 2014.

So, that should explain why I was able to walk in on Wednes­day and get a unan­i­mous rul­ing grant­ing my petition.

It also explains why the board had a hard time explain­ing what they were doing in 2010.

Remem­ber, I never asked them to rec­om­mend a med­ical cannabis pro­gram like New Mex­ico, or any program.

The only thing I asked them for in 2008 was to ini­ti­ate the process to remove mar­i­juana from sched­ule I.

Obvi­ously, the board thought it would make sense to rec­om­mend a state pro­gram to explain why they wanted to remove mar­i­juana from sched­ule I.

But, that made every­thing more complicated.

Now, it’s sim­ple. We have a state med­ical mar­i­juana law and both state and fed­eral sched­ule I inter­fere with its implementation.

I want the state of Iowa to help me get fed­eral sched­ul­ing changed.

This might apply in dif­fer­ent con­texts as well. For exam­ple, when some­one tries to chal­lenge sched­ul­ing in a crim­i­nal case, the court will usu­ally say the defen­dant had admin­is­tra­tive reme­dies avail­able and did not exhaust those admin­is­tra­tive reme­dies prior to get­ting arrested. But, here in Iowa, we have not only exhausted those admin­is­tra­tive reme­dies, we’ve won a rul­ing in our favor at the admin­is­tra­tive level. I am fol­low­ing a fed­eral case that seems to break this rule about exhaust­ing admin­is­tra­tive reme­dies, called United States v. Schweder, et al., No. 2:11-cr-00449-KJM-16 (East­ern Dis­trict of Cal­i­for­nia). If you’re not famil­iar with it, I have all the doc­u­ments at http://www.iowamedicalmarijuana.org/States/California.aspx

Posted in States | 4 Comments

Pharmacy board hearing on August 27, 2014

Wednes­day, August 27, 2014, approx­i­mately 9:39 a.m.

Board mem­bers present: Susan Frey (tem­po­rary chair, licensed phar­ma­cist), LaDonna Gra­tias (pub­lic mem­ber), Edward Maier (chair, licensed phar­ma­cist), Edward McKenna (licensed phar­ma­cist), Sharon Meyer (licensed phar­ma­cist), Judith M. Trumpy (pub­lic mem­ber). Board mem­ber absent: James Miller (licensed pharmacist).

Susan Frey: Next up we have 4.4 and that is a peti­tion for agency action for mar­i­juana sched­ul­ing from Carl Olsen.

Carl Olsen: Yes.

Susan Frey: You’re here.

Carl Olsen: Are you ready?

Susan Frey: I’m ready.

Carl Olsen: Alright. My name is Carl Olsen. I would like the board to rec­om­mend the Iowa leg­is­la­ture remove mar­i­juana from Sched­ule 1. The code sec­tions are Iowa Code Chap­ter 124 Sec­tion 201 and 124.203. Under those sec­tions the board has the author­ity to rec­om­mend the leg­is­la­ture remove mar­i­juana from Sched­ule 1. I made this rec­om­men­da­tion last year. I made this rec­om­men­da­tion sev­eral times, this request. But, par­tic­u­larly last year I made this same request. At that time there were nine­teen (19) states that had legal­ized the med­ical use of mar­i­juana. As of today there are twenty-three (23). And as of this year another eleven (11) have enacted cannabis oil bills, like Iowa enacted this year, that require peo­ple to leave the state of Iowa, go to another state where they can obtain this oil, one of the states where it is autho­rized to pro­duce the cannabis, and then bring it back to Iowa, which vio­lates state and fed­eral laws all the way through.

Remov­ing mar­i­juana from Sched­ule 1 would be an impor­tant step in a big obsta­cle, fed­eral Sched­ule 1. The board has the author­ity to rec­om­mend that mar­i­juana be removed from state Sched­ule 1. That would be an impor­tant first step in send­ing an impor­tant mes­sage to the fed­eral gov­ern­ment that there’s a big prob­lem with Sched­ule 1 and the imple­men­ta­tion of these state laws. We’ve got thirty-four (34) states now and last year when I was here it was only nine­teen (19). So, you can see how rapidly this is mov­ing for­ward. I don’t think the board can say this is not a valid con­cern, or that the board should not be say­ing, be par­tic­i­pat­ing in the leg­isla­tive process as required by the Iowa Code.

Thank you.

Susan Frey: Any com­ments from board mem­bers? Thoughts?

And, we’re hand­ing out an arti­cle from the Des Moines Reg­is­ter today, or yes­ter­day August 26th, on the cannabis oil.

