Medical Cannabis and the 2017 Iowa Legislative Session

This leg­isla­tive ses­sion began with four pro­pos­als for med­ical cannabis pro­grams, two in the Iowa Sen­ate, one by Democ­rats (S.F. 205) and one by Repub­li­cans (S.S.B. 1176 / S.F. 506), and two in the Iowa House, one by Democ­rats (H.F. 198 / H.F. 199) and one by Repub­li­cans (H.S.B. 132), and two pro­pos­als to extend the cur­rent Med­ical Cannabid­i­ol Act of 2014, one by Sen­ate Repub­li­cans (S.F. 470) and one by House Repub­li­cans (H.F. 520).  What we end­ed up with is a hybrid of bits and pieces from each of these six pro­pos­als (H.F. 524).

Cultivation, manufacture, and distribution

H.F. 524 extends the Med­ical Cannabid­i­ol Act of 2014, with the addi­tion of more med­ical con­di­tions and cul­ti­va­tion, man­u­fac­ture, and dis­tri­b­u­tion of cannabid­i­ol in Iowa.  The lim­it on THC remains the same, 3%.  Most peo­ple are say­ing this is not a big step for­ward, but cul­ti­va­tion, man­u­fac­ture, and dis­tri­b­u­tion in Iowa seem like huge steps for­ward to me.  Because there were pro­pos­als in both cham­bers, from both par­ties, ear­ly in the year to cul­ti­vate, man­u­fac­ture, and dis­trib­ute cannabis prod­ucts in Iowa, this was not a total sur­prise.  The dis­agree­ment was main­ly about how much THC there can be in the prod­ucts.  Both Sen­ate pro­pos­als would have elim­i­nat­ed the lim­its on THC, and the House was split (Repub­li­cans in favor of the 3% lim­it on THC and Democ­rats in favor of elim­i­nat­ing any lim­it on THC).  Because Repub­li­cans con­trol both cham­bers and the governor’s office, the 3% lim­it on THC pre­vailed.

This is a stun­ning result, con­sid­er­ing the Nation­al Acad­e­mies of Sci­ence report­ed ear­li­er this year that there is con­clu­sive evi­dence that high­er lev­els of THC are effec­tive in the treat­ment of chron­ic pain and mul­ti­ple scle­ro­sis (Chap­ter 4, Sec­tion 1), and no or insuf­fi­cient evi­dence to sup­port or refute the con­clu­sion that cannabis or cannabi­noids are an effec­tive treat­ment for epilep­sy (Chap­ter 4, Sec­tion 6).  The rea­son giv­en for the the low THC lim­it was that it pro­vides an effec­tive treat­ment for epilep­sy.

Introduced at 3:00 a.m.

Although I am opti­mistic, H.F. 524 is not well writ­ten.  H.F. 524 was nego­ti­at­ed in secret meet­ings in the wee hours of the morn­ing on Sat­ur­day, April 22, 2017, just before the leg­is­la­ture adjourned for the year.  I was not able to obtain a copy of the bill until 3:00 a.m. on Sat­ur­day morn­ing, April 22, 2017.  I left the capi­tol around 5:00 a.m. (after sit­ting in the bal­cony over­look­ing the House floor for 16 hours), because it was obvi­ous to me H.F. 524 wasn’t going to be amend­ed and H.F. 524 would either pass or fail as writ­ten.  I watched the debate from the House floor and the Sen­ate floor after I got home lat­er in the morn­ing.  The legislature’s plan was to adjourn the 2017 ses­sion that morn­ing, so I was fair­ly con­fi­dent the bill was going to pass as writ­ten.  The vote in the Iowa House was 83–11-6 at 6:00 a.m., H.J. 1135, and 33–7-10 at 6:30 a.m. in the Iowa Sen­ate, S.J. 1122.  Both cham­bers adjourned for the year at 7:15 a.m.

