Candidates for Governor 2018

April 28, 2018

Dear Can­di­dates for Gov­er­nor of Iowa,

In 2017, the Iowa leg­is­la­ture autho­rized large-scale mar­i­jua­na cul­ti­va­tion in our state for the pur­pose of mak­ing cannabid­i­ol prod­ucts, the Med­ical Cannabid­i­ol Act of 2017, H.F. 524 (Acts Chap­ter 162, 87th Gen­er­al Assem­bly, 1st Ses­sion).

Cul­ti­va­tion of mar­i­jua­na is a fed­er­al crime.  The fed­er­al penal­ty for cul­ti­va­tion of 1,000 or more mar­i­jua­na plants is 10 years to life in fed­er­al prison and fines of up to $50 mil­lion.  21 U.S.C. § 841 (2018).  Fed­er­al law also autho­rizes the death penal­ty based sole­ly on the quan­ti­ty of mar­i­jua­na even in the absence of any accom­pa­ny­ing vio­lent crime.  18 U.S.C. § 3591(b)(1) (2018).

If our state has no con­sti­tu­tion­al right to autho­rize cul­ti­va­tion of mar­i­jua­na in Iowa, we are autho­riz­ing a fed­er­al con­tin­u­ing crim­i­nal enter­prise here in our state.  21 U.S.C. § 848 (2018).

Promi­nent state leg­is­la­tors, both Demo­c­rat and Repub­li­can, have made pub­lic state­ments declar­ing that Iowa is open­ly vio­lat­ing fed­er­al law by enact­ing leg­is­la­tion they vot­ed for.  Forty-six (46) states have enact­ed med­ical mar­i­jua­na laws since 1996.  This has tak­en on the mag­ni­tude of a con­sti­tu­tion­al cri­sis.

Where do you stand on this issue?

Thank you!

Carl Olsen
515–343‑9933
carl@carl-olsen.com

Here’s how much mar­i­jua­na you’d need to be eli­gi­ble for the death penal­ty under fed­er­al law

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Congressional Candidates 2018

April 28, 2018

Dear Can­di­dates for the Third Con­gres­sion­al Dis­trict of Iowa,

Some can­di­dates, includ­ing David Young, are sup­port­ing state med­ical mar­i­jua­na pro­grams.  How­ev­er, despite the fact that 46 states now have such pro­grams, there still exists a lack of clar­i­ty on whether cur­rent­ly exist­ing fed­er­al law pro­hibits them.

Fed­er­al­ism means that unless Con­gress pre­empts a state law, then that state law pre­vails.

On the ques­tion of the accept­ed med­ical use of con­trolled sub­stances in the states, fed­er­al courts have found that Con­gress has not defined the term “accept­ed med­ical use.”  See Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991).

The U.S. Supreme Court has inter­pret­ed the term “accept­ed” to mean what­ev­er the state law says it means.  See Gon­za­les v. Ore­gon, 546 U.S. 243 (2006).

Fed­er­al courts have also found that Con­gress did not intend the term “accept­ed med­ical use in treat­ment in the Unit­ed States” to require a find­ing of rec­og­nized med­ical use in every state.  See Grin­spoon v. Drug Enforce­ment Admin­is­tra­tion, 828 F.3d 881, 886 (1st Cir. 1987).

Nev­er­the­less, con­fu­sion still exists and sev­er­al bills have been filed in Con­gress to clar­i­fy the mat­ter.  David Young, for exam­ple, is a co-spon­sor of the CARERS Act of 2017, H.F. 2920 (115th Con­gress), and David Young was also a co-spon­sor of the CARERS Act of 2015, H.R. 1538 (114th Con­gress).

The prob­lem with the CARERS Act is that it defines “cannabid­i­ol” as three tenths of one per­cent (.3%) “tetrahy­dro­cannabi­nol” (THC).  In 2017, Iowa enact­ed the Med­ical Cannabid­i­ol Act of 2017, H.F. 524 (Acts Chap­ter 162, 87th Gen­er­al Assem­bly, 1st Ses­sion), which defines “cannabid­i­ol” as three per­cent (3%) THC.  Cannabid­i­ol (CBD) does not con­tain any THC.

It is plants and prepa­ra­tions that are being addressed.  Hemp, for exam­ple, is defined as three tenths of one per­cent (.3%) THC by dry weight, 7 U.S.C. § 5940(b)(2) (2017).  Iowa defines “cannabid­i­ol” as prod­ucts that are three per­cent (3%) THC by vol­ume.

