It’s Not Over Yet

Dreaming

Dream­ing of a brighter future in Iowa

There has been a lot of par­ti­san bick­er­ing in the Iowa leg­is­la­ture over med­ical mar­i­juana this year, and it’s not over yet.  Since Iowa enacted a med­ical cannabis extract law (2015 Iowa Code Chap­ter 124D — Med­ical Cannabid­iol Act) last year, no one has been able to obtain it legally.  Cannabid­iol is not approved by the Food and Drug Admin­is­tra­tion (FDA) and can­not be obtained legally any­where in the United States.  So, the ques­tion is when a state enacts a law accept­ing the med­ical use of some­thing that is not approved by the fed­eral gov­ern­ment, how does that work?

You’ll have to admit, this doesn’t hap­pen very often.  With­out a thor­ough under­stand­ing of the foun­da­tions of the inter­na­tional, fed­eral, and state drug laws, it’s a dif­fi­cult ques­tion to answer.  The answer lies, how­ever, in the prefa­tory notes in the Uni­form Con­trolled Sub­stances Act, “Legit­i­mate use of con­trolled sub­stances is essen­tial for pub­lic health and safety, and the avail­abil­ity of these sub­stances must be assured.”

Iowa Democ­rats have been pro­mot­ing the cul­ti­va­tion and use of mar­i­juana for med­ical pur­poses here in Iowa.  A phrase you’ll often hear at the Capi­tol is, “Twenty-three states have already done this and Iowa does not need to rein­vent the wheel.”  But, is it really that sim­ple?  Have twenty-three states actu­ally fig­ured this out, or do we need to rein­vent the wheel?

My opin­ion is that until states part­ner with the fed­eral gov­ern­ment, a safe and reg­u­lated sup­ply of med­ical cannabis will not hap­pen and patients will be at risk.  Major pro­fes­sional med­ical orga­ni­za­tions (the Amer­i­can Acad­emy of Neu­rol­ogy and the Amer­i­can Acad­emy of Pedi­atrics) have already begun to ask the fed­eral gov­ern­ment to coop­er­ate by remov­ing mar­i­juana from the restric­tive fed­eral clas­si­fi­ca­tion that says it’s not med­i­cine any­where in the United States.  Really?  I thought there were twenty-three states that had accepted it.

I think it’s time we had a seri­ous dis­cus­sion with the fed­eral gov­ern­ment, but I don’t think major pro­fes­sional med­ical orga­ni­za­tions carry as much weight as state gov­ern­ments.  After all, what is the fed­eral gov­ern­ment?  Isn’t the fed­eral gov­ern­ment just a union of states?  I thought so.  I think that’s what I learned in school.

When I talked to my state sen­a­tor, Jack Whitver, he agreed to give this approach a try.  Sen­a­tor Whitver is a Repub­li­can and an attor­ney by pro­fes­sion.  He under­stands law.  So, I have a unique sit­u­a­tion.  My sen­a­tor under­stands law and I have a legal argu­ment.  We actu­ally speak the same lan­guage.  How­ever, when he tried to get the other Repub­li­cans to sign on to it, the Sen­ate Repub­li­can Cau­cus refused and came up with a defec­tive plan to trade the Democ­rats noth­ing for some­thing.  The details follow.

The story begins on April 15, 2015, with Sen­ate Amend­ment S-3126 (a pro­posal to change marijuana’s clas­si­fi­ca­tion in Iowa) offered by the Sen­ate Repub­li­cans in return for strik­ing the entire Med­ical Cannabis Act, SF 484, pro­posed by the Democ­rats.  Chang­ing the clas­si­fi­ca­tion of mar­i­juana in Iowa with­out chang­ing it at the fed­eral level does absolutely noth­ing.  It might be good sym­bol­ism and that’s a good rea­son to do it, but in real­ity it does absolutely noth­ing for sick and injured peo­ple.  It was not a good deal (noth­ing for some­thing) and the Sen­ate voted it down (thanks for noth­ing, Repub­li­cans).  Here is a break­down of the votes on S-3126 by party: 19 Sen­ate Repub­li­cans — Aye; 5 Sen­ate Repub­li­cans — Absent; 1 Sen­ate Demo­c­rat — Aye; 24 Sen­ate Democ­rats — Nay; 1 Sen­ate Demo­c­rat – Absent.

After that bogus deal, the Sen­ate Democ­rats offered Sen­ate Amend­ment S-3123 (a pro­posal to change marijuana’s clas­si­fi­ca­tion in Iowa) offered as an addi­tion to the Med­ical Cannabis Act, SF 484, pro­posed by the Democ­rats.  Reclas­si­fi­ca­tion does noth­ing, but it’s nice sym­bol­ism and goes along nicely with the Med­ical Cannabis Act, SF 484.  The Sen­ate voted to adopt S-3123 unan­i­mously.  Here is a break­down of the votes on S-2123 by party: 19 Sen­ate Repub­li­cans — Aye; 5 Sen­ate Repub­li­cans — Absent; 25 Sen­ate Democ­rats — Aye; 1 Sen­ate Demo­c­rat – Absent.

Stop now and real­ize that every Demo­c­rat and every Repub­li­can just agreed that mar­i­juana is med­i­cine.  Think about that for a moment, or longer if you have time.

How­ever, the vote on the Med­ical Cannabis Act was divided again.  Here is a break­down of the votes on SF 484 by party: 1 Sen­ate Repub­li­can — Aye; 18 Sen­ate Repub­li­cans — Nay; 5 Sen­ate Repub­li­cans — Absent; 25 Sen­ate Democ­rats — Aye; 1 Sen­ate Demo­c­rat — Nay.  You can see that a sin­gle Repub­li­can (thank you, Sen­a­tor Zaun) gave the Democ­rats enough votes to barely squeak this one through.  SF 484 was then assigned to the House Com­mit­tee on Pub­lic Safety to die.

