Last week I got an email from Kevin saying that he was going to meet with the medical staff at the University of Iowa to follow up on the study that was called for in the 2014 Medical Cannabidiol Act. He said he might have some questions after that meeting. I didn’t hear from him and I was busy writing my trial brief which was due on Friday.
At our legislative forum yesterday, I asked Kevin how his meeting went with the medical staff. He said it sounded positive for CBD and epilepsy, which of course was the only thing the 2014 Medical Cannabidiol Act asked the University of Iowa to look at. Nevertheless, I was glad to hear the results were positive.
There were three couples there supporting medical marijuana. Two of them spoke and said they had Crohns Disease and wondered why Crohns Disease had been stripped from the bill that is currently pending, HF 2384. Kevin said that legislators were having a hard time understanding the science. The couple asked him what kind of science he was looking for, because they had it. Kevin said he would not understand it if he saw it.
I’ve been following this in the news a lot, and it seems like every legislator in Iowa says they support moving forward on this issue, but none of them can agree on what to do.
After the forum, I met another couple that had contacted me earlier in the week and were just there to listen. Another couple was talking to Kevin and they had a medical condition (I can’t remember if it was a child with epilepsy). A man sitting next to me said he knew one of the patients that spoke at the capitol on March 22, 2016. I’m amazed at how many people are expressing support for medical marijuana at these forums.
Kevin told the couple talking to him that I had single handedly presented this issue to the Iowa Board of Pharmacy in 2009 and the board agreed it was medicine. I told Kevin that we presented evidence to the Iowa Board of Pharmacy in 2009 because the law says that board is the authority in Iowa, but the legislators would not listen. So, that is why the legislators don’t understand the science now. When the board looked at it, as they are required by law to do, the legislators did not want to hear it. So, now medical decisions are being made by legislators who can’t agree on what to do. Oh my!
I asked Kevin if he could send me anything from the University of Iowa presentation earlier in the week and he sent me these two files. The first one is the slide presentation Dr. Joshi presented to the Iowa House legislators last week. The second one is a presentation by Dale Woolery of the Office of Drug Control Policy.
Stay tuned for further developments on this story.
Jon Gettman wrote an article in High Times Magazine by the title Pot Matters: The Rescheduling Trap, on Monday, February 29, 2016, detailing his attempts to have marijuana federally rescheduled. I was a petitioner in Mr. Gettman’s most recent attempt to have marijuana rescheduled, and I will share my perspective.
The trap Mr. Gettman refers to is known in technical legal jargon as the rational basis test. What that means is the expert decision of the administrative agency charged with keeping marijuana’s classification current will not be overturned by a court if the decision is rational. Mr. Gettman argued that the classification was not rational. Like many before him and many after him, Mr. Gettman’s argument was rejected. It’s an argument that is guaranteed to fail. If Mr. Gettman wants to call that a trap, so be it. The outcome was predictable.
Judges are not medical experts and differences of opinion between medical experts on marijuana’s medical use are simply resolved in favor of the status quo. To win the rational basis argument the witnesses would have to be in total agreement.
The 1972 Rescheduling Petition
I was a petitioner in the marijuana rescheduling petition filed by NORML in 1972. I joined the NORML petition in 1985. The petition was granted by the DEA’s Chief Administrative Law Judge, Francis L. Young, in 1988. The administrative law judge’s ruling was overruled by the DEA Administrator citing a difference of opinion among medical experts. The appeal court applied the “rational basis” analysis and upheld the administrator’s denial of the administrative law judge’s ruling citing a difference in opinion among the expert witnesses.
My 1983 Rescheduling Petition
I filed a petition with the DEA in 1983 asking for an exemption from federal scheduling for the Ethiopian Zion Coptic Church, similar to the one that exists for the sacramental use of peyote by the Native American Church. The Ethiopian Zion Coptic Church is a Rastafarian church incorporated in Jamaica in 1976 that uses cannabis as it’s sacrament. My request was denied, but the court specifically said I had Article III (U.S. Constitution) standing to access the federal courts.
In 1990, the United States Supreme Court rejected my request by refusing to recognize a federal exemption for the sacramental use of peyote. This ruling was later overturned by Congress. However, the court had the last word and overruled Congress. So, the end result is that state law trumps a federal regulation as long as the state law is neutral toward religion and generally applicable (hold that thought of state law being of greater authority than a federal regulation, because I’m going to come back to it again later).
