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.

Board Moves to Dismiss Religious Claim for Cannabidiol

On Thursday, September 20, the Iowa Board of Pharmacy moved to dismiss my petition for the Religious use of medical cannabidiol, in Olsen v. Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County).  The Board says the petition should have been filed with the Iowa Legislature instead of the Board.

The problem with the Board’s position is that the Iowa Legislature has given the Board the duty of recommending changes in the schedules of controlled substances and medical cannabidiol is a controlled substance in Iowa.  There is also an existing exemption for the religious use of peyote, a Schedule 1 controlled substance.  Iowa Code § 124.204(8) (2018).

RELIGIOUS USE OF PEYOTE – Iowa Code 124.204(8) (2018)

The Board says the exemption for the religious use of peyote was a response to the federal exemption for the religious of peyote.  However, Iowa created its exemption for the religious use of peyote in 1967.  1967 Iowa Acts ch. 189, § 2.  The federal exemption for the religious use of peyote was not created until 1970.  See Peyote Exemption for Native American Church.  And, see Peyote Exemption for Native American Church.

The Board says it was never involved in creating the exemption for the religious use of peyote in Iowa, but that’s true of most of the substances in the various schedules.  In 1971, the Iowa Legislature moved the exemption for the religious use of peyote from a separate code section into the newly created schedules and gave the Board the duty of recommending changes to the schedules.  Iowa Code Chapter 204A (1971) was repealed and the peyote exemption was moved into the newly created schedules in Iowa Code Chapter 204 (1973).

THE BOARD’S DUTY TO RECOMMEND CHANGES – Iowa Code 124.201(1) (2018)

The Board says a request for a religious exemption to the schedules of controlled substances should go to the Iowa Legislature, but the Iowa Supreme Court has made it clear that the Board has to act first.  In State v. Bonjour, 694 N.W.2d 511 (Iowa 2005), the court wrote:

What [the legislature] has done, however, is to clearly and deliberately decide what the procedure shall be for making that determination.  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.  The board has not done so, and we, by legislative directive, must wait until it does.

Bonjour, at 514.

Although the Board claims it has no authority to recommend religious exemptions, the exemption being sought is identical to the use of medical cannabidiol created by the Iowa Legislature in 2017.  See, Iowa Medical Cannabidiol Act, 2017 Iowa Acts ch. 162.  The Board would have to accept that the decision of the Iowa Legislature to allow the medical use of cannabidiol proves beyond any doubt that no compelling interest exists in denying that same use for religious reasons.

And, because any decision of the Board goes to Iowa District Court for judicial review, there’s really no good reason why someone seeking a religious exemption would bypass the Board in light of the duty the Iowa Legislature has given the Board to recommend such changes.

THE FEDERAL AND UNIFORM ACTS

Under both the federal and uniform state acts, the scheduling of controlled substances is by administrative rule.  A petition for an administrative rule is a formal rule making process filed with an administrative agency.  The federal exemption for the religious use of peyote is a federal regulation.  See 21 C.F.R. § 1307.31 (2018).

Iowa claims to have adopted the Uniform Controlled Substances Act.  See, Iowa Code § 124.601 (2018).  But Iowa omitted the administrative rule making process for scheduling.  This would also tend to lead to the conclusion that a petition for a religious exemption would begin with the Board.  The Board says it needs to follow the federal process, but both federal and uniform controlled substances acts make scheduling an administrative process due to the technical expertise of the agency making the decision.  Indeed, the federal administrative agency has guidelines for making requests for religious exemptions.

What is the Religious Freedom Restoration Act?