Not will­ing to go down easy, on May 5, 2015, the Sen­ate Democ­rats pro­posed amend­ment S-3148 (reclas­si­fy­ing mar­i­juana as med­i­cine) to HF 567 (adding syn­thetic poi­sons to the same clas­si­fi­ca­tion mar­i­juana is cur­rently in).  The Sen­ate nar­rowly adopted the amend­ment and sent the bill back to the House (thank you, again and again, Sen­a­tor Zaun).  Here is a break­down of the votes on S-3148 by party: 1 Sen­ate Repub­li­can — Aye; 23 Sen­ate Repub­li­cans — Nay; 25 Sen­ate Democ­rats — Aye; 1 Sen­ate Demo­c­rat — Nay.  Here is a break­down of the votes on HF 567 by party: 1 Sen­ate Repub­li­can — Aye; 23 Sen­ate Repub­li­cans — Nay; 26 Sen­ate Democ­rats — Aye.

So, the House Repub­li­cans got really upset about HF 567 being amended by the Sen­ate.  On May 20, 2015, House Repub­li­cans pro­posed an amend­ment H-1365 (adding syn­thetic poi­sons to the same clas­si­fi­ca­tion mar­i­juana is cur­rently in) to SF 510 (the stand­ing appro­pri­a­tions bill).  Not to be out­done, the House Democ­rats pro­pose their own amend­ment H-1379 (legal­iz­ing med­ical mar­i­juana) to H-1365.  Both amend­ments were ruled not ger­mane to the stand­ing appro­pri­a­tions bill, but the House Democ­rats were unable to sus­pend the rules to vote on their amend­ment while the House Repub­li­cans were able to suc­cess­fully sus­pend the rules to vote on their amend­ment.  Here is a break­down of the votes to sus­pend the rules for H-1379: 2 House Repub­li­cans — Aye; 53 House Repub­li­cans — Nay; 2 House Repub­li­cans — Absent; 41 House Democ­rats — Aye; 2 House Democ­rats — Absent.  Here is a break­down of the votes on H-1365: 55 House Repub­li­cans — Aye; 2 House Repub­li­cans — Absent; 41 House Democ­rats — Nay; 2 House Democ­rats — Absent.

So, what does all of this mean?  We have SF 484 dead in the House.  We have HF 567 dead in the House.  We have SF 510 dead in the Sen­ate.  We know there will be a bud­get bill.  And, we know syn­thetic poi­son isn’t going to be ignored another year.  But, all the bills appear to be dead.

My state sen­a­tor, Sen­a­tor Whitver, tells me the House amend­ment, H-1365 (adding syn­thetic pot to the list of con­trolled sub­stances and grant­ing a longer period for tem­po­rary sched­ul­ing from 60 days to 2 years), to SF 510 (the bud­get appro­pri­a­tions bill) is prob­a­bly dead.  The sen­ate will not adopt the amend­ment.  He does not know exactly how the bud­get will be resolved, but it could go to a con­fer­ence committee.

My state rep­re­sen­ta­tive, Rep­re­sen­ta­tive Koester, tells me SF 484 can still be debated in the House if there is a motion to sus­pend the rules, and it can still be tacked onto another bill as an amend­ment if it’s ger­mane, or by motion to sus­pend the rules if it’s not germane.

So, every­thing is still on the table until the leg­is­la­ture adjourns.  If you sup­port SF 484, now is the time to get on down to the state Capi­tol and ask for a motion to sus­pend the rules to get this on the House floor for debate this year.  There’s not much time left.

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What the Democrats are missing.

Audio from April 20, 2015

At the Iowa Capitol

At the Iowa Capitol

Democ­rats are say­ing Iowa should not wait for the fed­eral gov­ern­ment to legal­ize med­ical use of marijuana.

Repub­li­cans are ask­ing how busi­nesses (4 grow­ers and 12 dis­pen­saries) are all going to be vio­lat­ing fed­eral law here Iowa and that’s just okay with all of us?

So I’m ask­ing, if accepted med­ical use in treat­ment in the United States means accepted by a state and intrastate med­ical use does not require FDA approval, why aren’t we say­ing that its legal instead of agree­ing that it’s illegal?

Are we say­ing, “We knows it’s a crime, but we’re okay with it?” Really?

Repub­li­cans will just have to eat that?

I under­stand pas­sion and all that, but we’re get­ting to the point where we really need to work out the details.

We should say the fed­eral gov­ern­ment is vio­lat­ing our states’ right to make this a med­i­cine and the exist­ing fed­eral law already makes it legal for us to do that. Just because the fed­eral gov­ern­ment is unlaw­fully keep­ing mar­i­juana in a clas­si­fi­ca­tion that says it has no med­ical use in treat­ment in the United States is no excuse for us to just go along with it.

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April Ankeny Legislative Forum

Audio from April 11, 2015

Ankeny Legislative Forum

Ankeny Leg­isla­tive Forum — April 11, 2015

MODERATOR: Sir.

CARL OLSEN: Yes, Sen­a­tor Whitver, can you tell me how you’re going to vote on the med­ical cannabis pro­gram and what we might need to do to get the House to adopt that?

SENATOR JACK WHITVER: The cur­rent bill as is that greatly, in my opin­ion, greatly expands what we did last year, I would not be sup­port­ive of at this time. I’m more inter­ested, I think there’s a right way… The last year we passed a bill that said the state of Iowa believes mar­i­juana has med­i­c­i­nal value. If that is true, and that’s what we think as a state, I think there is a proper way to do it going for­ward. So, mov­ing from sched­ule 1 to sched­ule 2, some­thing like that would be of much more inter­est to me than just blow­ing open that code chap­ter. It’s impor­tant to me that what­ever we do with med­ical mar­i­juana is tested and we have the research behind it. And right now that bill, I don’t think it gives us that oppor­tu­nity to do that. So, I just think there is a process to go through that we need to go through. It’s not as fast as a lot of peo­ple that are advo­cat­ing for it would like, but I thinks it’s our role to do it the right way.

CARL OLSEN: Is there any chance of fix­ing it before it goes to the House?

SENATOR JACK WHITVER: It depends. It was sup­posed to go for a vote Wednes­day. It didn’t, so I don’t know when it’s going to come up. It could be Mon­day, I guess it could be Tues­day. We’re work­ing on it, but I don’t know if it can be changed to the point where I can vote for it.

