Chapter 124E is Poorly Written

Members of the subcommittee discuss HF 732 on April 1, 2019

Recently, Captain Marti Reilly of the Sioux City Police Department, a seasoned-law officer with years of experience investigating drug crimes said:

“Marijuana is an interesting drug, in the fact that the federal government says it’s illegal.  Being in law enforcement for more than 30 years.  They always said state laws can be more restrictive, but it can’t be less.  So, each state legalizing it is breaking federal law.”

The Potential Impact of Expanded Medical Marijuana, March 27, 2019, KWIT FM 90.3 / KOJI FM 90.7, Siouxland Public Media, Western Iowa Tech Community College, 4647 Stone Avenue, Sioux City, IA 51106.

Compare this to what House Speaker Linda Upmeyer said in September of 2017 after Iowa Code Chapter 124E had been enacted:

“House Speaker Linda Upmeyer, R-Clear Lake, noted in a statement that no matter what the Legislature had decided, the state still would have been in violation of federal law.”

AG tells agency to halt part of Iowa’s medical marijuana law, September 10, 2017, Des Moines Register, Des Moines, Iowa.

And compare it to what State Representative John Forbes said in December of 2017 after Iowa Code Chapter 124E had been enacted:

“I mean, we are violating federal law with a cannabis bill here in the state of Iowa.”

Rep. John Forbes (D – Urbandale) and Gerd Clabaugh, December 22, 2017, Iowa Public Radio, Johnston, Iowa.

Introducing legislation at 3 a.m. on the last day of the session, passing it out of the House at 5 a.m. on a Saturday morning, and out of the senate at 6 a.m. that morning, is not how careful, thoughtful legislation should be crafted.

WARNING! DANGER!

Until 3 a.m. on Saturday, April 22, 2017, House File 524 was just a bill about prescription monitoring.  Around 3:00 a.m. on Saturday morning H-1461 was filed, changing the bill into a medical cannabidiol program.  At around 5:00 a.m. the amendment was passed in the House, and at around 6:00 a.m. on a Saturday morning, the amended bill passed in the Senate.

What’s Missing?

House File 732 needs an amendment to Iowa Code Chapter 124E that say:

“This chapter does not violate any federal law.”

What else?

“This chapter does not authorize the violation of any federal law.”

Please add the same amendment that was added to SF 501.

Please amend HF 732.

House File 732
1Amend File 732 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.

When Congress created the federal Controlled Substances Act in 1970, it gave a federal administrative agency the authority to remove marijuana from the act without any further action by Congress, 21 U.S.C. 811(a).  Congress also gave the administrative agency the authority to make exceptions to the act, which the agency has done for another federal Schedule 1 controlled substance, peyote, 21 C.F.R. 1307.31.

What Should Iowa Do?

Let the federal administrative agency know we are making an exception to the Controlled Substance Act for the medical use of marijuana!

Restrictive Senate Amendment to House Medical Cannabidiol Bill

Iowa State Capitol

After months of saying the 3% THC cap would never be lifted unless the Medical Cannabidiol Advisory Board recommended lifting it, the Iowa House mysteriously decided to lift the 3% cap on THC just days before the legislative funnel deadline on March 8.  House File 732 (medical cannabidiol) was introduced on March 6, voted out of subcommittee on March 6, and voted out of committee on March 7.  See, “What really happened last week with the medical cannabidiol bill”, Bleeding Heartland, April 1

On March 26 the Iowa House of Representatives voted overwhelmingly, by a vote of 96-3, in favor of HF 732.  HF 732 was immediately messaged to the Iowa Senate where it was referred to the Senate Judiciary Committee.  A Senate subcommittee met on April 1 and recommended passage without amendment.  Those in attendance at the Senate subcommittee hearing were told that any changes would kill the bill in the Iowa House and no amendments would be allowed.

However, when the bill was considered by the full committee on April 4, the committee passed an amendment, S-3124, on a staight party vote of 9 Republicans to 5 Democrats and then recommended passage with amendment by a vote of 13-1.  This might change the situation dramatically.  Further amendments might now be filed in the Senate, and the House will likely be considering an amended version of HF 732 which might be amended further in the House.  Fasten your seat belts.