The Religious Freedom Restoration Act (RFRA) was enacted in 1993 to reverse the U.S. Supreme Court ruling in Employment Division v. Smith, 494 U.S. 872 (1990).  In the Smith case, the court ruled that religious freedom alone was not guaranteed by the U.S. Constitution without an additional constitutional claim, such as equal protection.  The court found that although there was a federal regulation allowing the religious use of the schedule 1 controlled substance peyote, the state of Oregon did not allow any use of peyote and could constitutionally deny the religious use of peyote in Oregon.  The ruling in Smith was that laws neutral on their face toward religion and generally applicable to everyone do not violate the First Amendment if they burden religious exercise.  In response Congress passed RFRA to reverse that ruling.  See, The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993).

Reacting to RFRA, the U.S. Supreme Court ruling in City of Boerne v. Flores, 521 U.S. 507 (1997), held RFRA unconstitutional as applied to the states, basically upholding its decision in the Smith case and invalidating its application to the states while leaving RFRA intact as far as the federal government is concerned.  So, this is the first reason that the Drug Enforcement Administration (DEA) has issued guidelines for religious exemptions to the federal Controlled Substances Act under RFRA.

Following the decision in Flores, the court’s first decision on the religious use of schedule 1 controlled substances was in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006).  In O Centro, the court found there was no compelling interest in federal interference with the shipment of a schedule 1 controlled substance from South America to the state of New Mexico.  So, this is the second reason that the Drug Enforcement Administration (DEA) has issued guidelines for religious exemptions to the federal Controlled Substances Act under RFRA.

What was unique about the O Centro case, unlike the Smith case, was that there was no interference with the religious practice of O Centro by the state of New Mexico.

To draw an analogy to my own situation, the Iowa Supreme Court has specifically denied religious protection for the religious use of cannabis in State v. Olsen (1984).  RFRA does not apply to state actions, so the Smith case determines the outcome.  Beginning in 2018, the state of Iowa plans to produce and distribute cannabis extracts in the state of Iowa, which means the Iowa law is no longer neutral toward religion or generally applicable to everyone.

Finally, because O Centro was actively practicing the religion without any interference from the state of New Mexico, O Centro had an injury that could be redressed by the federal courts.  In comparison. the injury in State v. Olsen would first have to be redressed favorably by the Iowa Supreme Court before a federal claim could be made under the Smith ruling.  We’ll see what happens next:

Olsen v. Iowa Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County)

Appeal from pharmacy board’s refusal to consider religious exemption

On August 15, 2018, my attorney filed an appeal from the pharmacy board’s refusal to consider a religious exemption to the schedules of controlled substances for the sacramental use of cannabis by members of the Rastafari faith.  Olsen v. Board of Pharmacy, Iowa District Court, Polk County, No. CVCV056841.

The Iowa Code
The Iowa Code

The executive director unilaterally denied the petition on July 16, 2018, arguing that the board has no authority to consider religious exemptions.  The director’s unilateral decision runs contrary to the fact the Iowa schedules include a religious exemption (Iowa Code §§ 124.204(4)(p) and 124.204(8))) for the sacramental use of peyote by the Native American Church and the board has been given the duty to recommend changes to the schedules.  See Iowa Code § 124.201 (“Duty to recommend changes in schedules”).  The board’s federal counter-part, the Drug Enforcement Administration (DEA), has guidelines on how to apply for religious exemptions to the federal controlled substances act (21 U.S.C. §§ 801 et seq.), so it would violate both the state and federal constitutions if the state scheduling did not have a similar process (due process) for doing the same thing.  And, the DEA has a religious exemption (21 C.F.R. § 1307.31) for the sacramental use of peyote by the Native American Church.

But the DEA has not always accepted applications for religious exemptions.  In 1988, The DEA said it had no authority to consider religious exemptions when I applied for one.  See Olsen v. DEA, 878 F.2d 1458, 1460 (D.C. Cir. 1989) (“According to the DEA, Congress intended no religious-use exemption from Controlled Substances Act proscriptions other than the peyote-use permission granted the Native American Church”).

