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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Congressman Young Betrays Iowans

Today, I was told that U.S. Rep­re­sen­ta­tive David Young is co-spon­sor­ing fed­er­al leg­is­la­tion, H.R. 2920, that he has now been noti­fied cre­ates a direct, pos­i­tive con­flict with our state law.

H.R. 2920 was writ­ten by U.S. Rep­re­sen­ta­tive Steve Cohen who rep­re­sents the state of Ten­nessee.

Last year, on July 6, 2016, Con­gress­man Young co-spon­sored Con­gress­man Cohen’s fed­er­al leg­is­la­tion, H.R. 1538, that defined ‘cannabid­i­ol’ as the sub­stance cannabid­i­ol, as derived from mar­i­hua­na or the syn­thet­ic for­mu­la­tion, that con­tains not greater than 0.3 per­cent delta-9-tetrahy­dro­cannabi­nol on a dry weight basis, H.R. 1538 § 4(2).

H.R. 1538 fur­ther autho­rized the Attor­ney Gen­er­al of the Unit­ed States to deter­mine whether State law autho­riz­ing the cul­ti­va­tion and man­u­fac­ture of mar­i­jua­na to make cannabid­i­ol is rea­son­ably cal­cu­lat­ed to com­ply with the new fed­er­al def­i­n­i­tion of cannabid­i­ol, H.R. 1538 § 5.

In 2016, 2014 Iowa Acts, Chap­ter 1125 (S.F. 2360) allowed the pos­ses­sion only of cannabid­i­ol, defined as 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 Code § 124D.2(1) (2016).

Because Iowa law did not autho­rize the cul­ti­va­tion or man­u­fac­ture of mar­i­jua­na to make cannabid­i­ol in 2016, H.R. 1538 did not cre­ate a direct, pos­i­tive con­flict with our state law.

How­ev­er, in 2017, 2017 Iowa Acts, Chap­ter 162 (H.F. 524) allowed the cul­ti­va­tion and man­u­fac­ture of mar­i­jua­na to make cannabid­i­ol in Iowa, and changed the def­i­n­i­tion of cannabid­i­ol to 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, Iowa Code § 124E.2(6) (2017).

Please note the 2014 Iowa law defined cannabid­i­ol as “a” cannabi­noid (sin­gu­lar) and the 2017 Iowa law defines cannabid­i­ol as “any” cannabi­noid (plur­al).

The 2017 act became law on May 12, 2017.  Con­gress­man Young co-spon­sored H.R. 2920 on Sep­tem­ber 11, 2017, adopt­ing Con­gress­man Cohen’s def­i­n­i­tion of cannabid­i­ol and cre­at­ing a con­flict with our state law rather than defend­ing us.

Like a lot of oth­er states, Iowa is not wait­ing around for the fed­er­al gov­ern­ment to fig­ure this out.  The fed­er­al gov­ern­ment has been foot drag­ging and stone walling on this issue for decades.

When I asked Con­gress­man Young to explain, his staff said they have con­tact­ed Con­gress­man Cohen and Con­gress­man Cohen’s staff did not know why that def­i­n­i­tion of cannabid­i­ol is in his bill and why it gives the U.S. Attor­ney Gen­er­al any say in the mat­ter.  Accord­ing to Con­gress­man Young’s staff, Con­gress­man Cohen’s staff said it was put there at the request of U.S. Sen­a­tor Kristin Gilli­brand who rep­re­sents the state of New York.

This is insane!  Con­gress­man Young is not defend­ing us.

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Chuck Grassley — a day late and a dollar short

Ear­li­er this year, Iowa legal­ized the cul­ti­va­tion of mar­i­jua­na for med­ical use, by a vote of 83–11 in the Iowa House and by a vote of 33–7 in the Iowa Sen­ate.  The bill was signed into law by our gov­er­nor on May 12, 2017 Chap­ter 162 (H.F. 524).

On Decem­ber 18, 2017, I wrote U.S. Sen­a­tor Chuck Grass­ley a let­ter ask­ing him to spon­sor leg­is­la­tion like his for­mer chief of staff, U.S. Rep­re­sen­ta­tive David Young has spon­sored in Con­gress this year (H.R.2920) and last year (H.R.1358) pro­tect­ing our state med­ical mar­i­jua­na law.

On Decem­ber 21, 2017, Chuck replied: “Over the years, some peo­ple have expressed the view that mar­i­jua­na should be legal­ized for recre­ation­al, med­ical, and agri­cul­tur­al pur­pos­es.  How­ev­er, I dis­agree with this view.”

Some peo­ple,” as Chuck refers to, are the peo­ple he is sup­posed to rep­re­sent in Wash­ing­ton, DC.  Peo­ple to Chuck: “It’s too late to close the barn door after the horse has bolt­ed.”

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Conversation with David Young on H.R.2920

On Mon­day, Decem­ber 11, 2017, I spoke with Con­gress­man Young about H.R.2920 (CARERS Act of 2017).  Con­gress­man Young is a co-spon­sor of H.R.2920, and he was a co-spon­sor of H.R.1538 (CARERS Act of 2015).

Both the 2015 and 2017 ver­sions of the CARERS Act:

  • rec­og­nize an exemp­tion from fed­er­al sched­ul­ing for state med­ical mar­i­jua­na pro­grams;
  • remove cannabid­i­ol from the def­i­n­i­tion of mar­i­jua­na, plac­ing it at the end of a list of exemp­tions for indus­tri­al hemp;
  • cre­ate a fed­er­al def­i­n­i­tion of cannabid­i­ol which is near­ly iden­ti­cal to the fed­er­al def­i­n­i­tion of hemp, 7 U.S.C. § 5940 (no more than 0.3 per­cent delta-9 tetrahy­dro­cannabi­nol on a dry weight basis); and
  • give Attor­ney Gen­er­al Jeff Ses­sions the right to deter­mine whether a state is in com­pli­ance with this new fed­er­al def­i­n­i­tion of cannabid­i­ol.

Beyond the fact that cre­at­ing an exemp­tion for state med­ical mar­i­jua­na pro­grams that does not include cannabid­i­ol seems con­tra­dic­to­ry, between 2015 and 2017 Iowa cre­at­ed a state def­i­n­i­tion of cannabid­i­ol that dif­fers sig­nif­i­cant­ly from the fed­er­al def­i­n­i­tion of hemp.

Iowa Code § 124E.2(6) (2017) defines cannabid­i­ol as “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” (3 per­cent is 10 times high­er than 0.3 per­cent and cannabid­i­ol is just one of over a hun­dred cannabi­noids found in the cannabis plant).

I asked Con­gress­man Young to amend the bill by remov­ing the ref­er­ences to cannabid­i­ol.  If the fed­er­al gov­ern­ment wants to make cannabid­i­ol a pre­scrip­tion drug, that’s fine.  But, cur­rent­ly there are no fed­er­al­ly approved cannabid­i­ol prod­ucts.  States must be able to define cannabidiol’s med­ical use with­in their own states.

The fed­er­al gov­ern­ment can­not have it both ways.  As the U.S. Supreme Court put it so elo­quent­ly in New York v. Unit­ed States, 505 U.S. 144, 161 (1992):

Con­gress may not sim­ply “com­man­deer the leg­isla­tive process­es of the States by direct­ly com­pelling them to enact and enforce a fed­er­al reg­u­la­to­ry pro­gram.” Hodel v. Vir­ginia Sur­face Min­ing & Recla­ma­tion Assn., Inc., 452 U.S. 264, 288 (1981).

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Iowa Code Chapter 124E Exempt from Federal Schedules

State law must address fed­er­al sched­ul­ing because of the phrase used in the fed­er­al statute as a pre-con­di­tion for place­ment in sched­ule 1 “cur­rent­ly accept­ed med­ical use in treat­ment in the Unit­ed States.”

The phrase “cur­rent­ly accept­ed med­ical use” is not defined in the fed­er­al statute.

Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991):

nei­ther the statute nor its leg­isla­tive his­to­ry pre­cise­ly defines the term “cur­rent­ly accept­ed med­ical use”

Col­orado has two exam­ples that high­light this sit­u­a­tion very well.

In 2010, Col­orado asked the DEA to resched­ule mar­i­jua­na to sched­ule 2 for phar­ma­ceu­ti­cal pur­pos­es.  See HB1284 at page 9, signed by the Gov­er­nor of Col­orado on June 7, 2010.

See C.R.S. 12–43.3–202(g) (2017):

In recog­ni­tion of the poten­tial med­i­c­i­nal val­ue of med­ical mar­i­jua­na, make a request by Jan­u­ary 1, 2012, to the fed­er­al drug enforce­ment admin­is­tra­tion to con­sid­er resched­ul­ing, for phar­ma­ceu­ti­cal pur­pos­es, med­ical mar­i­jua­na from a sched­ule I con­trolled sub­stance to a sched­ule II con­trolled sub­stance

That request should have demand­ed removal from sched­ule 1 based on “cur­rent­ly accept­ed med­ical use” in the Unit­ed States (Col­orado) as a mat­ter of con­sti­tu­tion­al law (fed­er­al­ism).