Carl Olsen: Yeah, there was a hear­ing held yes­ter­day in the Iowa Depart­ment of Pub­lic Health on that.

Sharon Meyer: You would like a rec­om­men­da­tion from the board to the sched­ule. Here, it’s say­ing the fam­ily could find an out of state sup­plier. It would be imple­mented, … Sorry, got on the wrong para­graph. It says peo­ple are frus­trated by the pace of the imple­men­ta­tion and the oil is not avail­able. Are you say­ing that we need to make a state­ment to the legislature?

Carl Olsen: I don’t think the leg­is­la­ture under­stands the tech­ni­cal nature of the five (5) sched­ules, and I think the board does. And I think they need the assis­tance of the board with that par­tic­u­lar issue. It’s obvi­ous they want to do some­thing. And, it’s obvi­ous that they’ve started to move for­ward. But, I don’t think they under­stand how impor­tant the sched­ul­ing is. Sched­ule 1 says no accepted med­ical use in treat­ment in the United States, and that is just not the case. It has accepted med­ical use in thirty-four (34) states. Why the fed­eral gov­ern­ment hasn’t moved it out of Sched­ule 1 I can’t say. But this board rec­om­mended it be removed from state sched­ule 1 in 2010. And, I think the board should con­tinue to stand behind that and not let the leg­is­la­ture think that you’ve changed your mind, or that you’re not inter­ested any­more, or … I’ve heard that com­ment from leg­is­la­tors, like, “What’s hap­pened with the board of phar­macy? Why are they back­ing out on this?” So, I think there’s real dam­age there.

Ed Maier: Madam chair, this is Ed. I think a cou­ple of us that looked through this in 2010, I think this is impor­tant enough, if we can, I think we should maybe some­how dis­cuss, whether we appoint a com­mit­tee, or send it to rules com­mit­tee to talk about, or what­ever, for some rec­om­men­da­tions, and talk. I think it’s impor­tant, what­ever we do, that we have a solid cut mes­sage that the peo­ple under­stand. Last time, we were totally mis­un­der­stood, exactly what was hap­pen­ing. I don’t know that, I guess I might rec­om­mend that we some­how study this and that we take it up at the next meet­ing if that’s possible.

Susan Frey: Well, you’ve been… I was not aware of the recent hear­ing. I guess I would like to, you know, look at some of that infor­ma­tion and incor­po­rate that. I think, you know, I would cer­tainly be will­ing to estab­lish a study group.

Carl Olsen: I par­tic­i­pated in that hear­ing yes­ter­day and they said they would give me all, every­thing that was sub­mit­ted, and a record­ing of the hear­ing and all of that.

Terry Witkowski: Just to clar­ify, that hear­ing was their pro­posed rules.

Carl Olsen: Yeah.

Terry Witkowski: for the cannabid­iol pro­gram, correct?

Carl Olsen: Right. And there were a lot of com­ments that weren’t… didn’t stay con­fined to that and they kept say­ing you’ll have to talk to the leg­is­la­tors about. But, any­way, it was all…

Susan Frey: And, I mean… If they’re talk­ing about rules, that will set a prece­dent also, so I think that’s prob­a­bly some­thing that we need to, you know, look into a lit­tle deeper, fur­ther. So, I would enter­tain a motion to form a…

Terry Witkowski: You want to refer it to a com­mitt­tee, or form a sep­a­rate committee?

Susan Frey: Well, Ed sug­gested… Ed, do you want to go to rules com­mit­tee with that or do you want a sep­a­rate committee?

Ed Maier: You know, I’m not sure. I don’t know where the rules com­mit­tee is now. I know that they have a con­sid­er­able amount of work that they’re doing on leg­is­la­tion and other things, so I might defer to some­body on the rules com­mit­tee as to whether they would pre­fer that. Or, do we pre­fer a sep­a­rate com­mit­tee that would take a look at all of the new things that have hap­pened and try to make some sort of recommendation>

Terry Witkowski: Do you antic­i­pate hav­ing some­thing ready to present a leg­isla­tive pro­posal this year? Because the dead­line for that is the end of November.

Ed Maier: The end of November?

Terry Witkowski: Yes. Really by Thanks­giv­ing we have to have it sub­mit­ted. It would have to go to, you’d have to have a leg­is­la­tor to present it.

Ed Maier: So, Terry, if we were to defer it and take action one way or the other at our next meet­ing, would that be too late? Or, is that push­ing it?