There is no explanation of federal law in the bill

In my opin­ion, there is a crit­i­cal ele­ment left out of both the ini­tial pro­pos­als and the final bill that passed.  There is not a sin­gle men­tion of fed­er­al law in the pro­pos­als or in the final bill, and yet most of the media cov­er­age dur­ing the ses­sion report­ed leg­is­la­tors express­ing con­cern about fed­er­al law.  That seems like a huge flaw to me.  If fed­er­al law is a con­cern, it should be addressed in the bill.  For exam­ple, a hemp bill was intro­duced, S.F. 329, that con­tains a sec­tion enti­tled “Com­pli­ance with Fed­er­al Law.”  S.F. 329 proves that leg­is­la­tors under­stand there is a fed­er­al law involved when­ev­er cannabis is being con­sid­ered.  Leav­ing that out of every pro­pos­al, and in the final bill, H.F. 524, is a crit­i­cal over­sight.

Iowa Pub­lic Radio, April 12, 2017, Advo­cates Plead for Med­ical Mar­i­jua­na; Sen­ate Com­mit­tee Approves Bill: “You’re still break­ing fed­er­al law.” -House Speak­er Lin­da Upmey­er.

KGLO AM 1300, March 27, 2017, Upmey­er says leg­is­la­tors work­ing on med­ical mar­i­jua­na issue: “She says they are already antic­i­pat­ing doing this bill with the pos­si­bil­i­ty of break­ing two fed­er­al laws.”

What do we know about federal law?

First

We can read S.F. 329, which says it com­plies with 7 U.S.C. § 5940 (Pub. L. 113–79, title VII, § 7606, Feb. 7, 2014, 128 Stat. 912; Pub. L. 114–95, title IX, § 9215(f), Dec. 10, 2015, 129 Stat. 2166).

7 U.S.C. § 5940 says it pro­vides an excep­tion to 21 U.S.C §§ 801 et seq., The Con­trolled Sub­stances Act, title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242.

7 U.S.C. § 5940 defines hemp as cannabis with no more than .3% THC.

The Iowa Med­ical Cannabid­i­ol Act of 2014 defines cannabid­i­ol as cannabis with no more than 3% THC (ten times the amount of THC as defined in 7 U.S.C. § 5940).

Second

Con­gress has tem­porar­i­ly sus­pend­ed enforce­ment of 21 U.S.C. §§ 801 et seq. in the past two fed­er­al appro­pri­a­tions bills, and in the exten­sions for 2017 through May 5, 2017.  See, Con­gres­sion­al Research Ser­vice, R44782, “The Mar­i­jua­na Pol­i­cy Gap and the Path For­ward”, March 10, 2017, p. 15.

Pub. L. No. 113–235, § 538, 128 Stat. 2130, 2217 (2014) (“None of the funds made avail­able in this Act to the Depart­ment of Jus­tice may be used … to pre­vent such States from imple­ment­ing their own State laws that autho­rize the use, dis­tri­b­u­tion, pos­ses­sion, or cul­ti­va­tion of med­ical mar­i­jua­na”).

Pub. L. No. 114–113, § 542, 129 Stat. 2242, 2332–33 (2015) (“None of the funds made avail­able in this Act to the Depart­ment of Jus­tice may be used … to pre­vent any of them from imple­ment­ing their own laws that autho­rize the use, dis­tri­b­u­tion, pos­ses­sion, or cul­ti­va­tion of med­ical mar­i­jua­na”).

Pub.L. No. 114–254, § 101(1), 130 Stat. 1005, 1005-06 (2016) (extend­ing the date to April 28, 2017).

H.J.Res.99 — 115th Con­gress (2017–2018) (extend­ing the date to May 5, 2017).

See, Con­gres­sion­al Research Ser­vice, R44782, “The Mar­i­jua­na Pol­i­cy Gap and the Path For­ward”, March 10, 2017.

Update (May 1, 2017): Con­gress is set to re-autho­rize the sus­pend­ed enforce­ment until Sep­tem­ber of 2017.

Obvi­ous­ly, a tem­po­rary sus­pen­sion of enforce­ment is not a promise that enforce­ment will not be resumed.

