Iowa Board of Pharmacy Open Records Request 2015

This is an update to my two pre­vi­ous articles:

On Jan­u­ary 14, 2015, the Office of Drug Con­trol Pol­icy (ODCP) made changes to the Iowa Board of Phar­macy (IBPE) leg­isla­tive pro­posal for 2015, with­out noti­fy­ing me.

Rul­ing to Main­tain Mar­i­juana in Sched­ule 1 Jan­u­ary 5, 2015: Rul­ing on Marijuana 45 KB
Rul­ing to Trans­fer Cannabid­iol to Sched­ule 2 Jan­u­ary 5, 2015: Rul­ing on Cannabidiol 48 KB
Min­utes from the Jan­u­ary 5–6 Meeting Jan­u­ary 10, 2015: IBPE Meet­ing Minutes 5,568 KB
Email to Carl Olsen and ODCP with the 2 Rulings Jan­u­ary 14, 2015: Email to Carl Olsen and ODCP 65 KB
Email to ODCP with the Revised Cannabid­iol Ruling Jan­u­ary 14, 2015: Email to ODCP 146 KB
Revised Rul­ing on Cannabidiol Jan­u­ary 14, 2015: Revised Rul­ing on Cannabidiol 50 KB

Not only was I not noti­fied, the Jan­u­ary 10, 2015, meet­ing min­utes were altered with­out any doc­u­men­ta­tion not­ing the change or who autho­rized it. You can see the sub­sti­tuted rul­ing attached to those min­utes, which are still signed and dated on Jan­u­ary 10, 2015. These changes were not sig­nif­i­cant, as far as my peti­tion is con­cerned, but it does show a com­plete dis­re­gard for due process. The Office of Drug Con­trol Pol­icy got a copy of the changed rul­ing on my peti­tion, but the cour­tesy was not extended by send­ing me a copy of the changed rul­ing when they made the changes to it.

But, the pur­pose of my open records request was not to uncover chi­canery. I wanted to know what hap­pened to the cannabid­iol pro­posal. Was the gov­er­nor noti­fied? Was the leg­is­la­ture noti­fied? The typ­i­cal process the Iowa Board of Phar­macy fol­lows is to pre­file a bill before the leg­isla­tive ses­sion begins, which they did in 2012, 2014, and 2015 and are doing now for 2016. Iowa Code § 2.16 allows state agen­cies to pre­file leg­is­la­tion 45 days in advance of a ses­sion. Cannabid­iol is not in the pro­posed leg­is­la­tion for 2015 or 2016, so what hap­pened to it?

Senator Steven J. Sodders

Sen­a­tor Steven J. Sodders

So, we’ve estab­lished through this open records request that the usual process used to notify the leg­is­la­ture did not take place. On Jan­u­ary 16, 2015, Sen­a­tor Steven Sod­ders invited the exec­u­tive direc­tor of the phar­macy board to attend the hear­ing on his pro­posal (SSB1005) to trans­fer mar­i­juana from sched­ule 1 to sched­ule 2. Remem­ber now, the board just voted against this on Jan­u­ary 5, 2015. But, the board actu­ally did vote to trans­fer mar­i­juana from sched­ule 1 to sched­ule 2 in 2010. Can you say mixed signals?

Invi­ta­tion to Hear­ing on SSB1005 Jan­u­ary 16, 2015: Invi­ta­tion to Hear­ing on SSB1005 50 KB
Can­cel­la­tion of Hear­ing on SSB1005 Jan­u­ary 20, 2015: Can­cel­la­tion of Hear­ing on SSB1005 15 KB

The last entry for SSB1005 is Jan­u­ary 14, 2015. The pro­posed meet­ing on Jan­u­ary 20, 2015, never took place.

How­ever, this was not the end of it. Toward the end of the leg­isla­tive ses­sion, the Democ­rats decided to get aggres­sive and intro­duced a med­ical mar­i­juana bill. In prepa­ra­tion, the phar­macy board was again invited to par­tic­pate. The exec­u­tive direc­tor of the phar­macy board resigned sud­denly and unex­pect­edly at the end of March 2015. So, the interim direc­tor, Terry Witkowski, pro­vided input to the Repub­li­can Cau­cus Staff. I’m guess­ing this is because Sen­a­tor Charles Schnei­der sent me an email on April 19, 2015, remind­ing me that he voted in favor of trans­fer­ring mar­i­juana from sched­ule 1 to sched­ule 2 at the interim study com­mit­tee hear­ing on Sep­tem­ber 11, 2014.

Email from Terry Witkowski to Josh Bron­sink April 7, 2015: Email to Repub­li­can Cau­cus Staff 438 KB
Attach­ment #1 Jan­u­ary 14, 2015, Rec­om­men­da­tion from the Phar­macy Board 341 KB
Attach­ment #2 Feb­ru­ary 17, 2010, Rec­om­men­da­tion from the Phar­macy Board 9 KB
Attach­ment #3 Feb­ru­ary 17, 2010, Min­utes from the Phar­macy Board 95 KB

On April 14, 2015, Sen­a­tor Sod­ders filed an amend­ment to SF 484, which would trans­fer mar­i­juana from sched­ule 1 to sched­ule 2, S-3123. All of the Repub­li­cans in atten­dance on April 15, 2015, voted in favor of S-3123 by a vote of 44–0-6, but then voted against SF 484 which nar­rowly passed by a vote of 26–19-5.

Again, on April 30, 2015, Sen­a­tor Sod­ders filed an amend­ment to HF 567, which would trans­fer mar­i­juana from sched­ule 1 to sched­ule 2, S-3148, which nar­rowly passed on May 5, 2015, by a vote of 27–23.

These two bills, SF 484 and HF 567 are cur­rently pend­ing in the Iowa House of Rep­re­sen­ta­tives. HF 567 has already been passed in the Iowa House, but the amend­ment, H-1340 (S-3148 in the Iowa Sen­ate), must still be con­sid­ered before it becomes final.

