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.

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