In 2015, the Col­orado Supreme Court decid­ed med­ical mar­i­jua­na is not legal in Col­orado because it remains in fed­er­al sched­ule 1.

Coats v. Dish Net­work, 350 P.3d 849, 850 (Col­orado 2015):

There­fore, an activ­i­ty such as med­ical mar­i­jua­na use that is unlaw­ful under fed­er­al law is not a “law­ful” activ­i­ty under sec­tion 24–34-402.5

Peo­ple v. Crouse, 388 P.3d 39, 43 (Col­orado 2017):

Con­sis­tent with our hold­ing in Coats, then, we again find that con­duct is “law­ful” only if it com­plies with both fed­er­al and state law

Please note that Bran­don Coats is a dis­abled para­plegic who thought his employ­ment was pro­tect­ed if he abid­ed by the terms of the state med­ical mar­i­jua­na law which the Col­orado vot­ers added to their state con­sti­tu­tion in 2000.

I’m not sure how much tech­ni­cal accu­ra­cy goes into a direct bal­lot ini­tia­tive amend­ing a state con­sti­tu­tion, but we can do bet­ter in Iowa.  When a state refus­es to claim state accept­ed med­ical use is exempt from sched­ule 1, it cre­ates a con­flict with sched­ule 1 which could have been avoid­ed.  If Col­orado had said state med­ical use is exempt from fed­er­al sched­ule 1, then the Col­orado Supreme Court would have had to deter­mine whether that is so.  Instead, the court just ruled it isn’t legal because the state did not chal­lenge fed­er­al sched­ule 1.  We should not repeat this mis­take here in Iowa.  Col­orado has nev­er includ­ed mar­i­jua­na in its state sched­ule 1, so state sched­ule 1 has nev­er been an issue in Col­orado.

If state med­ical use is exempt from sched­ule 1, then it is legal under both state and fed­er­al law.  If state med­ical use is not exempt, then sched­ule 1 is ille­gal as applied to the “cur­rent­ly accept­ed med­ical use” in the states.

Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 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

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

Iowa should say both things: (1) state accept­ed med­ical use is exempt from sched­ule 1; and (2) sched­ule 1 is invalid for any sub­stance with accept­ed med­ical use in any state.  Fed­er­al sched­ules are not bind­ing on the states, so a state could place mar­i­jua­na in state sched­ule 1 even if the fed­er­al admin­is­tra­tive agency entire­ly removed mar­i­jua­na from all of the fed­er­al sched­ules.  So, it’s quite easy to make the case that fed­er­al sched­ule 1 is unlaw­ful for mar­i­jua­na if even one state accepts mar­i­jua­na for med­ical use.  It does not deprive any state from find­ing mar­i­jua­na has no med­ical use in that state, although there are only four states that have not accept­ed any form of mar­i­jua­na for med­ical use.

What I am think­ing is that the eas­i­est thing for the Iowa leg­is­la­ture to do would be to add the same lan­guage to the statute that the Iowa Depart­ment of Pub­lic Health has includ­ed on the own­er cer­ti­fi­ca­tion form.

Or, at least start the dis­cus­sion with the lan­guage the Iowa Depar­ment of Pub­lic Health is using and then ask if it is suf­fi­cient.

Here is what the Iowa Depart­ment of Pub­lic Health has writ­ten on the own­er cer­ti­fi­ca­tion form:

any activ­i­ty not sanc­tioned by Iowa Code chap­ter 124E and pro­posed admin­is­tra­tive rules may be a vio­la­tion of state or fed­er­al law and could result in arrest, pros­e­cu­tion, con­vic­tion, or incar­cer­a­tion

https://drive.google.com/file/d/0B-cZdbYdPoLGSnZRQWtBUnFTd2c/view

The com­mon­ly accept­ed argu­ment is that the fed­er­al admin­is­tra­tive agency can inter­pret the mean­ing of “cur­rent­ly accept­ed med­ical use” because that was the court’s rul­ing in 1991/1994.  Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936 (D.C. Cir. 1991); Alliance for Cannabis Ther­a­peu­tics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).  How­ev­er, the 1994 fed­er­al court rul­ing has nev­er been recon­sid­ered by a fed­er­al court on the con­sti­tu­tion­al law issue of state laws defin­ing “cur­rent­ly accept­ed med­ical use.”  Cal­i­for­nia was the first state to accept the med­ical use of mar­i­jua­na in 1996.  A fed­er­al admin­is­tra­tive agency does not have the pow­er to nul­li­fy a state law with­out the express con­sent of Con­gress, which is total­ly lack­ing here.  The fed­er­al gov­ern­ment has nev­er sued a state for enact­ing a state med­ical mar­i­jua­na pro­gram.  So, how could it be a vio­la­tion of a fed­er­al statute?  Forty-six state have enact­ed laws accept­ing some form of mar­i­jua­na for med­ical use.  It would be absurd to imply those forty-six states intend­ed to autho­rize the vio­la­tion of a fed­er­al law.  When we vote for fed­er­al elect­ed offi­cials, we vote for them at a state vot­ing loca­tion.  There is no fed­er­al vot­ing booth.

A cur­rent Fed­er­al Avi­a­tion Admin­is­tra­tion reg­u­la­tion adopt­ed in 1973 real­ly hits the nail on the head:

https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=03efb7c1b34301bf39ff6d98084cdd45&rgn=div8&view=text&node=14:2.0.1.3.10.1.4.10&idno=14

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.

Any­one man­u­fac­tur­ing, dis­pens­ing, or con­sum­ing these prod­ucts here in Iowa should be able to sleep at night know­ing they are in full com­pli­ance with all applic­a­ble laws, both state and fed­er­al.  Let’s resolve this mat­ter in Jan­u­ary when the Iowa leg­is­la­ture recon­venes and not leave it for a dis­abled Iowa cit­i­zen to fight it out in court.

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Recognition of Extraordinary Work

Recog­ni­tion of Extra­or­di­nary Work

641 Iowa Admin­is­tra­tive Code 154
Rules 641—154.15(124E) to 641—154.65(124E)

Octo­ber 13, 2017

I would like to com­pli­ment the Iowa Depart­ment of Pub­lic Health for the extra­or­di­nar­i­ly good work it is doing imple­ment­ing the Med­ical Cannabid­i­ol Act.  2017 Iowa Acts 451, Chap­ter 162 (H.F. 524), Iowa Code § 124E (2017).

As I stat­ed in my com­ments on Sep­tem­ber 15, 2017, some­thing should be added to the Iowa statutes or the Iowa reg­u­la­tions (or both) regard­ing com­pli­ance with the exist­ing fed­er­al Con­trolled Sub­stances Act.  Title II of the Com­pre­hen­sive Drug Abuse Pre­ven­tion and Con­trol Act of 1970, Pub­lic law 91–513, 84 Stat. 1236, 1242, 21 U.S.C. ch. 13 §§ 801 et seq.

The U.S. Court of Appeals has clar­i­fied that the fed­er­al act does not define the term “med­ical use,” Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991) (“nei­ther the statute nor its leg­isla­tive his­to­ry pre­cise­ly defines the term ‘cur­rent­ly accept­ed med­ical use’”), and the U.S. Supreme Court has clar­i­fied that the term “med­ical use” under the fed­er­al act is defined by state statute.  Gon­za­les v. Ore­gon, 546 U.S. 243, 258 (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.

The Iowa Depart­ment of Pub­lic Health has flaw­less­ly inter­pret­ed state and fed­er­al law by includ­ing the fol­low­ing state­ment on the “Own­er Cer­ti­fi­ca­tion” form that all Iowa med­ical cannabid­i­ol man­u­fac­tur­ers and dis­pen­saries must sign:

I fur­ther acknowl­edge I have actu­al notice that, notwith­stand­ing any state law, Cannabis is a pro­hib­it­ed Sched­ule I con­trolled sub­stance under Fed­er­al law; any activ­i­ty not sanc­tioned by Iowa Code chap­ter 124E and pro­posed admin­is­tra­tive rules may be a vio­la­tion of state or fed­er­al law and could result in arrest, pros­e­cu­tion, con­vic­tion, or incar­cer­a­tion and that the $7,500 license appli­ca­tion fee is non-refund­able.

http://drive.google.com/file/d/0B-cZdbYdPoLGSnZRQWtBUnFTd2c/view?usp=sharing

This is an extreme­ly impor­tant detail.  This top­ic has come up again and again regard­ing fed­er­al law and state med­ical mar­i­jua­na pro­grams.  Oth­er states have failed to address it. We are clear­ly not autho­riz­ing fed­er­al crim­i­nal activ­i­ty in Iowa.

After sub­mit­ting my com­ments on Sep­tem­ber 15, 2017, I became aware of a fed­er­al trans­porta­tion reg­u­la­tion from 1973 that makes this abun­dant­ly clear.