Posted in Uncategorized | 3 Comments

Iowa Board of Pharmacy Legislative Proposals for 2016

I attended the Iowa Board of Pharmacy’s meet­ing on Wednes­day, Novem­ber 4, 2015, because I noticed that the rec­om­men­da­tion for the reclas­si­fi­ca­tion of cannabid­iol that the board approved on Jan­u­ary 5, 2015, was not on the list of pro­posed changes to the sched­ules of con­trolled sub­stances for 2016. That item was on the agenda for 11:00 a.m., so I took a cou­ple hours of vaca­tion and attended the meet­ing. Just to be cau­tious, I filed a writ­ten com­ment on the item ask­ing why cannabid­iol was not included.

James A. Miller

James A. Miller

And, true to form, the chair of the board, Jim Miller, took an excep­tion­ally long time with a pre­sen­ta­tion on tele­phar­macy that he was none too pleased with. The dis­cus­sion on the list of pro­posed changes to the sched­ules was delayed until 1:00 p.m. and I had to leave.

While I was at the meet­ing, I noticed that my request for clar­i­fi­ca­tion has been placed in front of the assis­tant attor­ney gen­eral, Meghan Gavin. As I was leav­ing, I asked Ms. Gavin if I could get a writ­ten response to my ques­tion. Ms. Gavin said the rec­om­men­da­tion to reclas­sify cannabid­iol was only for 2016.

While I was there, I hap­pened to talk with Dale Wool­ery, Deputy Direc­tor of the Office of Drug Con­trol Pol­icy. I asked him what was going on and he said a lot of the stuff the board was rec­om­mend­ing for 2016 was stuff that didn’t get enacted in 2015. That did not jive with what Ms. Gavin told me. Just to be sure, I looked at HF 567 which is leg­is­la­tion from 2015 that is still pend­ing in the Iowa House, and, sure enough, some of the same stuff in the board’s 2016 leg­isla­tive pro­posal is in HF 567 from 2015.

Ms. Gavin said I was not enti­tled to a writ­ten request and asked me if I wanted my request put on the agenda for the next meet­ing. I con­tacted her later and told her my request was a com­ment on an agenda item and she could do what­ever she wanted with it. She said she does not rep­re­sent the board, but there she was with my request in front of her at the meeting.

So, today I filed an open records request under Iowa Code Chap­ter 22 ask­ing for any action the board has taken on their Jan­u­ary 5, 2015, pro­posal to reclas­sify cannabid­iol. I’m guess­ing the board hasn’t lifted a fin­ger to pro­mote their writ­ten deci­sion in Jan­u­ary. We’ll soon find out. The board has 20 days to respond.

Posted in States | 2 Comments

My Conversation with Senator Grassley

U.S. Senator Charles Grassley (R-IA)

U.S. Sen­a­tor Charles Grass­ley (R-IA)

I spoke with U.S. Sen­a­tor Charles Grass­ley on Mon­day, Novem­ber 2, 2015. I’ve tried con­tact­ing him many times before, but this is the first time we’ve actu­ally spo­ken. The rea­son for that is because Sen­a­tor Grass­ley has devel­oped a new inter­est in cannabis. On June 24, 2015, in their posi­tions as co-chairs of the U.S. Sen­ate Cau­cus on Inter­na­tional Nar­cotics Con­trol, Sen­a­tor Grass­ley and Sen­a­tor Diane Fein­stein held a hear­ing on cannabid­iol, a com­po­nent of mar­i­juana that has a long his­tory of reduc­ing seizures. You can watch a video of the hear­ing and down­load the writ­ten state­ments of the wit­nesses here.

Because fed­eral clas­si­fi­ca­tion of con­trolled sub­stances involves two fed­eral agen­cies, the U.S. Depart­ment of Jus­tice and the U.S. Depart­ment of Health and Human Ser­vices, Sen­a­tor Grass­ley and Sen­a­tor Fein­stein wrote let­ters to the admin­is­tra­tive agen­cies ask­ing them to explain the sit­u­a­tion. See Title 21, United States Code, Sec­tion 811. The let­ters are damn­ing. This is some­thing Sen­a­tor Grass­ley is known for, inves­ti­gat­ing the fed­eral gov­ern­ment, so it is pleas­ing to see him inves­ti­gat­ing some­thing that I con­sider impor­tant for pub­lic health.

Sen­a­tor Grass­ley sent me copies of the fol­low­ing documents:

Octo­ber 20, 2014 Let­ter to DOJ and DHHS
Decem­ber 16, 2014 DHHS Response
Jan­u­ary 5, 2015 DOJ Response
May 13, 2015 Let­ter to DHHS
May 13, 2015 Let­ter to DOJ
June 23, 2015 DHHS Response
June 23, 2015 DOJ Response

What these doc­u­ments show is that the fed­eral gov­ern­ment has been block­ing research for at least 15 years or longer. Sen­a­tor Grass­ley told me there hasn’t been suf­fi­cient resarch to sup­port reclas­si­fi­ca­tion of mar­i­juana. Well, that’s obvi­ously because the fed­eral gov­ern­ment has been block­ing the research. Catch 22. It’s inter­est­ing to note the tim­ing here, because the DHHS pub­lished a notice that it’s chang­ing this pol­icy in the Fed­eral Reg­is­ter on June 23, 2015, the day before Sen­a­tor Grassley’s hear­ing. The Brook­ings Insti­tute recently released a report detail­ing how the fed­eral gov­ern­ment has been block­ing research on mar­i­juana, which you can down­load here. So, there’s real dam­age here.

As the Brook­ings Insti­tute points out, this is just scratch­ing the sur­face. Fur­ther imped­ing research, there is only one man­u­fac­turer of mar­i­juana in the United States and only one sup­plier. The National Insti­tute on Drug Abuse is the sole sup­plier and the Uni­ver­sity of Mis­sis­sippi is the sole grower. Just the name of that agency tells you what you need to know. The National Insti­tute on Drug Abuse’s mis­sion is to under­stand the abuse of drugs, not legit­imize their med­ical use. Catch 22.