We now have a con­flict between our state law and the CARERS Act of 2017.  I’ve point­ed this out to David Young and asked him to with­draw his sup­port for the CARERS Act of 2017.  I’ve also asked him to add his sup­port to the Respect State Mar­i­jua­na Laws Act of 2017, H.R. 975 (115th Con­gress), as Rob Blum is doing for the First Con­gres­sion­al Dis­trict of Iowa.

I’m won­der­ing where you stand on this issue.

I look for­ward anx­ious­ly for your response.

Thank you!

Carl Olsen
515–343-9933
carl@carl-olsen.com

cc: David Young
PO Box 162
Van Meter, Iowa 50261

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Requested Amendments to SF2397 (2018)

Pro­posed Amend­ment to SF 2397 (a bill by the Sen­ate Com­mit­tee on Ways and Means)

 

AN AMENDMENT TO SF 2397

 

Sec­tion 124E.1, Code 2018, is amend­ed by adding the fol­low­ing new sub­sec­tion and renum­ber­ing the remain­ing sub­sec­tions:

NEW SECTION.  124E.2  Leg­isla­tive pur­pose and intent.

The pur­pose and intent of this chap­ter is all of the fol­low­ing:

1.  The framers of the Unit­ed States Con­sti­tu­tion, rec­og­niz­ing state sov­er­eign­ty, secured its pro­tec­tion in the Tenth Amend­ment to the Unit­ed States Con­sti­tu­tion.

2.  Begin­ning with Cal­i­for­nia in 1996, a total of forty-six states have now enact­ed laws defin­ing mar­i­jua­na or extracts of mar­i­jua­na as med­i­cine.

3.  Con­gress did not intend the term “accept­ed med­ical use in treat­ment in the Unit­ed States” to require a find­ing of rec­og­nized med­ical use in every state, Grin­spoon v. Drug Enforce­ment Admin­is­tra­tion, 828 F.3d 881, 886 (1st Cir. 1987).

4.  Con­gress did not define the term “cur­rent­ly accept­ed med­ical use” in the fed­er­al Con­trolled Sub­stances Act, Alliance for Cannabis Ther­a­peu­tics v. Drug Enforce­ment Admin­is­tra­tion, 930 F.2d 936, 939 (D.C. Cir. 1991).

5.  In Gon­za­les v. Ore­gon, 546 U.S. 243 (2006) the Supreme Court of the Unit­ed States acknowl­edged the deci­sion-mak­ing author­i­ty to accept the med­ical use of con­trolled sub­stances is a police pow­er his­tor­i­cal­ly reserved to the states.

6.  The state and fed­er­al clas­si­fi­ca­tion of mar­i­jua­na as a sub­stance with­out accept­ed med­ical use in treat­ment in the Unit­ed States does not apply to the accept­ed med­ical use of mar­i­jua­na in the state of Iowa.

Online Copy: 2018 Amend­ment One SF2397


 


Pro­posed Amend­ment to SF 2397 (a bill by the Sen­ate Com­mit­tee on Ways and Means)

 

AN AMENDMENT TO SF 2397

 

Amend Sen­ate File 2397 as fol­lows:

By insert­ing:

<Sec­tion 1.  Sec­tion 124.204, sub­sec­tion 4, para­graphs m and u, Code 2017, are amend­ed by strik­ing the para­graphs.

Sec. 2.  Sec­tion 124.204, sub­sec­tion 7, Code 2017, is amend­ed by strik­ing the sub­sec­tion.

Sec. 3.  Sec­tion 124.206, sub­sec­tion 7, Code 2017, is amend­ed to read as fol­lows:

7. Hal­lu­cino­genic sub­stances.  Unless specif­i­cal­ly except­ed or unless list­ed in anoth­er sched­ule, any mate­r­i­al, com­pound, mix­ture, or prepa­ra­tion which con­tains any quan­ti­ty of the fol­low­ing sub­stances, or, for pur­pos­es of para­graphs “a” and “b”, which con­tains any of its salts, iso­mers, or salts of iso­mers when­ev­er the exis­tence of such salts, iso­mers, or salts of iso­mers is pos­si­ble with­in the spe­cif­ic chem­i­cal des­ig­na­tion (for pur­pos­es of this para­graph only, the term “iso­mer” includes the opti­cal, posi­tion­al, and geo­met­ric iso­mers):

a.  Mar­i­jua­na when used for med­i­c­i­nal pur­pos­es pur­suant to rules of the board.

b.  Tetrahy­dro­cannabi­nols, mean­ing tetrahy­dro­cannabi­nols nat­u­ral­ly con­tained in a plant of the genus Cannabis (Cannabis plant) as well as syn­thet­ic equiv­a­lents of the sub­stances con­tained in the Cannabis plant, or in the resinous extrac­tives of such plant, and syn­thet­ic sub­stances, deriv­a­tives, and their iso­mers with sim­i­lar chem­i­cal struc­ture and phar­ma­co­log­i­cal activ­i­ty to those sub­stances con­tained in the plant, such as the fol­low­ing:

(1)  1 cis or trans tetrahy­dro­cannabi­nol, and their opti­cal iso­mers.