The U.S. Court of Appeals responded to the DEA by saying:

The DEA’s contention that Congress directed the Administrator automatically to turn away all churches save one opens a grave constitutional question.  A statutory exemption authorized for one church alone, and for which no other church may qualify, presents a “denominational preference” not easily reconciled with the establishment clause.  See Larson v. Valente, 456 U.S. 228, 245, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982); cf. infra pp. 12-13.  We resist an interpretation dissonant with the “cardinal principle” that legislation should be construed, if “fairly possible,” to avoid a constitutional confrontation.  See Ashwander v. TVA, 297 U.S. 288, 348, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring).

Furthermore, we recognize that even if the DEA were not empowered or obliged to act, Olsen would be entitled to a judicial audience.  Ultimately, the courts cannot escape the obligation to address his plea that the exemption he seeks is mandated by the first amendment’s religion clauses.  See Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984) (upholding church’s standing to seek a declaratory judgment that denying church access to peyote is unconstitutional).

Id. at 1461.

I don’t want to predict how the Iowa courts will rule on this, but I can certainly say how the Iowa courts should rule on it.  The Iowa courts should agree with the federal courts.  The pharmacy board’s executive director was not authorized by the Iowa legislature to turn away all churches other than the Native American Church.

My attorney is representing me pro bono, but I am paying for the filing fees.  If you’d like to help me with expenses, you can donate by going to my donation page at https://www.gofundme.com/rastafari-cannabis-sacrament.

Legal Analysis of Response from Board of Pharmacy

Analysis of the July 16, 2018, Response from the Iowa Board of Pharmacy

POINT #1:

The Iowa Board of Pharmacy (board) responds that Iowa Code chapter 17A does not establish a right or a procedure for an individual to petition for agency action of this nature.

Quoting from McMahon v. Iowa Board of Pharmacy, Case No. CV7415 (Polk County, April 21, 2009):

Petitioners were entitled to a written explanation of the reasons for the Board’s decision regardless of whether the agency action at issue was taken in response to a request for the adoption of agency rules, taken in response to a request for a declaratory order, or taken in a contested case proceeding.  See Iowa Code §§ 17A.7(1), 17A(4)(d), 17A.16; Ward v. Iowa Dept. of Transp., 304 N.W.2d 236, 238 (Iowa 1981).

Slip opinion, at 4.

My petition did not ask for the adoption of a rule, a declaratory order, or a contested case, but the petition I filed in 2008 was accepted and ruled on by the board.  The court accepted the petition for judicial review in 2009 and made the 2009 ruling in response to my scheduling petition.

The Iowa Supreme Court also made a ruling on it in 2010.  Quoting from McMahon v. Iowa Board of Pharmacy, No. 09-1789 (Iowa Supreme Court, May 14, 2010):

The petitioners and the intervenor are appealing from the district court’s ruling denying them additional judicial review of the pharmacy board’s denial of their requests to recommend marijuana’s reclassification as a controlled substance under Iowa Code chapter 124.  On February 17, 2010, while this appeal was pending, the pharmacy board recommended that the legislature reclassify the scheduling of marijuana as a controlled substance under Iowa Code chapter 124 (2009).  The board ultimately made the reclassification recommendation sought by the petitioners and the intervenor.

Slip opinion, at 1-2.

Because the only existing religious exemption is included in the list of schedules and because the legislature has determined that the board should make recommendations for changes to the schedules, the board is the proper authority to petition for another religious exemption.

Quoting from State v. Bonjour, 694 N.W.2d 511 (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.

Id. at 514.

Because the legislature placed a religious exemption in the schedules and because the legislature gave the board the duty of reviewing the schedules and making recommendations for changes, a petition for a second religious exemption must begin with the board.

Iowa Code § 17A.19(3) (2018):

In cases involving a petition for judicial review of agency action other than the decision in a contested case, the petition may be filed at any time petitioner is aggrieved or adversely affected by that action.

POINT #2:

The Iowa Board of Pharmacy (board) responds that Iowa Code chapter 124 requires the board to make recommendations based on scientific and medical evidence.

