Is medicinal cannabis exempt from federal drug law?

Iowa Med­ical Cannabid­i­ol Board — August 2, 2019

Is med­ical cannabid­i­ol exempt from fed­er­al drug law?

I found an arti­cle that helps to illus­trate my solu­tion (empha­sis added).

Yes, States Can Nul­li­fy Some Fed­er­al Laws, Not All
By Robert A. Levy
This arti­cle appeared in Investor’s Busi­ness Dai­ly on March 18, 2013.

In a nut­shell: (1) State offi­cials need not enforce fed­er­al laws that the state has deter­mined to be uncon­sti­tu­tion­al; nor may Con­gress man­date that states enact spe­cif­ic laws.  But (2), states may not block fed­er­al author­i­ties who attempt to enforce a fed­er­al law unless a court has held that the law is uncon­sti­tu­tion­al.  And (3), indi­vid­u­als are not exempt from pros­e­cu­tion by the fed­er­al gov­ern­ment just because the state where they reside has legal­ized an activ­i­ty or pro­nounced that a fed­er­al law is uncon­sti­tu­tion­al; if con­vict­ed, indi­vid­u­als can attempt to vin­di­cate their con­sti­tu­tion­al rights in court.

Iowa is not sug­gest­ing that fed­er­al drug law is uncon­sti­tu­tion­al.  Do we have an eth­i­cal and legal oblig­a­tion to obtain an exemp­tion from fed­er­al drug law?

The answer is very sim­ple.  Fed­er­al drug law cur­rent­ly includes exemp­tions, and the con­sti­tu­tion­al­i­ty of fed­er­al drug law does not cre­ate a pos­i­tive con­flict with state law if the state law is exempt from fed­er­al drug law.

Fed­er­al drug law includes a reli­gious exemp­tion for a psy­choac­tive fed­er­al sched­ule 1 con­trolled sub­stance.

See 21 C.F.R. § 1307.31 (2019) (empha­sis added):

The list­ing of pey­ote as a con­trolled sub­stance in Sched­ule I does not apply to the non­drug use of pey­ote in bona fide reli­gious cer­e­monies of the Native Amer­i­can Church, and mem­bers of the Native Amer­i­can Church so using pey­ote are exempt from reg­is­tra­tion.  Any per­son who man­u­fac­tures pey­ote for or dis­trib­utes pey­ote to the Native Amer­i­can Church, how­ev­er, is required to obtain reg­is­tra­tion annu­al­ly and to com­ply with all oth­er require­ments of law.

Med­ical cannabid­i­ol is a psy­choac­tive fed­er­al sched­ule 1 con­trolled sub­stance.  There­fore, the state has the eth­i­cal oblig­a­tion to obtain a cod­i­fied fed­er­al exemp­tion for the use of med­ical cannabid­i­ol to avoid a pos­i­tive con­flict with fed­er­al drug law.

See 21 U.S.C. § 903 (2019) (empha­sis added):

No pro­vi­sion of this sub­chap­ter shall be con­strued as indi­cat­ing an intent on the part of the Con­gress to occu­py the field in which that pro­vi­sion oper­ates, includ­ing crim­i­nal penal­ties, to the exclu­sion of any State law on the same sub­ject mat­ter which would oth­er­wise be with­in the author­i­ty of the State, unless there is a pos­i­tive con­flict between that pro­vi­sion of this sub­chap­ter and that State law so that the two can­not con­sis­tent­ly stand togeth­er.

It would be uneth­i­cal to inten­tion­al­ly cre­ate a pos­i­tive con­flict with fed­er­al drug law when it isn’t nec­es­sary to do so.

Not all states have reli­gious exemp­tions to their drug laws.  The U.S. Supreme Court has made it clear that fed­er­al reli­gious exemp­tions do not apply where states don’t have a cor­re­spond­ing state reli­gious exemp­tion so that the two can­not con­sis­tent­ly stand togeth­er.  See Employ­ment Divi­sion v. Smith, 494 U.S. 872 (1990).

The U.S. Supreme Court has also made it clear that the accept­ed med­ical use of a con­trolled sub­stance is not defined in fed­er­al drug law and accept­ed med­ical use is there­fore a deci­sion made by state law mak­ers.  See Gon­za­les v. Ore­gon, 546 U.S. 243 (2006).  See also Grin­spoon v. DEA, 828 F.2d 881, 886 (1987) (“Con­gress did not intend ‘accept­ed med­ical use in treat­ment in the Unit­ed States’ to require a find­ing of rec­og­nized med­ical use in every state”).

Because med­ical cannabid­i­ol is exempt from state drug law, a cor­re­spond­ing fed­er­al exemp­tion must be acknowl­edged to avoid a pos­i­tive con­flict and main­tain con­sis­ten­cy with fed­er­al drug law.

There is also exemp­tion lan­guage in the inter­na­tion­al treaties, but that is beyond the scope here.  Sin­gle Con­ven­tion on Nar­cot­ic Drugs, 1961, as amend­ed by the 1972 Pro­to­col, Arti­cle 36(2).  Con­ven­tion on Psy­chotrop­ic Sub­stances, 1971, Arti­cle 22(2).

The par­ty mak­ing the change (the state) must noti­fy the par­ty it has the agree­ment with (fed­er­al gov­ern­ment).  That process is found in 21 C.F.R. § 1307.03 (2019).

Thank you for read­ing this infor­ma­tion.

Carl Olsen
130 E Auro­ra Ave
Des Moines, IA 50313
515–343-9933
carl@carl-olsen.com