Sen­a­tor Grass­ley told me he objects to the patch­work of 40 state laws allow­ing some form of mar­i­juana to be used for med­ical pur­poses. I responded by say­ing the fed­eral gov­ern­ment cre­ated that patch­work by its fail­ure to act in good faith. The fed­eral gov­ern­ment has lost cred­i­bil­ity on this issue, plain and simple.

Sen­a­tor Grass­ley told me he objects to reclas­si­fy­ing mar­i­juana with­out some med­ical evi­dence. Sen­a­tor Grass­ley sug­gested that cannabid­iol might be the evi­dence that leads to reclas­si­fi­ca­tion of the plant. I responded by say­ing that his idea makes per­fect sense, but the dam­age has already been done.

Sen­a­tor Grass­ley sug­gested that if cannabid­iol is resched­uled to sched­ule 2 or lower then mar­i­juana is the source of a fed­er­ally accepted med­i­cine. That might lead to reclas­si­fi­ca­tion of the plant. I responded by say­ing cannabid­iol has absolutely zero abuse poten­tial and it won’t be in sched­ule 2, or in any sched­ule. A sub­stance with zero abuse poten­tial does not belong in any of the schedules.

I also pointed out that we have had syn­thetic cannabi­noids in sched­ule 2 and sched­ule 3 now for almost 30 years. Those syn­thetic cannabi­noids would not exist if they hadn’t been first dis­cov­ered nat­u­rally occur­ring in the mar­i­juana plant. So, cannabid­iol would not be the first cannabi­noid to be resched­uled, but it would be the first one that isn’t being man­u­fac­tured syn­thet­i­cally. There is a cannabid­iol prod­uct called Epid­i­olex that is man­u­fac­tured in Eng­land and appears to be near­ing FDA approval for mar­ket­ing in the United States. So, while I agreed that Epid­i­olex would make a good case for resched­ul­ing the whole mar­i­juana plant, it also shows we are lag­ging behind the rest of the world in doing research on cannabis. We haven’t been doing the research because we have been block­ing it for decades.

I told Sen­a­tor Grass­ley about my work with the Iowa Board of Phar­macy and he asked me to keep him updated. He said he would keep me updated on any progress he sees at the fed­eral level. I sent his attor­neys an update on my recent peti­tion with the Iowa Board of Phar­macy a few days later and they responded imme­di­ately, so I get the sense that Sen­a­tor Grass­ley is now a valu­able part­ner as we move for­ward. He seems to be lis­ten­ing, and that’s a good thing. He really can’t defend the behav­ior of the fed­eral gov­ern­ment, and the more he looks at it, the more he’s going to come to the same real­iza­tion the Iowa Sen­ate came to by a vote of 44–0-6 on April 15, 2015, mar­i­juana does not belong in sched­ule 1.

Posted in Federal, States | 2 Comments

Marijuana and Federalism Conference


Pre­sen­ta­tions from our conference:

Fed­er­al­ism: The Miss­ing Piece of the Puzzle!”

Sat­ur­day, Octo­ber 31, 2015, 1 PM to 4 PM
Com­mu­nity Room, Mickle Cen­ter, 1620 Pleas­ant St., Des Moines, IA 50314
Posted in Federal, States | Leave a comment

My Meeting with Congressman Young

Meet­ing with Con­gress­man Young — 9/22/2015

I met with Con­gress­man David Young (R. IA-3) on Tues­day, Sep­tem­ber 22, 2015, at 11:00 a.m. I gave him a series of doc­u­ments and had a short dis­cus­sion on each one. I asked him a few ques­tions. One of the things that impressed me right away is that he remem­bered meet­ing me at a leg­isla­tive forum with my state Sen­a­tor Jack Whitver and my state Rep­re­sen­ta­tive Kevin Koester back in Jan­u­ary of 2015 shortly after he took office. He remem­bered what I was wear­ing that day. So, this shows the impor­tance of attend­ing local leg­isla­tive forums. Know­ing your state sen­a­tor and state rep­re­sen­ta­tive can be help­ful when you are talk­ing to your fed­eral con­gress person.


Con­gress­man David Young

The first document

The first doc­u­ment I gave him is the set of con­di­tions for each of the five sched­ules in the Con­trolled Sub­stances Act. I under­lined the phrase “accepted med­ical use in treat­ment in the United States” in each of the five sec­tions and I asked Con­gress­man Young if there is any con­nec­tion between this phrase and forty (40) state med­ical mar­i­juana laws. He said he was unsure. So, this is crit­i­cal. By say­ing he was unsure, he gave me the oppor­tu­nity to explain it to him. I can­not stress how impor­tant this is as the ini­tial step.

The sec­ond document

The sec­ond doc­u­ment I gave him is the admin­is­tra­tive process for chang­ing the sched­ules and some court cases that explain my inter­pre­ta­tion. First I pointed out that phar­ma­ceu­ti­cal drugs going through the FDA pipeline are resched­uled at the request of the U.S. Attor­ney Gen­eral and the U.S. Sec­re­tary of Health and Human Ser­vices. I pointed out that sub­stances do not resched­ule them­selves. Some­one starts the process. He men­tioned Con­gress at that point, because Con­gress can change the sched­ules leg­isla­tively. But, that still leaves the ques­tion of “any inter­ested party.” The admin­is­tra­tive process also allows any inter­ested party to ini­ti­ate the process. So, by process of elim­i­na­tion, we know that sub­stances that are resched­uled by Con­gress or at the request of an inter­ested party are not going through the FDA pipeline for approval as med­i­cine. Any process to resched­ule as the result of going through the FDA pipeline will be ini­ti­ated by the U.S. Attor­ney Gen­eral and the U.S. Sec­re­tary of Health and Human Ser­vices. So, I asked him, “What hap­pens when a state accepts the med­ical use of mar­i­juana? Who ini­ti­ates the process to have it removed from fed­eral sched­ule 1?” Two state have ini­ti­ated the process, but only as an after­thought years later and nei­ther of them has resched­uled at the state level. The peti­tion ini­ti­ated by the states of Wash­ing­ton and Rhode Island was filed in Novem­ber of 2011 and is still cur­rently pend­ing with the DEA. So, I made the argu­ment that the states are neg­li­gent for fail­ure to ini­ti­ate the fed­eral resched­ul­ing process. Who else is going to do it if not a state that has legal­ized the med­ical use of marijuana?