My 1992 Rescheduling Petition
I filed a petition with the DEA in 1992 arguing that THC had been rescheduled to federal schedule 2 in 1986 and internationally in 1991. I argued the plant THC comes from should be scheduled no higher than the principle psychoactive ingredient in the plant. My petition was denied because THC was being manufactured synthetically and marijuana was not used to make it.
While my appeal was pending in the federal courts, my attorney started a class action based on the rational basis argument that failed to make it out of federal district court in Pennsylvania.
Gettman’s 1995 Rescheduling Petition
Dr. Gettman and High Times Magazine filed their first petition to reschedule marijuana in 1995. When they tried to appeal from the denial of their request, the United States Court of Appeals said they did not have standing to access federal courts. Standing is a legal term that means a concrete injury. The court ruled that because Dr. Gettman and High Times were merely advocates, they did not have the direct injury required to have Article III (U.S. Constitution) standing to access the federal courts.
Gettman’s 2002 Rescheduling Petition
Dr. Gettman filed another rescheduling petition in 2002 and asked me and several others, including Americans for Safe Access (ASA) and the National Organization for the Reform of Marijuana Laws (NORML), to join as co-petitioners. Dr. Gettman told me the rescheduling petitions I filed in 1983 and 1992 inspired him to file his own rescheduling petitions and he wanted to include me.
My 2008 Rescheduling Petition
I want to come back now to that thought I told you to hold about state laws superseding federal regulations. In 2006 the United States Supreme Court ruled that state laws defining medical use of controlled substances to assist in suicide were lawful because the federal government does not have the authority to preempt them using federal regulations. I spoke to Mr. Gettman about this and suggested that we amend our petition to include this argument, because there were 8 states that had accepted the medical use of marijuana in 2002 and several more by 2006. Mr. Gettman said he did not want to amend the petition and that we were going to win based on science (the rational basis argument).
So, in 2008 I filed a petition to reschedule marijuana with the Iowa Board of Pharmacy and the only evidence I presented was 12 state laws accepting the medical use of marijuana. I said this was accepted medical use in the United States. Iowa law says marijuana must continue to have no accepted medical use in the United States, just like federal law, so I argued the accepted medical use of marijuana in other states was proof that marijuana is incorrectly classified under both state and federal law. Federal scheduling is done by regulation, not by statute, so I argued state laws supersede federal regulations and Iowa law refers to other laws in other states (because Iowa gets that phrase from federal scheduling).
The board denied my petition without ruling on my argument, but an Iowa District Court remanded the case and ordered them to rule on my argument. The board then ruled unanimously in 2010 that marijuana is medicine and should be removed from schedule 1. I contacted Mr. Gettman again and showed him my results. Mr. Gettman still refused to amend our petition, saying he was going to win on science (the rational basis argument). I then notified all of the parties and the DEA that I was withdrawing from the other petitioners and intervening separately on my own.
The Rest of the Story
In 2011, the DEA rejected Mr. Gettman’s petition citing a difference in expert medical opinion, and in 2013, the U.S. Court of Appeals rejected Mr. Gettman’s petition citing a rational basis based on conflicting expert testimony. The Court did not rule on my argument, but simply said I had a religious interest in marijuana. The dissenting judge said my argument was federalism and that was not the argument the other petitioners were making.
The most ironic part of the case was that the petitioners almost failed to show standing. They failed to show standing in their opening appeal brief, and failed again to show standing in their reply brief. At the oral argument, one of the petitioners who said he was being denied Veterans Administration benefits in Virginia (a state that did not allow medical use of marijuana) said that he lived in Oregon part of the year and possessed an Oregon medical marijuana card. The court asked for supplemental briefs and affidavits on standing and then gave the petitioner standing to lose the case on the merits because of the rational basis analysis. It’s ironic, because that was my argument. State laws matter.
So, Mr. Gettman’s warning should simply be don’t do what he did. There is an argument for rescheduling, but it’s not the one he made.
 Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013); Americans for Safe Access v. DEA, 134 S. Ct. 267, 187 L. Ed. 2d 151 (U.S., 2013); Olsen v. DEA, 134 S. Ct. 673, 187 L. Ed. 2d 422 (U.S., 2013).
 See, United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal., Apr. 17, 2015).
 DEA Docket No. 86–22, Sept. 6, 1988.
 Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 289 U.S. App. D.C. 214 (1991); 15 F.3d 1131, 304 U.S. App. D.C. 400 (1994).