Medical cannabis legislation has never been an easy task in Iowa.  Negotiations are typically not completed until the last day of the session and then only during overtime.  Senate File 2360 (Iowa Code Chapter 124D) was finally negotiated around 3:00 a.m. on May 1, 2014; and House File 524 (Iowa Code Chapter 124E) was finally negotiated around 5:00 a.m. on April 21, 2017.

To help us understand what is going on we need to know some history on the efforts of the current Chair of the Senate Judiciary Committee, Senator Brad Zaun.  Senator Zaun is a medical cannabis advocate.  A time line will help with our understanding.

April 15, 2015:

Senator Zaun was the only Republican to vote for Senate File 484 (medical cannabis), which passed in the Iowa Senate by a vote of 26-19.  26 votes are needed to obtain a constitutional majority in the Iowa Senate.  SF 484 did not pass in the Iowa House.

April 17, 2017:

The Iowa Senate voted 45-5 for Senate File 506 (medical cannabis).  Senator Zaun voted with the majority.  SF 506 did not pass in the Iowa House.

January 22, 2019:

Senator Zaun introduced Senate File 77 (medical cannabidiol), which proposed changing the THC cap from 3% to 13%.  A subcommittee approved SF 77 on January 31, but no further action was taken on it.

February 12, 2019:

Senator Zaun introduced Senate File 256 (medical cannabidiol), which left the THC cap at 3%.  A subcommittee approved SF 256 on February 18 and on March 5 the Senate Judiciary Committee passed SF 256 with an amendment on federalism.  The amendment to SF 256 passed by a vote of 14-1.

March 6, 2019:

SF 256 as amended was introduced as Senate Judiciary Committee bill Senate File 501.

What does it all mean?

Considering that Senator Zaun proposed raising the THC limit to 13% and then backed off to the current 3%, it’s no surprise that on April 4 when the Senate Judiciary Committee received HF 732 with no limit on THC, the committee amended it by striking that section and replacing it with the current 3% cap on THC.  However, the committee did not strike the 25 grams of THC per 90-day limit.  So, HF 732 now is more restrictive than current law regarding THC.  Obviously, this is a dramatic change from what the Iowa House passed.

It’s uncertain what the future holds for HF 732.  It could be amended if it gets debated on the Senate floor.  It could be amended if it gets debated on the House floor (if the Senate passes it with the amendment and sends it back to the House).  Certain committees and leadership can still file bills, so we could still see a different bill emerge before the session ends.

Perhaps there is still time for a very important amendment on federalism that got lost in all of this mysterious activity.  Here it is again, for those who are concerned about consistency between state and federal law.

Please add the same language to HF 732.

House File 732
1Amend File 732 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.

Stay tuned!

What really happened last week with the medical cannabidiol bill?

On Saturday, March 30, the Des Moines Register reported that a member of the Medical Cannabidiol Advisory Committee resigned over comments made on the floor of the House during debate on House File 732.

Iowa House members who voted this week to allow the sale of stronger medical marijuana products said they were following the advice of physicians on a state board — even though that board voted unanimously last fall not to recommend the change.

The House’s action prompted the resignation this week of a physician who serves on the Iowa Medical Cannabidiol Advisory Board.

Des Moines neurologist Wendy Zadeh was among eight board members who voted in November 2018 to maintain the state’s 3% cap on THC, the chemical that can make marijuana users high.

Medical marijuana bill allowing stronger medications contradicts stance of state’s expert panel, Des Moines Register, March 29, 2019.

The article incorrectly states that HF 732 was drafted solely from the input of the advisory committee.  Video of the debate reveals that the advisory committee and “others” were involved in drafting the bill.  Representative Klein said the bill was the result of working with members of the board “and both parties,” not solely of input from the board.

House Video (2019-03-26)

In another example of inaccurate reporting, on March 5, WHO TV reported that Senate File 256 would remove the THC limit that producers can put in each dose of medical cannabidiol.  But SF 256 did not remove the 3% cap on THC.  The next day House Study Bill 244 (now HF 732) was introduced and voted out of subcommittee at 9:30 a.m. the same day it was introduced.  HSB 244 (HF 732) actually does remove the 3% cap on THC.