Then I told him there were fed­eral court cases that say accepted med­ical use under fed­eral sched­ul­ing can be accepted intrastate use of a con­trolled sub­stance with­out any inter­state mar­ket­ing, prov­ing that state laws are rel­e­vant to the phrase “accepted med­ical use in treat­ment in the United States.”

The third document

The third doc­u­ment I gave him is an amend­ment by Sen­a­tor Whitver that he never actu­ally filed. I asked Sen­a­tor Whitver, who is my leg­is­la­tor in the Iowa Sen­ate, to file an amend­ment to a med­ical mar­i­juana bill, SF 484, telling the fed­eral gov­ern­ment that we are reclas­si­fy­ing mar­i­juana as med­i­cine under fed­eral law by enact­ing a state law accept­ing the med­ical use of mar­i­juana. Sen­a­tor Whitver is a Repub­li­can and Con­gress­man Young is a Repub­li­can. They know each other. I told him that this doc­u­ment proves how per­sua­sive my argu­ment is.

The fourth document

The fourth doc­u­ment I gave him is the enforce­ment sec­tions in the three inter­na­tional treaties where there is an excep­tion to the enforce­ment for con­sti­tu­tional due process. I asked him if the laws enacted in the states, includ­ing the ones that fully legal­ize mar­i­juana for non-medical use, are con­sti­tu­tional. He said the fed­eral gov­ern­ment has never stepped in to inter­fere with the enact­ment or the imple­men­ta­tion of those law. I reminded him that the the fed­eral gov­ern­ment actu­ally did try to inter­fere in Cal­i­for­nia but lost the case in fed­eral court. He reminded me that it hap­pened under the first Bush Admin­is­tra­tion. So, we both agreed that it looks like these laws are con­sti­tu­tional. If they are con­sti­tu­tional, then they are exempt from the three inter­na­tional drug treaties and there is no fail­ure to com­ply with those treaties. The rea­son I brought this up is because there are some old court cases before states began accept­ing the med­ical use of mar­i­juana that said the treaties do not allow mar­i­juana to be placed in a sched­ule lower than 2. Those old court cases are no longer rel­e­vant since we are now talk­ing about activ­ity that is exempt from those treaties.

The fifth, sixth, sev­enth, and eighth documents

The next series of doc­u­ments I handed him are four bills pend­ing in the U.S. House of Rep­re­sen­ta­tives, and he is a co-sponsor of one of them, H.R. 1635.

I said it was a shame that H.R. 1635 expires after 3 years and asked him how pro­duc­ers were going to get excited about invest­ing in this process when it all just dis­ap­pears after three years. I asked him how that will help the patients. He said it would most likely be renewed before it expires and this is just Con­gress’ way of dip­ping its toe in the water. I agreed it was bet­ter than noth­ing. He said he had not seen H.R. 525 and would prob­a­bly have no prob­lem co-sponsoring it. I said I would appre­ci­ate his sup­port on any or all of these bills. I did point out that I like H.R. 1774 bet­ter than the oth­ers because it does not pre-determine the out­come after remov­ing mar­i­juana from sched­ule 1. I said I don’t like the part where it says the fed­eral admin­is­tra­tive agen­cies must pick one of the other sched­ules. I think all options should be left open, includ­ing remov­ing mar­i­juana from all of the sched­ules. Let’s have a fair process and let’s not pre-determine the out­come. We did agree this issue is build­ing momen­tum from both a med­ical and non-medical per­spec­tive and is not going away.

The ninth, tenth, and eleventh documents

We then had a dis­cus­sion on whether mar­i­juana has accepted med­ical use from a med­ical and phar­ma­co­log­i­cal per­spec­tive. He said there were no stud­ies show­ing accepted med­ical use of mar­i­juana. I took the oppor­tu­nity to point out that opium plants and coca plants have no accepted med­ical use in the sense that they are not FDA approved pre­scrip­tion prod­ucts, and yet both of those plants are in sched­ule 2, not sched­ule 1. I said THC in a pill is in sched­ule 3, but the plant it comes from is in sched­ule 1. The drugs made from opium and coca plants are mostly in sched­ule 2. So, I told him the plant does not have to have any greater accepted med­ical value than opium or coca plants to inval­i­date its cur­rent sched­ule 1 sta­tus. I then handed him three more documents.

Sum­ming up

Some­where dur­ing our con­ver­sa­tion, I summed up by say­ing that states were enact­ing laws allow­ing patients to grow mar­i­juana at home because of the fed­eral government’s absurd sched­ul­ing of the plant. What are the states sup­posed to do when the fed­eral gov­ern­ment says this is not legal and won’t coop­er­ate? It would be like grow­ing car­rots. If you’re grow­ing car­rots to stay healthy, you just want some car­rots in the gar­den. If you have a debil­i­tat­ing med­ical con­di­tion and you want a spe­cial­ized car­rot that tar­gets that par­tic­u­lar con­di­tion, you may want to get some help with the selec­tion of the right car­rots as well as the con­trolled envi­ron­ment for grow­ing those car­rots. Med­i­cine and food are dif­fer­ent in that way. If you eat right, maybe you can avoid the med­i­cine. But when you need some­thing stronger and you’re weaker, it should be there for you.

Posted in Federal, States | 2 Comments

Federalism: the missing piece in state medical marijuana laws

Carl Olsen

Carl Olsen is a med­ical mar­i­juana advo­cate in the state of Iowa. In 2008 he suc­cess­fully peti­tioned the Iowa Board of Phar­macy to rec­om­mend the reclas­si­fi­ca­tion of mar­i­juana in Iowa.