Failure to cite any scientific or medical reason, such as abuse potential, as justification to deny the request for a religious exemption could (and should) be interpreted to mean the state has no compelling interest in denying the religious exemption.

POINT #3:

The Iowa Board of Pharmacy (board) responds that it cannot evaluate religious practices.

The petition clearly says the petitioner is not asking the board to evaluate a religious practice.  The petitioner is asking for the same exemption that already exists for medical use under the same terms as that medical use.  The petitioner would either buy the cannabis extract from an authorized dispensary in Iowa or obtain it from an out-of-state source.

The question in Bonjour was whether marijuana had medical use, and, if so, “defining the parameters to place on it.” Id. at 513.

But, the parameters are no longer undefined.

Iowa, 2014 Acts, Chapter 1125, S.F. 2360, Sec. 3(1) defined what form of cannabis was allowed in 2014:

a nonpsychoactive cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof that is essentially free from plant material, and has a tetrahydrocannabinol level of no more than three percent.

Iowa, 2014 Acts, Chapter 1125, S.F. 2360, Sec. 7(1)(b) defined how cannabis could be obtained and used in 2014:

shall be obtained from an out-of-state source and shall only be recommended for oral or transdermal administration

Iowa, 2017 Acts, Chapter 162, H.F. 524, Sec. 5(6) defines what form of cannabis is currently allowed:

any pharmaceutical grade cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof that has a tetrahydrocannabinol level of no more than three percent and that is delivered in a form recommended by the medical cannabidiol board, approved by the board of medicine, and adopted by the department pursuant to rule

Iowa, 2017 Acts, Chapter 162, H.F. 524, Sec. 16 defines how cannabis may be currently obtained:

if not legally available in this state or from any other bordering state, shall be obtained from an out-of-state source

The petitioner is asking for equal or greater protection, so the board knows exactly what is being requested.  The petition is asking for a religious exemption to use cannabis extracts under the same or greater terms as an authorized medical user has.

Employment Division v. Smith, 494 U.S. 872, 884 (1990):

our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason

POINT #4:

The Iowa Board of Pharmacy (board) responds that the petitioner does not have a federal exemption for the religious use of cannabis.

Medical users in Iowa do not have a federal exemption for medical use of cannabis extract.  See, United States v. Schostag, No. 17-2530, slip op. 4 (8th Cir. July 13, 2018) (“Although some medical marijuana is legal . . . as a matter of state law, the state’s law conflicts with federal law”).  The board is placing an undue burden on religion by requiring federal authorization.  Unlike medical use which is forbidden under federal law, the federal government has guidelines for requesting religious exemptions.  See, Guidance Regarding Petitions for Religious Exemptions (last updated: February 26, 2018).  The petitioner will get a federal exemption, but without state authorization a federal exemption would be of no use.  The petitioner has to reside somewhere in the United States.

In the Smith case, the U.S. Supreme Court said a state can deny a religious exemption for a controlled substance as long as the state does not allow any other use of that controlled substance.  Since the Smith case was decide in 1990, a total of 46 states, including Iowa, have now accept varying degrees of cannabis use.  Only Iowa is directly relevant, but the other 45 states do provide some context as far as any claimed compelling interest in denying a religious exemption is concerned.

Conclusion

The petitioner is not asking the board to evaluate a religious practice.  The religious practice is the same as the medical use, so the board already knows what the religious practice is.

The board does have expertise that it must use in determining whether any compelling state interest exists in denying the religious exemption, which is on equal terms with the accepted medical use.

Finally, the petitioner notes that the accepted medical use is broad.  Obtaining a product from an out-of-state source, without federal authorization, consisting of any cannabinoid, as long as the THC content is 3% or less, is an extremely broad exemption indicating the compelling interest in denying a religious exemption is somewhere between extremely low and non-existant.