REPRESENTATIVE JOHN LANDON: We were promised in the House when this bill passed last year at 2 o’clock in the morn­ing on the last day that we would have time to run a test from the Uni­ver­sity of Iowa, that we would have absolutely sci­en­tific evi­dence and results before we were ever asked to expand or do any­thing with it again. And I don’t know how this request before the test has even got­ten its legs under it hon­ors that promise that we were made in the House. So, I would tell you that I’m very inter­ested in that test and the sci­en­tific data behind it to make sure. And I would like to see it done through phar­ma­cies where a pre­scrip­tion can be made to an indi­vid­ual and they can go get what they absolutely know is the right level of med­ica­tion. And I’ll give you an exam­ple, today if you go to the phar­macy you can buy cer­tain lev­els of maybe ibupro­fen, you know what’s in an aspirin, you know for sure. But you don’t know that with cannabis oil because there’s no stan­dards for man­u­fac­tur­ing. The process is unde­fined and before that hap­pens I think there’s a lot of things that need to be put into place for that. And so, for us just to prove what­ever, who’s going to be respon­si­ble for unin­tended con­se­quences if things hap­pen that aren’t med­ically proven yet? And that’s the ques­tion that we all deal with and I don’t for a sec­ond want any­one to suf­fer for any rea­son. But I do think that some­times we look at issue like this and we can do more harm than we can good for folks. We want to make sure that every step that we’re tak­ing helps peo­ple and is the right thing to do.

CARL OLSEN: How do you explain twenty-three states mov­ing ahead with some­thing like that?

REPRESENTATIVE JOHN LANDON: You know I can’t explain Wash­ing­ton DC.

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My Amendment to SF 484

Sick People's March

Sick People’s March — April 7, 2015 — Des Moines, Iowa — in sup­port of SF 484

On April 7, 2015, I met with Iowa sen­a­tors Jack Whitver and Charles Schnei­der to dis­cus pro­tect­ing Iowa cannabis patients from the unlaw­ful clas­si­fi­ca­tion of cannabis under the fed­eral Con­trolled Sub­stances Act.

Sen­a­tor Whitver gave me the fol­low­ing amend­ment he had cre­ated for me by the Leg­isla­tive Ser­vices Agency:

!– clear floats –>

Sen­ate File 484
Amend Sen­ate File 484 as fol­lows:
1. Page 17, after line 11 by insert­ing:
<Sec. ___. NOTIFICATION. The office of attor­ney
gen­eral in this state shall notify the attor­ney
gen­eral of the United States request­ing that the United
States depart­ment of jus­tice rec­og­nize this state’s
right to deter­mine the med­ical use of con­trolled
sub­stances, by reclas­si­fy­ing mar­i­juana as a sched­ule 2
con­trolled sub­stance instead of a sched­ule 1 con­trolled
sub­stance.>
2. Title page, line 1, by strik­ing and
Insert­ing <relat­ing to>
3. By renum­ber­ing as necessary.

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Ankeny Legislative Forum — March 14, 2015

Audio from March 14, 2015

Ankeny Chamber Legislative Forum - March 14, 2015

Ankeny Cham­ber Leg­isla­tive Forum — March 14, 2015

Ankeny Cham­ber Leg­isla­tive Forum — March 14, 2015

MODERATOR: Yes, sir.

LAURA JUMPER’S DAD: For­give me if I don’t phrase this ques­tion right, but it has to do with the impasse on cannabis oil. You know I’m new to this and I’ve got a daugh­ter who’s very sick and we think this could help her. And I know there’s been, I think there’s another bill that was pro­posed, and you can own it in the state of Iowa, you just can’t… I don’t know if you can own it, if you can’t trans­port it, and you can’t get it into the state. So it seems just kind of like a bot­tle neck of, you know that last bill’s kind of ineffective.

MODERATOR: So, the ques­tion is what’s the sta­tus of cannabis oil. What is the impasse, and where do you see it going? Sound reasonable?

LAURA JUMPER’S DAD: Yeah.

SENATOR JACK WHITVER: Yeah, so last year we did pass a bill that legal­ized some of the cannabis oil for a very lim­ited num­ber of peo­ple. That bill, frankly, I have one of our biggest advo­cates from the area Carl Olsen’s back here that has been big on this issue. I don’t know if he would agree, but I would say that I don’t think that bill was thought out as well as it should have been. And it doesn’t do what it was intended to do. We passed it at 3 in the morn­ing the last day of the ses­sion. I believe that, and I’ve been open minded but cau­tious on this issue. But I believe that before we expand it, which is what the bill in the Sen­ate that was pro­posed I think last week, expands it greatly, I believe we need to fix what we have and make sure that it’s work­able. This is an issue that you really need the fed­eral gov­ern­ment and the state gov­ern­ment work­ing together. Because what we told par­ents like your­self last year is, sure you can own it in Iowa, but you have to go to Col­orado or Cal­i­for­nia to buy it and then you can bring it back, but once you bring it back you cross fed­eral, or state lines, which is a fed­eral crime. And so what we passed I don’t believe can help any­one. And we need to find a solu­tion with that and I think, frankly, it prob­a­bly starts with the fed­eral gov­ern­ment and what they’re doing. Per­son­ally, I want to see more research before we blow that chap­ter wide open with a lot more.

REPRESENTATIVE JOHN LANDEN: It’s my opin­ion that you need to be able to go to a phar­macy and get a pre­scrip­tion filled.

MODERATOR: Kevin?

REPRESENTATIVE KEVIN KOESTER: I voted for that at 3 in the morn­ing on May 1, 2014. The access, for gov­ern­ment to restrict what could be legal in a way that would help a child is a really tough issue. The slip­pery slope is where it goes from there, in terms of, “Should we serve it in school lunch?” Alright, I’m get­ting a lit­tle rad­i­cal with it, but I’ve been out of state in every direc­tion you can go with my daugh­ter that I ref­er­ence, hav­ing a dilemma, because of her birth defect, because you’ve got to lis­ten to the best sources you can to fig­ure out which surgery to do and what to do. And gov­ern­ment bet­ter not get in my way. What am I going to do for my daugh­ter? And at the same time, the bill we passed sat­is­fied some very impor­tant enthu­si­asts for this thing last year because we mis­un­der­stood how it would work. So, I agree with the com­ment that it did noth­ing help­ful to advance its pur­pose. It needs to be looked at, but in this very build­ing is the Ankeny Sub­stance Abuse Project which looks really hard at avoid­ing peo­ple get­ting into addic­tion around irre­spon­si­ble behav­ior when we cod­dle human nature to serve cannabis in school lunch and I’m going to do what I can to keep that from happening.