At first glance, state med­ical mar­i­juana laws seem to con­flict with fed­eral law. But that seems odd, because the fed­eral gov­ern­ment has never attempted to block state med­ical mar­i­juana leg­is­la­tion. Why is that?

When Con­gress wrote the fed­eral Con­trolled Sub­stances Act, it placed mar­i­juana in some­thing called a sched­ule. A sched­ule is just another name for a clas­si­fi­ca­tion. There are five fed­eral sched­ules and most states also have them. Now, there’s your first clue. States also have them. Why would states have them if the fed­eral gov­ern­ment is clas­si­fy­ing con­trolled substances?

If we take a look at state sched­ules, like the ones in Iowa, we find that there is no require­ment they be syn­chro­nized with the fed­eral sched­ules. That seems odd. Or, is it inten­tional? Is this actu­ally a layer of pro­tec­tion, rec­og­niz­ing that local gov­ern­ment knows what is best for the peo­ple it serves?

What is miss­ing is an under­stand­ing of these ques­tions. States do not appear to under­stand their rights under the fed­eral drug law.

Con­gress cre­ated a process for the reclas­si­fi­ca­tion of con­trolled sub­stances, so we def­i­nitely know those clas­si­fi­ca­tions are not per­ma­nent by any means. So, maybe the states will know when those clas­si­fi­ca­tions need to change before the fed­eral gov­ern­ment gets around to updat­ing them.

We all know the fed­eral gov­ern­ment approves new pre­scrip­tion prod­ucts and adds those to the sched­ules, so that’s one way the sched­ules change. There is a pre­scrip­tion prod­uct called Mari­nol that the fed­eral gov­ern­ment placed in sched­ule 2 in 1986 and then moved to sched­ule 3 in 1999, so this is an exam­ple of how that process works.

In fact, in order to make that change, the fed­eral gov­ern­ment actu­ally had to get an inter­na­tional sched­ule amended. In 1991, at the request of the United States, the United Nations moved THC from sched­ule 1 of the 1971 Con­ven­tion on Psy­chotropic Sub­stances to sched­ule 2 of that convention.

So, here is what the Con­trolled Sub­stances Act says about who can request a change to the fed­eral schedules:

Pro­ceed­ings for the issuance, amend­ment, or repeal of such rules may be ini­ti­ated by the Attor­ney Gen­eral (1) on his own motion, (2) at the request of the Sec­re­tary, or (3) on the peti­tion of any inter­ested party.

Title 21, United States Code, Sec­tion 811(a). So, we know Mari­nol was resched­uled by the Attor­ney Gen­eral and the Sec­re­tary of Health and Human Ser­vices. But, who is an inter­ested party? Could this mys­te­ri­ous party be a state?

Let’s exam­ine some fed­eral case law to see if we can find an answer:

Unlike the CSA sched­ul­ing restric­tions, the FDCA inter­state mar­ket­ing pro­vi­sions do not apply to drugs man­u­fac­tured and mar­keted wholly intrastate. Com­pare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a). Thus, it is pos­si­ble that a sub­stance may have both an accepted med­ical use and safety for use under med­ical super­vi­sion, even though no one has deemed it nec­es­sary to seek approval for inter­state marketing.

Grin­spoon v. DEA, 828 F.2d 881, 887 (1st Cir. 1987). So, med­ical use can be intrastate, rather than inter­state. And, what this court is say­ing is that accepted intrastate use of a sub­stance means it can­not be clas­si­fied under fed­eral law as hav­ing no accepted med­ical use in treat­ment in the United States. So how can this be? We have forty (40) states that have accepted the med­ical use of mar­i­juana, and three (3) fed­eral juris­dic­tion, DC, Guam, and Puerto Rico. But, here’s the answer: not one of these states or fed­eral juris­dic­tions has noti­fied the fed­eral gov­ern­ment under 21 U.S.C. § 811(a) that mar­i­juana has accepted med­ical use in treat­ment in the United States. In other words, Mari­nol did not just mag­i­cally resched­ule itself. Some­one ini­ti­ated the process. And we know who ini­ti­ated the process: the fed­eral gov­ern­ment. So, what about state governments?

This fail­ure by state gov­ern­ments to ini­ti­ate fed­eral resched­ul­ing of mar­i­juana has resulted in some really neg­a­tive con­se­quences. For exam­ple, a quad­ri­plegic man in Col­orado lost his job for using med­ical mar­i­juana out­side of the work place in full com­pli­ance with Col­orado law. The Col­orado Supreme Court ruled that the med­ical use of mar­i­juana is not legal in Col­orado because of fed­eral sched­ul­ing. Bran­don Coats v. Dish Net­work, LLC, Supreme Court Case No. 13SC394, Supreme Court of Col­orado, 2015 CO 44, 350 P.3d 849 (June 15, 2015). Another quad­ri­plegic man in Michi­gan lost his job for using med­ical mar­i­juana out­side the work place in full com­pli­ance with Michi­gan law. The U.S. Court of Appeals ruled that the med­ical use of mar­i­juana is not legal in Michi­gan because of fed­eral sched­ul­ing. Casias v. Wal-Mart Stores, Inc., No. 11–1227, United States Court of Appeals for the Sixth Cir­cuit, 2012 U.S. App. LEXIS 23969 (Octo­ber 26, 2012).

It would be absurd to think that vot­ers and leg­is­la­tors in states that have legal­ized the med­ical use of mar­i­juana would think that it has no med­ical use under fed­eral law, so we can assume this is an over­sight and a fail­ure to under­stand the fed­eral Con­trolled Sub­stances Act. It’s time that states started address­ing fed­eral sched­ul­ing in their state med­ical mar­i­juana laws.