(2)  6 cis or trans tetrahy­dro­cannabi­nol, and their opti­cal iso­mers.

(3)  3,4 cis or trans tetrahy­dro­cannabi­nol, and their opti­cal iso­mers.  (Since nomen­cla­ture of these sub­stances is not inter­na­tion­al­ly stan­dard­ized, com­pounds of these struc­tures, regard­less of numer­i­cal des­ig­na­tion of atom­ic posi­tions cov­ered.)

b. c.  Nabilone [anoth­er name for nabilone: (+-) -trans-3-(1,1-dimethylheptyl)-6,6a,7,8,10,10a-hexahydro-1-hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9-one].>

Online Copy: 2018 Amend­ment Two SF2397

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Candidate Questionnaire 2018

HAS IOWA TURNED TO CRIME?

We’ve been hear­ing some star­tling com­ments on Iowa’s new cannabis oil law late­ly, 2017 Iowa Acts Chap­ter 162, HF 524.  Iowa’s new law autho­rizes “pro­duc­tion and dis­tri­b­u­tion” in Iowa of prod­ucts con­tain­ing “any cannabi­noid” found in mar­i­jua­na plants which con­tains no more than 3% tetrahy­dro­cannabi­nol.  Iowa Code § 124E.2(6) (2018).  The pre­vi­ous ver­sion of this law, 2014 Iowa Acts Chap­ter 1125, SF2360, autho­rized only the “pos­ses­sion and use” in Iowa of prod­ucts con­tain­ing “a cannabi­noid” found in mar­i­jua­na con­tain­ing no more than 3% tetrahy­dro­cannabi­nol.  Iowa Code § 124D.2(1) (2017).

Here are some quotes from Iowa House Speak­er Lin­da Upmey­er:

She says they are already antic­i­pat­ing doing this bill with the pos­si­bil­i­ty of break­ing two fed­er­al laws.

KGLO Radio — Mason City, Iowa — March 27, 2017

House Speak­er Lin­da Upmey­er, R-Clear Lake, not­ed in a state­ment that no mat­ter what the Leg­is­la­ture had decid­ed, the state still would have been in vio­la­tion of fed­er­al law.

Des Moines Reg­is­ter — Des Moines, Iowa — Sep­tem­ber 10, 2017

And, here is a quote from State Rep­re­sen­ta­tive John Forbes:

I mean, we are vio­lat­ing fed­er­al law with a cannabis bill here in the state of Iowa.

Iowa Pub­lic Tele­vi­sion — John­ston, Iowa — Decem­ber 22, 2017

 

WHAT DO YOU THINK?

  1. Are state law­mak­ers vio­lat­ing any fed­er­al law by autho­riz­ing the use and pos­ses­sion of cannabis oil in Iowa?
     
  2. Are state law­mak­ers vio­lat­ing any fed­er­al law by autho­riz­ing the cul­ti­va­tion of mar­i­jua­na in Iowa for the pro­duc­tion of cannabis oil?
     
  3. Are state-licensed users of cannabis oil in vio­la­tion of any fed­er­al law for using and pos­sess­ing cannabis oil in Iowa?
     
  4. Are state-licensed cul­ti­va­tors of mar­i­jua­na in vio­la­tion of any fed­er­al law for grow­ing mar­i­jua­na in Iowa?
     
  5. Are state-licensed dis­trib­u­tors of cannabis oil in vio­la­tion of any fed­er­al law for dis­trib­ut­ing cannabis oil in Iowa?
     

 

THE OPINION OF SOME LEGISLATORS IN HAWAII

SB2217: clar­i­fies that med­ical use of cannabis is not con­sid­ered to be a state or fed­er­al crime

HB2572: clar­i­fies that med­ical use of cannabis is not con­sid­ered to be a state or fed­er­al crime

HB2031: autho­rizes inter­is­land trans­porta­tion of cannabis

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House Concurrent Resolution 104 is a Bad Idea

On Jan­u­ary 19, 2018, some Iowa leg­is­la­tors with good inten­tions filed House Con­cur­rent Res­o­lu­tion 104 (HCR104), ask­ing the fed­er­al gov­ern­ment to reclas­si­fy mar­i­jua­na.

