Comments on Proposed Rules

Comments on Proposed Amendments to
641 Iowa Administrative Code 154
Rules 641—154.15(124E) to 641—154.65(124E)
September 15, 2017

The Medical Cannabidiol Act, 2017 Iowa Acts 451, Chapter 162 (H.F. 524), was signed into law on May 12, 2017, by Governor Terry E. Branstad.

Section 9(1) of the Act, Iowa Code § 124E.5(1) (2017), authorizes the Iowa Department of Public Health to issue a license to a “manufacturer” which allows cultivation and harvesting of cannabis in Iowa.

Section 10(8) of the Act, Iowa Code § 124E.6(8) (2017), requires a “manufacturer owner shall not have been convicted of a disqualifying felony offense.”  See, Section 5(4) of the Act, Iowa Code § 124E.2(4) (2017), referencing 21 U.S.C. § 802(6).

Section 11(1) of the Act, Iowa Code § 124E.7(1) (2017), authorizes the Iowa Department of Public Health to issue a license to a “dispensary” which allows distribution of cannabis products in Iowa.

Section 12(8) of the Act, Iowa Code § 124E.8(8) (2017), requires a “dispensary owner shall not have been convicted of a disqualifying felony offense.”  See, Section 5(4) of the Act, Iowa Code § 124E.2(4) (2017), referencing 21 U.S.C. § 802(6).

As recently as September 10, 2017, Speaker of the Iowa House, Linda Upmeyer, is quoted in the Des Moines Register, stating that the manufacture and distribution of cannabidiol in Iowa is a federal felony offense.  Des Moines Register, September 10, 2017, “AG tells agency to halt part of Iowa’s medical marijuana law.”[Footnote 1]  Speaker Upmeyer is quoted as stating:

no matter what the Legislature has decided, the state still would have been in violation of federal law

So, as stated by Speaker Upmeyer, a disqualifying offense disqualifies someone from participating in a disqualifying offense.  According to Speaker Upmeyer, the Iowa Department of Public Health will be licensing individuals to engage in disqualifying offenses (continuing criminal enterprises) that carry up to life in federal prison and fines of up to $50,000,000.[Footnote 2]

Federal Regulations

Although this author disagrees with Speaker Upmeyer’s assertion that H.F. 524 violates federal law, this clearly demonstrates what we are about to step into.  The Iowa Medical Cannabidiol Act of 2017 doesn’t explain how the intrastate manufacture and distribution of cannabidiol products is consistent with existing federal law.

The Drug Enforcement Administration (DEA) has recently published a notice in the Federal Register clarifying that cannabidiol products are federal schedule 1 controlled substances.[Footnote 3]  The DEA has further clarified that cannabidiol products are federal schedule 1 controlled substances on its website.[Footnote 4]

Without a statement of compliance with existing federal law, the rules the Iowa Department of Public Health is proposing will place manufacturers and distributors in extreme jeopardy, as well as the Iowa patients who will depend on them for their medicine.  Speaker Upmeyer has clearly warned you of the consequences of leaving this matter unsettled.  The fact that she would even put her name on a piece of legislation she thinks violates federal law is astounding.

The Iowa Department of Public Health can and must resolve this problem which has been clearly articulated by Speaker Upmeyer.  The administrative rules implementing this legislation must address the concerns she has raised.

Please see this author’s previous comments from July 25, 2017, for a complete legal analysis explaining why state medical marijuana programs are consistent with existing federal law and exempt from schedule 1.[Footnote 5]

Conclusion

The regulations implementing H.F. 524 must include an explanation of compliance with existing state and federal law.  This can’t be left to the imagination.  The Iowa Department of Public Health has the authority to take corrective action by administrative rule.  Each manufacturer and dispensary license must include a statement that the license immunizes the manufacturer or dispensary from federal prosecution that would result from the false assumption that intrastate medical use of marijuana is included in schedule 1 of the state and federal controlled substances acts.  H.F. 524 satisfies both state and federal requirements because it provides a complete exemption from state and federal schedule 1.

Thank you for your prompt attention to this matter.

Carl Olsen, Executive Director
Iowans for Medical Marijuana, Iowa Business No. 334412
Post Office Box 41381, Des Moines, Iowa 50311-0507
http://www.iowamedicalmarijuana.org/

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