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.
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.
CARLOLSEN: 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?
SENATORJACKWHITVER: 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.
CARLOLSEN: Is there any chance of fixing it before it goes to the House?
SENATORJACKWHITVER: 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.
REPRESENTATIVEJOHNLANDON: 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.
CARLOLSEN: How do you explain twenty-three states moving ahead with something like that?
REPRESENTATIVEJOHNLANDON: You know I can’t explain Washington DC.
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
2. Title page, line 1, by striking and
Inserting <relating to>
3. By renumbering as necessary.
Ankeny Chamber Legislative Forum — March 14, 2015
Ankeny Chamber Legislative Forum — March 14, 2015
MODERATOR: Yes, sir.
LAURAJUMPER’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?
LAURAJUMPER’S DAD: Yeah.
SENATORJACKWHITVER: 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.
REPRESENTATIVEJOHNLANDEN: It’s my opinion that you need to be able to go to a pharmacy and get a prescription filled.
REPRESENTATIVEKEVINKOESTER: 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?
REPRESENTATIVEKEVINKOESTER: Oh, I forgot that we were recording. That’s new. These recordings are new. I’m not used to this.
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.
After the subcommittee report was read, the following conversation took place:
EDWARDMAIER: 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.
SUSANFREY: 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.
JAMESMILLER: 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.
EDWARDMAIER: Do we have any discussion?
SUSANFREY: 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.
EDWARDMAIER: 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.
JAMESMILLER: 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?”
EDWARDMAIER: 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.
JAMESMILLER: 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.
EDWARDMAIER: 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.)
JAMESMILLER: Item 3.5 is the Olsen versus the Board of Pharmacy petition.
LLOYDJESSEN: I think Meghan might have a little comment for us.
MEGHANGAVIN: 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.
JAMESMILLER: Is there any indication of when the supreme court’s going to review it?
MEGHANGAVIN: 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.
JAMESMILLER: 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.
EDWARDMAIER: 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.
JAMESMILLER: 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.
SUSANFREY: 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.
MEGHANGAVIN: Can I interject one second?
MEGHANGAVIN: 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.
JAMESMILLER: I would move that we …
EDWARDMAIER: 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.
SHARONMEYER: 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.
LADONNAGRATIAS: And, also the legislature did pass medical marijuana. It was told to us that it really was a schedule …
EDWARDMAIER: That was cannabidiol oil.
JAMESMILLER: Just one component.
SUSANFREY: Well, I guess …
JAMESMILLER: 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 …
SUSANFREY: 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.
EDWARDMAIER: 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.
JAMESMILLER: 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.
EDWARDMAIER: 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.
MEGHANGAVIN: 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.
EDWARDMAIER: 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.
SUSANFREY: 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.
EDWARDMAIER: 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.
EDWARDMCKENNA: I think we already have a motion.
EDWARDMAIER: Just a second now, we have a comment.
CARLOLSEN: 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.
JAMESMILLER: Duly noted. I’ll make a recommendation that we deny the request.
SUSANFREY: And I will second it.
EDWARDMAIER: Any further discussion? All those in favor, aye.
EDWARDMAIER: Opposed? Okay, the motion has been denied. Does anyone have any further recommendation they would like to …
SUSANFREY: I move that we recommend to the legislature to reschedule cannabidiol oil to schedule 2.
MAIER: Second. Any further discussion?
EDWARDMCKENNA: 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?
EDWARDMAIER: 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.
EDWARDMAIER: But, duly noted that there are concerns, a major concern.
JAMESMILLER: 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.
MEGHANGAVIN: 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.
EDWARDMAIER: Carl, do you want to …
CARLOLSEN: The DEA website clearly classifies cannabidiol as schedule 1.
EDWARDMAIER: So, if we were to go to schedule 2, we would still be …
CARLOLSEN: It has a drug control number, 73 something.
JAMESMILLER: But the derivative product being approved, you know, in the approval process, includes the cannabidiol that is in the act.
SHARONMEYER: 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.
EDWARDMAIER: Your motion, Jim.
SUSANFREY: It was my motion.
SHARONMEYER: 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.
EDWARDMAIER: The code says cannabidiol. So, if we change cannabidiol, we’re following what the legislature did. The subcommittee had already recommended schedule 2 anyway.
JAMESMILLER: 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.
SUSANFREY: So, are you offering a friendly amendment?
EDWARDMAIER: No, I just wanted to clarify because of the question she brought up. This is a change.
SUSANFREY: 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.
EDWARDMAIER: Any other discussion? We have a motion to reschedule cannabidiol to schedule 2. All those in favor, aye.
EDWARDMAIER: 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.
TERRYWITKOWSKI: 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.
EDWARDMAIER: 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?
TERRYWITKOWSKI: 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.
EDWARDMAIER: I’d like to see a recommendation.
SUSANFREY: And, refresh my memory, Terry. What is it that we need to review, or to remove from …?
TERRYWITKOWSKI: 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.
EDWARDMAIER: And the reason being that our authority is too narrow to adopt the rules.
MEGHANGAVIN: You could just remove “pursuant to rules of the board.” That’s all you have to say.
EDWARDMAIER: In both places. Would you like to make a motion to make that recommendation?
SUSANFREY: 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.
EDWARDMAIER: Do we have a second?
EDWARDMAIER: Discussion? All those in favor, aye.
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”).
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.
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.
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.
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
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.
130 E. Aurora Ave.
Des Moines, Iowa 50313–3654
December 1, 2014
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.
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:
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.
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:
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.
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).
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”).
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.
5. STATERESCHEDULINGDOESNOTMAKEMARIJUANALEGALINIOWA – EVEN A CORRESPONDINGCHANGEINFEDERALSCHEDULINGWOULDNOTAUTOMATICALLYMAKEITLEGALINIOWA
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.
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).
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.
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.
130 E. Aurora Ave.
Des Moines, Iowa 50313–3654
[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).