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.

https://www.ecfr.gov/cgi-bin/text-idx?SID=2f570630a822fec80462ab1f3f4dc714&mc=true&node=se14.2.91_119&rgn=div8

Orig­i­nal­ly, §91.12.  Fed­er­al Reg­is­ter, Vol. 38, No. 126, Mon­day, July 2, 1973, p. 17493 (a copy is attached here­to).

Thank you for your prompt atten­tion to this mat­ter.

Carl Olsen, Exec­u­tive Direc­tor
Iowans for Med­ical Mar­i­jua­na, Iowa Busi­ness No. 334412
Post Office Box 41381, Des Moines, Iowa 50311–0507
http://www.iowamedicalmarijuana.org/

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Comments on Proposed Rules

Com­ments on Pro­posed Amend­ments to
641 Iowa Admin­is­tra­tive Code 154
Rules 641—154.15(124E) to 641—154.65(124E)
Sep­tem­ber 15, 2017

The Med­ical Cannabid­i­ol Act, 2017 Iowa Acts 451, Chap­ter 162 (H.F. 524), was signed into law on May 12, 2017, by Gov­er­nor Ter­ry E. Branstad.

Sec­tion 9(1) of the Act, Iowa Code § 124E.5(1) (2017), autho­rizes the Iowa Depart­ment of Pub­lic Health to issue a license to a “man­u­fac­tur­er” which allows cul­ti­va­tion and har­vest­ing of cannabis in Iowa.

Sec­tion 10(8) of the Act, Iowa Code § 124E.6(8) (2017), requires a “man­u­fac­tur­er own­er shall not have been con­vict­ed of a dis­qual­i­fy­ing felony offense.”  See, Sec­tion 5(4) of the Act, Iowa Code § 124E.2(4) (2017), ref­er­enc­ing 21 U.S.C. § 802(6).

Sec­tion 11(1) of the Act, Iowa Code § 124E.7(1) (2017), autho­rizes the Iowa Depart­ment of Pub­lic Health to issue a license to a “dis­pen­sary” which allows dis­tri­b­u­tion of cannabis prod­ucts in Iowa.

Sec­tion 12(8) of the Act, Iowa Code § 124E.8(8) (2017), requires a “dis­pen­sary own­er shall not have been con­vict­ed of a dis­qual­i­fy­ing felony offense.”  See, Sec­tion 5(4) of the Act, Iowa Code § 124E.2(4) (2017), ref­er­enc­ing 21 U.S.C. § 802(6).

As recent­ly as Sep­tem­ber 10, 2017, Speak­er of the Iowa House, Lin­da Upmey­er, is quot­ed in the Des Moines Reg­is­ter, stat­ing that the man­u­fac­ture and dis­tri­b­u­tion of cannabid­i­ol in Iowa is a fed­er­al felony offense.  Des Moines Reg­is­ter, Sep­tem­ber 10, 2017, “AG tells agency to halt part of Iowa’s med­ical mar­i­jua­na law.”[Foot­note 1]  Speak­er Upmey­er is quot­ed as stat­ing:

no mat­ter what the Leg­is­la­ture has decid­ed, the state still would have been in vio­la­tion of fed­er­al law

So, as stat­ed by Speak­er Upmey­er, a dis­qual­i­fy­ing offense dis­qual­i­fies some­one from par­tic­i­pat­ing in a dis­qual­i­fy­ing offense.  Accord­ing to Speak­er Upmey­er, the Iowa Depart­ment of Pub­lic Health will be licens­ing indi­vid­u­als to engage in dis­qual­i­fy­ing offens­es (con­tin­u­ing crim­i­nal enter­pris­es) that car­ry up to life in fed­er­al prison and fines of up to $50,000,000.[Foot­note 2]

Fed­er­al Reg­u­la­tions

Although this author dis­agrees with Speak­er Upmeyer’s asser­tion that H.F. 524 vio­lates fed­er­al law, this clear­ly demon­strates what we are about to step into.  The Iowa Med­ical Cannabid­i­ol Act of 2017 doesn’t explain how the intrastate man­u­fac­ture and dis­tri­b­u­tion of cannabid­i­ol prod­ucts is con­sis­tent with exist­ing fed­er­al law.

The Drug Enforce­ment Admin­is­tra­tion (DEA) has recent­ly pub­lished a notice in the Fed­er­al Reg­is­ter clar­i­fy­ing that cannabid­i­ol prod­ucts are fed­er­al sched­ule 1 con­trolled sub­stances.[Foot­note 3]  The DEA has fur­ther clar­i­fied that cannabid­i­ol prod­ucts are fed­er­al sched­ule 1 con­trolled sub­stances on its web­site.[Foot­note 4]

With­out a state­ment of com­pli­ance with exist­ing fed­er­al law, the rules the Iowa Depart­ment of Pub­lic Health is propos­ing will place man­u­fac­tur­ers and dis­trib­u­tors in extreme jeop­ardy, as well as the Iowa patients who will depend on them for their med­i­cine.  Speak­er Upmey­er has clear­ly warned you of the con­se­quences of leav­ing this mat­ter unset­tled.  The fact that she would even put her name on a piece of leg­is­la­tion she thinks vio­lates fed­er­al law is astound­ing.

The Iowa Depart­ment of Pub­lic Health can and must resolve this prob­lem which has been clear­ly artic­u­lat­ed by Speak­er Upmey­er.  The admin­is­tra­tive rules imple­ment­ing this leg­is­la­tion must address the con­cerns she has raised.

Please see this author’s pre­vi­ous com­ments from July 25, 2017, for a com­plete legal analy­sis explain­ing why state med­ical mar­i­jua­na pro­grams are con­sis­tent with exist­ing fed­er­al law and exempt from sched­ule 1.[Foot­note 5]

Con­clu­sion

The reg­u­la­tions imple­ment­ing H.F. 524 must include an expla­na­tion of com­pli­ance with exist­ing state and fed­er­al law.  This can’t be left to the imag­i­na­tion.  The Iowa Depart­ment of Pub­lic Health has the author­i­ty to take cor­rec­tive action by admin­is­tra­tive rule.  Each man­u­fac­tur­er and dis­pen­sary license must include a state­ment that the license immu­nizes the man­u­fac­tur­er or dis­pen­sary from fed­er­al pros­e­cu­tion that would result from the false assump­tion that intrastate med­ical use of mar­i­jua­na is includ­ed in sched­ule 1 of the state and fed­er­al con­trolled sub­stances acts.  H.F. 524 sat­is­fies both state and fed­er­al require­ments because it pro­vides a com­plete exemp­tion from state and fed­er­al sched­ule 1.

Thank you for your prompt atten­tion to this mat­ter.

Carl Olsen, Exec­u­tive Direc­tor
Iowans for Med­ical Mar­i­jua­na, Iowa Busi­ness No. 334412
Post Office Box 41381, Des Moines, Iowa 50311–0507
http://www.iowamedicalmarijuana.org/

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Comments on Proposed Rules

Com­ments on Pro­posed Amend­ments to
641 Iowa Admin­is­tra­tive Code 154
“Med­ical Cannabid­i­ol Act Reg­is­tra­tion Card Pro­gram”
July 25, 2017

The Med­ical Cannabid­i­ol Act, 2017 Iowa Acts 451, Chap­ter 162 (H.F. 524), was signed into law on May 12, 2017, by Gov­er­nor Ter­ry E. Branstad.

Sec­tion 7(1) of the Act, Iowa Code § 124E.4(1) (2017), autho­rizes the Iowa Depart­ment of Pub­lic Health to issue a reg­is­tra­tion card to a “patient” which then pro­vides that patient with an “affir­ma­tive defense” for the pos­ses­sion of cannabid­i­ol prod­ucts in Iowa.  See Sec­tion 15(4)(a) of the Act, Iowa Code § 124E.11(4)(a) (2017).

Sec­tion 7(3) of the Act, Iowa Code § 124E.4(3) (2017), autho­rizes the Iowa Depart­ment of Pub­lic Health to issue a reg­is­tra­tion card to a “pri­ma­ry care­giv­er” which then pro­vides that pri­ma­ry care­giv­er with an “affir­ma­tive defense” for the pos­ses­sion of cannabid­i­ol prod­ucts in Iowa.  See Sec­tion 15(4)(b) of the Act, Iowa Code § 124E.11(4)(b) (2017).

Fed­er­al Reg­u­la­tions

The Iowa Med­ical Cannabid­i­ol Act of 2017 does not explain how pos­ses­sion of cannabid­i­ol prod­ucts is con­sis­tent with exist­ing fed­er­al reg­u­la­tions.

The Drug Enforce­ment Admin­is­tra­tion (DEA) has recent­ly pub­lished a notice in the Fed­er­al Reg­is­ter clar­i­fy­ing that cannabid­i­ol prod­ucts are fed­er­al sched­ule 1 con­trolled sub­stances.[1]  The DEA has fur­ther clar­i­fied that cannabid­i­ol prod­ucts are fed­er­al sched­ule 1 con­trolled sub­stances on its web­site.[2]

Attached to this doc­u­ment are two let­ters from the Iowa Board of Phar­ma­cy dat­ed May 31, 2017, and June 7, 2017, con­firm­ing that cannabid­i­ol prod­ucts are both fed­er­al and state sched­ule 1 con­trolled sub­stances.