 21 C.F.R. § 1307.31.
 Olsen v. DEA, 279 U.S. App. D.C. 1, 878 F.2d 1458 (1989); Olsen v. DEA, 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990); See, Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979) (“the Ethiopian Zion Coptic Church represents a religion within the first amendment to the Constitution of the United States, the use of cannabis is an essential portion of the religious practice, the Ethiopian Zion Coptic Church is not a new church or religion but the record reflects it is centuries old and has regularly used cannabis as its sacrament”).
 Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990). The Court of Appeals found: “Olsen is a member and priest of the Ethiopian Zion Coptic Church,” 878 F.2d at 1459, “the Ethiopian Zion Coptic Church is a bona fide religion with marijuana as its sacrament” 878 F.2d at 1460, and “even if the DEA were not empowered or obliged to act, Olsen would be entitled to a judicial audience” 878 F.2d at 1461.
 Employment Division v. Smith, 494 U.S. 872 (1990).
 Religious Freedom Restoration Act of 1993 (RFRA), Public Law 103–141, 187 Stat. 1488, Nov. 16, 1993.
 Boerne v. Flores, 521 U.S. 507 (1997).
 1996 U.S. App. LEXIS 30353; Olsen v. DEA, 519 U.S. 1118, 117 S. Ct. 964, 136 L. Ed. 2d 849 (1997).
 Kuromiya v. United States, 37 F. Supp. 2d 717, 1999 U.S. Dist. LEXIS 2627 (E.D. Pa., 1999); Kuromiya v. United States, 78 F. Supp. 2d 367, 1999 U.S. Dist. LEXIS 18297 (E.D. Pa., 1999).
 Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002).
 Gonzales v. Oregon, 546 U.S 243 (2006).
 McMahon v. Iowa Board of Pharmacy, No. CV7415 (Iowa District Court, Polk County, April 21, 2009). I filed the petition and McMahon intervened in it. McMahon filed the appeal and I intervened in it. McMahon was represented by the ACLU of Iowa, and I represented myself.
 See footnote 1.
I spent some time at the State Capitol this week attending a press conference for House Study Bill 607 on February 9 and a subcommittee hearing on the bill on February 17.
I took a few pictures and made an audio recording of the hearing, but I forgot to turn on the recording device for the first ten minutes. The audio recording picks up about half way through the first witness, Dr. David Drake.
The hearing was brutal. The bill that was supposed to be on the table was House Study Bill 607, but at the beginning of the hearing they announced it has been switched for substitute amended version. I did not get a copy of the substitute amended version until the next day. They were handing something out at the hearing which could have been a printed copy of the substitute amended version, but people came prepared to speak on a bill that was no longer on the table and that was the most savage thing I’ve ever seen. The original bill included several medical conditions and the substitute amended version only had three. So, people were there who actually had illnesses that were removed from the bill while they were sitting there waiting to give their testimony. Several people had complete emotional breakdowns. It was not pretty. After this grisley affair, the subcommittee voted on the substitute amended version favorably by a vote of 3–0 and sent it to House Committee on Commerce which then voted favorably on it by a vote of 17–6.
Of particular interest to me, the rescheduling of the marijuana plant was removed from the substitute amended version. Also, of particular interest to me were the objections from Chip Baltimore, chair of the House Committee on Judiciary. Rep. Baltimore objected to the bill because it does not comply with federal scheduling. The substitute amended version removed rescheduling so it is now completely inconsistent with federal scheduling. It seems stupid to remove rescheduling, but so does getting sick people to fill a room and testify under false pretenses. I hope the photo op was worth torturing those people.
A new bipartisan medical cannabidiol act has been filed in the Iowa House, HF 2097, by three Iowa House Republicans, Tedd Gassman (R. Scarville), Larry Sheets (R. Moulton), Ron Jorgensen (R. Sioux City), and three Iowa House Democrats, Charlie McConkey (D. Council Bluffs), Scott Ourth (D. Ackworth), and Mary Lynn Wolfe (D. Clinton).
As many of us know, Iowa created a Medical Cannabidiol Act in 2014. Cannabidiol has gotten a lot of attention recently, including a U.S. Senate Caucus on International Narcotics Control hearing co-chaired by Iowa Senator Charles Grassley and California Senator Diane Feinstein in 2015. Cannabidiol (“cannabis oil”) was included in the Iowa Republican Party state platform in 2014.
