Pharmacy board hearing on August 27, 2014

Wednes­day, August 27, 2014, approx­i­mately 9:39 a.m.

Board mem­bers present: Susan Frey (tem­po­rary chair, licensed phar­ma­cist), LaDonna Gra­tias (pub­lic mem­ber), Edward Maier (chair, licensed phar­ma­cist), Edward McKenna (licensed phar­ma­cist), Sharon Meyer (licensed phar­ma­cist), Judith M. Trumpy (pub­lic mem­ber). Board mem­ber absent: James Miller (licensed pharmacist).

Susan Frey: Next up we have 4.4 and that is a peti­tion for agency action for mar­i­juana sched­ul­ing from Carl Olsen.

Carl Olsen: Yes.

Susan Frey: You’re here.

Carl Olsen: Are you ready?

Susan Frey: I’m ready.

Carl Olsen: Alright. My name is Carl Olsen. I would like the board to rec­om­mend the Iowa leg­is­la­ture remove mar­i­juana from Sched­ule 1. The code sec­tions are Iowa Code Chap­ter 124 Sec­tion 201 and 124.203. Under those sec­tions the board has the author­ity to rec­om­mend the leg­is­la­ture remove mar­i­juana from Sched­ule 1. I made this rec­om­men­da­tion last year. I made this rec­om­men­da­tion sev­eral times, this request. But, par­tic­u­larly last year I made this same request. At that time there were nine­teen (19) states that had legal­ized the med­ical use of mar­i­juana. As of today there are twenty-three (23). And as of this year another eleven (11) have enacted cannabis oil bills, like Iowa enacted this year, that require peo­ple to leave the state of Iowa, go to another state where they can obtain this oil, one of the states where it is autho­rized to pro­duce the cannabis, and then bring it back to Iowa, which vio­lates state and fed­eral laws all the way through.

Remov­ing mar­i­juana from Sched­ule 1 would be an impor­tant step in a big obsta­cle, fed­eral Sched­ule 1. The board has the author­ity to rec­om­mend that mar­i­juana be removed from state Sched­ule 1. That would be an impor­tant first step in send­ing an impor­tant mes­sage to the fed­eral gov­ern­ment that there’s a big prob­lem with Sched­ule 1 and the imple­men­ta­tion of these state laws. We’ve got thirty-four (34) states now and last year when I was here it was only nine­teen (19). So, you can see how rapidly this is mov­ing for­ward. I don’t think the board can say this is not a valid con­cern, or that the board should not be say­ing, be par­tic­i­pat­ing in the leg­isla­tive process as required by the Iowa Code.

Thank you.

Susan Frey: Any com­ments from board mem­bers? Thoughts?

And, we’re hand­ing out an arti­cle from the Des Moines Reg­is­ter today, or yes­ter­day August 26th, on the cannabis oil.

Carl Olsen: Yeah, there was a hear­ing held yes­ter­day in the Iowa Depart­ment of Pub­lic Health on that.

Sharon Meyer: You would like a rec­om­men­da­tion from the board to the sched­ule. Here, it’s say­ing the fam­ily could find an out of state sup­plier. It would be imple­mented, … Sorry, got on the wrong para­graph. It says peo­ple are frus­trated by the pace of the imple­men­ta­tion and the oil is not avail­able. Are you say­ing that we need to make a state­ment to the legislature?

Carl Olsen: I don’t think the leg­is­la­ture under­stands the tech­ni­cal nature of the five (5) sched­ules, and I think the board does. And I think they need the assis­tance of the board with that par­tic­u­lar issue. It’s obvi­ous they want to do some­thing. And, it’s obvi­ous that they’ve started to move for­ward. But, I don’t think they under­stand how impor­tant to sched­ul­ing is. Sched­ule 1 says no accepted med­ical use in treat­ment in the United States, and that is just not the case. It has accepted med­ical use in thirty-four (34) states. Why the fed­eral gov­ern­ment hasn’t moved it out of Sched­ule 1 I can’t say. But this board rec­om­mended it be removed from state sched­ule 1 in 2010. And, I think the board should con­tinue to stand behind that and not let the leg­is­la­ture think that you’ve changed your mind, or that you’re not inter­ested any­more, or … I’ve heard that com­ment from leg­is­la­tors, like, “What’s hap­pened with the board of phar­macy? Why are they back­ing out on this?” So, I think there’s real dam­age there.

Ed Maier: Madam chair, this is Ed. I think a cou­ple of us that looked through this in 2010, I think this is impor­tant enough, if we can, I think we should maybe some­how dis­cuss, whether we appoint a com­mit­tee, or send it to rules com­mit­tee to talk about, or what­ever, for some rec­om­men­da­tions, and talk. I think it’s impor­tant, what­ever we do, that we have a solid cut mes­sage that the peo­ple under­stand. Last time, we were totally mis­un­der­stood, exactly what was hap­pen­ing. I don’t know that, I guess I might rec­om­mend that we some­how study this and that we take it up at the next meet­ing if that’s possible.

