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.

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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).

Posted in Federal, Science, States | 6 Comments

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.

Posted in Federal, Science, States | 1 Comment

Who I am, what I do, and why I do it

There has been some con­fu­sion lately about who I am, what I do, and why I do it. So, what’s new? I thought a for­mal post was in order.

Some peo­ple think show­ing their leg­is­la­tors med­ical evi­dence is a good idea. In fact, they think it’s such a good idea that they think I should do it. Here’s my prob­lem with that.

FIRST, I’m not a med­ical expert and nei­ther are my state leg­is­la­tors. My state sen­a­tor is an attor­ney. My state rep­re­sen­ta­tive is a school admin­is­tra­tor. My U.S. Sen­a­tor is an attor­ney. My U.S. rep­re­sen­ta­tive owns a seed com­pany. There’s not a med­ical expert in the bunch.

SECOND, the Iowa Con­trolled Sub­stances Act has a detailed pro­ce­dure for eval­u­at­ing med­ical evi­dence, in Iowa Code Chap­ter 124 Sec­tion 201. The leg­is­la­tors made this law requir­ing the Iowa Board of Phar­macy to eval­u­ate med­ical evi­dence based on 8 fac­tors. If the leg­is­la­tors had con­sid­ered them­selves experts on med­ical evi­dence, why would they have assigned this duty to the Iowa Board of Phar­macy? This same law requires the Iowa Board of Phar­macy to advise the leg­is­la­tors on what the med­ical evi­dence says.

So, clearly, the place to present the evi­dence is to the Iowa Board of Phar­macy. I pre­sented the med­ical evi­dence to the Iowa Board of Phar­macy in 2009, and in 2010 the board ruled unan­i­mously that mar­i­juana is med­i­cine. The board advised the leg­is­la­ture to change the law.

What needs to hap­pen now is that I need to con­tinue putting pres­sure on the Iowa Board of Phar­macy to do its job by updat­ing the leg­is­la­tors and I need to put pres­sure on the leg­is­la­tors to obey the law they wrote. Going directly to the leg­is­la­tors with med­ical evi­dence is con­trary to the way this law was writ­ten. What I need to be telling leg­is­la­tors is that I expect them to obey the law they wrote.

Posted in States | 8 Comments

Smart Approaches to Marijuana — November 14, 2013

Smart Approaches to Mar­i­juana was here today and I got into a lit­tle argu­ment with Kevin Sabet near the end of the pre­sen­ta­tion. Here’s the audio.

Audio from Novem­ber 14, 2013, Kevin Sabet

Dr. Chris­t­ian Thur­stone, M.D. from Col­orado spoke first. He said the mar­i­juana indus­try exploded in Col­orado in 2009, but he didn’t explain why. A mem­ber of the audi­ence asked him to explain why, but he still didn’t explain it. So, I asked him if it was because of the Obama Administration’s “Ogden Memo” in Octo­ber of 2009. Dr. Kevin Sabet, Ph.D., stood up, looked at me, and said, “That’s exactly right!” Then, Dr. Thur­stone said the Col­orado courts had decided a case around that time that care­givers were not lim­ited to just one patient. So, it was the com­bi­na­tion of those two events that caused the explosion.

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Iowa District Court rules against Iowa Board of Pharmacy

Polk County Iowa Dis­trict Court Judge Scott Rosen­berg ruled against the Iowa Board of Pharmacy’s motion to dis­miss today in Carl Olsen v. Iowa Board of Phar­macy, No. CVCV045505.  Rea­son­ing that fail­ure of the board to advise the leg­is­la­ture annu­ally, as required by Iowa law, was an ongo­ing injury capa­ble of rep­e­ti­tion, the court ruled there was an actual con­tro­versy between the par­ties.  The judge also held that the enact­ment of med­ical mar­i­juana laws in 19 juris­dic­tions cre­ated a pub­lic inter­est that pre­vented dis­missal of the case before trial.  Trial is sched­uled for Jan­u­ary 4, 2014, at the Polk County Cour­t­house.  A copy of the court’s rul­ing can be found by click­ing on this link.

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Community Opposes Prosecution of Cancer Patient for Marijuana

This week, the Quad-City Times Edi­to­r­ial Board expressed the sen­ti­ment of the East­ern Iowa com­mu­nity in call­ing for the state to dis­miss crim­i­nal charges against can­cer patient Ben­ton Macken­zie.

Just the week before, the Sioux City Jour­nal pub­lished an arti­cle quot­ing Iowa Board of Phar­macy Exec­u­tive Direc­tor Lloyd Jessen and Iowa Office of Drug Con­trol Pol­icy Exec­u­tive Direc­tor Steven Lukan say­ing they never hear from any­one who needs mar­i­juana for med­i­cine in Iowa.

Gee, fel­las, do you think maybe peo­ple are afraid to speak out?  It’s not being para­noid if the state is really out to kill you, now, is it?  This is noth­ing short of cold-blooded, pre-meditated mur­der, Mr. Jessen and Mr. Lukan.  I see you try­ing to wash that blood off your hands, but it won’t wash off.  But, you have an arm­load of pre­scrip­tion drugs and alco­hol to help you sleep at night.  What a tragedy!

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