MODERATOR: So, just to con­firm, the ques­tion about school lunches was rhetor­i­cal and not a state­ment of sup­port, then?

REPRESENTATIVE KEVIN KOESTER: Oh, I for­got that we were record­ing. That’s new. These record­ings are new. I’m not used to this.

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Urbandale Legislative Forum

urbandale-2014-01-31

John Forbes talks about med­ical cannabis

I attended the leg­isla­tive forum on Sat­ur­day, Jan­u­ary 31, 2015, at the Urban­dale Cham­ber of Com­merce. The event was well-attended and two med­ical cannabis advo­cates spoke out at the forum, Con­nie Nor­gart and Craig Miller, ask­ing for pro­duc­tion of cannabis in Iowa and expand­ing the list of con­di­tions for which it can be used. State Sen­a­tor Brad Zaun said he had voted for the Cannbid­iol Act in 2014. State Rep­re­sen­ta­tive John Forbes said State Sen­a­tor Joe Bolk­com would be intro­duc­ing a bill the week of Feb­ru­ary 1, 2015, in the Iowa Leg­is­la­ture to pro­duce cannabis here in Iowa and to expand the list of con­di­tions for which it can be used. Rep. Forbes said he had been talk­ing with United States Sen­a­tor Charles Grass­ley about chang­ing the fed­eral sched­ul­ing of cannabis.

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Pharmacy Board denies my petition again

Des Moines 20100822 066Here are the events that took place on my peti­tion for mar­i­juana sched­ul­ing. First the sub­com­mit­tee report from Novem­ber 19, 2014.

Here’s a link to a copy of the sub­com­mit­tee report.

After the sub­com­mit­tee report was read, the fol­low­ing con­ver­sa­tion took place:

EDWARD MAIER: So, that entire doc­u­ment is what the com­mit­tee has rec­om­mended to the board. I would now open it for dis­cus­sion or any action that the board would like to take.

SUSAN FREY: Well, I would like to thank the com­mit­tee for their work. I think it, this doc­u­ment and these rec­om­men­da­tions, sum up what we have been try­ing to do for the last five years that we’ve been look­ing at this project, or this sub­ject. So, I would be in sup­port of the com­mit­tee recommendation.

JAMES MILLER: I, too, would like to thank the com­mit­tee for all its work, and it’s cer­tainly been a wor­ri­some issue since 2009 or before. I think there’s a lot to this doc­u­ment that Ed has just read and we just received it in copy a few min­utes ago to review. I would be in favor of tabling this thing until at least until our next meet­ing so we have time to review it more thor­oughly. I’m espe­cially con­cerned about the last para­graph, that the Iowa Board of Phar­macy mak­ing a rule about sched­ule changes when this is clearly the purview of the fed­eral gov­ern­ment. We just went through a sit­u­a­tion in Iowa where hydrocodone, one of the most widely pre­scribed opi­ate pain reliev­ers in our state, and in the whole coun­try; and we sched­ule it as a sched­ule 3 in Iowa until the fed­eral gov­ern­ment said, “No, it’s going to be a sched­ule 2.” We could have a peti­tion say­ing, “You know what? In Iowa I think we’re just going to leave it in sched­ule 3.” That was not our abil­ity to do that. The fed­eral gov­ern­ment decides what sched­ule things are in. So, I think we should take our time as far as mak­ing any fur­ther rec­om­men­da­tions. So, I would move that we table this. Give it some more thought.

EDWARD MAIER: Do we have any discussion?

SUSAN FREY: Jim does bring up an inter­est­ing point. And, again, we find our­selves in that quandary of we already have the estab­lished, the leg­isla­tive estab­lished cannabid­iol act. I would cer­tainly be will­ing to table it and hear more.

EDWARD MAIER: That was the quandary that the com­mit­tee placed our­selves in. We knew that num­ber one we could have a rec­om­men­da­tion straight out against because of the fed­eral class 1. And, then we could look at Iowa law, the act this last year, the cannabid­iol act has placed us in a posi­tion where Iowa law, it meets all the cri­te­ria of for class 2. We’re into the catch-22, so to speak here.

JAMES MILLER: I would say that Iowa leg­is­la­tors are elected rep­re­sen­ta­tives of the cit­i­zens of Iowa. We are not elected rep­re­sen­ta­tives. We have dif­fer­ent scope and ser­vice to the cit­i­zens. The elected body can choose to do what­ever they wish. But as an Iowa cit­i­zen, I’m a cit­i­zen of Iowa, and so I’m sub­ject to Iowa laws. I’m also a cit­i­zen of the United States. So, I’m sub­ject to fed­eral laws. I’m not attor­ney. My rec­ol­lec­tion is fed­eral law super­sedes. So, I think even, regard­less of what the Iowa leg­is­la­ture does, as a cit­i­zen I have to kind of be thinkin’, “Hmm, I won­der which set of laws are we going to be under?”

EDWARD MAIER: And, I think it’s impor­tant that no mat­ter which way this goes, this is sim­ply a rec­om­men­da­tion to the leg­is­la­ture and the leg­is­la­ture then would have to take action and the gov­er­nor would have to sign that. It would have to be, go through the reg­u­lar chan­nels. And, it’s a dif­fi­cult, very dif­fi­cult matter.

JAMES MILLER: I think it’s extremely dif­fi­cult. But I also think that there’s some cred­i­bil­ity here as far as the board and what our role is and that we main­tain our dili­gence as far as the safety of the cit­i­zens of Iowa. And, we’ll be looked at to estab­lish the safety of the drug prod­ucts that we cur­rently take respon­si­bil­ity for. Mar­i­juana wouldn’t fall into that cat­e­gory at all: the stan­dard­iza­tion of dose; as far as proven effi­cacy; as far as proven safety. I think that clearly is out­side of the bounds of our expertise.

EDWARD MAIER: Any other comments?