In statements made on the floor of the House on March 26, Representative Klein, the floor manager of the bill, said the legislature had worked with the Medical Cannabidiol Advisory Board and others.  Representative Klein never said that the advisory board had recommended removing the THC cap.  While it’s true the advisory board did not recommend removing the cap, it’s hard to imagine the board’s role is to object to a proposal by law makers to remove the cap.  The board’s duties are clearly defined in the statute:

The medical cannabidiol board may recommend a statutory revision to the definition of medical cannabidiol contained in this chapter that increases the tetrahydrocannabinol level to more than three percent, however, any such recommendation shall be submitted to the general assembly during the regular session of the general assembly following such submission.  The general assembly shall have the sole authority to revise the definition of medical cannabidiol for purposes of this chapter.

Iowa Code §124E.5(6)

The advisory board has no authority to recommend lowering the THC limit or to recommend leaving it at 3%.  Law makers may propose something the advisory board did not recommend.  The member who resigned is mistaken to imply Representative Klein attributed that recommendation to the board.  The advisory committee can only recommend increasing the THC limit, so it has no authority to recommend leaving the cap at 3%.  And, the board’s reason for not recommending an increase wasn’t strong.  According to the Des Moines Register, board member Lonny Miller, a family physician from Creston, said at the time, “I’d like to get another year or two under our belts and see how people respond with the current THC cap.”

Here is a time line that will fill in some (but, not all) of the missing details.

December 18, 2018:

Activities of the Medical Cannabidiol Board Report – the board recommended, among other things:

Leaving the THC cap on medical cannabidiol products manufactured in Iowa at 3% in Iowa Code §124E.5(6).

Removing felony disqualifiers for patients and primary caregivers in Iowa Code §124E.4(1)(f) and Iowa Code §124E.4(3)(c).

Adding physician assistant or advanced registered nurse practitioner to the definition of health care practitioner in Iowa Code §124E.2(5).

February 12, 2019:

SF 256 was introduced by Senator Brad Zaun.

Among other things, Senator Zaun’s bill:

Left the THC cap at 3%.

Removed felony disqualifiers.

Added physician assistant and advanced registered nurse practitioner to the definition of health care practitioner.

February 18, 2019:

SF 256 passed out of subcommittee at 3:30 p.m. on February 18.

February 18, 2019:

Radio Iowa reported:

House Speaker Linda Upmeyer, the top Republican in the House, has said lawmakers should wait for recommendations from a state board appointed to oversee Iowa’s medical marijuana program, so these expansion plans being discussed in the Senate face an uncertain future.

Medical marijuana expansion clears Iowa Senate subcommittee, Radio Iowa, February 18, 2019.

February 23, 2019:

Des Moines Register reported that 78% of Iowans want the medical marijuana program expanded:

House Speaker Linda Upmeyer’s spokesman said recently that she continues to doubt the need for legislators to loosen restrictions on which Iowans can purchase the medications.  She would prefer that any such moves come from a board of physicians that was appointed last year to consider proposals.

Iowa Poll: 78% want medical marijuana program expanded, 48% would allow recreational pot, Des Moines Register, February 23, 2019.

February 26, 2019:

Cedar Rapids Gazette reported:

“There are things that can be done, things we will do, that make it a little easier, a little safer and give the board a little more latitude,” House Speaker Linda Upmeyer, R-Clear Lake, said Tuesday after meeting with members of the Medical Cannabidiol Board.

House speaker eyes more cannabidiol access for Iowans, Cedar Rapids Gazette, February 26, 2019.

March 5, 2019:

Senate File 501 passed out of committee (formerly SF 256 – with an amendment on exemption from federal regulation added that same day by a vote of 14-1)

https://www.legis.iowa.gov/committees/meetings/minutes?meetingID=29248

March 5, 2019:

WHO TV reported (incorrectly):

The bill would remove the limit of THC that producers can put in each dose, allow for more dispensaries in the state, and mandate Iowa’s Medical Cannabidiol Board to include PTSD on the list of qualifying conditions.

Medical Marijuana Expansion, E-Verify Mandate Bills Both Advance Through Funnel Week, WHO TV 13, March 5, 2019.