Susan Frey: Well, you’ve been… I was not aware of the recent hear­ing. I guess I would like to, you know, look at some of that infor­ma­tion and incor­po­rate that. I think, you know, I would cer­tainly be will­ing to estab­lish a study group.

Carl Olsen: I par­tic­i­pated in that hear­ing yes­ter­day and they said they would give me all, every­thing that was sub­mit­ted, and a record­ing of the hear­ing and all of that.

Terry Witkowski: Just to clar­ify, that hear­ing was their pro­posed rules.

Carl Olsen: Yeah.

Terry Witkowski: for the cannabid­iol pro­gram, correct?

Carl Olsen: Right. And there were a lot of com­ments that weren’t… didn’t stay con­fined to that and they kept say­ing you’ll have to talk to the leg­is­la­tors about. But, any­way, it was all…

Susan Frey: And, I mean… If they’re talk­ing about rules, that will set a prece­dent also, so I think that’s prob­a­bly some­thing that we need to, you know, look into a lit­tle deeper, fur­ther. So, I would enter­tain a motion to form a…

Terry Witkowski: You want to refer it to a com­mitt­tee, or form a sep­a­rate committee?

Susan Frey: Well, Ed sug­gested… Ed, do you want to go to rules com­mit­tee with that or do you want a sep­a­rate committee?

Ed Maier: You know, I’m not sure. I don’t know where the rules com­mit­tee is now. I know that they have a con­sid­er­able amount of work that they’re doing on leg­is­la­tion and other things, so I might defer to some­body on the rules com­mit­tee as to whether they would pre­fer that. Or, do we pre­fer a sep­a­rate com­mit­tee that would take a look at all of the new things that have hap­pened and try to make some sort of recommendation>

Terry Witkowski: Do you antic­i­pate hav­ing some­thing ready to present a leg­isla­tive pro­posal this year? Because the dead­line for that is the end of November.

Ed Maier: The end of November?

Terry Witkowski: Yes. Really by Thanks­giv­ing we have to have it sub­mit­ted. It would have to go to, you’d have to have a leg­is­la­tor to present it.

Ed Maier: So, Terry, if we were to defer it and take action one way or the other at our next meet­ing, would that be too late? Or, is that push­ing it?

Terry Witkowski: You could, if we had a pro­posal ready for the next board meet­ing, that would be timely.

Ed Maier: Okay. I think that’s prob­a­bly what we need to do. Either rules,… Rules is really, really busy, and I know they have been, but, you know, maybe a sep­a­rate com­mit­tee, a small com­mit­tee that could take a look at this stuff and then get together and just decide on a recommendation.

Ed McKenna: Being on the rules com­mit­tee I would prob­a­bly agree with Ed that we should have a sep­a­rate com­mit­tee and get more input from other people.

Susan Frey: I would agree.

Ed McKenna: I know we have a lot of sep­a­rate com­mit­tees, but…

Susan Frey: Okay, well…

Terry Witkowski: Ed, did you want to be on that com­mit­tee? Or, chair that committee?

Ed Maier: Let me…

Terry Witkowski: You have the his­tory, so I’m think­ing that that might be, you know, it would be a good thing to have some­body with that…

Ed Maier: Yes, Yeah, I would do that.

Terry Witkowski: You can read all the cases you want this weekend.

(LAUGHTER)

Ed Maier: You got it Terry.

Lloyd Jessen: Why don’t we have a motion then to form a com­mit­tee with Ed as chair and then I’ll work with Ed so,…

Ed Maier: There you go. We’ll work together to put a com­mit­tee together here and get it taken care of.

Terry Witkowski: Ask the board mem­bers to see if anybody’s inter­ested, too.

Lloyd Jessen: Yeah, we can do that.

Sharon Meyer: So moved.

Susan Frey: Okay, it’s been moved. Do I have a second?

Ed McKenna: Second.

Susan Frey: Okay, it’s been moved and sec­onded to form a com­mit­tee to review the peti­tion on agency action for mar­i­juana sched­ul­ing with a, to bring it back at our Novem­ber meet­ing. All of those in favor say aye. Want a role call vote?

Ed Maier: Maier, aye.

LaDonna Gra­tias: Gra­tias, aye.

Ed McKenna: Aye.

Sharon Meyer: Meyer, aye.

Judith M. Trumpy: Trumpy, aye.

Susan Frey: Frey, aye. All those opposed? Motion carries.

Carl Olsen: Well, I have to get back to work, but thank you all. You guys are awe­some. I’ll see you later.