Here in Iowa, we have a bill pend­ing in the Iowa House, SF 484, that would actu­ally resched­ule mar­i­juana under state law, but it says absolutely noth­ing about fed­eral sched­ul­ing. It’s time a state got it right and pro­tected the peo­ple it says it is try­ing to help. Unless we want to see the weak­est among us tricked into expos­ing them­selves as fed­eral crim­i­nals, we need to say it loud and clear. We are resched­ul­ing this med­i­cine under both state and fed­eral clas­si­fi­ca­tions. It’s very clear from read­ing 21 U.S.C. § 811(a) that a notice to the fed­eral gov­ern­ment is required by the fed­eral Con­trolled Sub­stances Act and the state must give that notice when it legal­izes mar­i­juana for med­ical use.

Posted in Federal, States | 15 Comments

Martin O’Malley will declassify marijuana as a schedule 1 drug

On July 31, 2015, Mar­tin O’Malley released his white paper on Crim­i­nal Jus­tice Reform, which says, “As pres­i­dent, Gov­er­nor O’Malley will: … Declas­sify Mar­i­juana as a Sched­ule I Drug.”

Martin O'Malley speaking to Eastern Iowa Democrats in July of 2015.

Mar­tin O’Malley speak­ing to East­ern Iowa Democ­rats in July of 2015.

But, the sen­tence imme­di­ately fol­low­ing that one is less clear, “O’Malley will direct the Attor­ney Gen­eral to move to reclas­sify mar­i­juana, while sup­port­ing bipar­ti­san con­gres­sional efforts to leg­isla­tively reclas­sify mar­i­juana as a Sched­ule II drug.”

The week before this white paper was released I got a call from a field orga­nizer for O’Malley, Kennedy Bre­anne Green, who asked me to meet her for lunch on Mon­day, August 3, 2015.  I told Kennedy I would only meet with her if the topic was marijuana’s scheduling.

When I met with Kennedy, she showed me the white paper, and sure enough it says Mar­tin O’Malley will declas­sify mar­i­juana.  Unfor­tu­nately, the sen­tence imme­di­ately after that seems to wig­gle.  I told Kennedy I was uncom­fort­able with the words “move to.”  I said it should just say “O’Malley will direct the Attor­ney Gen­eral to reclas­sify mar­i­juana.”  Kennedy said she would try to get some clarification.

On Fri­day, August 7, 2015, I got a call from Mar­tin O’Malley’s son Will.  He agreed with me and said he would try to get clar­i­fi­ca­tion from his father.  Later that day, I got a call telling me that Jor­dan Sabine, a field orga­nizer from the O’Malley cam­paign would meet me for lunch on Tues­day, August 11, 2015.  How­ever, the field orga­nizer, Kiera, who showed up on Tues­day was not Jor­dan Sabine and Kiera had no idea what I had been talk­ing to Kennedy and Will about.

So, I’m not exactly encour­aged by this.  It sounds to me like O’Malley is wig­gling.  On the other hand, I haven’t seen any­thing as encour­ag­ing as this from any of the other can­di­dates.  O’Malley just might get my sup­port on cau­cus night, but I’m still con­sid­er­ing my options.


Posted in Federal | 1 Comment

How to stop the annoying candidate calls

I’ve found a sim­ple way to cut down on annoy­ing cam­paign calls from can­di­dates run­ning for president.


Results from August 19, 2015, Pub­lic Pol­icy Polling Sur­vey in North Carolina

Start out with a sim­ple ques­tion. Does mar­i­juana have accepted med­ical use in treat­ment in the United States?

If the answer is no, then the can­di­date has been sleep­ing for the past 20 years.

If the answer is yes, then the next ques­tion is equally sim­ple. Will you sign an exec­u­tive order remov­ing mar­i­juana from sched­ule 1?

If the answer is no, then the can­di­date is unqual­i­fied to be chief of the exec­u­tive branch of government.

When Con­gress wrote the fed­eral drug law in 1970, one of the con­di­tions it placed on sched­ule 1 is that sub­stances in that sched­ule must con­tinue to have no accepted med­ical use in treat­ment in the United States or be removed from that sched­ule by the exec­u­tive branch. Mar­i­juana was placed in sched­ule 1, even though it had been accepted for med­ical use in the United States up until 1942 when it was removed from the U.S. Pharmacopea.

Since 1996, 24 states have legal­ized the med­ical use of mar­i­juana and another 16 have enacted laws rec­og­niz­ing med­ical use for extracts made from the plant. Three fed­eral juris­dic­tions have also accepted the med­ical use of mar­i­juana, DC, Guam, and Puerto Rico. This is legally suf­fi­cient for the pres­i­dent to remove mar­i­juana from sched­ule 1 by exec­u­tive order.

I’ve found that ask­ing this ques­tion of the can­di­dates is a guar­an­teed way to make them stop calling.

Try it your­self and see.

Posted in Federal | Leave a comment

Facebook Commandos

For those of you who use Face­book, I have pity on you.  It’s not a friendly place.  Today, peo­ple call­ing them­selves advo­cates for full legal­iza­tion of mar­i­juana in Iowa are com­plain­ing about two groups we have here in Iowa and the com­plaints are sim­i­lar toward both groups.
  1. You have a group called Iowans 4 Med­ical Cannabis advo­cat­ing for med­ical use, say­ing that it won’t lead to legal­iza­tion of non-medical use.
  2. You have a group called Iowa Hemp Asso­ci­a­tion advo­cat­ing for indus­trial use, say­ing it won’t lead to legal­iza­tion for non-industrial use.

This makes these so-called advo­cates angry, because they see med­ical use and indus­trial use as sub­sets of a greater whole (full legal­iza­tion).  Full legal­iza­tion would give the patients their med­i­cine and save the trees at the same time.  I won’t go into what full legal­iza­tion looks like, because I don’t really know what it looks like.  Alco­hol is not fully legal­ized.  Tobacco is not fully legal­ized.  Alco­hol and tobacco are both toxic and mar­i­juana is not, so I can’t see them as being the same.  Even cocaine and mor­phine are legal under cer­tain restric­tions.  Even metham­phet­a­mine is legal under cer­tain restric­tions.  So, I think we need to come up with some­thing unique for mar­i­juana, since mar­i­juana is safer than all of these things we already accept under cer­tain restrictions.