EDWARD McKENNA: I agree with Jim, because I think that the mar­i­juana oil that peo­ple use for epilepsy, the Uni­ver­sity of Iowa is mon­i­tor­ing that pro­gram. Right? So, I think we need more infor­ma­tion that the oil is actu­ally work­ing. That pro­gram was just implemented.

Jan­u­ary 5, 2015:

Item 3.5 on the Agenda (around 9:30 a.m.)

JAMES MILLER: Item 3.5 is the Olsen ver­sus the Board of Phar­macy petition.

LLOYD JESSEN: I think Meghan might have a lit­tle com­ment for us.

MEGHAN GAVIN: Yes, I’ll give you a lit­tle update. This is one of your sev­eral judi­cial reviews right now going through the courts at the moment and time, but the board will remem­ber this was Mr. Olsen’s request that you con­sid­ered in Jan­u­ary of last year about the reclas­si­fi­ca­tion of mar­i­juana resched­ul­ing, I should say of mar­i­juana. Judge Ovrom deter­mined after the brief­ing and oral argu­ment that this board main­tains dis­cre­tion about which par­tic­u­lar drug it chooses to make rec­om­men­da­tions to the leg­is­la­ture for. She said that your deci­sion on whether or not to rec­om­mend can only be over­turned for abuse of dis­cre­tion. She found no abuse of dis­cre­tion in the year 2014 rec­om­men­da­tion. So, she is say­ing that. This has since been appealed by Mr. Olsen to the Iowa supreme court. The case is not done, but this is the first time that we actu­ally have a judi­cial deci­sion that directly per­tains to what your, this board’s oblig­a­tion is under the con­trolled sub­stances act to make rec­om­men­da­tions every year. It’s a fairly short deci­sion, so I encour­age you all to read it. If you have any ques­tions, just let me know.

JAMES MILLER: Is there any indi­ca­tion of when the supreme court’s going to review it?

MEGHAN GAVIN: Appeals take time and what will hap­pen is once the tran­script is sent to the court, they’ll send out a brief­ing sched­ule and that usu­ally takes about four to six months for the brief­ings to be com­pleted and given to the court, at which time Iowa has kind of a unique appel­late sys­tem, so it will be reviewed by staff attor­neys and the supreme court will make a deci­sion on whether or not to keep the case or to give it to the court of appeals. I sus­pect, because the case is based solely on statu­tory inter­pre­ta­tion, that it will be sent to the court of appeals for adju­di­ca­tion. They then get things pretty quickly before them. So I would imag­ine next fall. I know, does that seem quick from an out­side per­spec­tive? But, actu­ally it is fairly quick. So I would imag­ine next fall they will have it sub­mit­ted to the court of appeals. Both the court of appeals and the supreme court take short recesses in the sum­mer to work on admin­is­tra­tive things, so that’s my best guess. After the court of appeals you have an oppor­tu­nity to request the supreme court review, but you don’t have a right to that. So, that could keep the case pend­ing for a lit­tle while longer.

JAMES MILLER: Any other ques­tions regard­ing item 3.5?

Item 2.1 on the Agenda (approx­i­mately 10:00 a.m.)

The phar­macy board delayed the dis­cus­sion of my peti­tion (Item 2.1 on the Agenda) until 10:00 a.m. on Jan­u­ary 5, 2015.

EDWARD MAIER: We’re ready to pro­ceed and my under­stand­ing is that we are at 2.1 on our agenda, the peti­tion to request reclas­si­fi­ca­tion of mar­i­juana. And, what we’ve heard on that is that we have some sug­ges­tions from the last time around from the sub­com­mit­tee. And, we voted to table it. And, so I’m going to open it up here to the board for some dis­cus­sion at this point and see where we want to go from here on that topic.

JAMES MILLER: Well, I think we should limit our dis­cus­sion to the cannabid­iol that was acted on by the Iowa leg­is­la­ture. The Iowa leg­is­la­ture did not, cer­tainly had dis­cus­sions about reclas­si­fy­ing mar­i­juana, and they did not take any action on that. I think their purview demands that they would, but they did take action as far as address­ing cannabid­iol. And, so I think we can, we could uphold the act. But as far as the rest of the 400 com­po­nents of the mar­i­juana plant that are listed, I don’t think we have any purview there.

SUSAN FREY: I guess I would agree with that, sim­ply because as a board our pro­ce­dure has always been in the past that we name the spe­cific com­pound or chem­i­cal entity. For instance, we don’t just rec­om­mend that we resched­ule all pain killers, because there’s dif­fer­ent lev­els, they are used for dif­fer­ent things. And, so, I would, I think that’s prob­a­bly been our biggest stum­bling block, is just by say­ing mar­i­juana it’s not spe­cific enough. So, I would sim­ply, we already have leg­is­la­tion that has addressed the cannabid­iol oil, and that we rec­om­mend reclas­si­fi­ca­tion of that prod­uct. And, as sci­en­tific and med­ical infor­ma­tion comes along for other deriv­a­tives, since we already have Mari­nol that is sched­uled, that’s a mar­i­juana deriv­a­tive or THC prod­uct, a chem­i­cal entity of mar­i­juana, it’s already sched­uled. I think we should address each indi­vid­ual chem­i­cal as they become, or entity as they become avail­able. So, that would be, I would sec­ond Jim’s rec­om­men­da­tion that we address sim­ply the cannabid­iol oil to bring us in com­pli­ance with the legislation.

MEGHAN GAVIN: Can I inter­ject one second?

SUSAN FREY: Sure.

MEGHAN GAVIN: The board is cer­tainly able to make your rec­om­men­da­tion as nar­row as you want. The actual peti­tion, how­ever, itself is for the reclas­si­fi­ca­tion of mar­i­juana. So, if you’re going to go down the route as has been sug­gested, you would deny that rec­om­men­da­tion in total and make your more spe­cific rec­om­men­da­tion. That would be the procedure.

SUSAN FREY: Okay.

JAMES MILLER: I would move that we …

EDWARD MAIER: Just a sec­ond. I think that we need to have a lit­tle more dis­cus­sion from the mem­bers of the the com­mit­tee who made the rec­om­men­da­tion. I’d like to hear if they have any input on what’s just been said.