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Cannabis Oil in Iowa

Med­ical mar­i­juana has finally made its legal entrance into Iowa’s cul­ture with the legal­iza­tion of cannabis oil on July 1, 2014 (Iowa Med­ical Cannabid­iol Act of 2014). In response, a new busi­ness ven­ture here in Iowa has shown an inter­est in sup­ply­ing this prod­uct, iCann: Rea­son­able Cannabis Solu­tions in Urban­dale, Iowa. I talked briefly with one of the own­ers today and I’ll be talk­ing with him again soon to get more details. In an email to Crys­tal Brunt, Iowa NORML Women’s Alliance, the com­pany said it is attempt­ing to work with leg­is­la­tors and patients. Two of the orga­ni­za­tions men­tioned in the email were Advo­cacy Strate­gies and the Uni­ver­sity of Iowa Col­lege of Med­i­cine, both of which would be key resources for any busi­ness ven­ture to be suc­cess­ful in Iowa. I’m still try­ing to under­stand the legal issues. A phar­ma­ceu­ti­cal prod­uct by the name of Epid­i­olex man­u­fac­tured by GW Phar­ma­ceu­ti­cals is cur­rently in phase 3 clin­i­cal tri­als in Iowa. What is impor­tant to under­stand is that the cannabis oil that has just been legal­ized here in Iowa is not Epid­i­olex, which explains why a com­pany like iCann: Rea­son­able Cannabis Solu­tions would be inter­ested in dis­trib­ut­ing it in Iowa. Cannabis oil has not been approved by the FDA and there is no sign the FDA will be con­sid­er­ing it in the near future. One of the inter­est­ing devel­op­ments is that Con­gress recently legal­ized the pro­duc­tion of indus­trial hemp and indus­trial hemp has a high level of cannabid­iol. So, although the FDA hasn’t approved it, it would appear that cannabis oil can actu­ally be made from indus­trial hemp. The fed­eral Agri­cul­ture Act of 2014, Sec­tion 7606, autho­rizes the pro­duc­tion of hemp for both “agri­cul­tural or aca­d­e­mic research”, so it appears that opens the door for cannabis oil pro­duc­tion. Stay tuned for fur­ther developments.

Posted in Federal, Science, States | 5 Comments

Another awful state platform committee meeting

The Iowa Demo­c­ra­tic Party (IDP) State Plat­form Com­mit­tee met again on Sat­ur­day, March 17, to fin­ish our work on the IDP State Plat­form Com­mit­tee report to the IDP State Con­ven­tion on June 21. The dead­line for sub­mit­ting the report to the IDP is May 23. The room was sched­uled for 8.5 hours, We started at 10:00 a.m., but we spent the first hour hear­ing from “impor­tant” peo­ple instead of get­ting to work. Then, we spent two hours on the first sub­com­mit­tee report (Agri­cul­ture and Envi­ron­ment) of six reports, and then took an hour for lunch. So, we killed four hours and only got one sub­com­mit­tee report fin­ished and still had five sec­tions left to go. If you’re doing the math, that would be 10 more hours, but the room was only avail­able for another 4.5 hours.

So, we sped up a lit­tle and did the next two sec­tions (Econ­omy, Com­merce and Labor; Edu­ca­tion) in less than an hour each. How­ever, when we got to the Gov­ern­ment and Law sub­com­mit­tee report, that sub­com­mit­tee had not reduced their report to the sug­gested word limit and we spent another two hours on that report, which put us right up to 6:00 p.m. While this was going on, the Health and Human Ser­vices sub­com­mit­tee decided to leave the room and re-write their sub­com­mit­tee report, leav­ing us short on mem­bers who should have been pay­ing atten­tion to the Gov­ern­ment and Law sub­com­mit­tee report instead of doing the work they should have done before the meet­ing. When they came back in at 6:00 p.m., some­one said they had done such a good job re-writing their sub­com­mit­tee report that we should just accept it with­out see­ing it. I saw a plank on med­ical cannabis I did not like in that sub­com­mit­tee report before it got re-written and it was still poorly writ­ten after they re-wrote the report, so I made an objec­tion I had planned to make ear­lier. My objec­tion was upheld by the group and we pro­ceeded to review the sub­com­mit­tee report. So, here was my objection:

In the 2012 IDP Plat­form, we had
Page 20, Line 367, Health & Human Ser­vices, Plank 159
We sup­port: med­ical cannabis

In the 2014 First Dis­trict Plat­form, they had
Page 9, Line 417, Gov­ern­ment & Law
We sup­port: Legal­iz­ing mar­i­juana
Page 11, Line 514, Health & Human Ser­vices
We sup­port: Fed­eral and State laws allow­ing med­ical use of marijuana

In the 2014 Sec­ond Dis­trict Plat­form, they had
Page 9, Line 385, Gov­ern­ment and Law
We sup­port: Cannabis legal­iza­tion, reg­u­la­tion, tax­a­tion
Page 13, Line 565, Health and Human Ser­vices
We sup­port: Legal/accessible med­ical mar­i­juana (MMJ)/derivatives

In the 2014 Third Dis­trict Plat­form, we had
Page 8, Line 359, Gov­ern­ment and Law, Plank 15
We sup­port: legal­iza­tion of mar­i­juana, with reg­u­la­tion and tax­a­tion
Page 11, Line 470, Health Care and Human Ser­vices, Plank 8
We sup­port: legal­iz­ing med­ical marijuana

In the 2014 Fourth Dis­trict Plat­form, they had
Page 11, Line 470, Health and Human Ser­vices
We sup­port: Resched­ul­ing cannabis to a sched­ule 2 substance