March 6, 2019:

HSB 244 introduced by Committee on Public Safety Chairperson Representative Jarad Klein.  Oddly, Representative Klein’s bill actually does remove the limit on THC that WHO TV incorrectly reported was in the Senate bill a day earlier.

March 6, 2019:

HSB 244 passed out of subcommittee at 9:30 a.m. on the same day it was introduced.

March 7, 2019:

HF 732 passed out of committee (formerly HSB 244) by a vote of 21-0.

March 26, 2019:

HF 732 passed in the House by a vote of 96-3.

Representative Klein’s bill recommended removing the limit on THC, which the advisory board did not recommend.  But Representative Klein said the advisory board and “others” were included in preparation of the legislative proposal.  The advisory board was never given authority to write legislation.  A good analogy would be the recommendation of the pharmacy board in 2010 to remove marijuana from state schedule 1, which the legislature still hasn’t done.  Chapter 124E authorizes the advisory board to recommend increasing the THC limit, but not to recommend lowering it or even keeping it at 3%.

Until February 26, Speaker Upmeyer had been saying there would be no changes this year which did not leave Chairman Klein a lot of time to run a bill a week before the funnel deadline.

The Senate started working earlier and gave people more time to participate.

Representative Klein deserves an award for work extremely well done in a short amount of time and under extreme pressure.  HF 732 has been referred to the Senate Judiciary Committee where it will receive further consideration.

House File 732 (Medical Cannabidiol)

House File 732 is on the Daily House Debate Calendar for Tuesday, March 26, 2019.

The following statement of consistency with federal law is included in Senate Medical Cannabidiol bill, SF 501, on page 5 at lines 19 through 23.

SF501

Please add the same language to HF 732.

House File 732
1Amend File 732 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.

It is critically important that this statement of legislative intent be included in our state law.  State legislators frequently say that the Iowa Medical Cannabidiol Act authorizes violation of federal law, including legislators who voted for it (Rep. Linda Upmeyer and Rep. John Forbes).  Patients and their care givers should not be stigmatized as criminals.

The federal Drug Enforcement Administration (DEA) regulations exempt the religious use of a federal schedule 1 controlled substance, peyote.  See, 21 C.F.R. § 1307.31 (2019).  Churches do not have greater constitutional protection than states have.  For the same reason the DEA maintains an exemption for a church, DEA must exempt a state medical cannabis program.  In fact, states actually have the right to refuse to recognize the religious use of peyote.  See, Employment Division v. Smith, 494 U.S. 872 (1990).  We need to declare we have the right to authorize medical use of cannabis in Iowa and that DEA must include an exemption in Title 21 Section 1307 of the Code of Federal Regulations.

On January 28, a local attorney and I petitioned the DEA to grant an exemption to federal regulations for the Iowa Medical Cannabidiol program, Iowa Code Chapter 124E (2019), similar the one granted to the Native American Church for the religious use of peyote.  See 21 C.F.R. § 1307.03 (2019) and 21 C.F.R. § 1307.31 (2019).

Medical cannabidiol and peyote are both federal Schedule 1 controlled substances, as well as Iowa Schedule 1 controlled substances.  Medical cannabidiol is exempt from the Iowa Controlled Substances Act when used for medical purposes, Iowa Code § 124E.12(4) (2019).  Peyote is exempt from the Iowa Controlled Substance Act when used for religious purposes, Iowa Code § 124.204(8) (2019).  The religious exemption exists because of the constitutional guarantee of religious freedom.  A state medical cannabis law is exempt because of the constitutional guarantee of state autonomy and self-determination.  The DEA grants exemptions and it must do so even-handedly.

The DEA has the authority to completely remove cannabis from the federal Controlled Substances Act without any further authorization from Congress.  See, 21 U.S.C. § 811(a)(2).  It would be absurd to think the DEA cannot recognize an exemption for our state medical cannabis program.  The only reason we don’t have an exemption is because we didn’t ask for one.

I attended the subcommittee hearing on House File 733 on March 21, and HF 733 proves beyond any doubt that a state law authorizing the use of a controlled substance must be consistent with federal law.  See page 15, lines 11 through 21:

112. Nothing in this chapter shall be construed or applied to
12be in conflict with any of the following:
13a. Applicable federal law, …

Proposed Amendment to HSB 244

The following amendment became part of SF 501 on Tuesday, March 5, 2019, by a vote of 14 – 1 in the Iowa Senate Judiciary Committee. Please add the same language to HSB 244.

