This legislative session began with four proposals for medical cannabis programs, two in the Iowa Senate, one by Democrats (S.F. 205) and one by Republicans (S.S.B. 1176 / S.F. 506), and two in the Iowa House, one by Democrats (H.F. 198 / H.F. 199) and one by Republicans (H.S.B. 132), and two proposals to extend the current Medical Cannabidiol Act of 2014, one by Senate Republicans (S.F. 470) and one by House Republicans (H.F. 520). What we ended up with is a hybrid of bits and pieces from each of these six proposals (H.F. 524).
Cultivation, manufacture, and distribution
H.F. 524 extends the Medical Cannabidiol Act of 2014, with the addition of more medical conditions and cultivation, manufacture, and distribution of cannabidiol in Iowa. The limit on THC remains the same, 3%. Most people are saying this is not a big step forward, but cultivation, manufacture, and distribution in Iowa seem like huge steps forward to me. Because there were proposals in both chambers, from both parties, early in the year to cultivate, manufacture, and distribute cannabis products in Iowa, this was not a total surprise. The disagreement was mainly about how much THC there can be in the products. Both Senate proposals would have eliminated the limits on THC, and the House was split (Republicans in favor of the 3% limit on THC and Democrats in favor of eliminating any limit on THC). Because Republicans control both chambers and the governor’s office, the 3% limit on THC prevailed.
This is a stunning result, considering the National Academies of Science reported earlier this year that there is conclusive evidence that higher levels of THC are effective in the treatment of chronic pain and multiple sclerosis (Chapter 4, Section 1), and no or insufficient evidence to support or refute the conclusion that cannabis or cannabinoids are an effective treatment for epilepsy (Chapter 4, Section 6). The reason given for the the low THC limit was that it provides an effective treatment for epilepsy.
Introduced at 3:00 a.m.
Although I am optimistic, H.F. 524 is not well written. H.F. 524 was negotiated in secret meetings in the wee hours of the morning on Saturday, April 22, 2017, just before the legislature adjourned for the year. I was not able to obtain a copy of the bill until 3:00 a.m. on Saturday morning, April 22, 2017. I left the capitol around 5:00 a.m. (after sitting in the balcony overlooking the House floor for 16 hours), because it was obvious to me H.F. 524 wasn’t going to be amended and H.F. 524 would either pass or fail as written. I watched the debate from the House floor and the Senate floor after I got home later in the morning. The legislature’s plan was to adjourn the 2017 session that morning, so I was fairly confident the bill was going to pass as written. The vote in the Iowa House was 83-11-6 at 6:00 a.m., H.J. 1135, and 33-7-10 at 6:30 a.m. in the Iowa Senate, S.J. 1122. Both chambers adjourned for the year at 7:15 a.m.
There is no explanation of federal law in the bill
In my opinion, there is a critical element left out of both the initial proposals and the final bill that passed. There is not a single mention of federal law in the proposals or in the final bill, and yet most of the media coverage during the session reported legislators expressing concern about federal law. That seems like a huge flaw to me. If federal law is a concern, it should be addressed in the bill. For example, a hemp bill was introduced, S.F. 329, that contains a section entitled “Compliance with Federal Law.” S.F. 329 proves that legislators understand there is a federal law involved whenever cannabis is being considered. Leaving that out of every proposal, and in the final bill, H.F. 524, is a critical oversight.
Iowa Public Radio, April 12, 2017, Advocates Plead for Medical Marijuana; Senate Committee Approves Bill: “You’re still breaking federal law.” -House Speaker Linda Upmeyer.
KGLO AM 1300, March 27, 2017, Upmeyer says legislators working on medical marijuana issue: “She says they are already anticipating doing this bill with the possibility of breaking two federal laws.”
What do we know about federal law?
First
We can read S.F. 329, which says it complies with 7 U.S.C. § 5940 (Pub. L. 113–79, title VII, § 7606, Feb. 7, 2014, 128 Stat. 912; Pub. L. 114–95, title IX, § 9215(f), Dec. 10, 2015, 129 Stat. 2166).