As critics have pointed out, there are two problems with the Medical Cannabidiol Act. First, it expires on July 1, 2017. Second, it does not provide any means of access. Proponents have called it a decriminalization bill, but examples of decriminalization bills that require a certification from a specialist in neurology and an identification card from the Iowa Department of Public Health are just impossible to find. This law uses the word “medical” which just doesn’t make any sense. Decriminalization means it’s still a crime and we’re just reducing the penalties or providing an exemption. Legalization is the term we use for things that are not crimes. It would be hard to imagine that we are now using the word “medical” to describe something we are only decriminalizing. If we continue down this path, we’re going to render language meaningless. Of course, this law could have been intentionally written poorly to invoke exactly these kinds of objections, so there may be a method to the legislature’s madness.
Discussions were held by the legislature in 2014 and one of the recommendations of the Cannabidiol Implementation Study Committee on September 11, 2014, was to grow the cannabis to make the cannabidiol, which would have solved the problem of lack of access. The three recommendations were:
- Develop a regulated program to produce, process, and dispense medical cannabis and further recommend that medical cannabis not be taxed by the state at any stage of producing, processing, or dispensing the medical cannabis.
- Reschedule marijuana from a schedule I controlled substance to a schedule II controlled substance.
- Further investigate access, standardization, and legalization of cannabidiol.
My last blog post on January 23, 2016, Iowa Republican Senators File Marijuana Reclassification Bill, explained how the Iowa Senate has been trying to change the classification of marijuana. Republicans in the Iowa Senate have a straight forward approach, filing a stand-alone marijuana rescheduling bill (SF 2025). Democrats in the Iowa Senate, on the other hand, have tried to attach marijuana rescheduling to a medical marijuana bill that doesn’t have strong Republican support in the Iowa House (SF 484) and a synthetic marijuana bill that had strong support in the Iowa House (HF 567) until the Iowa Senate Democrats attached a marijuana rescheduling amendment to it. Both SF 484 and HF 567 seem dead now. Iowa Democratic Representative Bruce Hunter has recently filed a bill similar to SF 484, but without marijuana rescheduling (HF 2087). Another synthetic marijuana bill without marijuana rescheduling has been filed in the Iowa House (HF 2049) to replace HF 567.
There is a good reason why SF 2025 is the best approach to marijuana scheduling in Iowa. When our law was written in 1971, the legislature realized it did not have the expertise to schedule controlled substances and they gave the responsibility of recommending an appropriate schedule to the Iowa Board of Pharmacy. State v. Bonjour, 694 N.W.2d 511, 514 (Iowa 2005) (“That procedure is to defer to the Board of Pharmacy Examiners, which is far better equipped than this court — and the legislature, for that matter — to make critical decisions regarding the medical effectiveness of marijuana use and the conditions, if any, it may be used to treat.”). In 2010, the Iowa Board of Pharmacy recommended that marijuana be rescheduled from a schedule 1 controlled substance to a schedule 2 controlled substance in Iowa. Republicans are following the law. I don’t want to be too critical of the Democrats, because they have tried to attach marijuana rescheduling to other bills as amendments. But, the Republicans working on this issue are definitely following the letter of the law.
- It makes the Medical Cannabidiol Act permanent by removing the July 1, 2017, expiration date.
- It replaces the word “neurologist” with the word “physician” which makes it easier to find a doctor to make the recommendation.
- It replaces the word “epilepsy” with the phrase “debilitating medical condition” and adds two more medical conditions.
What HF 2097 does not do is provide access to cannabidiol. It will still be illegal to make it or distribute it. It also has no mechanism for the Iowa Department of Public Health to add more medical conditions. Although these are serious problems, this is definitely an improvement over the 2014 version. Possession, manufacture, and distribution of cannabidiol are federal crimes, but it’s fairly established by now that the federal government is not prosecuting patients or doctors who recommend cannabidiol (and whole cannabis in some states). This proposal would be another step in the right direction.
Three Iowa Republican senators, Charles Schneider, Mark Chelgren, and Jason Schultz, have filed a stand alone marijuana reclassification bill in the Iowa Senate, SF 2025, this week. Two previous bills, SSB 1205 and SF 282, that would do the same thing were filed separately by two Iowa Democratic senators, Steven Sodders and Joe Bolkcom, in 2015.
The Iowa Medical Cannabis Act, SF 484, barely squeaked through last year on a heavily partisan vote (26 to 19, with one Republican and one Democrat crossing party lines), but it was amended on April 15, 2015, with an amendment, S-3123, that would reclassify marijuana. That amendment passed by a vote of 44–0-6. So, you can see there is some momentum for reclassifying marijuana in Iowa.