House Study Bill 244
1Amend House Study Bill 244 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.
PROPOSED COMMITTEE AMENDMENT

It is critically important that this statement of legislative intent be included in our state law. State legislators frequently say that the Iowa Medical Cannabidiol Act authorizes violation of federal law, including legislators who voted for it (Rep. Linda Upmeyer and Rep. John Forbes). Stigmatizing patients as criminals should not be something suffering Iowans are burdened with. The federal Drug Enforcement Administration (DEA) regulations exempt the religious use of a federal schedule 1 controlled substance, peyote. See, 21 C.F.R. § 1307.31 (2019). For the same reason, DEA must exempt a state medical cannabis program. We need to declare we have the right to do this and that DEA must include an exemption in Title 21 Section 1307 of the Code of Federal Regulations.

Proposed Amendment to SF 256

A senator sent me a copy of a proposed amendment we would like added to SF 256 currently pending in the Iowa Senate Judiciary Committee. We would greatly appreciate your support.

Senate File 256
1Amend Senate File 256 as follows:
21.  Page 5, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.
PROPOSED COMMITTEE AMENDMENT
Proposed Amendment to SF 256

It is critically important that this be included in our state law. State legislators frequently say that the Iowa Medical Cannabidiol Act authorizes violation of federal law, including legislators who voted for it (Rep. Linda Upmeyer and Rep. John Forbes). This is not something suffering Iowans should be burdened with. The federal Drug Enforcement Administration (DEA) regulations exempt the religious use of a federal schedule 1 controlled substance, peyote. See, 21 C.F.R. § 1307.31 (2019). For the same reason, DEA must exempt a state medical cannabis program. We need to declare we have the right to do this and that DEA must include this exemption in Title 21 Section 1307 of the Code of Federal Regulations.

Standing to Petition the DEA

On January 28, a local attorney and I petitioned the DEA to grant an exemption to federal regulations for the Iowa Medical Cannabidiol program, Iowa Code Chapter 124E (2019), similar the one granted to the Native American Church for the religious use of peyote.  See 21 C.F.R. § 1307.03 (2019) and 21 C.F.R. § 1307.31 (2019).  Medical cannabidiol and peyote are both federal Schedule 1 controlled substances, as well as Iowa Schedule 1 controlled substances.  Medical cannabidiol is exempt from the Iowa Controlled Substances Act, Iowa Code § 124E.12(4) (2019), when used for medical purposes and peyote is exempt from the Iowa Controlled Substance Act when used for religious purposes, Iowa Code § 124.204(8) (2019).  One could presume the religious exemption exists because of the First Amendment to the U.S. Constitution guaranteeing religious freedom, and it then follows that a state medical cannabis law should be exempt because of the Tenth Amendment to the U.S. Constitution guaranteeting state autonomy and self-determination.  The DEA grants exemptions and it must do so even-handedly.

Before we filed the DEA petition, we were talking about people who might have standing to file the petition.  We talked about a medical cannabidiol card holder and someone being denied assistance from the Veterans Administration (VA) in getting a cannabidiol card.  However, we filed the petition without anyone with standing to appeal if we get an adverse ruling.  The DEA could ignore our lack of standing and grant the exemption on the merits, but we won’t be able to appeal if the DEA decides not to grant the exemption.  I have no personal standing and I’m not an attorney.  The other petitioner is an attorney, but he also has no personal standing.  Unlike me, an attorney can represent a party that does have standing.  I have included more information on “standing” in the federal courts below.

Some people with standing might include (but not necessarily be limited to):

  • Someone who is being denied assistance in getting a card by the VA (this would have to be because of a VA policy, not the doctor simply declining to issue the certification as the Iowa laws allows doctors to decline).
  • A patient or caregiver who has a medical cannabidiol card.
  • A dispensary that has a dispensary license.
  • A manufacturer that has a manufacturing license.
  • A state legislator.
  • The state government.

These are the people we are claiming to represent.  As it stands now, patients, caregivers, dispensaries, and manufactures are walking on egg shells trying to get the program expanded and they haven’t volunteered to come forward to help us with standing and it’s highly unlikely that they will. 