The Health and Human Ser­vices sub­com­mit­tee wanted to go with “resched­ul­ing cannabis to sched­ule 2″ or some­thing like that. I objected to it and said we should have “med­ical cannabis” instead, because most peo­ple don’t know what sched­ule 2 is. I said I had endured all of the delay to make this one objec­tion and I wasn’t going to be cheated out of it. I won the debate and we changed it to “med­ical cannabis.” But, there was a lot of other stuff in that report that ended up being amended, and it was prob­a­bly 8:00 p.m. before we moved on to the last sub­com­mit­tee report, Inter­na­tional Affairs. We ended up leav­ing at 11:30 p.m. and we were still well over the word limit of 3000 words. We started out in the morn­ing at 3600 words and we never addressed that issue through­out the day. I’m guess­ing we left that meet­ing some­where around 3300 words. And, because the meet­ing was announced as being over by 6:30 p.m., a lot of mem­bers had left when these impor­tant votes were being taken. These meet­ings have not been brought to order prop­erly, so I have writ­ten a Plat­form Com­mit­tee Bill of Rights which you can find at: http://platform.idp3.org/.

I am pre­sent­ing my Plat­form Com­mit­tee Bill of Rights at our Polk County Cen­tral Com­mit­tee meet­ing on May 22, 2014, and again at our Third Con­gres­sional Dis­trict Cen­tral Com­mit­tee meet­ing on May 31, 2014.

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Another difficult year on the state platform committee

After suc­cess­fully chair­ing my con­gres­sional dis­trict plat­form com­mit­tee this year, I joined up with the Iowa Demo­c­ra­tic Party state plat­form com­mit­tee again. This is my eighth cycle in a 16-year span. I was elected sec­re­tary of the state plat­form com­mit­tee in 1998, 2000, 2002, 2004, 2006, 2008, 2010, and 2012. I resigned as sec­re­tary in 2013 because the state plat­form chair and the state party staff rearranged the plat­form after I had sub­mit­ted it to the party and did not tell me about it until I arrived at a pub­lic hear­ing and my line num­bers did not match what was being dis­trib­uted at the pub­lic hear­ing. Things are not going a whole lot bet­ter this year.

The first meet­ing of the plat­form com­mit­tee on May 3 was can­celled because some of the mem­bers wanted to attend another meet­ing. I guess Democ­rats all have to go to the same meet­ings. I asked if we would get an addi­tional week to draft the plat­form and could not get an answer. I have since got­ten the answer and the answer is no, we will not get an addi­tional week to work on the plat­form. We just lost a week.

The sec­ond meet­ing of the plat­form com­mit­tee was sup­posed to start at 11:00 a.m. on May 10, but they had sched­uled another meet­ing at the same time. Again, it seems like Democ­rats all have to be at the same place at the same time to get any work done. So, every­one who showed up on time was forced to wait for the meet­ing to start. It took a total of 2.5 hours to elect three peo­ple as per­ma­nent offi­cers. I was accused of mak­ing motion after motion to delay the meet­ing, but I never made any motions. I ran for plat­form chair and got a tie vote of 27 to 27 on the first vote, then 25 to 25 on the sec­ond vote, and I finally lost 26 to 27 on the final vote. I was nom­i­nated for vice chair, but I refused. I was nom­i­nated for sec­re­tary, but after I accepted that nom­i­na­tion some­one moved that we have co-secretaries. I was then added as a can­di­date for the elec­tion of co-secretaries with­out any­one ask­ing me if I accepted. I made an objec­tion and said I had not accepted any nom­i­na­tion for co-secretary. My name was removed, and they elected two co-secretaries.

Not every­one was on board with the delay, and a motion was made to seat the alter­nates and start the meet­ing. It was agreed to seat the alter­nates around noon, but it was not agreed to start the meet­ing. There were 48 peo­ple in the room (a mix of elected mem­bers and alter­nates) and the com­mit­tee has total vot­ing strength of 50 elected mem­bers. It was then approved to seat the next two peo­ple that walked in (either elected mem­bers or elected alter­nates), until the strength was a full 50. How­ever, this did not leave room for the peo­ple still at the other meet­ing. A sug­ges­tion was made that we increase the num­ber to over 50, but that motion was never made because it was agreed it would be out of order. Then a sug­ges­tion was made to unseat some of the alter­nates, but that motion was never made because it was agreed it would be unfair. Finally, some­one men­tioned that the state party can appoint up to 8 at-large mem­bers. It was then agreed that the miss­ing mem­bers would be seated as appointed mem­bers by the state party when they came in. All this took about 1.5 hours before we started hav­ing elections.

I’ve seen some bad meet­ings before, but this one took the cake.

I’ve pro­posed some amend­ments to the Iowa Demo­c­ra­tic Party Con­sti­tu­tion that I hope will begin to address some of these prob­lems. You can read my pro­posed amend­ments by click­ing here.