Third

The U.S. Depart­ment of Jus­tice has cre­at­ed enforce­ment guide­lines that say enforce­ment of 21 U.S.C. §§ 801 et seq. will not like­ly be used against state med­ical mar­i­jua­na pro­grams.  Again, see, Con­gres­sion­al Research Ser­vice, R44782, “The Mar­i­jua­na Pol­i­cy Gap and the Path For­ward”, March 10, 2017. p. 12.

The Ogden Mem­o­ran­dum of Octo­ber 19, 2009 states that, “no State can autho­rize vio­la­tions of fed­er­al law.”

The Cole Mem­o­ran­dum of August 29, 2013 states that, “Nei­ther the guid­ance here­in nor any state or local law pro­vides a legal defense to a vio­la­tion of fed­er­al law, includ­ing any civ­il or crim­i­nal vio­la­tion of the CSA.”

Obvi­ous­ly, fed­er­al enforce­ment guide­lines do not pro­vide a legal defense for state med­ical mar­i­jua­na pro­grams, nor do they allow states to autho­rize vio­la­tions of fed­er­al law.

So, what federal law allows states to enact medical marijuana programs?

The fed­er­al Con­trolled Sub­stances Act (CSA), enact­ed in 1970, orig­i­nal­ly clas­si­fied cannabis as a sub­stance with no cur­rent­ly accept­ed med­ical use in treat­ment in the Unit­ed States.  The Attor­ney Gen­er­al was giv­en the duty of keep­ing the clas­si­fi­ca­tion (sched­ules) of con­trolled sub­stances updat­ed as cir­cum­stances changed.  21 U.S.C. § 811(a) (2017).  The Attor­ney Gen­er­al may “add sub­stances to,” “trans­fer sub­stances between,” or “remove sub­stances from” the sched­ules.  Since 1996, when Cal­i­for­nia became the first state in the Unit­ed States to accept the med­ical use of cannabis, a total of 45 states have accept­ed the med­ical use of cannabis or cannabis extracts.  By con­trast, noth­ing else in sched­ule 1 (the sched­ule cannabis was placed in by Con­gress in 1970) has been accept­ed by even a sin­gle state in the Unit­ed States.

Con­gress nev­er defined the term, “cur­rent­ly accept­ed med­ical use.”  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’”).  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 or, as the Admin­is­tra­tor con­tends, approval for inter­state mar­ket­ing of the sub­stance”).

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.”  Gon­za­les v. Ore­gon, 546 U.S. 243, 258 (2006).

The last time the Attor­ney Gen­er­al inter­pret­ed “cur­rent­ly accept­ed med­ical use” of cannabis was in 1991.  In 1991, there were no states in the Unit­ed States that had accept­ed the med­ical use of cannabis.  The 2009 and 2013 fed­er­al enforce­ment guide­lines appear to rely on this out­dat­ed inter­pre­ta­tion.  In fact, if you look at the state med­ical cannabis laws enact­ed since 1996, you’ll notice that none of them includes a state­ment of com­pli­ance with fed­er­al law.  Fail­ure to explain how the state med­ical cannabis law com­plies with exist­ing fed­er­al law deprives the Attor­ney Gen­er­al of the oppor­tu­ni­ty to update the clas­si­fi­ca­tion of cannabis. 

Conclusion

Fail­ure to explain com­pli­ance with fed­er­al law is a crit­i­cal flaw in H.F. 524.  The gov­er­nor should call the leg­is­la­tors back in a spe­cial ses­sion to address this error before sign­ing this leg­is­la­tion.

Any leg­is­la­tor, or the gov­er­nor, can request an opin­ion from the attor­ney gen­er­al, as set forth in Iowa Code § 13.2(3) (2017) and 61 Iowa Admin­is­tra­tive Code § 1.5 (2017).

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One Response to Medical Cannabis and the 2017 Iowa Legislative Session

  1. Carl Olsen says:

    Update (May 7, 2017):

    Med­Pharm Hold­ings is ask­ing Gov­er­nor Branstad to item veto all the ref­er­ences to inter­state com­merce and to strike unnec­es­sary lay­ers of bureau­cra­cy in HF 524.

    See http://carl-olsen.com/HF524ItemVetoRequest.html

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