For those of you who use Facebook, I have pity on you. It’s not a friendly place. Today, people calling themselves advocates for full legalization of marijuana in Iowa are complaining about two groups we have here in Iowa and the complaints are similar toward both groups.
You have a group called Iowans 4 Medical Cannabis advocating for medical use, saying that it won’t lead to legalization of non-medical use.
You have a group called Iowa Hemp Association advocating for industrial use, saying it won’t lead to legalization for non-industrial use.
This makes these so-called advocates angry, because they see medical use and industrial use as subsets of a greater whole (full legalization). Full legalization would give the patients their medicine and save the trees at the same time. I won’t go into what full legalization looks like, because I don’t really know what it looks like. Alcohol is not fully legalized. Tobacco is not fully legalized. Alcohol and tobacco are both toxic and marijuana is not, so I can’t see them as being the same. Even cocaine and morphine are legal under certain restrictions. Even methamphetamine is legal under certain restrictions. So, I think we need to come up with something unique for marijuana, since marijuana is safer than all of these things we already accept under certain restrictions.
What drives medical advocates is that they are being tortured by the pharmaceutical industry. Medical users are being forced to use toxic chemicals instead of a safe plant. I don’t know about you, but I can’t take what a person being tortured says as seriously as I take what a person says who has time and the ability to think clearly. These patients are being tortured, plain and simple. I’m not going to attack them for trying to save their lives and the lives of their loved ones. Things are not okay in this country, and this is a manifestation of it. Give the patients a break. They need our help, not a bunch of cheap talk.
What drives industrial advocates is entrepreneurship. This is a fundamental value in our society, making money. We can’t expect capitalism to go away. And, besides, hemp is a good product. You can make lots of good stuff from it. I could complain about capitalism, but it’s not going away. The market drives capitalism, so if you’re offended, then don’t buy what’s being sold, plain and simple.
So, what I see missing is that the people complaining on Facebook and claiming they have the higher (pardon the pun) ground are showing up at events they did not organize and complaining about the people who did organize them. What a colossal waste of time. Talk is cheap. Instead of doing something productive, they talk trash about others. It’s pathetic. This proves they are not representing any higher issue at all. They represent smallness, plain and simple. I like to call them Facebook Commandos, or armchair quarterbacks if you want to go with an older colloquialism.
I don’t know how anyone can say that medical use or industrial use will not lead to full legalization, since we are seeing full legalization now as a direct result of the many useful things marijuana can do. But, if people want to say the many uses of this plant will not lead to further legalization, let’s not waste our time attacking them for it.
If these whiners on Facebook would go find something productive to do, instead of complaining about people doing good things, we’d all be a lot better off for it.
I don’t know about you, but when someone starts promoting the benefits of marijuana, I want to thank them for it. Attacking them on Facebook is not something I can thank anyone for.
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.