I spent the afternoon on Monday, February 18, at the state capitol talking with legislators and state administrative officials.  Help should logically be forthcoming from legislators or a state administrative agency like the Iowa Department of Public Health (IDPH).  Legislators and administrative officials have a vested interest in defending and upholding state law and they are not manufacturers, dispensaries, caregivers, or patients (state officials are not personally at risk, but they do have standing).  I initiated contact with IDPH with this specific request on January 31 and followed up again on February 18 at the state capitol.  A state senator submitted an amendment to a proposed bill, SF 256, that would amend the Iowa Medical Cannabiol Act (Iowa Code Chapter 124E) with language based on our DEA petition.  I have been discussing this with legislator and IDPH for the past couple of years (since Chapter 124E was enacted in 2017), but the DEA petition has now started the clock ticking and it’s time for action.

For those who don’t know what standing is, below is an explanation given by the United States Court of Appeals for the District of Columbia Circuit.

Standing as an “Interested Party”

Petitioners contend that they have “automatic standing” to appeal the DEA’s denial of their petition because 21 U.S.C. § 811(a)(2) permits “any interested party” to file a petition to initiate rulemaking proceedings.  They suggest that this is enough — since they are the original petitioners before the DEA they should not be “held to heightened requirements for standing in pursuing judicial review of the DEA’s order,” and at no time during the administrative proceedings has the DEA claimed that they are not “interested parties” under 21 U.S.C. § 811(a)(2).  Petitioners misunderstand the law.  Petitioners may be “interested parties” under the statute, and therefore able to petition the agency, and yet not have Article III standing to bring this action in federal court.  See Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002).  “Participation in agency proceedings is alone insufficient to satisfy judicial standing requirements.”  Id.  Mere interest as an advocacy group is not enough.  The fact that Congress may have given all interested parties the right to petition the agency does not in turn “automatically”confer Article III standing when that right is deprived.  See id. at 27-28.  The Constitution requires a concrete and particularized injury.  This is not a “heightened requirement,” but rather the bare minimum.  Thus, the grant of a procedural right alone cannot serve as the basis for Article III standing unless “the procedures in question are designed to protect some threatened concrete interest of [petitioners’] that is the ultimate basis of his standing.”  Fund Democracy, 278 F.3d at 28 (quoting Lujan, 504 U.S. at 573 n.8).  The sufficiency of the sort of “interest” allowing an interested party to petition an agency at the will of Congress and the justicially protectable “interest” required for an injury to afford standing in the courts is fundamentally the difference between the political branches on the one hand and the Article III courts on the other.  While it is perfectly proper, and indeed appropriate and even necessary, for the political branches to respond to the abstract, ideological, philosophical or even idiosyncratic wishes and needs of citizens or, for that matter, persons at large, the courts are granted authority only for the purpose delineated in Article III, section 2, clause 1 of the Constitution and “may exercise power only ‘in the last resort and as a necessity.’“  Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (quoting Chicago & Grand Trunk Ry., 143 U.S. 339 at 345).

Therefore, contrary to petitioners’ suggestion, it is not at all anomalous that Congress could permit them as “interested parties” (assuming that they are) to participate in agency proceedings, and yet they be unable to seek review in the federal courts.  “Because agencies are not constrained by Article III, they may permit persons to intervene in the agency proceedings who would not have standing to seek judicial review of the agency action.”  Fund Democracy, 278 F.3d at 27; see Envirocare of Utah, Inc. v. NRC, 338 U.S. App. D.C. 282, 194 F.3d 72, 74 (D.C. Cir. 1999).  In other words, the “criteria for establishing ‘administrative standing’ therefore may permissibly be less demanding than the criteria for ‘judicial standing.’”  Envirocare, 194 F.3d at 74.  Thus, unless petitioners can demonstrate an injury in fact, both particularized and concrete, as required by the Constitution, they lack standing to appear before an Article III court.

Gettman v. DEA, 290 F.3d 430, 433-434 (D.C. Cir. 2002).