I am extremely encouraged that Republicans are now bringing some common sense to the table. Reclassifying marijuana does not make it legal for anything. It would take both state and federal reclassification of marijuana to make research easier, but state reclassification is a step in the right direction. Reclassification does not obligate the state to do anything further, so it should not be a difficult issue.
SF 2025 is currently pending in the Iowa Senate Committee on Judiciary, and has been assigned to a subcommittee consisting of senator Charles Schneider, Steven Sodders, and Wally Horn. Please let them know you support this bill.
This is an update to my two previous articles:
- January 11, 2015: Pharmacy Board Denies My Petition Again
- November 16, 2015: Iowa Board of Pharmacy Legislative Proposals for 2016
On January 14, 2015, the Office of Drug Control Policy (ODCP) made changes to the Iowa Board of Pharmacy (IBPE) legislative proposal for 2015, without notifying me.
|Ruling to Maintain Marijuana in Schedule 1||January 5, 2015: Ruling on Marijuana||45 KB|
|Ruling to Transfer Cannabidiol to Schedule 2||January 5, 2015: Ruling on Cannabidiol||48 KB|
|Minutes from the January 5–6 Meeting||January 10, 2015: IBPE Meeting Minutes||5,568 KB|
|Email to Carl Olsen and ODCP with the 2 Rulings||January 14, 2015: Email to Carl Olsen and ODCP||65 KB|
|Email to ODCP with the Revised Cannabidiol Ruling||January 14, 2015: Email to ODCP||146 KB|
|Revised Ruling on Cannabidiol||January 14, 2015: Revised Ruling on Cannabidiol||50 KB|
Not only was I not notified, the January 10, 2015, meeting minutes were altered without any documentation noting the change or who authorized it. You can see the substituted ruling attached to those minutes, which are still signed and dated on January 10, 2015. These changes were not significant, as far as my petition is concerned, but it does show a complete disregard for due process. The Office of Drug Control Policy got a copy of the changed ruling on my petition, but the courtesy was not extended by sending me a copy of the changed ruling when they made the changes to it.
But, the purpose of my open records request was not to uncover chicanery. I wanted to know what happened to the cannabidiol proposal. Was the governor notified? Was the legislature notified? The typical process the Iowa Board of Pharmacy follows is to prefile a bill before the legislative session begins, which they did in 2012, 2014, and 2015 and are doing now for 2016. Iowa Code § 2.16 allows state agencies to prefile legislation 45 days in advance of a session. Cannabidiol is not in the proposed legislation for 2015 or 2016, so what happened to it?
So, we’ve established through this open records request that the usual process used to notify the legislature did not take place. On January 16, 2015, Senator Steven Sodders invited the executive director of the pharmacy board to attend the hearing on his proposal (SSB1005) to transfer marijuana from schedule 1 to schedule 2. Remember now, the board just voted against this on January 5, 2015. But, the board actually did vote to transfer marijuana from schedule 1 to schedule 2 in 2010. Can you say mixed signals?
|Invitation to Hearing on SSB1005||January 16, 2015: Invitation to Hearing on SSB1005||50 KB|
|Cancellation of Hearing on SSB1005||January 20, 2015: Cancellation of Hearing on SSB1005||15 KB|
The last entry for SSB1005 is January 14, 2015. The proposed meeting on January 20, 2015, never took place.
However, this was not the end of it. Toward the end of the legislative session, the Democrats decided to get aggressive and introduced a medical marijuana bill. In preparation, the pharmacy board was again invited to particpate. The executive director of the pharmacy board resigned suddenly and unexpectedly at the end of March 2015. So, the interim director, Terry Witkowski, provided input to the Republican Caucus Staff. I’m guessing this is because Senator Charles Schneider sent me an email on April 19, 2015, reminding me that he voted in favor of transferring marijuana from schedule 1 to schedule 2 at the interim study committee hearing on September 11, 2014.
|Email from Terry Witkowski to Josh Bronsink||April 7, 2015: Email to Republican Caucus Staff||438 KB|
|Attachment #1||January 14, 2015, Recommendation from the Pharmacy Board||341 KB|
|Attachment #2||February 17, 2010, Recommendation from the Pharmacy Board||9 KB|
|Attachment #3||February 17, 2010, Minutes from the Pharmacy Board||95 KB|
On April 14, 2015, Senator Sodders filed an amendment to SF 484, which would transfer marijuana from schedule 1 to schedule 2, S-3123. All of the Republicans in attendance on April 15, 2015, voted in favor of S-3123 by a vote of 44–0-6, but then voted against SF 484 which narrowly passed by a vote of 26–19-5.