Although the inten­tion is good, HCR104 is bad.

Iowa needs to clean up its own affairs before mak­ing a fuss about the mess the fed­er­al gov­ern­ment is per­pet­u­at­ing.  Before address­ing fed­er­al drug law, leg­is­la­tors should con­sid­er why we have 50 dif­fer­ent state drug laws that all dif­fer from fed­er­al drug law and from each oth­er.  It’s called “fed­er­al­ism” and it’s our sys­tem of gov­ern­ment in these unit­ed states.

It is one of the hap­py inci­dents of the fed­er­al sys­tem that a sin­gle coura­geous State may, if its cit­i­zens choose, serve as a lab­o­ra­to­ry; and try nov­el social and eco­nom­ic exper­i­ments with­out risk to the rest of the coun­try.

Jus­tice Louis Bran­deis’ dis­sent in New State Ice Co. v. Lieb­mann (1932)

The sched­ul­ing of mar­i­jua­na in Iowa has not been con­sis­tent with fed­er­al sched­ul­ing since 1979 when the Iowa leg­is­la­ture decid­ed to put mar­i­jua­na into two sched­ules, sched­ule 1 and sched­ule 2.  Mar­i­jua­na is only in fed­er­al sched­ule 1, not in two sched­ules.

Com­pare Iowa Code § 124.204(4)(m) (2018) and Iowa Code § 124.206(7)(a) (2018) with fed­er­al reg­u­la­tion 21 C.F.R. § 1308.11(d)(23) (2017).  And see, State v. Bon­jour, 694 N.W.2d 511 (Iowa 2005) (detail­ing the his­to­ry of Iowa’s dual sched­ul­ing of mar­i­jua­na).

Fur­ther­more, the sched­ul­ing of THC in Iowa has not been con­sis­tent with fed­er­al sched­ul­ing since 2008 when the Iowa leg­is­la­ture decid­ed to put nat­u­ral­ly extract­ed THC prod­ucts in state sched­ule 3.  Nat­u­ral­ly extract­ed THC prod­ucts are in fed­er­al sched­ule 1, not in sched­ule 3.

Com­pare Iowa Code § 124.208(9)(b) (2018) with fed­er­al reg­u­la­tion 21 C.F.R. § 1308.13(g)(1) (2017).

It is beyond ques­tion that Iowa can deter­mine it’s own sched­ul­ing on mar­i­jua­na and THC, and Iowa has con­sis­tent­ly done so.

Ask­ing the fed­er­al gov­ern­ment to reclas­si­fy mar­i­jua­na to fed­er­al sched­ule 2 while leav­ing mar­i­jua­na in state sched­ule 1 is a real­ly bad idea.

Iowa should place mar­i­jua­na in state sched­ule 2, as the bill the Iowa Board of Phar­ma­cy filed in 2011 would have done, before ask­ing the fed­er­al gov­ern­ment to do some­thing we won’t do as an act of good faith.

Iowa must show good faith and lead­er­ship by remov­ing mar­i­jua­na from state sched­ule 1 and then remind­ing the fed­er­al gov­ern­ment that its ille­gal to vio­late our state sov­er­eign­ty.

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Medical Professionals Practicing Law Without Licenses

Iowa has a new health cri­sis, med­ical pro­fes­sion­als prac­tic­ing law with­out licens­es.

In an effort to make cannabid­i­ol as unhealthy and risky as pos­si­ble, med­ical pro­fes­sion­als in the Iowa House of Rep­re­sen­ta­tives are claim­ing the law they just helped enact vio­lates fed­er­al law.  This is known in law as crim­i­nal intent (known in legal terms as “mens rea” or guilty mind), if it was actu­al­ly true that cannabid­i­ol vio­lates fed­er­al law (which it is not).

For a while, it seemed that the House Speak­er, Lin­da Upmey­er, a reg­is­tered nurse, was the only elect­ed offi­cial mak­ing these absurd pub­lic state­ments about the law she just helped enact, but now we have Rep­re­sen­ta­tive John Forbes, a licensed phar­ma­cist, say­ing same thing.  At least we can say the effort to betray Iowans is non-par­ti­san, but that doesn’t make it any less repug­nant.