SHARON MEYER: Well, I think as a phar­ma­cist we all have that sci­en­tific view­point that if a par­tic­u­lar chem­i­cal or com­pound that has some med­ical effect, it would need to be stud­ied and researched and stan­dard­ized. And, that’s what we pre­fer for dosage forms for patients. As a mem­ber of the sub­com­mit­tee I think what we wres­tled with is what is cur­rently in the code that has lan­guage to the effect that if a sub­stance is cur­rently in sched­ule 1 is found to have some med­ical ben­e­fit then per­haps it should be con­sid­ered sched­ule 2. I think that’s kind of where we as a sub­com­mit­tee were going is because we were fol­low­ing what’s in the Iowa Code now to make recommendations.

LADONNA GRATIAS: And, also the leg­is­la­ture did pass med­ical mar­i­juana. It was told to us that it really was a schedule …

EDWARD MAIER: That was cannabid­iol oil.

JAMES MILLER: Just one component.

LADONNA GRATIAS: Right.

SUSAN FREY: Well, I guess …

JAMES MILLER: I would say, there’s a prod­uct being tested in the US and UK, it’s being tested in human sub­jects in a prod­uct that has both THC and cannabid­iol. It’s been in clin­i­cal tri­als. So there are some stan­dard­ized prod­ucts being devel­oped. But to con­sider the whole mar­i­juana plant I think is way beyond the scope of what …

SUSAN FREY: I guess I’m, in ret­ro­spect, it makes sense to me that if you can use the anal­ogy of opium, opium is in sched­ule 1. So, it’s a raw plant. And, so it has med­i­c­i­nal value. It’s in sched­ule 1. But, yet, we have mor­phine, which is in sched­ule 2, which is a direct deriv­a­tive of that plant. To me, that’s where this should fit. We should keep mar­i­juana in sched­ule 1, but then the chem­i­cal enti­ties that devel­oped from that should go into sched­ule 2.

EDWARD MAIER: Okay, I guess I agree with Sharon from the per­spec­tive of the group. That is what we strug­gled with. But we also strug­gled with the fact that I don’t think any of us were com­pletely ready to say we want to jump both feet in and say that we think there should be a med­ical mar­i­juana pro­gram in this state. That’s not, at least from my per­sonal per­spec­tive, and I think I recall a con­ver­sa­tion that was a part of it, because it is such a broad thing. And, there is such a vari­ance in poten­cies of the plant. It’s a very hard thing to get your hand on sci­en­tif­i­cally. We’ve heard some peo­ple say there’s some uses for deriv­a­tives, but, you know, at this point and time we’re still, we need more research. But sched­ule 1 and sched­ule 2 both allow research. One point that I really am, because I’m really, I’m really strong on, because I’ve been here for the last six year and we’ve strug­gled with this, there are con­flict­ing cita­tions in the code. One place it says its sched­ule 1 except by rules of the board and one place it says its sched­ule 2 except by the board. I strongly believe that we need to rec­om­mend, or that we need to do some­thing leg­isla­tively to clear that mess up, whichever way we go.

JAMES MILLER: There’s a peti­tion to your point and I think the peti­tion itself talks about two places in the Iowa Code. You know, we have a leg­is­la­ture that is charged with writ­ing the code in par­tic­u­lar. I don’t think they need any rec­om­men­da­tion from us. We’re not attor­neys. We’re here to take care of the phar­macy laws and pro­tect the health of our cit­i­zens. So, I think that kind of stuff is way beyond our area of exper­tise. I don’t think we have any busi­ness telling them what to do.

EDWARD MAIER: I agree with the part about the fact, prob­a­bly I feel more com­fort­able with mak­ing a rec­om­men­da­tion of cannabid­iol than I do on mar­i­juana. Per­son­ally, if somebody’s will­ing to make that rec­om­men­da­tion, then I’m will­ing to go … I don’t think we can just deny this request and move away because the legislature’s already said that there is some use for cannabid­iol. If we’re allowed to turn aroundthen and make a rec­om­men­da­tion for cannabid­iol, I’m will­ing to say we deny the mar­i­juana part of it and we just include the cannabid­iol and rec­om­mend that the change be made to delete those ref­er­ences to the rules of the board.

MEGHAN GAVIN: Well, your pro­posal then would be to make clear that the leg­is­la­ture would have to act before mar­i­juana would be resched­uled, then the board would not be com­mit­ted to estab­lish a mar­i­juana program.

EDWARD MAIER: That’s what I’m thinkin’. Our idea is that we don’t have the power to estab­lish a mar­i­juana pro­gram. We can’t write those rules because they’re too broad. But, yet, there’s a sug­ges­tion there that we should, and that’s not right. That’s the legislature’s pre­rog­a­tive, not our pre­rog­a­tive. And, those things need to be out of the code.

SUSAN FREY: I agree that if we deny the peti­tion, that we should turn around and do a rec­om­men­da­tion for the cannabid­iol oil. But, then, per­haps we should move the other part of that as a piece of leg­is­la­tion to be entered in and not part of a suggestion.

EDWARD MAIER: And I’m per­fectly agree­able to that. I was think­ing to make that change as a part of the whole thing. It’s going to keep com­ing back to us as rule mak­ing and those are those out­dated word­ing that has been there for years. That kind of a pro­gram is way too broad for one board. It would be way too broad for the board of med­i­cine, or the board of nurs­ing, or any­body else to write those kinds of rules. So, I guess I would enter­tain … Is there any other dis­cus­sion? Okay, I would enter­tain a motion from anybody.

EDWARD MCKENNA: I think we already have a motion.

EDWARD MAIER: Just a sec­ond now, we have a comment.

CARL OLSEN: Opium plants are in sched­ule 2, not sched­ule 1. And coca plants are in sched­ule 2, not sched­ule 1. We don’t have any plants in sched­ule 1 from which any med­i­cines are derived. So, that was an incor­rect state­ment. If you want to nor­mal­ize the act, you rec­om­mend mar­i­juana be clas­si­fied like opium pop­pies and coca plant because that’s where we put plants that are the source mate­r­ial for these deriv­a­tives like cannabidiol.

JAMES MILLER: Duly noted. I’ll make a rec­om­men­da­tion that we deny the request.

