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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