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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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Ship of State (fools)

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

dale_woolery_2014_11_19

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

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

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

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

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

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

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

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

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

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State administrative agencies must follow state law

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

Edward Maier

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

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

James A Miller

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

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

Iowa Board of Pharmacy

The Iowa Board of Pharmacy

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

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Scholars do not understand federalism

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

brookings_2014-10-17

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

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

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

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

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

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

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

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

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

So, here is how I see it.

Here’s what the Brook­ings insti­tute is proposing:

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

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

On page 21, the authors sug­gest sev­eral options:

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

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

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

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

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

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

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

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

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

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

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

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

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Legislative Goals for 2015

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

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

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

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

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

A poll con­ducted by Quin­nip­iac Uni­ver­sity in March of 2014 found that:
81% of Iowans sup­port med­ical use of mar­i­juana
41% of Iowans sup­port per­sonal use of marijuana
A poll con­ducted by The Des Moines Reg­is­ter in Feb­ru­ary of 2010 found that:
64% of Iowans sup­port med­ical use of mar­i­juana
28% of Iowans sup­port per­sonal use of marijuana
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Rescheduling’s Biggest Opponent Reverses Position

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

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

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

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