  • Set quo­rum at 40%
  • Set the first meet­ing the week imme­di­ately fol­low­ing the con­ven­tion at which the mem­bers are elected
  • Set the time for start­ing the meet­ing at 15 min­utes, after which any mem­ber can call the meet­ing to order
  • Elect per­ma­nent offi­cers as soon as there is a quorum
  • A quo­rum is any com­bi­na­tion of mem­bers and alter­nates, as long as the num­ber allowed for a con­stituent unit is not exceeded (on the state plat­form com­mit­tee, each con­gres­sional dis­trict gets a spe­cific num­ber of members)
  • appointed mem­bers must be appointed before the meet­ing starts, not 1.5 hours after the meet­ing has started

I think we will still need to amend the bylaws to get con­stituent units to report their plat­forms and elec­tions imme­di­ately so we can actu­ally start work­ing on the next con­ven­tion within 7 days of the pre­vi­ous con­ven­tion or caucus.

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The Official Position of the Branstad Administration

Des Moines 20100822 066While Gov­er­nor Branstad lies about the offi­cial posi­tion of his admin­is­tra­tion, the Iowa Board of Phar­macy, the admin­is­tra­tive agency given the task of for­mu­lat­ing the offi­cial pol­icy of the Branstad Admin­is­tra­tion, con­tin­ues to say their offi­cial posi­tion is that mar­i­juana is med­i­cine and the leg­is­la­ture should cre­ate a med­ical mar­i­juana pro­gram. You can lis­ten for your­self by click­ing here.

The first 52 min­utes of the hear­ing was peo­ple tes­ti­fy­ing about their need for med­ical mar­i­juana. Then there was a dis­cus­sion of the law that cre­ated the duty of the board to make rules for med­ical use of mar­i­juana that lasted for another 19 min­utes, and then, finally for the last 20 min­utes or so the board explains why it still sup­ports the rul­ing it made in 2010.

When the leg­is­la­ture cre­ates a law giv­ing a spe­cific admin­is­tra­tive agency the duty of mak­ing a deci­sion for the exec­u­tive branch, it is the con­sti­tu­tional duty of the gov­er­nor to faith­fully exe­cute that law. How­ever, in this sit­u­a­tion, Gov­er­nor Branstad is deny­ing that his admin­is­tra­tion sup­ports reclas­si­fi­ca­tion or med­ical use of mar­i­juana. That is a vio­la­tion of the Iowa Con­sti­tu­tion, imposter gov­er­nor, sir.

This was also con­firmed when we went to trial against the Iowa Board of Phar­macy on Jan­u­ary 3, 2014. In the tran­script of the hear­ing, on page 17, the judge asked the board’s attorney:

THE COURT: In fact, it made no oppo­site rec­om­men­da­tion; is that correct?

MS. GAVIN: That’s cor­rect, Your Honor. The Board has not taken any pub­lic posi­tion since this 2010 recommendation.

Posted in Uncategorized | 6 Comments

Governor Branstad’s Straw Man

Gov­er­nor Branstad said he’s opposed to a med­ical mar­i­juana pro­gram like California’s, while ignor­ing the fact that the Iowa Depart­ment of Pub­lic Health has rec­om­mended a pro­gram like New Mexico’s Med­ical Cannabis Pro­gram. Clel BaudlerAs you may recall, Iowa State Rep­re­sen­ta­tive Clel Baudler went to Cal­i­for­nia in 2010 and lied about hav­ing hem­or­rhoids to get a med­ical rec­om­men­da­tion for mar­i­juana. The leg­is­la­tion being pro­posed here in Iowa, SF 2215, would require a doc­tor and a patient to sub­mit an appli­ca­tion to the Iowa Depart­ment of Pub­lic Health, which would then review the appli­ca­tion to make sure it is legit­i­mate. Gov­er­nor Branstad is not being hon­est when he says Iowa’s med­ical mar­i­juana law will be like California’s. Obvi­ously, Gov­er­nor Branstad would like every­one to think the leg­is­la­tion being pro­posed here in Iowa is like Cal­i­for­nia, so he can set up a straw man argu­ment and knock it down. Here’s what Gov­er­nor Branstad had to say this morning:

Gov­er­nor Branstad cites deaths from pre­scrip­tion drug abuse, but there are no deaths from mar­i­juana. Branstad cites the abuse of pre­scrip­tion drugs, but fails to acknowl­edge that the extra pro­tec­tion pro­vided in SF 2215 ensures that every appli­ca­tion for med­ical use of mar­i­juana is indi­vid­u­ally reviewed by the Iowa Depart­ment of Pub­lic Health before it is approved. A doc­tor will not be able to sim­ply write out a pre­scrip­tion as we cur­rently allow for extremely lethal nar­cotics. Marijuana’s safety record is beyond dis­pute. The Chief Admin­is­tra­tive Law Judge for the U.S. Drug Enforce­ment Admin­is­tra­tion found that, “Mar­i­juana, in its nat­ural form, is one of the safest ther­a­peu­ti­cally active sub­stances known to man.” DEA Docket No. 86–22, Sept. 6, 1988.

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Interview with Dr. Hertko

In antic­i­pa­tion of the phar­macy board hear­ing com­ing up this Wednes­day morn­ing, March 12, and part 2 of Sanja Gupta’s CNN Doc­u­men­tary, “Weed 2: Cannabis Mad­ness”, on Tues­day evening, March 11, I thought it would be appro­pri­ate to inter­view one of the found­ing fathers of the Iowa Med­ical Mar­i­juana law enacted in 1979, Dr. Edward J. Hertko.