Terry Witkowski: You could, if we had a pro­posal ready for the next board meet­ing, that would be timely.

Ed Maier: Okay. I think that’s prob­a­bly what we need to do. Either rules,… Rules is really, really busy, and I know they have been, but, you know, maybe a sep­a­rate com­mit­tee, a small com­mit­tee that could take a look at this stuff and then get together and just decide on a recommendation.

Ed McKenna: Being on the rules com­mit­tee I would prob­a­bly agree with Ed that we should have a sep­a­rate com­mit­tee and get more input from other people.

Susan Frey: I would agree.

Ed McKenna: I know we have a lot of sep­a­rate com­mit­tees, but…

Susan Frey: Okay, well…

Terry Witkowski: Ed, did you want to be on that com­mit­tee? Or, chair that committee?

Ed Maier: Let me…

Terry Witkowski: You have the his­tory, so I’m think­ing that that might be, you know, it would be a good thing to have some­body with that…

Ed Maier: Yes, Yeah, I would do that.

Terry Witkowski: You can read all the cases you want this weekend.

(LAUGHTER)

Ed Maier: You got it Terry.

Lloyd Jessen: Why don’t we have a motion then to form a com­mit­tee with Ed as chair and then I’ll work with Ed so,…

Ed Maier: There you go. We’ll work together to put a com­mit­tee together here and get it taken care of.

Terry Witkowski: Ask the board mem­bers to see if anybody’s inter­ested, too.

Lloyd Jessen: Yeah, we can do that.

Sharon Meyer: So moved.

Susan Frey: Okay, it’s been moved. Do I have a second?

Ed McKenna: Second.

Susan Frey: Okay, it’s been moved and sec­onded to form a com­mit­tee to review the peti­tion on agency action for mar­i­juana sched­ul­ing with a, to bring it back at our Novem­ber meet­ing. All of those in favor say aye. Want a role call vote?

Ed Maier: Maier, aye.

LaDonna Gra­tias: Gra­tias, aye.

Ed McKenna: Aye.

Sharon Meyer: Meyer, aye.

Judith M. Trumpy: Trumpy, aye.

Susan Frey: Frey, aye. All those opposed? Motion carries.

Carl Olsen: Well, I have to get back to work, but thank you all. You guys are awe­some. I’ll see you later.

Posted in States | 1 Comment

Cannabis Oil in Iowa

Med­ical mar­i­juana has finally made its legal entrance into Iowa’s cul­ture with the legal­iza­tion of cannabis oil on July 1, 2014 (Iowa Med­ical Cannabid­iol Act of 2014). In response, a new busi­ness ven­ture here in Iowa has shown an inter­est in sup­ply­ing this prod­uct, iCann: Rea­son­able Cannabis Solu­tions in Urban­dale, Iowa. I talked briefly with one of the own­ers today and I’ll be talk­ing with him again soon to get more details. In an email to Crys­tal Brunt, Iowa NORML Women’s Alliance, the com­pany said it is attempt­ing to work with leg­is­la­tors and patients. Two of the orga­ni­za­tions men­tioned in the email were Advo­cacy Strate­gies and the Uni­ver­sity of Iowa Col­lege of Med­i­cine, both of which would be key resources for any busi­ness ven­ture to be suc­cess­ful in Iowa. I’m still try­ing to under­stand the legal issues. A phar­ma­ceu­ti­cal prod­uct by the name of Epid­i­olex man­u­fac­tured by GW Phar­ma­ceu­ti­cals is cur­rently in phase 3 clin­i­cal tri­als in Iowa. What is impor­tant to under­stand is that the cannabis oil that has just been legal­ized here in Iowa is not Epid­i­olex, which explains why a com­pany like iCann: Rea­son­able Cannabis Solu­tions would be inter­ested in dis­trib­ut­ing it in Iowa. Cannabis oil has not been approved by the FDA and there is no sign the FDA will be con­sid­er­ing it in the near future. One of the inter­est­ing devel­op­ments is that Con­gress recently legal­ized the pro­duc­tion of indus­trial hemp and indus­trial hemp has a high level of cannabid­iol. So, although the FDA hasn’t approved it, it would appear that cannabis oil can actu­ally be made from indus­trial hemp. The fed­eral Agri­cul­ture Act of 2014, Sec­tion 7606, autho­rizes the pro­duc­tion of hemp for both “agri­cul­tural or aca­d­e­mic research”, so it appears that opens the door for cannabis oil pro­duc­tion. Stay tuned for fur­ther developments.

Posted in Federal, Science, States | 5 Comments