There are no fed­er­al­ly approved cannabid­i­ol prod­ucts.  With­out an expla­na­tion in the rules the Iowa Depart­ment of Pub­lic Health is propos­ing, Iowa patients are left fac­ing a poten­tial haz­ard.

This doc­u­ment explains why the Iowa Depart­ment of Pub­lic Health must resolve any incon­sis­ten­cy or doubt by admin­is­tra­tive rule.

Fed­er­al Penal­ties

The Fed­er­al penal­ties for pos­sess­ing cannabid­i­ol prod­ucts are quite severe, with penal­ties rang­ing from 1 to 3 years in fed­er­al prison and fines rang­ing from $1,000 to $5,000.[3]

Fed­er­al Enforce­ment Pol­i­cy

While Iowa House Speak­er Lin­da Upmey­er has sug­gest­ed that fed­er­al enforce­ment pol­i­cy might con­tin­ue to over­look state med­ical mar­i­jua­na pro­grams, recent state­ments from the Unit­ed States Attor­ney Gen­er­al, Jeff Ses­sions, have indi­cat­ed oth­er­wise.[4]

Dis­abled Amer­i­cans have been Neg­a­tive­ly Impact­ed

Because of the con­sis­tent fail­ure of state laws and reg­u­la­tions to address fed­er­al reg­u­la­tions appro­pri­ate­ly, dis­abled Amer­i­cans have been severe­ly and neg­a­tive­ly impact­ed.

The Supreme Court of Col­orado recent­ly reject­ed an employ­ment dis­crim­i­na­tion claim by a severe­ly dis­abled per­son.  Coats v. Dish Net­work, 350 P.3d 849, 850 (Col­orado 2015) (“an activ­i­ty such as med­ical mar­i­jua­na use that is unlaw­ful under fed­er­al law is not a ‘law­ful’ activ­i­ty under sec­tion 24–34-402.5”); Peo­ple v. Crouse, 388 P.3d 39, 43 (Col­orado 2017) (“Con­sis­tent with our hold­ing in Coats, then, we again find that con­duct is ‘law­ful’ only if it com­plies with both fed­er­al and state law.”)

And see Gon­za­les v. Raich, 545 U.S. 1 (2015) (pos­ses­sion of mar­i­jua­na for med­ical use under state pro­gram unlaw­ful under fed­er­al clas­si­fi­ca­tion), while not­ing marijuana’s fed­er­al sched­ule 1 clas­si­fi­ca­tion may be invalid, 545 U.S., at 28 n.37; and see Casias v. Wal­mart, 695 F.3d 428 (6th Cir. 2012) (dis­crim­i­na­tion in employ­ment allowed against par­tic­i­pant in state med­ical mar­i­jua­na pro­gram); and see James v. Cos­ta Mesa, 700 F.3d 394 (9th Cir. 2012) (Amer­i­cans with Dis­abil­i­ties Act does not pro­tect par­tic­i­pa­tion in state med­ical mar­i­jua­na pro­gram).

The Iowa Med­ical Cannabid­i­ol Act of 2017 gives the Iowa Depart­ment of Pub­lic Health suf­fi­cient author­i­ty to resolve this poten­tial haz­ard by admin­is­tra­tive rule.   State med­ical mar­i­jua­na pro­grams are law­ful under fed­er­al law.  The fed­er­al drug act was nev­er intend­ed to pre­vent the med­ical use of con­trolled sub­stances.  The fed­er­al drug act is intend­ed to pre­vent the abuse, not the autho­rized med­ical use, of con­trolled sub­stances.

As we have not­ed before, the CSA “repealed most of the ear­li­er antidrug laws in favor of a com­pre­hen­sive regime to com­bat the inter­na­tion­al and inter­state traf­fic in illic­it drugs.” Raich, 545 U.S., at 12.  In doing so, Con­gress sought to “con­quer drug abuse and to con­trol the legit­i­mate and ille­git­i­mate traf­fic in con­trolled sub­stances.”  Ibid.  It comes as lit­tle sur­prise, then, that we have not con­sid­ered the extent to which the CSA reg­u­lates med­ical prac­tice beyond pro­hibit­ing a doc­tor from act­ing as a drug “‘push­er’” instead of a physi­cian.  Moore, 423 U.S., at 143.

Gon­za­les v. Ore­gon, 546 U.S. 243, 269 (2006).

Fed­er­al Law

States do not sur­ren­der their sov­er­eign­ty when they become mem­bers of the union (“unit­ed states”).

Con­gress may not sim­ply “com­man­deer the leg­isla­tive process­es of the States by direct­ly com­pelling them to enact and enforce a fed­er­al reg­u­la­to­ry pro­gram.”  Hodel v. Vir­ginia Sur­face Min­ing & Recla­ma­tion Assn., Inc., 452 U.S. 264, 288 (1981).

New York v. Unit­ed States, 505 U.S. 144, 161 (1992).  Fed­er­al law does not pro­hib­it the state from accept­ing the med­ical use of a con­trolled sub­stance, and fed­er­al reg­u­la­tions must main­tain that same bal­ance.  What seems like a para­dox is a ques­tion of bal­ance between state and fed­er­al law.

Fed­er­al drug law was writ­ten to pro­vide flex­i­bil­i­ty in the clas­si­fi­ca­tion of con­trolled sub­stances.  Mar­i­jua­na is cur­rent­ly clas­si­fied as a sub­stance with no accept­ed med­ical use in the Unit­ed States.  States have a sig­nif­i­cant role in fed­er­al clas­si­fi­ca­tion.[5]

See 21 U.S.C. § 903 (2017):

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.

(Pub. L. 91–513, title II, § 708, Oct. 27, 1970, 84 Stat. 1284.)

Marijuana’s place­ment in fed­er­al sched­ule 1 depends on whether the DEA’s inter­pre­ta­tion of the statu­to­ry lan­guage “cur­rent­ly accept­ed med­ical use in treat­ment in the Unit­ed States” is law­ful.  The DEA adopt­ed its cur­rent inter­pre­ta­tion in 1992.  A fed­er­al appel­late court upheld the DEA’s inter­pre­ta­tion of that lan­guage in 1994, two years before any state had accept­ed the med­ical use of mar­i­jua­na.  See Alliance for Cannabis Ther­a­peu­tics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).

Let that sink in for a moment.  Marijuana’s cur­rent place­ment in fed­er­al sched­ule 1 is based upon a fed­er­al admin­is­tra­tive deci­sion in 1992, affirmed by a fed­er­al appel­late court in 1994, deter­min­ing that mar­i­jua­na had no accept­ed med­ical use in the Unit­ed States at the time it made the deci­sion, just two years before any state had accept­ed mar­i­jua­na for med­ical use, begin­ning in 1996.

Ini­tial Clas­si­fi­ca­tion by Con­gress

The Nation­al Com­mis­sion on Mar­i­hua­na and Drug Abuse was cre­at­ed by the Con­trolled Sub­stances Act of 1970, Pub­lic Law 91–513, to study the ques­tion of mar­i­jua­na abuse in the Unit­ed States.  While the Con­trolled Sub­stances Act was being draft­ed in a House com­mit­tee in 1970, Assis­tant Sec­re­tary of Health Roger O. Ege­berg had rec­om­mend­ed that mar­i­jua­na tem­porar­i­ly be placed in sched­ule I, 21 U.S.C. § 812©, Sched­ule 1©(10) (1970), the most restric­tive cat­e­go­ry of drugs, pend­ing the Commission’s report.  On March 22, 1972, the Commission’s chair­man, Ray­mond P. Shafer, pre­sent­ed a report to Con­gress and the pub­lic enti­tled “Mar­i­hua­na, A Sig­nal of Mis­un­der­stand­ing,” which favored end­ing mar­i­jua­na pro­hi­bi­tion and adopt­ing oth­er meth­ods to dis­cour­age use.  No action was tak­en on the commission’s report and mar­i­jua­na has remained in fed­er­al sched­ule 1 since that time.

Duty to Update the Clas­si­fi­ca­tion

DEA is required to update the clas­si­fi­ca­tions annu­al­ly as nec­es­sary.  See 21 U.S.C. § 812(a) (1970).  The Attor­ney Gen­er­al of the Unit­ed States, in con­junc­tion with the Sec­re­tary of Health and Human Ser­vices, may add sub­stances to, trans­fer sub­stances between, or remove sub­stances from the clas­si­fi­ca­tions.  See 21 U.S.C. § 811(a) (1970).  The Drug Enforce­ment Admin­is­tra­tion (DEA) has been del­e­gat­ed by the Depart­ment of Jus­tice to per­form this func­tion for the Attor­ney Gen­er­al, in con­junc­tion with the Food and Drug Admin­is­tra­tion which has been del­e­gat­ed by the Depart­ment of Health and Human Ser­vices to per­form its respon­si­bil­i­ties under the act.  See 21 U.S.C. § 811(b) (1970).