SUSAN FREY: And I will sec­ond it.

EDWARD MAIER: Any fur­ther dis­cus­sion? All those in favor, aye.

ALL BOARD MEMBERS: Aye.

EDWARD MAIER: Opposed? Okay, the motion has been denied. Does any­one have any fur­ther rec­om­men­da­tion they would like to …

SUSAN FREY: I move that we rec­om­mend to the leg­is­la­ture to resched­ule cannabid­iol oil to sched­ule 2.

MAIER: Sec­ond. Any fur­ther discussion?

EDWARD MCKENNA: The only dis­cus­sion I have on it is, how broad is that? In other words, if you have mor­phine sched­uled like 15 mg, 30 mg, dif­fer­ent things like that? How do we know if there’s other ingre­di­ents in that oil? What are we rec­om­mend­ing? In other words there are cer­tain com­pa­nies out there that make that. Are they legit­i­mate companies?

EDWARD MAIER: And, that’s already been said. I think at this point the leg­is­la­ture has rec­og­nized the med­ical use for it and that is our criteria.

EDWARD MCKENNA: Right.

EDWARD MAIER: But, duly noted that there are con­cerns, a major concern.

JAMES MILLER: Another major con­cern, accord­ing to DEA it’s sched­ule 1. So, every phar­macy in the state has to have a DEA license and you have to abide by that license. So we would all be break­ing the law if we had a cannabid­iol prod­uct. Its con­sis­tent with the leg­isla­tive act, but noth­ing else.

MEGHAN GAVIN: I think, I want to say this accu­rately, the clas­si­fi­ca­tion of cannabid­iol under fed­eral law is a lit­tle bit of a gray area at the moment and time. Some peo­ple believe it to be part of sched­ule 1 as mar­i­juana and some peo­ple believe it to be unsched­uled. There’s no defin­i­tive state­ment. And, to my knowl­edge I don’t believe DEA has taken a posi­tion pub­licly on it.

EDWARD MAIER: Carl, do you want to …

CARL OLSEN: The DEA web­site clearly clas­si­fies cannabid­iol as sched­ule 1.

EDWARD MAIER: So, if we were to go to sched­ule 2, we would still be …

CARL OLSEN: It has a drug con­trol num­ber, 73 something.

JAMES MILLER: But the deriv­a­tive prod­uct being approved, you know, in the approval process, includes the cannabid­iol that is in the act.

SHARON MEYER: Just for the sake of dis­cus­sion, is some­thing that is needed pos­si­bly some­thing the leg­is­la­ture needs to address with that? That a sub­stance, cannabid­iol is included in this to the leg­is­la­ture? That is is a sched­ule 1 sub­stance? Is that some­thing that really the leg­is­la­ture needs to address, that there is con­flicts in the code? So, I don’t know if we’re rec­om­mend­ing that it should go to sched­ule 2 or that the leg­is­la­ture needs to address that there’s a conflict.

EDWARD MAIER: Your motion, Jim.

SUSAN FREY: It was my motion.

SHARON MEYER: We were also try­ing to think of other poten­tial deriv­a­tives that may come on the scene, that there are active uses for. And, we were going to the conun­drum of the sched­ul­ing of sched­ule 1 / sched­ule 2, the other deriv­a­tives, the fed­eral, the state. So, I feel its like as a mem­ber of the sub­com­mit­tee, that’s where we had a tough job because there is con­flict­ing code.

EDWARD MAIER: The code says cannabid­iol. So, if we change cannabid­iol, we’re fol­low­ing what the leg­is­la­ture did. The sub­com­mit­tee had already rec­om­mended sched­ule 2 anyway.

JAMES MILLER: It’s totally cor­rect. There’s no prod­uct. There’s con­flict­ing code. I think the only thing we’re doing with this rec­om­men­da­tion is sup­port­ing the cannabid­iol leg­is­la­tion that this par­tic­u­lar prod­uct has some use, pos­si­ble use in cases of epilepsy.

SUSAN FREY: So, are you offer­ing a friendly amendment?

EDWARD MAIER: No, I just wanted to clar­ify because of the ques­tion she brought up. This is a change.

SUSAN FREY: That’s where I want to see this going. If the exist­ing pro­gram, whichever is being devel­oped, we don’t know what that is, the depart­ment of pub­lic health, whether that’s going to involve, what dis­tri­b­u­tion sys­tem, we don’t know. So, I guess, putting it in sched­ule 2 makes it more read­ily avail­able if that comes to, once those plans and design is available.

EDWARD MAIER: Any other dis­cus­sion? We have a motion to resched­ule cannabid­iol to sched­ule 2. All those in favor, aye.

ALL BOARD MEMBERS: Aye.

EDWARD MAIER: Opposed? Okay, the motion is car­ried. And I would com­mend the sub­com­mit­tee. And I, when we get to the leg­is­la­tion, we need to talk about what we said. The other thing is that’s going to get lost in this is that we really felt now, twice, bod­ies of the board have said some­thing about there being a com­mit­tee of a cross sec­tion of peo­ple from mul­ti­ple dis­ci­plines that take a look at either cannabid­iol oil or mar­i­juana or what­ever it is. And, I hope that this doesn’t just get lost in the record that some­where a com­mit­tee forms and takes it seri­ously. With that, we’re going to move on.

TERRY WITKOWSKI: Ques­tion. Do you want to go … Do you want to have a rec­om­men­da­tion that the leg­is­la­ture look at the cur­rent lan­guage that talks about the board of phar­macy adopt­ing rules for med­ical? Because nei­ther of these motions really address any kind of a rec­om­men­da­tion to them regard­ing that.

EDWARD MAIER: Susan was talk­ing about that. We look at that as a piece of leg­is­la­tion that goes up. Or would that have to be a recommendation?

TERRY WITKOWSKI: If you want to pro­pose any leg­is­la­tion now, you’d have to get a leg­is­la­tor to do it because we’re beyond the dead­line for pre-filing.

SUSAN FREY: Okay.

EDWARD MAIER: I’d like to see a recommendation.

SUSAN FREY: And, refresh my mem­ory, Terry. What is it that we need to review, or to remove from …?