Here are the quotes from House Speak­er Lin­da Upmey­er:

She says they are already antic­i­pat­ing doing this bill with the pos­si­bil­i­ty of break­ing two fed­er­al laws.

KGLO Radio — Mason City, Iowa — March 27, 2017

House Speak­er Lin­da Upmey­er, R-Clear Lake, not­ed in a state­ment that no mat­ter what the Leg­is­la­ture had decid­ed, the state still would have been in vio­la­tion of fed­er­al law.

Des Moines Reg­is­ter — Des Moines, Iowa — Sep­tem­ber 10, 2017

And, here is the quote from Rep­re­sen­ta­tive John Forbes:

I mean, we are vio­lat­ing fed­er­al law with a cannabis bill here in the state of Iowa.

Iowa Pub­lic Tele­vi­sion — John­ston, Iowa — Decem­ber 22, 2017

We know this is some kind of an addic­tion to fed­er­al boot lick­ing, but state leg­is­la­tors can do bet­ter than this!

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Congressman Young Betrays Iowans

Today, I was told that U.S. Rep­re­sen­ta­tive David Young is co-spon­sor­ing fed­er­al leg­is­la­tion, H.R. 2920, that he has now been noti­fied cre­ates a direct, pos­i­tive con­flict with our state law.

H.R. 2920 was writ­ten by U.S. Rep­re­sen­ta­tive Steve Cohen who rep­re­sents the state of Ten­nessee.

Last year, on July 6, 2016, Con­gress­man Young co-spon­sored Con­gress­man Cohen’s fed­er­al leg­is­la­tion, H.R. 1538, that defined ‘cannabid­i­ol’ as the sub­stance cannabid­i­ol, as derived from mar­i­hua­na or the syn­thet­ic for­mu­la­tion, that con­tains not greater than 0.3 per­cent delta-9-tetrahy­dro­cannabi­nol on a dry weight basis, H.R. 1538 § 4(2).

H.R. 1538 fur­ther autho­rized the Attor­ney Gen­er­al of the Unit­ed States to deter­mine whether State law autho­riz­ing the cul­ti­va­tion and man­u­fac­ture of mar­i­jua­na to make cannabid­i­ol is rea­son­ably cal­cu­lat­ed to com­ply with the new fed­er­al def­i­n­i­tion of cannabid­i­ol, H.R. 1538 § 5.

In 2016, 2014 Iowa Acts, Chap­ter 1125 (S.F. 2360) allowed the pos­ses­sion only of cannabid­i­ol, defined as a nonpsy­choac­tive cannabi­noid found in the plant Cannabis sati­va L. or Cannabis indi­ca or any oth­er prepa­ra­tion there­of that is essen­tial­ly free from plant mate­r­i­al, and has a tetrahy­dro­cannabi­nol lev­el of no more than three per­cent, Iowa Code § 124D.2(1) (2016).

Because Iowa law did not autho­rize the cul­ti­va­tion or man­u­fac­ture of mar­i­jua­na to make cannabid­i­ol in 2016, H.R. 1538 did not cre­ate a direct, pos­i­tive con­flict with our state law.

How­ev­er, in 2017, 2017 Iowa Acts, Chap­ter 162 (H.F. 524) allowed the cul­ti­va­tion and man­u­fac­ture of mar­i­jua­na to make cannabid­i­ol in Iowa, and changed the def­i­n­i­tion of cannabid­i­ol to any phar­ma­ceu­ti­cal grade cannabi­noid found in the plant Cannabis sati­va L. or Cannabis indi­ca or any oth­er prepa­ra­tion there­of that has a tetrahy­dro­cannabi­nol lev­el of no more than three per­cent, Iowa Code § 124E.2(6) (2017).

Please note the 2014 Iowa law defined cannabid­i­ol as “a” cannabi­noid (sin­gu­lar) and the 2017 Iowa law defines cannabid­i­ol as “any” cannabi­noid (plur­al).

The 2017 act became law on May 12, 2017.  Con­gress­man Young co-spon­sored H.R. 2920 on Sep­tem­ber 11, 2017, adopt­ing Con­gress­man Cohen’s def­i­n­i­tion of cannabid­i­ol and cre­at­ing a con­flict with our state law rather than defend­ing us.

Like a lot of oth­er states, Iowa is not wait­ing around for the fed­er­al gov­ern­ment to fig­ure this out.  The fed­er­al gov­ern­ment has been foot drag­ging and stone walling on this issue for decades.

