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.