TERRY WITKOWSKI: There is a pro­vi­sion in sched­ule 1 that makes an excep­tion or an exemp­tion for mar­i­juana when pur­suant to rules of the board for med­ical mar­i­juana pro­gram. There’s a pro­vi­sion in sched­ule 2 that, along that same line, that says that mar­i­juana is a sched­ule 2 sub­stance pur­suant to rules of the board. So, it makes an exemp­tion out of sched­ule 1 and an excep­tion into sched­ule 2, both of them pur­suant to rules of the board for a med­ical mar­i­juana pro­gram. So, your rec­om­men­da­tion could sim­ply be to elim­i­nate those two provisions.

EDWARD MAIER: And the rea­son being that our author­ity is too nar­row to adopt the rules.

MEGHAN GAVIN: You could just remove “pur­suant to rules of the board.” That’s all you have to say.

EDWARD MAIER: In both places. Would you like to make a motion to make that recommendation?

SUSAN FREY: Okay, here goes. I move that we send a rec­om­men­da­tion to the leg­is­la­ture to remove in sched­ule 1 con­cern­ing mar­i­juana the exemp­tion … No, I mean in sched­ule 1, giv­ing the exemp­tion for a med­ical mar­i­juana pro­gram, I sug­gest we remove the word­ing “pur­suant to rules of the board of phar­macy,” or, “the board.” Okay, because the board does not have the author­ity to estab­lish a pro­gram. And, I fur­ther rec­om­mend that the excep­tion of a med­ical med­ical mar­i­juana pro­gram that we remove the wordage “pur­suant to rules of the board” for that same rea­son, that the board does not have author­ity to pub­li­cate those rules.

EDWARD MAIER: Do we have a second?

JAMES MILLER: Second.

EDWARD MAIER: Dis­cus­sion? All those in favor, aye.

ALL BOARD MEMBERS: Aye.

EDWARD MAIER: Opposed? Carried.

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My Plan

Grotesque 1

Grotesque 1

Peo­ple are always ask­ing me what my plan is, so I’m going to try to explain. I made my plan in 2006, shortly after the U.S. Supreme Court deci­sion in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006). In Gon­za­les v. Ore­gon, the U.S. Supreme Court found that states make most of the med­ical deci­sion under the fed­eral con­trolled sub­stances act. The Court starts out by affirm­ing that Con­gress can pre­empt state laws on accepted med­ical prac­tice. Gon­za­les v. Ore­gon, 546 U.S. at page 271 (“Even though reg­u­la­tion of health and safety is ‘pri­mar­ily, and his­tor­i­cally, a mat­ter of local con­cern,’ there is no ques­tion that the Fed­eral Gov­ern­ment can set uni­form national stan­dards in these areas”) (cita­tions omit­ted). The Court goes on to say that Con­gress has only pre­empted state pub­lic health and safety laws in one area. Gon­za­les v. Ore­gon, 546 U.S. at page 271 (“the appro­pri­ate meth­ods of pro­fes­sional prac­tice in the med­ical treat­ment of the nar­cotic addic­tion of var­i­ous classes of nar­cotic addicts”).

Grotesque 2

Grotesque 2

Hav­ing stud­ied fed­eral sched­ul­ing of con­trolled sub­stances for many years, I was aware that pre­vi­ous court rul­ings had men­tioned that Con­gress did not define the phrase “accepted med­ical use in treat­ment in the United States,” the sole con­di­tion for plac­ing a sub­stance in fed­eral sched­ule 1. Alliance for Cannabis Ther­a­peu­tics v. Drug Enforce­ment Admin­is­tra­tion (ACT v. DEA), 930 F.2d 936 at page 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”). When I read Gon­za­les v. Ore­gon, a light turned on in my head. In 1991, when ACT v. DEA was decided, there were no states that had accepted the med­ical use of mar­i­juana in treat­ment, so the DEA administrator’s inter­pre­ta­tion seemed rea­son­able at that time. The DEA admin­is­tra­tor in ACT v. DEA ruled there was a lack of con­sen­sus among med­ical experts. There were obvi­ously no state laws legal­iz­ing the med­ical use of mar­i­juana in treat­ment in 1991 for the admin­is­tra­tor to consider.

Grotesque 3

Grotesque 3

So, a plan was born. The plan is sim­ple, and this is what throws peo­ple off. Peo­ple think I’m try­ing to legal­ize mar­i­juana for recre­ational or med­ical use, both of which I sup­port. But my plan is not some detailed leg­isla­tive pro­posal to enact a state law that would still leave mar­i­juana ille­gal under fed­eral law. This is the fail­ure of state med­ical and recre­ational mar­i­juana laws; you are still a fed­eral crim­i­nal if you use mar­i­juana for any rea­son. So, my plan is sim­ply to get mar­i­juana out of sched­ule 1, both state and fed­eral. I have to start some­where, so I’m start­ing at the state level first.

Grotesque 4

Grotesque 4

Peo­ple then ask me if I’ll pro­pose recre­ational or med­ical mar­i­juana after mar­i­juana is removed from state sched­ule 1. The answer is no. I’ll pro­pose remov­ing mar­i­juana from fed­eral sched­ule 1 when mar­i­juana is removed from state sched­ule 1. It’s that sim­ple. It’s so sim­ple, it throws peo­ple off. It should not be this dif­fi­cult to under­stand, but it is for some rea­son. I sup­pose the sim­ple expla­na­tion is that we’ve had these sched­ules for 45 years and noth­ing in sched­ule 1 has ever been accepted for med­ical use by any state, except mar­i­juana. Since 1996, a total of 34 states and two fed­eral juris­dic­tions (DC and Guam) have accepted the med­ical use of mar­i­juana in treat­ment. An addi­tional 4 states have legal­ized recre­ational use since 2012. Unlike other sub­stances in sched­ule 1, mar­i­juana even had accepted med­ical use in treat­ment in the United States before these laws were writ­ten 45 years ago.

The rea­son we have 50 state drug laws is because the fed­eral drug law was never intended to be one drug law to rule them all (50 states). We have 50 state drug laws for a good rea­son. It’s because our gov­ern­ment is a dual sys­tem known as federalism.

Posted in Uncategorized | 4 Comments

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).

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