When I asked Con­gress­man Young to explain, his staff said they have con­tact­ed Con­gress­man Cohen and Con­gress­man Cohen’s staff did not know why that def­i­n­i­tion of cannabid­i­ol is in his bill and why it gives the U.S. Attor­ney Gen­er­al any say in the mat­ter.  Accord­ing to Con­gress­man Young’s staff, Con­gress­man Cohen’s staff said it was put there at the request of U.S. Sen­a­tor Kristin Gilli­brand who rep­re­sents the state of New York.

This is insane!  Con­gress­man Young is not defend­ing us.

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Chuck Grassley — a day late and a dollar short

Ear­li­er this year, Iowa legal­ized the cul­ti­va­tion of mar­i­jua­na for med­ical use, by a vote of 83–11 in the Iowa House and by a vote of 33–7 in the Iowa Sen­ate.  The bill was signed into law by our gov­er­nor on May 12, 2017 Chap­ter 162 (H.F. 524).

On Decem­ber 18, 2017, I wrote U.S. Sen­a­tor Chuck Grass­ley a let­ter ask­ing him to spon­sor leg­is­la­tion like his for­mer chief of staff, U.S. Rep­re­sen­ta­tive David Young has spon­sored in Con­gress this year (H.R.2920) and last year (H.R.1358) pro­tect­ing our state med­ical mar­i­jua­na law.

On Decem­ber 21, 2017, Chuck replied: “Over the years, some peo­ple have expressed the view that mar­i­jua­na should be legal­ized for recre­ation­al, med­ical, and agri­cul­tur­al pur­pos­es.  How­ev­er, I dis­agree with this view.”

Some peo­ple,” as Chuck refers to, are the peo­ple he is sup­posed to rep­re­sent in Wash­ing­ton, DC.  Peo­ple to Chuck: “It’s too late to close the barn door after the horse has bolt­ed.”

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Conversation with David Young on H.R.2920

On Mon­day, Decem­ber 11, 2017, I spoke with Con­gress­man Young about H.R.2920 (CARERS Act of 2017).  Con­gress­man Young is a co-spon­sor of H.R.2920, and he was a co-spon­sor of H.R.1538 (CARERS Act of 2015).

Both the 2015 and 2017 ver­sions of the CARERS Act:

  • rec­og­nize an exemp­tion from fed­er­al sched­ul­ing for state med­ical mar­i­jua­na pro­grams;
  • remove cannabid­i­ol from the def­i­n­i­tion of mar­i­jua­na, plac­ing it at the end of a list of exemp­tions for indus­tri­al hemp;
  • cre­ate a fed­er­al def­i­n­i­tion of cannabid­i­ol which is near­ly iden­ti­cal to the fed­er­al def­i­n­i­tion of hemp, 7 U.S.C. § 5940 (no more than 0.3 per­cent delta-9 tetrahy­dro­cannabi­nol on a dry weight basis); and
  • give Attor­ney Gen­er­al Jeff Ses­sions the right to deter­mine whether a state is in com­pli­ance with this new fed­er­al def­i­n­i­tion of cannabid­i­ol.

Beyond the fact that cre­at­ing an exemp­tion for state med­ical mar­i­jua­na pro­grams that does not include cannabid­i­ol seems con­tra­dic­to­ry, between 2015 and 2017 Iowa cre­at­ed a state def­i­n­i­tion of cannabid­i­ol that dif­fers sig­nif­i­cant­ly from the fed­er­al def­i­n­i­tion of hemp.

Iowa Code § 124E.2(6) (2017) defines cannabid­i­ol as “any phar­ma­ceu­ti­cal grade cannabi­noid found in the plant Cannabis sati­va L. or Cannabis indi­ca or any oth­er prepa­ra­tion there­of that has a tetrahy­dro­cannabi­nol lev­el of no more than three per­cent” (3 per­cent is 10 times high­er than 0.3 per­cent and cannabid­i­ol is just one of over a hun­dred cannabi­noids found in the cannabis plant).

I asked Con­gress­man Young to amend the bill by remov­ing the ref­er­ences to cannabid­i­ol.  If the fed­er­al gov­ern­ment wants to make cannabid­i­ol a pre­scrip­tion drug, that’s fine.  But, cur­rent­ly there are no fed­er­al­ly approved cannabid­i­ol prod­ucts.  States must be able to define cannabidiol’s med­ical use with­in their own states.

