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.