Con­tex­tu­al Analy­sis

The Med­ical Cannabid­i­ol Act of 2017 rec­og­nizes and accepts a med­ical use for the mar­i­jua­na plant in the state of Iowa.  Sec­tion 5(6) of the Act, Iowa Code § 124E.2(6) (2017):

Med­ical cannabid­i­ol” means 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.

(empha­sis added).

A fed­er­al reg­u­la­tion (sched­ule 1) says mar­i­jua­na has no accept­ed med­ical use in the states.  See 21 C.F.R. § 1308.11(d)(22)(2017).  The out­dat­ed fed­er­al reg­u­la­tion has not been updat­ed since 1994, when mar­i­jua­na actu­al­ly had no accept­ed med­ical use in any state.  The peo­ple of Iowa have now accept­ed the med­ical use of mar­i­jua­na in 2017.  Iowa is a state in the union (“in the Unit­ed States”).  The state of Iowa is not autho­riz­ing the “abuse” of mar­i­jua­na.  The state of Iowa is autho­riz­ing “med­ical use” of mar­i­jua­na.

Before mar­i­jua­na became accept­ed for med­ical use in any state, fed­er­al courts con­sid­er­ing this mat­ter deter­mined that Con­gress did not define the term “cur­rent­ly accept­ed med­ical use,” and that accept­ed med­ical use in the Unit­ed States can be sole­ly intrastate with­out any fed­er­al approval for inter­state mar­ket­ing.  The best evi­dence of “accept­ed” med­ical use in the Unit­ed States is a state law accept­ing the med­ical use of mar­i­jua­na.  Accept­ed med­ical use that is sole­ly intrastate is with­in the mean­ing of “cur­rent­ly accept­ed med­ical use” under exist­ing fed­er­al law.

Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987):

We add, more­over, that the Administrator’s clever argu­ment con­ve­nient­ly omits any ref­er­ence to the fact that the per­ti­nent phrase in sec­tion 812(b)(1)(B) reads “in the Unit­ed States,” (empha­sis sup­plied).  We find this lan­guage to be fur­ther evi­dence that the 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, 887 (1st Cir. 1987):

Unlike the CSA sched­ul­ing restric­tions, the FDCA inter­state mar­ket­ing pro­vi­sions do not apply to drugs man­u­fac­tured and mar­ket­ed whol­ly intrastate.  Com­pare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a).  Thus, it is pos­si­ble that a sub­stance may have both an accept­ed med­ical use and safe­ty for use under med­ical super­vi­sion, even though no one has deemed it nec­es­sary to seek approval for inter­state mar­ket­ing.

After the rul­ing in Grin­spoon, the fed­er­al courts and the DEA began to address the ques­tion of how the DEA deter­mines whether a con­trolled sub­stance has accept­ed med­ical use in the Unit­ed States.

Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991):

The dif­fi­cul­ty we find in peti­tion­ers’ argu­ment is that nei­ther the statute nor its leg­isla­tive his­to­ry pre­cise­ly defines the term “cur­rent­ly accept­ed med­ical use”; there­fore, we are oblig­ed to defer to the Administrator’s inter­pre­ta­tion of that phrase if rea­son­able.

In 1992, the DEA acknowl­edged that Con­gress did not autho­rize the DEA to decide whether the states can or should accept the med­ical use of mar­i­jua­na.  The DEA can only acknowl­edge the deci­sion “oth­ers” have made.

Mar­i­jua­na Sched­ul­ing Peti­tion, DEA Dock­et No. 86–22, 57 Fed. Reg. 10499 (March 26, 1992) 10506:

Clear­ly, the Con­trolled Sub­stances Act does not autho­rize the Attor­ney Gen­er­al, nor by del­e­ga­tion the DEA Admin­is­tra­tor, to make the ulti­mate med­ical and pol­i­cy deci­sion as to whether a drug should be used as med­i­cine.  Instead, he is lim­it­ed to deter­min­ing whether oth­ers accept a drug for med­ical use.  Any oth­er con­struc­tion would have the effect of read­ing the word “accept­ed” out of the statu­to­ry stan­dard.

It would be strange indeed if “oth­ers” did not include states.  We are a nation of laws.  State med­ical mar­i­jua­na laws are proof beyond any doubt that mar­i­jua­na has accept­ed med­ical use in the Unit­ed States.  Opin­ions don’t mat­ter; but laws do.  It is not rea­son­able, or law­ful, for the DEA to reject state laws as evi­dence of “accept­ed” med­ical use.

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

State Law

The Iowa Med­ical Cannabid­i­ol Act of 2017, H.F. 524, Sec­tion 5(6), Iowa Code § 124E.2(6) (2017), defines “med­ical cannabid­i­ol” as a “phar­ma­ceu­ti­cal grade cannabi­noid found the plant Cannabis.”  The Act specif­i­cal­ly autho­rizes the cul­ti­va­tion and har­vest­ing of mar­i­jua­na plants to make med­ical cannabid­i­ol prod­ucts.  See H.F. 524, Sec­tion 9(1)(a), Iowa Code § 124E.5(1)(a) (2017).

Iowa has deter­mined that there is an “accept­ed” med­ical use for mar­i­jua­na and the fed­er­al courts have deter­mined that state laws accept­ing the med­ical use of a con­trolled sub­stance are har­mo­nious with the fed­er­al Con­trolled Sub­stances Act.  The Iowa leg­is­la­ture hasn’t includ­ed this state­ment of com­pli­ance with exist­ing fed­er­al law in the Med­ical Cannabid­i­ol Act.  A state­ment of com­pli­ance needs to be includ­ed in 641 IAC 154 so that patients and their fam­i­lies are not left in doubt about their legal sta­tus and per­son­al safe­ty.

The Ele­phant in the Room

Con­gress, we have held, does not alter the fun­da­men­tal details of a reg­u­la­to­ry scheme in vague terms or ancil­lary pro­vi­sions – it does not, one might say, hide ele­phants in mouse­holes.” Whit­man v. Amer­i­can Truck­ing Assns., Inc., 531 U.S. 457, 468 (2001).

Gon­za­les v. Ore­gon, 546 U.S. 243, 267 (2006):

H.F. 524 also fails to remove mar­i­jua­na from Iowa sched­ule 1.  Iowa sched­ule 1, like it’s fed­er­al coun­ter­part, says mar­i­jua­na has no accept­ed med­ical use in treat­ment in the Unit­ed States (unless the Iowa Board of Phar­ma­cy says it does by an admin­is­tra­tive rule).  Iowa Code § 124.204(4)(m) (2017); Iowa Code § 124.203(1)(b) (2017).  State law, H.F. 524, now says mar­i­jua­na does have an accept­ed med­ical use in the state.

In 2010, the Iowa Board of Phar­ma­cy, which is autho­rized by law to make rec­om­men­da­tions to the leg­is­la­ture pur­suant to Iowa Code § 124.201 (2017), rec­om­mend­ed that mar­i­jua­na be removed from Iowa sched­ule 1.

Attached to this doc­u­ment is the Feb­ru­ary of 2010 rec­om­men­da­tion from the Iowa Board of Phar­ma­cy, the Feb­ru­ary of 2010 press release from the Iowa Depart­ment of Pub­lic Health, and the leg­is­la­tion that was pre-filed in Decem­ber of 2010 by the depart­ment and the board in the 84th Gen­er­al Assem­bly (2011–2012) of Iowa.

Mov­ing for­ward with­out address­ing marijuana’s clas­si­fi­ca­tion in sched­ule 1 can and will have trag­ic con­se­quences.

The Iowa Sen­ate bill, S.F. 506, that passed by a vote of 45–5 on April 17, 2017, in the Iowa Sen­ate, includ­ed the Iowa Board of Pharmacy’s rec­om­men­da­tion from Feb­ru­ary 17, 2010, rec­om­mend­ing the removal of mar­i­jua­na from sched­ule 1.  The House ver­sion did not include the board’s rec­om­men­da­tion.  The House ver­sion, H.F. 524, wasn’t made pub­licly avail­able until 3:00 a.m. on the morn­ing of the day after the leg­is­la­ture was sched­uled to adjourn for the year on April 21, 2017.  H.F. 524 passed in the Iowa House at 5:30 a.m. on April 22, 2017, and in the Iowa Sen­ate at 6:30 a.m. on April 22, 2017.  The House ver­sion was not care­ful­ly vet­ted.

Com­par­ing Clas­si­fi­ca­tions

Both state and fed­er­al drugs laws reveal that we do not put plants with med­ical use in sched­ule 1.[6]

Mar­i­jua­na has Med­ical Use in 46 States

Since 1996, four years after the DEA issued it inter­pre­tive rule in 1992, thir­ty states have accept­ed the med­ical use of mar­i­jua­na, and anoth­er six­teen states have accept­ed the med­ical use of a mar­i­jua­na extract (cannabid­i­ol), bring­ing the total to 46 out of 50 states now depend­ing on mar­i­jua­na plants for med­ical use or for mak­ing extracts for med­ical use.  In addi­tion, DC, Puer­to Rico, and Guam have accept­ed the med­ical use of mar­i­jua­na.

