House Concurrent Resolution 104 is a Bad Idea

On Jan­u­ary 19, 2018, some Iowa leg­is­la­tors with good inten­tions filed House Con­cur­rent Res­o­lu­tion 104 (HCR104), ask­ing the fed­er­al gov­ern­ment to reclas­si­fy mar­i­jua­na.

Although the inten­tion is good, HCR104 is bad.

Iowa needs to clean up its own affairs before mak­ing a fuss about the mess the fed­er­al gov­ern­ment is per­pet­u­at­ing.  Before address­ing fed­er­al drug law, leg­is­la­tors should con­sid­er why we have 50 dif­fer­ent state drug laws that all dif­fer from fed­er­al drug law and from each oth­er.  It’s called “fed­er­al­ism” and it’s our sys­tem of gov­ern­ment in these unit­ed states.

It is one of the hap­py inci­dents of the fed­er­al sys­tem that a sin­gle coura­geous State may, if its cit­i­zens choose, serve as a lab­o­ra­to­ry; and try nov­el social and eco­nom­ic exper­i­ments with­out risk to the rest of the coun­try.

Jus­tice Louis Bran­deis’ dis­sent in New State Ice Co. v. Lieb­mann (1932)

The sched­ul­ing of mar­i­jua­na in Iowa has not been con­sis­tent with fed­er­al sched­ul­ing since 1979 when the Iowa leg­is­la­ture decid­ed to put mar­i­jua­na into two sched­ules, sched­ule 1 and sched­ule 2.  Mar­i­jua­na is only in fed­er­al sched­ule 1, not in two sched­ules.

Com­pare Iowa Code § 124.204(4)(m) (2018) and Iowa Code § 124.206(7)(a) (2018) with fed­er­al reg­u­la­tion 21 C.F.R. § 1308.11(d)(23) (2017).  And see, State v. Bon­jour, 694 N.W.2d 511 (Iowa 2005) (detail­ing the his­to­ry of Iowa’s dual sched­ul­ing of mar­i­jua­na).

Fur­ther­more, the sched­ul­ing of THC in Iowa has not been con­sis­tent with fed­er­al sched­ul­ing since 2008 when the Iowa leg­is­la­ture decid­ed to put nat­u­ral­ly extract­ed THC prod­ucts in state sched­ule 3.  Nat­u­ral­ly extract­ed THC prod­ucts are in fed­er­al sched­ule 1, not in sched­ule 3.

Com­pare Iowa Code § 124.208(9)(b) (2018) with fed­er­al reg­u­la­tion 21 C.F.R. § 1308.13(g)(1) (2017).

It is beyond ques­tion that Iowa can deter­mine it’s own sched­ul­ing on mar­i­jua­na and THC, and Iowa has con­sis­tent­ly done so.

Ask­ing the fed­er­al gov­ern­ment to reclas­si­fy mar­i­jua­na to fed­er­al sched­ule 2 while leav­ing mar­i­jua­na in state sched­ule 1 is a real­ly bad idea.

Iowa should place mar­i­jua­na in state sched­ule 2, as the bill the Iowa Board of Phar­ma­cy filed in 2011 would have done, before ask­ing the fed­er­al gov­ern­ment to do some­thing we won’t do as an act of good faith.

Iowa must show good faith and lead­er­ship by remov­ing mar­i­jua­na from state sched­ule 1 and then remind­ing the fed­er­al gov­ern­ment that its ille­gal to vio­late our state sov­er­eign­ty.

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2 Responses to House Concurrent Resolution 104 is a Bad Idea

  1. Michelle Servadio says:

    You didn’t men­tion the mess they also have made with indus­tri­al hemp.

    • Carl Olsen says:

      I am writ­ing about pro­posed leg­is­la­tion that was filed on Jan­u­ary 19, 2018, and that leg­is­la­tion has noth­ing to do with indus­tri­al hemp.

      A con­sis­tent theme I write about is fail­ure to under­stand the state’s role in the fed­er­al drug law.

      When the state of Iowa accept­ed the med­ical use of mar­i­jua­na and left it clas­si­fied as a sub­stance with­out any med­ical use in the Unit­ed States, the state failed to estab­lish grounds to com­plain about fed­er­al sched­ul­ing which says mar­i­jua­na has no accept­ed med­ical use in the states.  Iowa sched­ul­ing says the same thing.  There is state law that says mar­i­jua­na has med­ical use in the pro­duc­tion of cannabis oil, and anoth­er old­er state clas­si­fi­ca­tion that says mar­i­jua­na has no med­ical use in treat­ment in the Unit­ed States.  If opi­um, which is clas­si­fied as a med­i­cine under both state and fed­er­al sched­ules, has med­ical use in the pro­duc­tion of mor­phine, then mar­i­jua­na has med­ical use in the pro­duc­tion of cannabis oil.

      Indus­tri­al hemp was legal­ized by Con­gress in 2014, but only if a state accepts it accord­ing to the terms of the 2014 fed­er­al law.  There was nev­er a law clas­si­fy­ing indus­tri­al hemp on the basis of whether it had accept­ed indus­tri­al use in the states, or requir­ing a change in fed­er­al clas­si­fi­ca­tion if that con­di­tion changed.  Con­gress actu­al­ly had to amend the fed­er­al drug law, because it didn’t include any way to reclas­si­fy indus­tri­al hemp.  But the 2014 fed­er­al law says a state must accept the indus­tri­al use before it has any effect in that state.  Iowa hasn’t accept­ed it.

      The fed­er­al and state drug laws nev­er had a con­di­tion for indus­tri­al hemp like the one they have for med­ical cannabis that requires chang­ing the clas­si­fi­ca­tion.

      Con­gress can­not force the states to accept the indus­tri­al use of hemp any more than it could force the states to accept the med­ical use of mar­i­jua­na.

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