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Iowa Board of Pharmacy considers rules for cannabis

The Iowa Board of Pharmacy’s Rules Com­mit­tee met today to con­sider mak­ing rules for the med­ical use of cannabis. Here are the audio record­ings I made of that meeting:

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How we got here and where we should go from here

In 2006, when the case of Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), was decided, it became clear to me that states are still the deci­sion mak­ers on accepted med­ical use of con­trolled sub­stances. We have 50 states with 50 drug laws, which would be totally unnec­es­sary if fed­eral drug law over­ruled them all. So, med­ical use of con­trolled sub­stances is still a local, state deci­sion. Because our state drug law here in Iowa uses fed­eral lan­guage for sched­ul­ing, I decided to test this out on the Iowa Board of Phar­macy in 2008 and ask them to find that mar­i­juana has accepted med­ical use in treat­ment in the United States based on 12 state laws that accepted the med­ical use of mar­i­juana in treat­ment at that time. The board refused to answer that ques­tion and insisted that it must look at the sci­ence instead. I appealed from their rul­ing, and while my appeal was pend­ing, the board decided to take an inde­pen­dent look at the sci­ence. When the board ruled unan­i­mously in 2010 that mar­i­juana is med­i­cine based on sci­ence, the court dis­missed my appeal as moot. This is because it does not mat­ter whether the board finds that mar­i­juana is mis­clas­si­fied as a mat­ter of law or as a mat­ter of sci­ence. The fact the board ruled that mar­i­juana should be reclas­si­fied relieved them of hav­ing to answer the legal ques­tion. So, I got what I wanted even though I did not get what I wanted for the rea­son I gave, state laws in 12 other states accept­ing the med­ical use of mar­i­juana in treat­ment in the United States.

522a51630d68a.preview-620I did not tell the board what to do with mar­i­juana after it is removed from sched­ule I, because I would be per­fectly happy if mar­i­juana is removed from sched­ule I with­out any fur­ther action by the state, which would leave it legally equiv­a­lent to dan­de­lions. The board rec­om­mended plac­ing mar­i­juana in sched­ule II and enact­ing a med­ical mar­i­juana pro­gram like New Mex­ico. Just last week, Sen­a­tor Joe Bolk­com from Iowa City, Iowa, actu­ally filed two bills, SF 2214 and SF 2215, which fairly accu­rately reflect the rec­om­men­da­tions of the board in 2010. My posi­tion is that because leg­is­la­tors are not med­ical experts, and because we have the advise of the Iowa Board of Phar­macy which rep­re­sents the Iowa Depart­ment of Pub­lic Health, that the leg­is­la­tors should enact these two bills. But, now I have to qual­ify that by say­ing the board was very spe­cific about SF 2214, but not very spe­cific about SF 2215. The board rec­om­mended that we enact a med­ical mar­i­juana pro­gram “like” New Mex­ico, but did not say “inden­ti­cal.” So, there is some room to nego­ti­ate here on SF 2215.

Because SF 2214 and SF 2215 were intro­duced on the last day they could have been approved by the Sen­ate Com­mit­tee on Human Resources, they are both dead for this year and will have to be refiled again next year. Here’s where I think we should go with these two bills next year. I think these two bills should be com­bined into one bill, and here’s why.

FIRST:

Reclas­si­fy­ing mar­i­juana as med­i­cine doesn’t make much sense with­out cre­at­ing a means of access. So, these two bills really should be one bill, not two. The rea­son they ended up as two bills is a long story. Sen­a­tor Bolk­com just ignored the board in 2011 and 2012 and didn’t file any­thing the board rec­om­mended. In 2013, Sen­a­tor Bolk­com attached the lan­guage in SF 2214 to his bill from 2011 and 2012, which is SF 79, and which is also not what the board rec­om­mended. So, now, Sen­a­tor Bolk­com has finally intro­duced bills the board rec­om­mended, but now they are two sep­a­rate bills instead of one. Sen­a­tor Bolk­com really should get this right in 2015 and file every­thing the board rec­om­mended in just one bill. It’s just so much cleaner that way.

SECOND:

New Mexico’s leg­is­la­tion spec­i­fied an ini­tial list of con­di­tions, and then gave the New Mex­ico Depart­ment of Health the author­ity to add addi­tional con­di­tions. This is a bad idea for Iowa. Leg­is­la­tors should not be decid­ing which con­di­tions mar­i­juana should be used in treat­ing, nor should leg­is­la­tors be decid­ing the best forms of deliv­ery for those con­di­tions. Med­ical deci­sions should be made by med­ical pro­fes­sion­als, not leg­is­la­tors prac­tic­ing med­i­cine with­out a license.