Again, on April 30, 2015, Senator Sodders filed an amendment to HF 567, which would transfer marijuana from schedule 1 to schedule 2, S-3148, which narrowly passed on May 5, 2015, by a vote of 27–23.
These two bills, SF 484 and HF 567 are currently pending in the Iowa House of Representatives. HF 567 has already been passed in the Iowa House, but the amendment, H-1340 (S-3148 in the Iowa Senate), must still be considered before it becomes final.
I attended the Iowa Board of Pharmacy’s meeting on Wednesday, November 4, 2015, because I noticed that the recommendation for the reclassification of cannabidiol that the board approved on January 5, 2015, was not on the list of proposed changes to the schedules of controlled substances for 2016. That item was on the agenda for 11:00 a.m., so I took a couple hours of vacation and attended the meeting. Just to be cautious, I filed a written comment on the item asking why cannabidiol was not included.
And, true to form, the chair of the board, Jim Miller, took an exceptionally long time with a presentation on telepharmacy that he was none too pleased with. The discussion on the list of proposed changes to the schedules was delayed until 1:00 p.m. and I had to leave.
While I was at the meeting, I noticed that my request for clarification has been placed in front of the assistant attorney general, Meghan Gavin. As I was leaving, I asked Ms. Gavin if I could get a written response to my question. Ms. Gavin said the recommendation to reclassify cannabidiol was only for 2016.
While I was there, I happened to talk with Dale Woolery, Deputy Director of the Office of Drug Control Policy. I asked him what was going on and he said a lot of the stuff the board was recommending for 2016 was stuff that didn’t get enacted in 2015. That did not jive with what Ms. Gavin told me. Just to be sure, I looked at HF 567 which is legislation from 2015 that is still pending in the Iowa House, and, sure enough, some of the same stuff in the board’s 2016 legislative proposal is in HF 567 from 2015.
Ms. Gavin said I was not entitled to a written request and asked me if I wanted my request put on the agenda for the next meeting. I contacted her later and told her my request was a comment on an agenda item and she could do whatever she wanted with it. She said she does not represent the board, but there she was with my request in front of her at the meeting.
So, today I filed an open records request under Iowa Code Chapter 22 asking for any action the board has taken on their January 5, 2015, proposal to reclassify cannabidiol. I’m guessing the board hasn’t lifted a finger to promote their written decision in January. We’ll soon find out. The board has 20 days to respond.
I spoke with U.S. Senator Charles Grassley on Monday, November 2, 2015. I’ve tried contacting him many times before, but this is the first time we’ve actually spoken. The reason for that is because Senator Grassley has developed a new interest in cannabis. On June 24, 2015, in their positions as co-chairs of the U.S. Senate Caucus on International Narcotics Control, Senator Grassley and Senator Diane Feinstein held a hearing on cannabidiol, a component of marijuana that has a long history of reducing seizures. You can watch a video of the hearing and download the written statements of the witnesses here.
Because federal classification of controlled substances involves two federal agencies, the U.S. Department of Justice and the U.S. Department of Health and Human Services, Senator Grassley and Senator Feinstein wrote letters to the administrative agencies asking them to explain the situation. See Title 21, United States Code, Section 811. The letters are damning. This is something Senator Grassley is known for, investigating the federal government, so it is pleasing to see him investigating something that I consider important for public health.
Senator Grassley sent me copies of the following documents:
|October 20, 2014||Letter to DOJ and DHHS|
|December 16, 2014||DHHS Response|
|January 5, 2015||DOJ Response|
|May 13, 2015||Letter to DHHS|
|May 13, 2015||Letter to DOJ|
|June 23, 2015||DHHS Response|
|June 23, 2015||DOJ Response|
What these documents show is that the federal government has been blocking research for at least 15 years or longer. Senator Grassley told me there hasn’t been sufficient resarch to support reclassification of marijuana. Well, that’s obviously because the federal government has been blocking the research. Catch 22. It’s interesting to note the timing here, because the DHHS published a notice that it’s changing this policy in the Federal Register on June 23, 2015, the day before Senator Grassley’s hearing. The Brookings Institute recently released a report detailing how the federal government has been blocking research on marijuana, which you can download here. So, there’s real damage here.
As the Brookings Institute points out, this is just scratching the surface. Further impeding research, there is only one manufacturer of marijuana in the United States and only one supplier. The National Institute on Drug Abuse is the sole supplier and the University of Mississippi is the sole grower. Just the name of that agency tells you what you need to know. The National Institute on Drug Abuse’s mission is to understand the abuse of drugs, not legitimize their medical use. Catch 22.