Proposed State Legislation for 2019

Add the following section to Iowa Code §124E.12:

New Section 10

10.   Notwithstanding federal administrative regulations, 21 C.F.R. §1308.11 Schedule I, (23) Marihuana, (31) Tetrahydrocannabinols, and (58) Marihuana Extract, Administration Controlled Substances Code Numbers 7360, 7370, and 7350, state authorized use of cannabis, tetrahydrocannabinols, and cannabis extracts, are exempt from federal regulations pursuant to the state’s historic police power to define the accepted medical use of controlled substances.  See 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”).  This is also because Congress did not define the term “accepted medical use” in the Controlled Substances Act of 1970, Public Law 91-513, 84 Stat. 1236, October 27, 1970.  See Grinspoon v. DEA, 881 F.2d 877, 886 (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”); and 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’”).  See, for example, 14 C.F.R. §91.19(b) (“this section does not apply to … marihuana … authorized by or under any … State statute or by any … State agency”).

Request for State Legislation 2019

Iowa Code Chapter 124E, the Iowa Medical Cannabidiol Act, lacks a section on compliance with existing federal law.

Cannabis is a federal schedule 1 controlled substance, and yet Iowa Code Chapter 124E doesn’t even mention it.  Why?

In 2018, the Iowa Senate passed SF 2398 by a vote of 49-0.  Section 6 is titled “Compliance with federal law.”

SF 2398 proves Iowa legislators know federal law exists, but the legislature failed to address federal law in Iowa Code Chapter 124E.

This causes numerous problems for patients and providers, some of which are documented in an Article from November 30, 2018, in the Des Moines Register.

This year is a perfect time to address the situation by stating clearly that Iowa is creating an exemption from existing federal schedule 1.  Any law the state has a federal constitutional right to enact is a law the federal government must honor and respect.

Federal schedule 1 is only for substances that have no accepted medical use in the states.  The legislature has created an accepted medical use for cannabis in Iowa.

This state protection under existing federal law doesn’t extend beyond the state’s borders, but it does provide Iowa patients and providers with the protection they need when being accused of violating federal law here in Iowa.

Please fix this broken law so the people it was intended to help do not needlessly suffer due to the state’s gross negligence to explain how it complies with existing federal law.

Carl Olsen

Religious Claim for Cannabidiol Moves Forward

1970

I began to realize that cannabis is the sacrament in the late 1960s.  And then I began looking for others who were having the same experience.  I soon became associated with a group known as Rastafari who interpret the King James Version of the Bible, the Sankey hymnal, the writings of John Bunyan, and the writings of Marcus Garvey, in a way that makes sense to me.  I came to realize that Christ is just us (the members of the church – Romans 12:4-5; 1 Corinthians 12:12-27; Ephesians 4:25; Ephesians 5:30; Colossians 4:11 “And Jesus, which is called Justus, who are …”) and that cannabis is the blood of Christ.  My church was incorporated by that group in Jamaica as the Ethiopian Zion Coptic Church (EZCC) in 1976.

I was arrested in 1978 and 1980 for distribution of a Schedule 1 controlled substance (cannabis), and I was incarcerated in state and federal prisons between 1984 and 1986.

I incorporated the church in Iowa and petitioned the DEA for a federal religious exemption before going to prison in 1984.  See Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989).

I argued that the state of Iowa and the federal government both have religious exemptions for the sacramental use of a Schedule 1 controlled substance (peyote) and that equal protection should give the members of my church that same right.  See, Iowa Code § 124.204(8) and 21 C.F.R. § 1307.31.

1984

Consistent with the Florida Supreme Court finding in Town v. State, 377 So.2d 648 (Fla. 1979) that “the Ethiopian Zion Coptic Church represents a religion within the first amendment to the Constitution of the United States,” that the “use of cannabis is an essential portion of the religious practice,” and that “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”, in 1984 the Iowa Supreme Court found that the EZCC is a bona fide religion and that cannabis is it’s sacrament.

However, the Supreme Court of Iowa decided there was a difference between the EZCC’s use of cannabis and the sacramental use of peyote by the Native American Church (NAC) making them not equal.  The court said the EZCC’s use of cannabis was unrestricted and the NAC’s use of peyote was restricted.