What dri­ves med­ical advo­cates is that they are being tor­tured by the phar­ma­ceu­ti­cal indus­try.  Med­ical users are being forced to use toxic chem­i­cals instead of a safe plant.  I don’t know about you, but I can’t take what a per­son being tor­tured says as seri­ously as I take what a per­son says who has time and the abil­ity to think clearly.  These patients are being tor­tured, plain and sim­ple.  I’m not going to attack them for try­ing to save their lives and the lives of their loved ones.  Things are not okay in this coun­try, and this is a man­i­fes­ta­tion of it.  Give the patients a break.  They need our help, not a bunch of cheap talk.

What dri­ves indus­trial advo­cates is entre­pre­neur­ship.  This is a fun­da­men­tal value in our soci­ety, mak­ing money.  We can’t expect cap­i­tal­ism to go away.  And, besides, hemp is a good prod­uct.  You can make lots of good stuff from it.  I could com­plain about cap­i­tal­ism, but it’s not going away.  The mar­ket dri­ves cap­i­tal­ism, so if you’re offended, then don’t buy what’s being sold, plain and simple.

So, what I see miss­ing is that the peo­ple com­plain­ing on Face­book and claim­ing they have the higher (par­don the pun) ground are show­ing up at events they did not orga­nize and com­plain­ing about the peo­ple who did orga­nize them.  What a colos­sal waste of time.  Talk is cheap.  Instead of doing some­thing pro­duc­tive, they talk trash about oth­ers.  It’s pathetic.  This proves they are not rep­re­sent­ing any higher issue at all.  They rep­re­sent small­ness, plain and sim­ple.  I like to call them Face­book Com­man­dos, or arm­chair quar­ter­backs if you want to go with an older colloquialism.

I don’t know how any­one can say that med­ical use or indus­trial use will not lead to full legal­iza­tion, since we are see­ing full legal­iza­tion now as a direct result of the many use­ful things mar­i­juana can do.  But, if peo­ple want to say the many uses of this plant will not lead to fur­ther legal­iza­tion, let’s not waste our time attack­ing them for it.

If these whin­ers on Face­book would go find some­thing pro­duc­tive to do, instead of com­plain­ing about peo­ple doing good things, we’d all be a lot bet­ter off for it.

I don’t know about you, but when some­one starts pro­mot­ing the ben­e­fits of mar­i­juana, I want to thank them for it.  Attack­ing them on Face­book is not some­thing I can thank any­one for.

Posted in General | 6 Comments

It’s Not Over Yet


Dream­ing of a brighter future in Iowa

There has been a lot of par­ti­san bick­er­ing in the Iowa leg­is­la­ture over med­ical mar­i­juana this year, and it’s not over yet.  Since Iowa enacted a med­ical cannabis extract law (2015 Iowa Code Chap­ter 124D — Med­ical Cannabid­iol Act) last year, no one has been able to obtain it legally.  Cannabid­iol is not approved by the Food and Drug Admin­is­tra­tion (FDA) and can­not be obtained legally any­where in the United States.  So, the ques­tion is when a state enacts a law accept­ing the med­ical use of some­thing that is not approved by the fed­eral gov­ern­ment, how does that work?

You’ll have to admit, this doesn’t hap­pen very often.  With­out a thor­ough under­stand­ing of the foun­da­tions of the inter­na­tional, fed­eral, and state drug laws, it’s a dif­fi­cult ques­tion to answer.  The answer lies, how­ever, in the prefa­tory notes in the Uni­form Con­trolled Sub­stances Act, “Legit­i­mate use of con­trolled sub­stances is essen­tial for pub­lic health and safety, and the avail­abil­ity of these sub­stances must be assured.”

Iowa Democ­rats have been pro­mot­ing the cul­ti­va­tion and use of mar­i­juana for med­ical pur­poses here in Iowa.  A phrase you’ll often hear at the Capi­tol is, “Twenty-three states have already done this and Iowa does not need to rein­vent the wheel.”  But, is it really that sim­ple?  Have twenty-three states actu­ally fig­ured this out, or do we need to rein­vent the wheel?

My opin­ion is that until states part­ner with the fed­eral gov­ern­ment, a safe and reg­u­lated sup­ply of med­ical cannabis will not hap­pen and patients will be at risk.  Major pro­fes­sional med­ical orga­ni­za­tions (the Amer­i­can Acad­emy of Neu­rol­ogy and the Amer­i­can Acad­emy of Pedi­atrics) have already begun to ask the fed­eral gov­ern­ment to coop­er­ate by remov­ing mar­i­juana from the restric­tive fed­eral clas­si­fi­ca­tion that says it’s not med­i­cine any­where in the United States.  Really?  I thought there were twenty-three states that had accepted it.

I think it’s time we had a seri­ous dis­cus­sion with the fed­eral gov­ern­ment, but I don’t think major pro­fes­sional med­ical orga­ni­za­tions carry as much weight as state gov­ern­ments.  After all, what is the fed­eral gov­ern­ment?  Isn’t the fed­eral gov­ern­ment just a union of states?  I thought so.  I think that’s what I learned in school.

When I talked to my state sen­a­tor, Jack Whitver, he agreed to give this approach a try.  Sen­a­tor Whitver is a Repub­li­can and an attor­ney by pro­fes­sion.  He under­stands law.  So, I have a unique sit­u­a­tion.  My sen­a­tor under­stands law and I have a legal argu­ment.  We actu­ally speak the same lan­guage.  How­ever, when he tried to get the other Repub­li­cans to sign on to it, the Sen­ate Repub­li­can Cau­cus refused and came up with a defec­tive plan to trade the Democ­rats noth­ing for some­thing.  The details follow.

