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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