See Nation­al Con­fer­ence of State Leg­is­la­tures, July 7, 2017, State Med­ical Mar­i­jua­na Laws:

http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx

Con­clu­sion

Reg­u­la­tions must include an expla­na­tion of com­pli­ance with exist­ing state and fed­er­al laws.  This can’t be left to the imag­i­na­tion.  Fail­ure to address clas­si­fi­ca­tion of mar­i­jua­na in H.F. 524 leaves Iowa patients and their loved ones at risk of los­ing access to med­ical cannabid­i­ol and fac­ing severe fed­er­al penal­ties.  The Iowa Depart­ment of Pub­lic Health has the author­i­ty to take cor­rec­tive action by admin­is­tra­tive rule.  Each med­ical cannabid­i­ol reg­is­tra­tion card must include a state­ment that the card immu­nizes the patient and/or care­giv­er from fed­er­al pros­e­cu­tion that would result from the false assump­tion that mar­i­jua­na is law­ful­ly clas­si­fied as a sched­ule 1 sub­stance.  The Iowa Board of Phar­ma­cy has the author­i­ty to fix the state clas­si­fi­ca­tion because it has the author­i­ty to reclas­si­fy mar­i­jua­na by admin­is­tra­tive rule[7].  H.F. 524 sat­is­fies fed­er­al require­ments because it nul­li­fies fed­er­al sched­ule 1 (either on its face, or as applied).

Thank you for your prompt atten­tion to this mat­ter.

Carl Olsen, Exec­u­tive Direc­tor
Iowans for Med­ical Mar­i­jua­na, Iowa Busi­ness No. 334412
Post Office Box 41381, Des Moines, Iowa 50311–0507
http://www.iowamedicalmarijuana.org/

[1] Fed­er­al Reg­is­ter
Vol.81, No. 240, Wednes­day, Decem­ber 14, 2016, pp. 90194–90196.

[2] DEA Clar­i­fi­ca­tion on Cannabid­i­ol
https://www.deadiversion.usdoj.gov/schedules/marijuana/m_extract_7350.html

[3] Fed­er­al Penal­ties

21 U.S.C. § 844(a) (2017)
First offense
$1,000 fine – up to one year in prison
21 U.S.C. § 844(a) (2017)
Sec­ond offense
$2,500 fine – up to two years in prison
21 U.S.C. § 844(a) (2017)
Third and sub­se­quent offense
$5,000 fine – up to three years in prison

[4] Media Reports

March 27, 2017, KGLO Radio, Mason City, Iowa, “Upmey­er says leg­is­la­tors work­ing on med­ical mar­i­jua­na issue.”
June 13, 2017, The Cannabist, an edi­tion of the Den­ver Post, Den­ver, Col­orado, “Jeff Ses­sions has asked Con­gress to allow him to pros­e­cute med­ical mar­i­jua­na providers.”
June 16, 2017, Globe Gazette, Mason City, Iowa, “Ses­sions wants flex­i­bil­i­ty to pros­e­cute Iowa med­ical mar­i­jua­na pro­gram.”
June 23, 2017, Quad City Times, Dav­en­port, Iowa, “Edi­to­r­i­al: Jeff Ses­sions eyes pot crack­down on Iowa, Illi­nois.”

[5] Fed­er­al Clas­si­fi­ca­tions

Sched­ule 1
21 U.S.C. § 812(b)(1) (2017)
no med­ical use and high poten­tial for abuse with­out con­sid­er­a­tion for phys­i­cal or psy­cho­log­i­cal depen­dence.
Sched­ule 2
21 U.S.C. § 812(b)(2) (2017)
med­ical use with high poten­tial for abuse with phys­i­cal depen­dence and high psy­cho­log­i­cal depen­dence.
Sched­ule 3
21 U.S.C. § 812(b)(3) (2017)
med­ical use with low to mod­er­ate phys­i­cal depen­dence and high psy­cho­log­i­cal depen­dence.
Sched­ule 4
21 U.S.C. § 812(b)(4) (2017)
med­ical use with phys­i­cal depen­dence and psy­cho­log­i­cal depen­dence less than sched­ule 3.
Sched­ule 5
21 U.S.C. § 812(b)(5) (2017)
med­ical use with phys­i­cal depen­dence and psy­cho­log­i­cal depen­dence less than sched­ule 4.

[6] Clas­si­fi­ca­tion Com­par­isons

Sched­ule 1
Iowa Code § 124.204(4)(m) (2017) Mar­i­jua­na
Sched­ule 2
Iowa Code § 124.206(2)(a)(1) (2017) Raw Opi­um
Iowa Code § 124.206(2)(a)(7) (2017) Codeine
Iowa Code § 124.206(2)(a)(10) (2017) Hydrocodone
Iowa Code § 124.206(2)(a)(13) (2017) Mor­phine
Iowa Code § 124.206(2)© (2017) Opi­um Pop­py and Pop­py Straw
Sched­ule 3
Iowa Code § 124.208(5)(a)(1) (2017) Codeine
Iowa Code § 124.208(5)(a)(2) (2017) Codeine
Iowa Code § 124.208(5)(a)(3) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(4) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(5) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(7) (2017) Opi­um
Sched­ule 5
Iowa Code § 124.212(2)(a) (2017) Codeine
Iowa Code § 124.212(2)(b) (2017) Hydrocodone
Iowa Code § 124.212(2)(e) (2017) Opi­um

[7] Iowa Board of Phar­ma­cy

Iowa Code § 124.204 (2017)
Sched­ule I.
4. Hal­lu­cino­genic sub­stances.
m. Mar­i­jua­na, except as oth­er­wise pro­vid­ed by rules of the board for med­i­c­i­nal pur­pos­es.

Iowa Code § 124.206 (2017)
Sched­ule II.
7. Hal­lu­cino­genic sub­stances.
a. Mar­i­jua­na when used for med­i­c­i­nal pur­pos­es pur­suant to rules of the board.

(empha­sis added).  See State v. Bon­jour, 694 N.W.2d 511 (Iowa 2005), for the his­to­ry of this author­i­ty.

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Overlooking the Medical Boards

Rep. Jarad Klein

Rep. Jarad Klein

July 2, 2017

Jarad Klein
Keo­ta, Iowa

Dear Rep. Klein,

Thank you for your work in expand­ing the Iowa Med­ical Cannabid­i­ol Act in 2017.  While Iowans for Med­ical Mar­i­jua­na (Iowa Busi­ness No. 334412) is con­cerned the pro­gram does not go far enough, pro­duc­tion of CBD in Iowa is a huge step for­ward.

As you men­tion in your inter­view with KCII Radio, Wash­ing­ton, IA, on June 30, the new Med­ical Cannabid­i­ol Advi­so­ry Board can rec­om­mend expan­sion of the pro­gram.  Pro­duc­tion in Iowa is the cor­ner­stone that makes it all pos­si­ble.

You also men­tion in your inter­view that the Med­ical Cannabid­i­ol Advi­so­ry Board is often over­looked by crit­ics of the pro­gram.  I would like to point out that the Iowa Board of Phar­ma­cy has also been over­looked through­out this process.  There is a pat­tern here that deserves your atten­tion.

In 2010, the Iowa Board of Phar­ma­cy rec­om­mend­ed the reclas­si­fi­ca­tion of mar­i­jua­na as a sub­stance with accept­ed med­ical use in the Unit­ed States.  The author­i­ty for their rec­om­men­da­tion can be found in Iowa Code § 124.201 (2017), and the require­ment that sub­stances clas­si­fied in sched­ule 1 must have no med­ical use in the Unit­ed States is found in Iowa Code § 124.203 (2017).

I have includ­ed the phar­ma­cy board’s rec­om­men­da­tion from Feb­ru­ary 17, 2010, and the leg­is­la­tion the board filed in 2011, to refresh your mem­o­ry.

It’s cer­tain­ly an emp­ty promise if the phar­ma­cy board’s rec­om­men­da­tions are not tak­en seri­ous­ly.  That could be the rea­son peo­ple are over­look­ing the sig­nif­i­cance of this new board now.  We can keep cre­at­ing boards, but the boards don’t mean much with­out seri­ous con­sid­er­a­tion of their rec­om­men­da­tions.

I do real­ize that pro­duc­tion of CBD in Iowa has been the biggest obsta­cle we’ve had to over­come.  I also real­ize the phar­ma­cy board’s rec­om­men­da­tion may have been pre­ma­ture.

How­ev­er, now that we have agreed on pro­duc­tion of CBD in Iowa, let’s get this plant out of sched­ule 1 so we are not mak­ing med­i­cine from a plant clas­si­fied as hav­ing no med­ical use in the Unit­ed States.  Forty-six states have accept­ed the mar­i­jua­na plant for med­ical use or extracts[1] from the plant as med­i­cine.  Either way, the plant is essen­tial in all forty-six states.

