Federalism: the missing piece in state medical marijuana laws

At first glance, state medical marijuana laws seem to conflict with federal law. But that seems odd, because the federal government has never attempted to block state medical marijuana legislation. Why is that?

When Congress wrote the federal Controlled Substances Act, it placed marijuana in something called a schedule. A schedule is just another name for a classification. There are five federal schedules and most states also have them. Now, there’s your first clue. States also have them. Why would states have them if the federal government is classifying controlled substances?

If we take a look at state schedules, like the ones in Iowa, we find that there is no requirement they be synchronized with the federal schedules. That seems odd. Or, is it intentional? Is this actually a layer of protection, recognizing that local government knows what is best for the people it serves?

What is missing is an understanding of these questions. States do not appear to understand their rights under the federal drug law.

Congress created a process for the reclassification of controlled substances, so we definitely know those classifications are not permanent by any means. So, maybe the states will know when those classifications need to change before the federal government gets around to updating them.

We all know the federal government approves new prescription products and adds those to the schedules, so that’s one way the schedules change. There is a prescription product called Marinol that the federal government placed in schedule 2 in 1986 and then moved to schedule 3 in 1999, so this is an example of how that process works.

In fact, in order to make that change, the federal government actually had to get an international schedule amended. In 1991, at the request of the United States, the United Nations moved THC from schedule 1 of the 1971 Convention on Psychotropic Substances to schedule 2 of that convention.

So, here is what the Controlled Substances Act says about who can request a change to the federal schedules:

Proceedings for the issuance, amendment, or repeal of such rules may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party.

Title 21, United States Code, Section 811(a). So, we know Marinol was rescheduled by the Attorney General and the Secretary of Health and Human Services. But, who is an interested party? Could this mysterious party be a state?

Let’s examine some federal case law to see if we can find an answer:

Unlike the CSA scheduling restrictions, the FDCA interstate marketing provisions do not apply to drugs manufactured and marketed wholly intrastate. Compare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a). Thus, it is possible that a substance may have both an accepted medical use and safety for use under medical supervision, even though no one has deemed it necessary to seek approval for interstate marketing.

Grinspoon v. DEA, 828 F.2d 881, 887 (1st Cir. 1987). So, medical use can be intrastate, rather than interstate. And, what this court is saying is that accepted intrastate use of a substance means it cannot be classified under federal law as having no accepted medical use in treatment in the United States. So how can this be? We have forty (40) states that have accepted the medical use of marijuana, and three (3) federal jurisdiction, DC, Guam, and Puerto Rico. But, here’s the answer: not one of these states or federal jurisdictions has notified the federal government under 21 U.S.C. § 811(a) that marijuana has accepted medical use in treatment in the United States. In other words, Marinol did not just magically reschedule itself. Someone initiated the process. And we know who initiated the process: the federal government. So, what about state governments?

This failure by state governments to initiate federal rescheduling of marijuana has resulted in some really negative consequences. For example, a quadriplegic man in Colorado lost his job for using medical marijuana outside of the work place in full compliance with Colorado law. The Colorado Supreme Court ruled that the medical use of marijuana is not legal in Colorado because of federal scheduling. Brandon Coats v. Dish Network, LLC, Supreme Court Case No. 13SC394, Supreme Court of Colorado, 2015 CO 44, 350 P.3d 849 (June 15, 2015). Another quadriplegic man in Michigan lost his job for using medical marijuana outside the work place in full compliance with Michigan law. The U.S. Court of Appeals ruled that the medical use of marijuana is not legal in Michigan because of federal scheduling. Casias v. Wal-Mart Stores, Inc., No. 11-1227, United States Court of Appeals for the Sixth Circuit, 2012 U.S. App. LEXIS 23969 (October 26, 2012).

It would be absurd to think that voters and legislators in states that have legalized the medical use of marijuana would think that it has no medical use under federal law, so we can assume this is an oversight and a failure to understand the federal Controlled Substances Act. It’s time that states started addressing federal scheduling in their state medical marijuana laws.

Here in Iowa, we have a bill pending in the Iowa House, SF 484, that would actually reschedule marijuana under state law, but it says absolutely nothing about federal scheduling. It’s time a state got it right and protected the people it says it is trying to help. Unless we want to see the weakest among us tricked into exposing themselves as federal criminals, we need to say it loud and clear. We are rescheduling this medicine under both state and federal classifications. It’s very clear from reading 21 U.S.C. § 811(a) that a notice to the federal government is required by the federal Controlled Substances Act and the state must give that notice when it legalizes marijuana for medical use.