Senator Grassley told me he objects to the patchwork of 40 state laws allowing some form of marijuana to be used for medical purposes. I responded by saying the federal government created that patchwork by its failure to act in good faith. The federal government has lost credibility on this issue, plain and simple.
Senator Grassley told me he objects to reclassifying marijuana without some medical evidence. Senator Grassley suggested that cannabidiol might be the evidence that leads to reclassification of the plant. I responded by saying that his idea makes perfect sense, but the damage has already been done.
Senator Grassley suggested that if cannabidiol is rescheduled to schedule 2 or lower then marijuana is the source of a federally accepted medicine. That might lead to reclassification of the plant. I responded by saying cannabidiol has absolutely zero abuse potential and it won’t be in schedule 2, or in any schedule. A substance with zero abuse potential does not belong in any of the schedules.
I also pointed out that we have had synthetic cannabinoids in schedule 2 and schedule 3 now for almost 30 years. Those synthetic cannabinoids would not exist if they hadn’t been first discovered naturally occurring in the marijuana plant. So, cannabidiol would not be the first cannabinoid to be rescheduled, but it would be the first one that isn’t being manufactured synthetically. There is a cannabidiol product called Epidiolex that is manufactured in England and appears to be nearing FDA approval for marketing in the United States. So, while I agreed that Epidiolex would make a good case for rescheduling the whole marijuana plant, it also shows we are lagging behind the rest of the world in doing research on cannabis. We haven’t been doing the research because we have been blocking it for decades.
I told Senator Grassley about my work with the Iowa Board of Pharmacy and he asked me to keep him updated. He said he would keep me updated on any progress he sees at the federal level. I sent his attorneys an update on my recent petition with the Iowa Board of Pharmacy a few days later and they responded immediately, so I get the sense that Senator Grassley is now a valuable partner as we move forward. He seems to be listening, and that’s a good thing. He really can’t defend the behavior of the federal government, and the more he looks at it, the more he’s going to come to the same realization the Iowa Senate came to by a vote of 44–0-6 on April 15, 2015, marijuana does not belong in schedule 1.
Presentations from our conference:
“Federalism: The Missing Piece of the Puzzle!”
Saturday, October 31, 2015, 1 PM to 4 PM
Community Room, Mickle Center, 1620 Pleasant St., Des Moines, IA 50314
Meeting with Congressman Young — 9/22/2015
I met with Congressman David Young (R. IA-3) on Tuesday, September 22, 2015, at 11:00 a.m. I gave him a series of documents and had a short discussion on each one. I asked him a few questions. One of the things that impressed me right away is that he remembered meeting me at a legislative forum with my state Senator Jack Whitver and my state Representative Kevin Koester back in January of 2015 shortly after he took office. He remembered what I was wearing that day. So, this shows the importance of attending local legislative forums. Knowing your state senator and state representative can be helpful when you are talking to your federal congress person.
The first document
The first document I gave him is the set of conditions for each of the five schedules in the Controlled Substances Act. I underlined the phrase “accepted medical use in treatment in the United States” in each of the five sections and I asked Congressman Young if there is any connection between this phrase and forty (40) state medical marijuana laws. He said he was unsure. So, this is critical. By saying he was unsure, he gave me the opportunity to explain it to him. I cannot stress how important this is as the initial step.
The second document
The second document I gave him is the administrative process for changing the schedules and some court cases that explain my interpretation. First I pointed out that pharmaceutical drugs going through the FDA pipeline are rescheduled at the request of the U.S. Attorney General and the U.S. Secretary of Health and Human Services. I pointed out that substances do not reschedule themselves. Someone starts the process. He mentioned Congress at that point, because Congress can change the schedules legislatively. But, that still leaves the question of “any interested party.” The administrative process also allows any interested party to initiate the process. So, by process of elimination, we know that substances that are rescheduled by Congress or at the request of an interested party are not going through the FDA pipeline for approval as medicine. Any process to reschedule as the result of going through the FDA pipeline will be initiated by the U.S. Attorney General and the U.S. Secretary of Health and Human Services. So, I asked him, “What happens when a state accepts the medical use of marijuana? Who initiates the process to have it removed from federal schedule 1?” Two state have initiated the process, but only as an afterthought years later and neither of them has rescheduled at the state level. The petition initiated by the states of Washington and Rhode Island was filed in November of 2011 and is still currently pending with the DEA. So, I made the argument that the states are negligent for failure to initiate the federal rescheduling process. Who else is going to do it if not a state that has legalized the medical use of marijuana?