Com­pare this to mor­phine pro­duced from opi­um plants, or cocaine pro­duced from coca plants.  Opi­um plants and coca plants are not in sched­ule 1 and have nev­er been in sched­ule 1, show­ing a leg­isla­tive intent at the time these laws were cre­at­ed to exclude plants with med­ical use from sched­ule 1.

It’s time to fix the clas­si­fi­ca­tion.

Thank you for lis­ten­ing!

Sin­cere­ly,

Carl Olsen
http://iowamedicalmarijuana.org/

[1] CBD is one of many cannabi­noids.  State laws vary on the lev­el of THC that is allowed in a CBD prod­uct, but they don’t spec­i­fy any lev­els for the oth­er cannabi­noids.  These prod­ucts are referred to as “mar­i­jua­na extracts.”

Attach­ments

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The Elephant We Don’t Talk About

Iowans for Med­ical Mar­i­jua­na

The Iowa Med­ical Cannabid­i­ol Act of 2017
(and the ele­phant in the room we don’t want to talk about)

June 26, 2017

On April 22, 2017, the Iowa leg­is­la­ture passed the Med­ical Cannabid­i­ol Act, H.F. 524.  The Med­ical Cannabid­i­ol Act of 2017 was signed into law on May 12, 2017, by Gov­er­nor Ter­ry E. Branstad.

Sec­tion 9(1)(a) of the Act, Iowa Code § 124E.5(1)(a) (2017), autho­rizes the Iowa Depart­ment of Pub­lic Health to license “up to two med­ical cannabid­i­ol man­u­fac­tur­ers to man­u­fac­ture and to pos­sess, cul­ti­vate, har­vest, trans­port, pack­age, process, or sup­ply med­ical cannabid­i­ol with­in this state.”

What the Med­ical Cannabid­i­ol Act of 2017 fails to men­tion is whether grow­ing mar­i­jua­na to man­u­fac­ture cannabis prod­ucts is con­sis­tent with exist­ing fed­er­al law.  Penal­ties for grow­ing cannabis are quite severe, with penal­ties rang­ing from 5 years in prison to a pos­si­ble life sen­tence and fines rang­ing from $250,000 to $50 mil­lion.[1]

While Iowa House Speak­er Lin­da Upmey­er has sug­gest­ed that fed­er­al pol­i­cy might con­tin­ue to over­look state med­ical mar­i­jua­na pro­grams under the Trump Admin­is­tra­tion, recent state­ments from the Unit­ed States Attor­ney Gen­er­al, Jeff Ses­sions, have indi­cat­ed oth­er­wise.[2]

Recent rul­ings from the Supreme Court of Col­orado high­light this incon­sis­ten­cy.  Coats v. Dish Net­work, 350 P.3d 849, 850 (Col­orado 2015) (“an activ­i­ty such as med­ical mar­i­jua­na use that is unlaw­ful under fed­er­al law is not a ‘law­ful’ activ­i­ty under sec­tion 24–34-402.5”); Peo­ple v. Crouse, 388 P.3d 39, 43 (Col­orado 2017) (“Con­sis­tent with our hold­ing in Coats, then, we again find that con­duct is ‘law­ful’ only if it com­plies with both fed­er­al and state law.”)

 

Fed­er­al Law

Fed­er­al law does not pro­hib­it the med­ical use of mar­i­jua­na.  Fed­er­al law depends upon the clas­si­fi­ca­tion a con­trolled sub­stance is placed in.  Ini­tial place­ment of mar­i­jua­na was decid­ed by Con­gress in 1970, but cur­rent place­ment of mar­i­jua­na is an admin­is­tra­tive process under fed­er­al law.[3]

 

Ini­tial Clas­si­fi­ca­tion of Mar­i­jua­na by Con­gress

The Con­trolled Sub­stances Act of 1970, Pub­lic Law 91–513, cre­at­ed the Nation­al Com­mis­sion on Mar­i­hua­na and Drug Abuse to study mar­i­jua­na abuse in the Unit­ed States.  While the Con­trolled Sub­stances Act was being draft­ed in a House com­mit­tee in 1970, Assis­tant Sec­re­tary of Health Roger O. Ege­berg had rec­om­mend­ed that mar­i­jua­na tem­porar­i­ly be placed in Sched­ule I, the most restric­tive cat­e­go­ry of drugs, pend­ing the Commission’s report.  See 21 U.S.C. § 812©, Sched­ule 1©(10) (1970).  On March 22, 1972, the Commission’s chair­man, Ray­mond P. Shafer, pre­sent­ed a report to Con­gress and the pub­lic enti­tled “Mar­i­hua­na, A Sig­nal of Mis­un­der­stand­ing,” which favored end­ing mar­i­jua­na pro­hi­bi­tion and adopt­ing oth­er meth­ods to dis­cour­age use.

 

Fed­er­al Admin­is­tra­tive Process

Con­gress autho­rized the Attor­ney Gen­er­al to keep the clas­si­fi­ca­tions cur­rent.  The Attor­ney Gen­er­al of the Unit­ed States, in con­junc­tion with the Sec­re­tary of Health and Human Ser­vices, may add sub­stances to, trans­fer sub­stances between, or remove sub­stances from the clas­si­fi­ca­tions.  See 21 U.S.C. § 811(a) (1970).  The Drug Enforce­ment Admin­is­tra­tion is del­e­gat­ed by the Depart­ment of Jus­tice to per­form this func­tion, in con­junc­tion with the Food and Drug Admin­is­tra­tion which is del­e­gat­ed by the Depart­ment of Health and Human Ser­vices for this pur­pose.  See 21 U.S.C. § 811(b) (1970).

 

Fed­er­al­ism

The U.S. Con­sti­tu­tion, as well as the Iowa Con­sti­tu­tion, divides our gov­ern­ment into three branch­es.  The leg­isla­tive branch makes the laws.  The exec­u­tive branch enforces the laws.  The judi­cial branch resolves ques­tions about the con­sti­tu­tion­al­i­ty of a law and can over­rule a law in whole or in part.  The judi­cial branch can also enforce cor­rec­tive action if the exec­u­tive branch (an admin­is­tra­tive agency or the chief exec­u­tive) does not inter­pret the law cor­rect­ly.

Fed­er­al­ism is the oth­er fun­da­men­tal prin­ci­ple in our dual sys­tem of gov­ern­ment.  The states gave up some of their author­i­ty in order to form the fed­er­al union and the fed­er­al union must respect the indi­vid­ual sov­er­eign­ty of the states.  In every sit­u­a­tion, the ques­tion is how much state author­i­ty has been removed and how much has been retained.  When Con­gress makes a law, Con­gress may, or may not, explain clear­ly where the lines are drawn.

 

Con­tex­tu­al Analy­sis

The Med­ical Cannabid­i­ol Act of 2017 says mar­i­jua­na has med­ical use in the state of Iowa (for mak­ing an extract) and there is an out­dat­ed fed­er­al reg­u­la­tion that says mar­i­jua­na has no med­ical use in the states.  It might seem like a sim­ple ques­tion of who has the greater author­i­ty, a state or a fed­er­al admin­is­tra­tive agency.  But, Con­gress can autho­rize a fed­er­al admin­is­tra­tive agency to inter­fere with state law, so the analy­sis starts with the ques­tion of whether Con­gress autho­rized the Attor­ney Gen­er­al to inter­fere with state med­ical mar­i­jua­na laws.

To begin the analy­sis, fed­er­al courts have deter­mined that accept­ed med­ical use of a con­trolled sub­stance in the Unit­ed States can exist with­out fed­er­al inter­state mar­ket­ing approval.

Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987):

We add, more­over, that the Administrator’s clever argu­ment con­ve­nient­ly omits any ref­er­ence to the fact that the per­ti­nent phrase in sec­tion 812(b)(1)(B) reads “in the Unit­ed States,” (empha­sis sup­plied).  We find this lan­guage to be fur­ther evi­dence that the 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, 887 (1st Cir. 1987):

Unlike the CSA sched­ul­ing restric­tions, the FDCA inter­state mar­ket­ing pro­vi­sions do not apply to drugs man­u­fac­tured and mar­ket­ed whol­ly intrastate.  Com­pare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a).  Thus, it is pos­si­ble that a sub­stance may have both an accept­ed med­ical use and safe­ty for use under med­ical super­vi­sion, even though no one has deemed it nec­es­sary to seek approval for inter­state mar­ket­ing.

This may seem like a dumb ques­tion, but how do we know whether med­ical use of mar­i­jua­na has been accept­ed?  After the rul­ing in Grin­spoon, the fed­er­al courts and the admin­is­tra­tive agency began to address this ques­tion.

Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991):

The dif­fi­cul­ty we find in peti­tion­ers’ argu­ment is that nei­ther the statute nor its leg­isla­tive his­to­ry pre­cise­ly defines the term “cur­rent­ly accept­ed med­ical use”; there­fore, we are oblig­ed to defer to the Administrator’s inter­pre­ta­tion of that phrase if rea­son­able.