The story begins on April 15, 2015, with Sen­ate Amend­ment S-3126 (a pro­posal to change marijuana’s clas­si­fi­ca­tion in Iowa) offered by the Sen­ate Repub­li­cans in return for strik­ing the entire Med­ical Cannabis Act, SF 484, pro­posed by the Democ­rats.  Chang­ing the clas­si­fi­ca­tion of mar­i­juana in Iowa with­out chang­ing it at the fed­eral level does absolutely noth­ing.  It might be good sym­bol­ism and that’s a good rea­son to do it, but in real­ity it does absolutely noth­ing for sick and injured peo­ple.  It was not a good deal (noth­ing for some­thing) and the Sen­ate voted it down (thanks for noth­ing, Repub­li­cans).  Here is a break­down of the votes on S-3126 by party: 19 Sen­ate Repub­li­cans — Aye; 5 Sen­ate Repub­li­cans — Absent; 1 Sen­ate Demo­c­rat — Aye; 24 Sen­ate Democ­rats — Nay; 1 Sen­ate Demo­c­rat – Absent.

After that bogus deal, the Sen­ate Democ­rats offered Sen­ate Amend­ment S-3123 (a pro­posal to change marijuana’s clas­si­fi­ca­tion in Iowa) offered as an addi­tion to the Med­ical Cannabis Act, SF 484, pro­posed by the Democ­rats.  Reclas­si­fi­ca­tion does noth­ing, but it’s nice sym­bol­ism and goes along nicely with the Med­ical Cannabis Act, SF 484.  The Sen­ate voted to adopt S-3123 unan­i­mously.  Here is a break­down of the votes on S-2123 by party: 19 Sen­ate Repub­li­cans — Aye; 5 Sen­ate Repub­li­cans — Absent; 25 Sen­ate Democ­rats — Aye; 1 Sen­ate Demo­c­rat – Absent.

Stop now and real­ize that every Demo­c­rat and every Repub­li­can just agreed that mar­i­juana is med­i­cine.  Think about that for a moment, or longer if you have time.

How­ever, the vote on the Med­ical Cannabis Act was divided again.  Here is a break­down of the votes on SF 484 by party: 1 Sen­ate Repub­li­can — Aye; 18 Sen­ate Repub­li­cans — Nay; 5 Sen­ate Repub­li­cans — Absent; 25 Sen­ate Democ­rats — Aye; 1 Sen­ate Demo­c­rat — Nay.  You can see that a sin­gle Repub­li­can (thank you, Sen­a­tor Zaun) gave the Democ­rats enough votes to barely squeak this one through.  SF 484 was then assigned to the House Com­mit­tee on Pub­lic Safety to die.

Not will­ing to go down easy, on May 5, 2015, the Sen­ate Democ­rats pro­posed amend­ment S-3148 (reclas­si­fy­ing mar­i­juana as med­i­cine) to HF 567 (adding syn­thetic poi­sons to the same clas­si­fi­ca­tion mar­i­juana is cur­rently in).  The Sen­ate nar­rowly adopted the amend­ment and sent the bill back to the House (thank you, again and again, Sen­a­tor Zaun).  Here is a break­down of the votes on S-3148 by party: 1 Sen­ate Repub­li­can — Aye; 23 Sen­ate Repub­li­cans — Nay; 25 Sen­ate Democ­rats — Aye; 1 Sen­ate Demo­c­rat — Nay.  Here is a break­down of the votes on HF 567 by party: 1 Sen­ate Repub­li­can — Aye; 23 Sen­ate Repub­li­cans — Nay; 26 Sen­ate Democ­rats — Aye.

So, the House Repub­li­cans got really upset about HF 567 being amended by the Sen­ate.  On May 20, 2015, House Repub­li­cans pro­posed an amend­ment H-1365 (adding syn­thetic poi­sons to the same clas­si­fi­ca­tion mar­i­juana is cur­rently in) to SF 510 (the stand­ing appro­pri­a­tions bill).  Not to be out­done, the House Democ­rats pro­pose their own amend­ment H-1379 (legal­iz­ing med­ical mar­i­juana) to H-1365.  Both amend­ments were ruled not ger­mane to the stand­ing appro­pri­a­tions bill, but the House Democ­rats were unable to sus­pend the rules to vote on their amend­ment while the House Repub­li­cans were able to suc­cess­fully sus­pend the rules to vote on their amend­ment.  Here is a break­down of the votes to sus­pend the rules for H-1379: 2 House Repub­li­cans — Aye; 53 House Repub­li­cans — Nay; 2 House Repub­li­cans — Absent; 41 House Democ­rats — Aye; 2 House Democ­rats — Absent.  Here is a break­down of the votes on H-1365: 55 House Repub­li­cans — Aye; 2 House Repub­li­cans — Absent; 41 House Democ­rats — Nay; 2 House Democ­rats — Absent.

So, what does all of this mean?  We have SF 484 dead in the House.  We have HF 567 dead in the House.  We have SF 510 dead in the Sen­ate.  We know there will be a bud­get bill.  And, we know syn­thetic poi­son isn’t going to be ignored another year.  But, all the bills appear to be dead.

My state sen­a­tor, Sen­a­tor Whitver, tells me the House amend­ment, H-1365 (adding syn­thetic pot to the list of con­trolled sub­stances and grant­ing a longer period for tem­po­rary sched­ul­ing from 60 days to 2 years), to SF 510 (the bud­get appro­pri­a­tions bill) is prob­a­bly dead.  The sen­ate will not adopt the amend­ment.  He does not know exactly how the bud­get will be resolved, but it could go to a con­fer­ence committee.

My state rep­re­sen­ta­tive, Rep­re­sen­ta­tive Koester, tells me SF 484 can still be debated in the House if there is a motion to sus­pend the rules, and it can still be tacked onto another bill as an amend­ment if it’s ger­mane, or by motion to sus­pend the rules if it’s not germane.

So, every­thing is still on the table until the leg­is­la­ture adjourns.  If you sup­port SF 484, now is the time to get on down to the state Capi­tol and ask for a motion to sus­pend the rules to get this on the House floor for debate this year.  There’s not much time left.

Posted in Uncategorized | Leave a comment