Then I told him there were federal court cases that say accepted medical use under federal scheduling can be accepted intrastate use of a controlled substance without any interstate marketing, proving that state laws are relevant to the phrase “accepted medical use in treatment in the United States.”
The third document
The third document I gave him is an amendment by Senator Whitver that he never actually filed. I asked Senator Whitver, who is my legislator in the Iowa Senate, to file an amendment to a medical marijuana bill, SF 484, telling the federal government that we are reclassifying marijuana as medicine under federal law by enacting a state law accepting the medical use of marijuana. Senator Whitver is a Republican and Congressman Young is a Republican. They know each other. I told him that this document proves how persuasive my argument is.
The fourth document
The fourth document I gave him is the enforcement sections in the three international treaties where there is an exception to the enforcement for constitutional due process. I asked him if the laws enacted in the states, including the ones that fully legalize marijuana for non-medical use, are constitutional. He said the federal government has never stepped in to interfere with the enactment or the implementation of those law. I reminded him that the the federal government actually did try to interfere in California but lost the case in federal court. He reminded me that it happened under the first Bush Administration. So, we both agreed that it looks like these laws are constitutional. If they are constitutional, then they are exempt from the three international drug treaties and there is no failure to comply with those treaties. The reason I brought this up is because there are some old court cases before states began accepting the medical use of marijuana that said the treaties do not allow marijuana to be placed in a schedule lower than 2. Those old court cases are no longer relevant since we are now talking about activity that is exempt from those treaties.
The fifth, sixth, seventh, and eighth documents
The next series of documents I handed him are four bills pending in the U.S. House of Representatives, and he is a co-sponsor of one of them, H.R. 1635.
- H.R. 525: Industrial Hemp Farming Act of 2015, Jan 26, 2015
- H.R. 1538: CARERS Act of 2015, Mar 23, 2015
- H.R. 1635: Charlotte’s Web Medical Access Act of 2015, Mar 25, 2015
- H.R. 1774: Compassionate Access Act, Apr 14, 2015
I said it was a shame that H.R. 1635 expires after 3 years and asked him how producers were going to get excited about investing in this process when it all just disappears after three years. I asked him how that will help the patients. He said it would most likely be renewed before it expires and this is just Congress’ way of dipping its toe in the water. I agreed it was better than nothing. He said he had not seen H.R. 525 and would probably have no problem co-sponsoring it. I said I would appreciate his support on any or all of these bills. I did point out that I like H.R. 1774 better than the others because it does not pre-determine the outcome after removing marijuana from schedule 1. I said I don’t like the part where it says the federal administrative agencies must pick one of the other schedules. I think all options should be left open, including removing marijuana from all of the schedules. Let’s have a fair process and let’s not pre-determine the outcome. We did agree this issue is building momentum from both a medical and non-medical perspective and is not going away.
The ninth, tenth, and eleventh documents
We then had a discussion on whether marijuana has accepted medical use from a medical and pharmacological perspective. He said there were no studies showing accepted medical use of marijuana. I took the opportunity to point out that opium plants and coca plants have no accepted medical use in the sense that they are not FDA approved prescription products, and yet both of those plants are in schedule 2, not schedule 1. I said THC in a pill is in schedule 3, but the plant it comes from is in schedule 1. The drugs made from opium and coca plants are mostly in schedule 2. So, I told him the plant does not have to have any greater accepted medical value than opium or coca plants to invalidate its current schedule 1 status. I then handed him three more documents.
- The February 17, 2010, ruling from the Iowa Board of Pharmacy unanimously recommending that marijuana be placed in state schedule 2
- The December 17, 2014, recommendation from the American Academy of Neurology recommending that marijuana be reclassified to federal schedule 2
- The January 20, 2015, recommendation from the American Academy of Pediatrics recommending that marijuana be reclassified to federal schedule 2
Somewhere during our conversation, I summed up by saying that states were enacting laws allowing patients to grow marijuana at home because of the federal government’s absurd scheduling of the plant. What are the states supposed to do when the federal government says this is not legal and won’t cooperate? It would be like growing carrots. If you’re growing carrots to stay healthy, you just want some carrots in the garden. If you have a debilitating medical condition and you want a specialized carrot that targets that particular condition, you may want to get some help with the selection of the right carrots as well as the controlled environment for growing those carrots. Medicine and food are different in that way. If you eat right, maybe you can avoid the medicine. But when you need something stronger and you’re weaker, it should be there for you.