The fed­er­al gov­ern­ment can­not have it both ways.  As the U.S. Supreme Court put it so elo­quent­ly in New York v. Unit­ed States, 505 U.S. 144, 161 (1992):

Con­gress may not sim­ply “com­man­deer the leg­isla­tive process­es of the States by direct­ly com­pelling them to enact and enforce a fed­er­al reg­u­la­to­ry pro­gram.” Hodel v. Vir­ginia Sur­face Min­ing & Recla­ma­tion Assn., Inc., 452 U.S. 264, 288 (1981).

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Iowa Code Chapter 124E Exempt from Federal Schedules

State law must address fed­er­al sched­ul­ing because of the phrase used in the fed­er­al statute as a pre-con­di­tion for place­ment in sched­ule 1 “cur­rent­ly accept­ed med­ical use in treat­ment in the Unit­ed States.”

The phrase “cur­rent­ly accept­ed med­ical use” is not defined in the fed­er­al statute.

Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991):

nei­ther the statute nor its leg­isla­tive his­to­ry pre­cise­ly defines the term “cur­rent­ly accept­ed med­ical use”

Col­orado has two exam­ples that high­light this sit­u­a­tion very well.

In 2010, Col­orado asked the DEA to resched­ule mar­i­jua­na to sched­ule 2 for phar­ma­ceu­ti­cal pur­pos­es.  See HB1284 at page 9, signed by the Gov­er­nor of Col­orado on June 7, 2010.

See C.R.S. 12–43.3–202(g) (2017):

In recog­ni­tion of the poten­tial med­i­c­i­nal val­ue of med­ical mar­i­jua­na, make a request by Jan­u­ary 1, 2012, to the fed­er­al drug enforce­ment admin­is­tra­tion to con­sid­er resched­ul­ing, for phar­ma­ceu­ti­cal pur­pos­es, med­ical mar­i­jua­na from a sched­ule I con­trolled sub­stance to a sched­ule II con­trolled sub­stance

That request should have demand­ed removal from sched­ule 1 based on “cur­rent­ly accept­ed med­ical use” in the Unit­ed States (Col­orado) as a mat­ter of con­sti­tu­tion­al law (fed­er­al­ism).

In 2015, the Col­orado Supreme Court decid­ed med­ical mar­i­jua­na is not legal in Col­orado because it remains in fed­er­al sched­ule 1.

Coats v. Dish Net­work, 350 P.3d 849, 850 (Col­orado 2015):

There­fore, an activ­i­ty such as med­ical mar­i­jua­na use that is unlaw­ful under fed­er­al law is not a “law­ful” activ­i­ty under sec­tion 24–34-402.5

Peo­ple v. Crouse, 388 P.3d 39, 43 (Col­orado 2017):

Con­sis­tent with our hold­ing in Coats, then, we again find that con­duct is “law­ful” only if it com­plies with both fed­er­al and state law

Please note that Bran­don Coats is a dis­abled para­plegic who thought his employ­ment was pro­tect­ed if he abid­ed by the terms of the state med­ical mar­i­jua­na law which the Col­orado vot­ers added to their state con­sti­tu­tion in 2000.

I’m not sure how much tech­ni­cal accu­ra­cy goes into a direct bal­lot ini­tia­tive amend­ing a state con­sti­tu­tion, but we can do bet­ter in Iowa.  When a state refus­es to claim state accept­ed med­ical use is exempt from sched­ule 1, it cre­ates a con­flict with sched­ule 1 which could have been avoid­ed.  If Col­orado had said state med­ical use is exempt from fed­er­al sched­ule 1, then the Col­orado Supreme Court would have had to deter­mine whether that is so.  Instead, the court just ruled it isn’t legal because the state did not chal­lenge fed­er­al sched­ule 1.  We should not repeat this mis­take here in Iowa.  Col­orado has nev­er includ­ed mar­i­jua­na in its state sched­ule 1, so state sched­ule 1 has nev­er been an issue in Col­orado.

If state med­ical use is exempt from sched­ule 1, then it is legal under both state and fed­er­al law.  If state med­ical use is not exempt, then sched­ule 1 is ille­gal as applied to the “cur­rent­ly accept­ed med­ical use” in the states.

Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987):

Con­gress did not intend “accept­ed med­ical use in treat­ment in the Unit­ed States” to require a find­ing of rec­og­nized med­ical use in every state

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.