CONCLUSION:

So, I see how we could fol­low the spirit of the Iowa Board of Pharmacy’s rec­om­men­da­tions and do it bet­ter than New Mex­ico by mak­ing our state law the first state law to reclas­sify mar­i­juana as med­i­cine and to leave the med­ical deci­sions to the Iowa Depart­ment of Pub­lic Health. I’m not say­ing this will hap­pen. After all, no other state has got­ten this right yet. But, Iowa could be the first state to get it right.

And, remem­ber, by remov­ing mar­i­juana from sched­ule I, we’ve basi­cally said it does not belong in fed­eral sched­ule I, so we’ve made the crit­i­cal argu­ment that needs to be made to address fed­eral sched­ul­ing (which has not yet been resolved).

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Judge rules against medical marijuana activist in lawsuit against pharmacy board

bilde_rosenbergThe Des Moines Reg­is­ter car­ried a blog arti­cle about the court rul­ing against me in my law­suit against the Iowa Board of Phar­macy. The arti­cle was fairly accu­rate. The only real error in the arti­cle, and it runs con­sis­tently through­out the his­tory of this entire project started in 2006, is that every­one keeps para­phras­ing the argu­ment incor­rectly. The author incor­rectly states, “Iowa law clas­si­fies ‘sched­ule I’ drugs as hav­ing no med­ical pur­pose.” The prob­lem with this trun­cated ver­sion “med­ical pur­pose” is that it dis­torts the mean­ing of the law. What Iowa law actu­ally says is that sched­ule I “sub­stances” (not “drugs”) have “no accepted med­ical use in treat­ment in the United States.” By trun­cat­ing that phrase to “med­ical pur­pose” the real issue of where a sub­stance has accepted med­ical pur­pose gets entirely lost.

Where is “in the United States?”

Notice it does not say “in Iowa.” The phrase “accepted med­ical use in treat­ment in the United States” actu­ally comes from the fed­eral Con­trolled Sub­stances Act. And, that phrase has been inter­preted for us by a fed­eral court in Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987) (“We add, more­over, that the Administrator’s clever argu­ment con­ve­niently omits any ref­er­ence to the fact that the per­ti­nent phrase in sec­tion 812(b)(1)(B) reads ‘in the United States,’ (empha­sis sup­plied). We find this lan­guage to be fur­ther evi­dence that the Con­gress did not intend ‘accepted med­ical use in treat­ment in the United States’ to require a find­ing of rec­og­nized med­ical use in every state or, as the Admin­is­tra­tor con­tends, approval for inter­state mar­ket­ing of the sub­stance.”) So, you can see my argu­ment gets dis­torted by the phar­macy board, the courts, and the media, when they sub­sti­tute the trun­cated phrase “med­ical pur­pose” for the legally accu­rate phrase “accepted med­ical use in treat­ment in the United States.”

What to do?

This over­whelm­ing, mono­lithic dis­tor­tion of the mean­ing of this statute has made it extremely dif­fi­cult to make any progress because it leaves patients in jeop­ardy. For exam­ple, we now have 20 states that have accepted the med­ical use of mar­i­juana in treat­ment in the United States, and none of them has made the argu­ment that mar­i­juana is unlaw­fully clas­si­fied under fed­eral reg­u­la­tions. The result is an odd sit­u­a­tion of state laws allow­ing med­ical use that fed­eral reg­u­la­tions for­bid. Although fed­eral reg­u­la­tions do not specif­i­cally require that mar­i­juana be clas­si­fied as hav­ing no accepted med­ical use in treat­ment in the United States, the absence of any state objec­tion to this unlaw­ful clas­si­fi­ca­tion com­bined with recal­ci­trance from the U.S. Depart­ment of Jus­tice respon­si­ble for main­tain­ing the cur­rent clas­si­fi­ca­tion, results in the illu­sion of a vio­la­tion of fed­eral law. While it is true that numer­ous peti­tions to have mar­i­juana fed­er­ally reclas­si­fied as med­i­cine have been filed over the years, includ­ing one cur­rently pend­ing by the states of Wash­ing­ton and Rhode Island, the argu­ments have always been about “med­ical pur­pose” and not about who gets to make the deci­sion. Obvi­ously, 20 states have decided that mar­i­juana does indeed have a “med­ical pur­pose.” And, since none of those states thinks fed­eral law rec­og­nizes a state’s right to deter­mine “accepted med­ical use” of a con­trolled sub­stances, these peti­tions obvi­ously cede that author­ity to the Attor­ney Gen­eral of the United States.