7 U.S.C. § 5940 says it provides an exception to 21 U.S.C §§ 801 et seq., The Controlled Substances Act, title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242.
7 U.S.C. § 5940 defines hemp as cannabis with no more than .3% THC.
The Iowa Medical Cannabidiol Act of 2014 defines cannabidiol as cannabis with no more than 3% THC (ten times the amount of THC as defined in 7 U.S.C. § 5940).
Second
Congress has temporarily suspended enforcement of 21 U.S.C. §§ 801 et seq. in the past two federal appropriations bills, and in the extensions for 2017 through May 5, 2017. See, Congressional Research Service, R44782, “The Marijuana Policy Gap and the Path Forward“, March 10, 2017, p. 15.
Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014) (“None of the funds made available in this Act to the Department of Justice may be used … to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana”).
Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015) (“None of the funds made available in this Act to the Department of Justice may be used … to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana”).
Pub.L. No. 114-254, § 101(1), 130 Stat. 1005, 1005-06 (2016) (extending the date to April 28, 2017).
H.J.Res.99 — 115th Congress (2017-2018) (extending the date to May 5, 2017).
See, Congressional Research Service, R44782, “The Marijuana Policy Gap and the Path Forward“, March 10, 2017.
Update (May 1, 2017): Congress is set to re-authorize the suspended enforcement until September of 2017.
Obviously, a temporary suspension of enforcement is not a promise that enforcement will not be resumed.
Third
The U.S. Department of Justice has created enforcement guidelines that say enforcement of 21 U.S.C. §§ 801 et seq. will not likely be used against state medical marijuana programs. Again, see, Congressional Research Service, R44782, “The Marijuana Policy Gap and the Path Forward“, March 10, 2017. p. 12.
The Ogden Memorandum of October 19, 2009 states that, “no State can authorize violations of federal law.”
The Cole Memorandum of August 29, 2013 states that, “Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.”
Obviously, federal enforcement guidelines do not provide a legal defense for state medical marijuana programs, nor do they allow states to authorize violations of federal law.
So, what federal law allows states to enact medical marijuana programs?
The federal Controlled Substances Act (CSA), enacted in 1970, originally classified cannabis as a substance with no currently accepted medical use in treatment in the United States. The Attorney General was given the duty of keeping the classification (schedules) of controlled substances updated as circumstances changed. 21 U.S.C. § 811(a) (2017). The Attorney General may “add substances to,” “transfer substances between,” or “remove substances from” the schedules. Since 1996, when California became the first state in the United States to accept the medical use of cannabis, a total of 45 states have accepted the medical use of cannabis or cannabis extracts. By contrast, nothing else in schedule 1 (the schedule cannabis was placed in by Congress in 1970) has been accepted by even a single state in the United States.
Congress never defined the term, “currently accepted medical use.” 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'”). 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 or, as the Administrator contends, approval for interstate marketing of the substance”).
“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.” Gonzales v. Oregon, 546 U.S. 243, 258 (2006).
The last time the Attorney General interpreted “currently accepted medical use” of cannabis was in 1991. In 1991, there were no states in the United States that had accepted the medical use of cannabis. The 2009 and 2013 federal enforcement guidelines appear to rely on this outdated interpretation. In fact, if you look at the state medical cannabis laws enacted since 1996, you’ll notice that none of them includes a statement of compliance with federal law. Failure to explain how the state medical cannabis law complies with existing federal law deprives the Attorney General of the opportunity to update the classification of cannabis.
Conclusion
Failure to explain compliance with federal law is a critical flaw in H.F. 524. The governor should call the legislators back in a special session to address this error before signing this legislation.
Any legislator, or the governor, can request an opinion from the attorney general, as set forth in Iowa Code § 13.2(3) (2017) and 61 Iowa Administrative Code § 1.5 (2017).