Iowa should say both things: (1) state accept­ed med­ical use is exempt from sched­ule 1; and (2) sched­ule 1 is invalid for any sub­stance with accept­ed med­ical use in any state.  Fed­er­al sched­ules are not bind­ing on the states, so a state could place mar­i­jua­na in state sched­ule 1 even if the fed­er­al admin­is­tra­tive agency entire­ly removed mar­i­jua­na from all of the fed­er­al sched­ules.  So, it’s quite easy to make the case that fed­er­al sched­ule 1 is unlaw­ful for mar­i­jua­na if even one state accepts mar­i­jua­na for med­ical use.  It does not deprive any state from find­ing mar­i­jua­na has no med­ical use in that state, although there are only four states that have not accept­ed any form of mar­i­jua­na for med­ical use.

What I am think­ing is that the eas­i­est thing for the Iowa leg­is­la­ture to do would be to add the same lan­guage to the statute that the Iowa Depart­ment of Pub­lic Health has includ­ed on the own­er cer­ti­fi­ca­tion form.

Or, at least start the dis­cus­sion with the lan­guage the Iowa Depar­ment of Pub­lic Health is using and then ask if it is suf­fi­cient.

Here is what the Iowa Depart­ment of Pub­lic Health has writ­ten on the own­er cer­ti­fi­ca­tion form:

any activ­i­ty not sanc­tioned by Iowa Code chap­ter 124E and pro­posed admin­is­tra­tive rules may be a vio­la­tion of state or fed­er­al law and could result in arrest, pros­e­cu­tion, con­vic­tion, or incar­cer­a­tion

https://drive.google.com/file/d/0B-cZdbYdPoLGSnZRQWtBUnFTd2c/view

The com­mon­ly accept­ed argu­ment is that the fed­er­al admin­is­tra­tive agency can inter­pret the mean­ing of “cur­rent­ly accept­ed med­ical use” because that was the court’s rul­ing in 1991/1994.  Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936 (D.C. Cir. 1991); Alliance for Cannabis Ther­a­peu­tics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).  How­ev­er, the 1994 fed­er­al court rul­ing has nev­er been recon­sid­ered by a fed­er­al court on the con­sti­tu­tion­al law issue of state laws defin­ing “cur­rent­ly accept­ed med­ical use.”  Cal­i­for­nia was the first state to accept the med­ical use of mar­i­jua­na in 1996.  A fed­er­al admin­is­tra­tive agency does not have the pow­er to nul­li­fy a state law with­out the express con­sent of Con­gress, which is total­ly lack­ing here.  The fed­er­al gov­ern­ment has nev­er sued a state for enact­ing a state med­ical mar­i­jua­na pro­gram.  So, how could it be a vio­la­tion of a fed­er­al statute?  Forty-six state have enact­ed laws accept­ing some form of mar­i­jua­na for med­ical use.  It would be absurd to imply those forty-six states intend­ed to autho­rize the vio­la­tion of a fed­er­al law.  When we vote for fed­er­al elect­ed offi­cials, we vote for them at a state vot­ing loca­tion.  There is no fed­er­al vot­ing booth.

A cur­rent Fed­er­al Avi­a­tion Admin­is­tra­tion reg­u­la­tion adopt­ed in 1973 real­ly hits the nail on the head:

https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=03efb7c1b34301bf39ff6d98084cdd45&rgn=div8&view=text&node=14:2.0.1.3.10.1.4.10&idno=14

Title 14: Aero­nau­tics and Space
PART 91—GENERAL OPERATING AND FLIGHT RULES
Sub­part A—General
§91.19  Car­riage of nar­cot­ic drugs, mar­i­hua­na, and depres­sant or stim­u­lant drugs or sub­stances.

(a) Except as pro­vid­ed in para­graph (b) of this sec­tion, no per­son may oper­ate a civ­il air­craft with­in the Unit­ed States with knowl­edge that nar­cot­ic drugs, mar­i­hua­na, and depres­sant or stim­u­lant drugs or sub­stances as defined in Fed­er­al or State statutes are car­ried in the air­craft.

(b) Para­graph (a) of this sec­tion does not apply to any car­riage of nar­cot­ic drugs, mar­i­hua­na, and depres­sant or stim­u­lant drugs or sub­stances autho­rized by or under any Fed­er­al or State statute or by any Fed­er­al or State agency.

Any­one man­u­fac­tur­ing, dis­pens­ing, or con­sum­ing these prod­ucts here in Iowa should be able to sleep at night know­ing they are in full com­pli­ance with all applic­a­ble laws, both state and fed­er­al.  Let’s resolve this mat­ter in Jan­u­ary when the Iowa leg­is­la­ture recon­venes and not leave it for a dis­abled Iowa cit­i­zen to fight it out in court.

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