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  Iowa Code Chap­ter 204A (1971) was repealed and the pey­ote exemp­tion was moved into the new­ly cre­at­ed sched­ules in Iowa Code Chap­ter 204 (1973).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.