Mar­i­jua­na Sched­ul­ing Peti­tion, DEA Dock­et No. 86–22, 57 Fed. Reg. 10499 (March 26, 1992) 10506:

Clear­ly, the Con­trolled Sub­stances Act does not autho­rize the Attor­ney Gen­er­al, nor by del­e­ga­tion the DEA Admin­is­tra­tor, to make the ulti­mate med­ical and pol­i­cy deci­sion as to whether a drug should be used as med­i­cine.  Instead, he is lim­it­ed to deter­min­ing whether oth­ers accept a drug for med­ical use.  Any oth­er con­struc­tion would have the effect of read­ing the word “accept­ed” out of the statu­to­ry stan­dard.

The answer as to who decides whether a sub­stance has accept­ed med­ical use was con­clu­sive­ly deter­mined by the fed­er­al courts in 2006.

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

 

State Law

The Iowa Med­ical Cannabid­i­ol Act of 2017, H.F. 524, Sec­tion 5(6), Iowa Code § 124E.2(6) (2017), defines “med­ical cannabid­i­ol” as “any phar­ma­ceu­ti­cal grade cannabi­noid found the plant Cannabis … that has a tetrahy­dro­cannabi­nol lev­el of no more than three per­cent …”  The Act specif­i­cal­ly autho­rizes cul­ti­va­tion and har­vest­ing of mar­i­jua­na plants for the pur­pose of man­u­fac­tur­ing med­ical cannabid­i­ol.  See H.F. 524, Sec­tion 9(1)(a), Iowa Code § 124E.5(1)(a) (2017).

Because states deter­mine “accept” med­ical use, mar­i­jua­na plants “specif­i­cal­ly autho­rized” for med­ical use are “accept­ed” for med­ical use with­in the mean­ing of the fed­er­al Con­trolled Sub­stances Act.

 

The Ele­phant in the Room

H.F. 524 fails to remove mar­i­jua­na from Iowa sched­ule 1, which says mar­i­jua­na has no accept­ed med­ical use in treat­ment in the Unit­ed States.  Iowa Code § 124.204(4)(m) (2017); Iowa Code § 124.203(1)(b) (2017).

This house­keep­ing mat­ter has been over­looked and it can have trag­ic con­se­quences.  The Iowa Sen­ate bill that passed by a vote of 45–5 on April 17, 2017, includ­ed the Iowa Board of Pharmacy’s rec­om­men­da­tion on Feb­ru­ary 17, 2010, that mar­i­jua­na should be removed from Iowa sched­ule 1.  This was care­less­ly stripped out of the House ver­sion.  The House ver­sion, H.F. 524, wasn’t pub­licly avail­able until 3:00 a.m. on the morn­ing after the day the leg­is­la­ture was sched­uled to adjourn for the year.  It was passed in the Iowa House at 5:30 a.m. and in the Iowa Sen­ate at 6:30 a.m.  This was not a care­ful­ly thought out, or care­ful­ly delib­er­at­ed, process.

 

Com­par­ing Clas­si­fi­ca­tions

A care­ful read­ing of both the state and fed­er­al drugs laws reveals that we don’t put plants with med­ical use in sched­ule 1.[4]

 

Mar­i­jua­na has Med­ical Use in 46 States

Since 1996, four years after the DEA issued it inter­pre­tive rule in 1992, thir­ty states have accept­ed the med­ical use of mar­i­jua­na, and anoth­er six­teen states have accept­ed the med­ical use of mar­i­jua­na extract (cannabid­i­ol), bring­ing the total to 46 out of 50 states that now depend on access to mar­i­jua­na for med­ical use or for mak­ing extracts for med­ical use.  In addi­tion, DC, Puer­to Rico, and Guam have accept­ed the med­ical use of mar­i­jua­na.

Con­tin­ued place­ment of mar­i­jua­na in sched­ule 1 is both pro­hib­i­tive and unlaw­ful.

 

Con­clu­sion

As the Supreme Court of Col­orado has shown, state law must explain how it com­plies with exist­ing fed­er­al law.  Fail­ure to address clas­si­fi­ca­tion of mar­i­jua­na in H.F. 524 leaves Iowa patients at risk of los­ing access to cannabid­i­ol, and puts grow­ers at risk of fed­er­al penal­ties up to life in prison and fines up to $50 mil­lion.  The leg­is­la­ture must address this mat­ter when it recon­venes in 2018.

 

Carl Olsen, Exec­u­tive Direc­tor
Iowans for Med­ical Mar­i­jua­na, Iowa Busi­ness No. 334412
Post Office Box 41381, Des Moines, Iowa 50311–0507
http://www.iowamedicalmarijuana.org/

 

[1] Fed­er­al Penal­ties

21 U.S.C. § 841(b)(1)(A)(vii) (2017)
1000 kilo­grams (2204.62 pounds / 1.10231 tons) or more of a mix­ture or sub­stance con­tain­ing a detectable amount of mar­i­hua­na, or 1,000 or more mar­i­hua­na plants regard­less of weight
$10/50 mil­lion — 10 years to life in prison

21 U.S.C. § 841(b)(1)(B)(vii) (2017)
100 kilo­grams (220.462 pounds / 0.110231 tons) or more of a mix­ture or sub­stance con­tain­ing a detectable amount of mar­i­hua­na, or 100 or more mar­i­hua­na plants regard­less of weight
$5/25 mil­lion — 5 to 40 years in prison

21 U.S.C. § 841(b)(1)© (2017)
50 to 99 kilo­grams or 50 to 99 plants
$1/5 mil­lion — up to 20 years in prison

21 U.S.C. § 841(b)(1)(D) (2017)
less than 50 kilo­grams of mar­i­hua­na, except in the case of 50 or more mar­i­hua­na plants regard­less of weight, 10 kilo­grams of hashish, or one kilo­gram of hashish oil,
$250,000/$1 mil­lion — up to 5 years in prison

 

[2] Media Reports

March 27, 2017, KGLO Radio, Mason City, Iowa, “Upmey­er says leg­is­la­tors work­ing on med­ical mar­i­jua­na issue.”

June 13, 2017, The Cannabist, an edi­tion of the Den­ver Post, Den­ver, Col­orado, “Jeff Ses­sions has asked Con­gress to allow him to pros­e­cute med­ical mar­i­jua­na providers.”

June 16, 2017, Globe Gazette, Mason City, Iowa, “Ses­sions wants flex­i­bil­i­ty to pros­e­cute Iowa med­ical mar­i­jua­na pro­gram.”

June 23, 2017, Quad City Times, Dav­en­port, Iowa, “Edi­to­r­i­al: Jeff Ses­sions eyes pot crack­down on Iowa, Illi­nois.”

 

[3] Fed­er­al Clas­si­fi­ca­tions

Sched­ule 1
21 U.S.C. § 812(b)(1) (2017)
no med­ical use and high poten­tial for abuse with­out con­sid­er­a­tion for phys­i­cal or psy­cho­log­i­cal depen­dence.

Sched­ule 2
21 U.S.C. § 812(b)(2) (2017)
med­ical use with high poten­tial for abuse with phys­i­cal depen­dence and high psy­cho­log­i­cal depen­dence.

Sched­ule 3
21 U.S.C. § 812(b)(3) (2017)
med­ical use with low to mod­er­ate phys­i­cal depen­dence and high psy­cho­log­i­cal depen­dence

Sched­ule 4
21 U.S.C. § 812(b)(4) (2017)
med­ical use with phys­i­cal depen­dence and psy­cho­log­i­cal depen­dence less than sched­ule 3

Sched­ule 5
21 U.S.C. § 812(b)(5) (2017)
med­ical use with phys­i­cal depen­dence and psy­cho­log­i­cal depen­dence less than sched­ule 4

 

[4] Clas­si­fi­ca­tion Com­par­isons

Sched­ule 1
Iowa Code § 124.204(4)(m) (2017) Mar­i­jua­na

Sched­ule 2
Iowa Code § 124.206(2)(a)(1) (2017) Raw Opi­um
Iowa Code § 124.206(2)(a)(7) (2017) Codeine
Iowa Code § 124.206(2)(a)(10) (2017) Hydrocodone
Iowa Code § 124.206(2)(a)(13) (2017) Mor­phine
Iowa Code § 124.206(2)© (2017) Opi­um Pop­py and Pop­py Straw

Sched­ule 3
Iowa Code § 124.208(5)(a)(1) (2017) Codeine
Iowa Code § 124.208(5)(a)(2) (2017) Codeine
Iowa Code § 124.208(5)(a)(3) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(4) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(5) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(7) (2017) Opi­um

Sched­ule 5
Iowa Code § 124.212(2)(a) (2017) Codeine
Iowa Code § 124.212(2)(b) (2017) Hydrocodone
Iowa Code § 124.212(2)(e) (2017) Opi­um

 

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