Did Con­gress actu­ally intend the deci­sion on “accepted med­ical use” to be deter­mined by the Attor­ney Gen­eral of the United States? It would be extremely hard to believe that when the fed­eral drug law was enacted in 1970 the Uni­form Laws Com­mis­sion would rec­om­mend all 50 states adopt their own ver­sions of the fed­eral Con­trolled Sub­stances Act, with detailed sched­ul­ing cri­te­ria for deter­min­ing whether sub­stances have accepted med­ical use, if that deci­sion was to be deter­mined solely by a fed­eral admin­is­tra­tive agency. In fact, Iowa law hasn’t been con­sis­tent with fed­eral reg­u­la­tions since 1979 when the Iowa Board of Phar­macy was given the author­ity to make mar­i­juana a sched­ule II con­trolled sub­stance in Iowa. If you’re won­der­ing how this could hap­pen, we have an expla­na­tion from the United States Supreme Court in Gon­za­les v. Ore­gon, 546 U.S. 243, 258 (2006) (“The Attor­ney Gen­eral has rule­mak­ing power to ful­fill his duties under the CSA. The spe­cific respects in which he is autho­rized to make rules, how­ever, instruct us that he is not autho­rized to make a rule declar­ing ille­git­i­mate a med­ical stan­dard for care and treat­ment of patients that is specif­i­cally autho­rized under state law”). If the Attor­ney Gen­eral can­not make a rule that vio­lates state author­ity, nei­ther can the Attor­ney Gen­eral main­tain one. How­ever, the lack of any objec­tion by any state clearly leaves the Attor­ney Gen­eral in a dilemma. The Obama Admin­is­tra­tion has responded by say­ing that Con­gress should resolve the issue. State offi­cials refuse to rep­re­sent the peo­ple who elected them. The Obama Admin­is­tra­tion will not peti­tion the U.S. Depart­ment of Jus­tice to make a deci­sion that clearly belongs to the states.

What’s next?

I should have writ­ten my peti­tion for judi­cial review more clearly. I alleged the Iowa Board of Phar­macy vio­lated five sec­tions of the Iowa Admin­is­tra­tive Pro­ce­dures Act. And, I prob­a­bly shot myself in the foot here. Iowa Code Chap­ter 17A(10): (b) Beyond the author­ity del­e­gated to the agency by any pro­vi­sion of law; © Based on an erro­neous inter­pre­ta­tion of law whose inter­pre­ta­tion has not been clearly vested by a pro­vi­sion of law in the dis­cre­tion of the agency; (d) Taken with­out fol­low­ing the pre­scribed decision-making process; (j) The prod­uct of a deci­sion mak­ing process in which the agency did not con­sider rel­e­vant and impor­tant mat­ter relat­ing to the pro­pri­ety or desir­abil­ity of the action in ques­tion that a ratio­nal deci­sion maker in sim­i­lar cir­cum­stances would have con­sid­ered prior to tak­ing that action; and, (n) Is oth­er­wise, arbi­trary and capri­cious or an abuse of discretion.

In hind­sight, I should have cited these two instead. Iowa Code Chap­ter 17A(10): © Based on an erro­neous inter­pre­ta­tion of law whose inter­pre­ta­tion has not been clearly vested by a pro­vi­sion of law in the dis­cre­tion of the agency; (h) Action other than a rule that is incon­sis­tent with the agency’s prior prac­tice or prece­dents, unless the agency has jus­ti­fied that incon­sis­tency by stat­ing cred­i­ble rea­sons suf­fi­cient to indi­cate a fair and ratio­nal basis for the inconsistency.

Because I cited Iowa Code Chap­ter 17A(10)©, I have suf­fi­cient grounds to file an appeal. I spoke with my attor­ney today and he agrees with my legal analy­sis, but he is unsure if he has time to file the appeal. I can file the appeal myself, but its always bet­ter to have an attor­ney file it. So, I’ll wait for my attor­ney to make a deci­sion. I have until March 18 to file the notice of appeal.

At trial, a ques­tion came up about suf­fi­ciency of the evi­dence. My attor­ney moved to amend my com­plaint to include it and the judge granted it. How­ever, dur­ing the dis­cus­sion on the motion, the state attor­ney admit­ted that the board still thinks mar­i­juana is med­i­cine, which made the argu­ment on suf­fi­ciency of the evi­dence moot. How­ever, in the rul­ing, the judge said the board no longer believes mar­i­juana is mis­clas­si­fied and that we did not include any evi­dence the court could review to see if they made the right deci­sion. The judge was not lis­ten­ing when the state attor­ney said the board agrees with us that the evi­dence shows what we said it does, so there was no rea­son to show the court evi­dence that both par­ties to the case agree means the same thing. What a mess.

We hope the Iowa Supreme Court will straighten out this mess and we’ll be fil­ing our appeal soon.

I have two legal argu­ments, but they are almost iden­ti­cal: if the board finds for any rea­son that mar­i­juana has med­ical use, then it has a duty under Iowa Code Chap­ter 124 Sec­tion 203 to rec­om­mend reclas­si­fi­ca­tion or removal from the sched­ules. So, if the board still thinks mar­i­juana is med­i­cine (which the board’s attor­ney says it still agrees mar­i­juana is med­i­cine), then mar­i­juana is mis­clas­si­fied as a mat­ter of law. If the board does not think mar­i­juana is med­i­cine, that does not change the fact that mar­i­juana now has accepted med­ical use in treat­ment in 20 states and is mis­clas­si­fied here in Iowa as a mat­ter of law regard­less of whether the board thinks it has med­ical use. Under either of those two argu­ments, the board has a duty under Iowa Code Chap­ter 124 Sec­tion 203 to rec­om­mend reclas­si­fi­ca­tion or declas­si­fi­ca­tion of marijuana.

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