Both the state of Iowa and the federal government require manufacturers and distributors of sacramental peyote to register with the state of Iowa and the DEA.  There were no manufacturers of sacramental cannabis registered with the state of Iowa or the DEA at the time.  So, there was a restriction on the NAC’s supply of peyote that did not exist for the EZCC’s supply of cannabis at the time.  See, Iowa Code § 124.204(8) and 21 C.F.R. § 1307.31.

1990

Having lost the appeals from my 1978 and 1980 arrests and convictions, my federal petition for religious exemption came before the Supreme Court of the United States in 1990.  At that same time, the U.S. Supreme Court was considering a case involving the sacramental use of peyote in Oregon.  Oregon did not have a sacramental exemption for peyote in it’s state law, so the question was whether the U.S. Constitution required one.  To everyone’s shock and dismay, the court said no.  As long as Oregon was “neutral toward religion” and the law was “generally applicable” (“did not allow ‘any’ use of peyote”), it could constitutionally deny a religious exemption.  This meant there was no longer any federal equal protection argument to be made in Oregon, because Oregon did not allow the use of peyote for any pupose.  And, of course, my appeal then became moot.  My argument was equal protection.  I said I had a federal right to use cannabis based on a federal right to use peyote, and the court said there is no federal right to use peyote if the state prohibits all use of peyote.  See, Employment Division v. Smith, 494 U.S. 872 (1990).

One would have to wonder.  If there is a federal regulation creating an exemption for the sacramental use of peyote, is there a federal right to use peyote as a religious sacrament?  The answer is, it depends.  It depends on state law.  First, does the state law allow a religious exemption for the sacramental use of peyote?  If the answer is yes, then there is a corresponding federal right to use peyote as a religious sacrament.  If the asnwer is no, then a second question is whether the state allows the use of peyote for any other reason.  If the answer to the second question is yes, then there may be a federal right to use peyote as a religious sacrament under the same terms and conditions as the currently allowed use.  If the answer to both questions is no, then there is no federal right to use peyote as a religious sacrament.

1993

The shock and dismay at the Employment Division v. Smith ruling was so uninanimous that Congress tried to overrule the U.S. Supreme Court decision.  Congress said a religious claim alone should be sufficient to force a state to show a “compelling interest” in denying the claim and the “least restrictive means” of doing so.  See, Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993).

1997

The Supreme Court of the United States had the last word, ruling that Congress exceeded it’s constitutional separation of powers by imposing a federal judicial standard on the states.  See, City of Boerne v. Flores, 521 U.S. 507 (1997).

2018

Moving ahead, Iowa has enacted a law authorizing the manufacture, distribution, and use of a Schedule 1 controlled substance (cannabis extract).  Cannabis plants were planted in 2018 and cannabis extract will soon be available for distribution on December 1, 2018.  See, Iowa Medical Cannabidiol Act, 2017 Iowa Acts Chapter 162.

State Exemption

Take notice how the Iowa Medical Cannabidiol Act is written.

Notice how the act does not nullify the status of cannabis extract as a Schedule 1 controlled substance.  It simply provides an exemption from Schedule 1.  Similarly, the exemption of peyote for religious use does not nullify the status of peyote as a Schedule 1 controlled substance.

International Exemption

Take notice how the international treaties are written.

Notice how the treaties do not nullify the status of cannabis extract as a Schedule 1 controlled substance.  The treaties simply provide an exemption from Schedule 1.

Federal Exemption

Take notice how this federal regulation is written.  See, 14 C.F.R. § 91.19 (2018)  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.

Notice how pargraph b does not nullify the status of cannabis as a Schedule 1 controlled substance.  The regulation simply provides an exemption from Schedule 1.  Click on this link for the original regulation from 1973.

Equal Protection

We now have manufacturers and distributors of cannabis extract who are registered with the state.

End users have only two restrictions: (1) the end user must have a condition certified to be on the list of approved conditions; and (2) the end user must obtain cannabis extract from an Iowa dispensary if available, from a neighboring state if available, or from an out-of-state source.

Conclusion

Supply is no longer an issue because cannabis extract is being manufactured and distributed in Iowa.

Users certified as being exempt for religious purposes will obtain cannabis extract from an Iowa dispensary if available, from a neighboring state if available, or from an out-of-state source.

A court may certify a religious user by ruling on a religious equal protection claim.

The state should set up an application process for religious use, rather than relying on indivual court rulings.