Petition for Administrative Action — August 2, 2019

Barr, speak­ing dis­pas­sion­ate­ly, called on con­gress to make up its mind on mar­i­jua­na.  “I think the cur­rent sit­u­a­tion is unten­able,” he said, liken­ing state legal­iza­tion to a “back­door nul­li­fi­ca­tion of fed­er­al law.”  Barr con­tin­ued: “We should either have a fed­er­al law that pro­hibits mar­i­jua­na, every­where, which I would sup­port, myself.”  How­ev­er, he added: “if we want states to have their own laws, then let’s get there.  And let’s get there the right way.”

Attor­ney Gen­er­al Nom­i­nee Wouldn’t Go After Legal Mar­i­jua­na, Jan­u­ary 15, 2019, Tim Dick­in­son, Rolling Stone.

BEFORE THE IOWA MEDICAL CANNABIDIOL BOARD

BEFORE THE IOWA MEDICAL CANNABIDIOL BOARD

Peti­tion by Carl Olsen for a Rec­om­men­da­tion by the Board to the Iowa Depart­ment of Pub­lic Health (IDPH)

PETITION FOR RECOMMENDATION

August 2, 2019

Carl Olsen
130 E Auro­ra Ave
Des Moines, IA 50313–3654
515–343-9933

The Prob­lem:

It could be argued that state med­ical cannabis pro­grams are exempt from fed­er­al law.  However,the com­mon per­cep­tion is that med­ical cannabis pro­grams autho­rize vio­la­tion of fed­er­al law or even vio­late fed­er­al law just by their exis­tence.

Exam­ples:

Recent­ly, Cap­tain Mar­ti Reil­ly of the Sioux City Police Depart­ment, a sea­soned-law offi­cer with years of expe­ri­ence inves­ti­gat­ing drug crimes said:

“each state legal­iz­ing it is break­ing fed­er­al law”

The Poten­tial Impact of Expand­ed Med­ical Mar­i­jua­na, March 27, 2019, KWIT FM 90.3 / KOJI FM 90.7, Sioux­land Pub­lic Media, West­ern Iowa Tech Com­mu­ni­ty Col­lege, 4647 Stone Avenue, Sioux City, IA 51106.

House Speak­er Lin­da Upmey­er said the same thing in Sep­tem­ber of 2017 after sign­ing her name to the bill that cre­at­ed Iowa Code Chap­ter 124E:

“no mat­ter what the Leg­is­la­ture had decid­ed, the state still would have been in vio­la­tion of fed­er­al law”

AG tells agency to halt part of Iowa’s med­ical mar­i­jua­na law, Sep­tem­ber 10, 2017, Des Moines Reg­is­ter, Des Moines, Iowa.

And State Rep­re­sen­ta­tive John Forbes said the same thing in Decem­ber of 2017 after he vot­ed for the bill that cre­at­ed Iowa Code Chap­ter 124E:

“we are vio­lat­ing fed­er­al law with a cannabis bill here in the state of Iowa”

Rep. John Forbes (D–Urbandale) and Gerd Clabaugh, Decem­ber 22, 2017, Iowa Pub­lic Radio, John­ston, Iowa.

See the attached arti­cle from Rolling Stone, Why State-By-State Mar­i­jua­na Legal­iza­tion Is a Mess, May 8, 2019, which gives some exam­ples.

Illi­nois pro­vides anoth­er exam­ple.  Cul­ti­va­tion Cen­ter FAQ — Illi­nois Depart­ment of Agri­cul­ture.

“Grow­ing cannabis for any pur­pose is still ille­gal under fed­er­al law.”

77 Ill. Adm. Code 946.230(d)(4)

“Grow­ing, dis­trib­ut­ing or pos­sess­ing cannabis in any capac­i­ty, except through a fed­er­al­ly approved research pro­gram, is a vio­la­tion of fed­er­al law.”

Leg­isla­tive Intent:

Despite these var­i­ous asser­tions, not one word in Iowa Code Chap­ter 124E implies the Iowa leg­is­la­ture intend­ed to vio­late fed­er­al law or to autho­rize vio­la­tion of fed­er­al law.

In the absence of explic­it leg­isla­tive intent to cre­ate pos­i­tive con­flict with fed­er­al law, it must be assumed the Iowa leg­is­la­ture intend­ed Iowa Code Chap­ter 124E to be con­sis­tent with fed­er­al law.

Legal Analy­sis:

And, in fact, Iowa Code Chap­ter 124E is con­sis­tent with fed­er­al law because it cre­ates an exemp­tion to fed­er­al law like the exist­ing exemp­tion for the reli­gious use of pey­ote.  A copy of the fed­er­al exemp­tion for the reli­gious use pey­ote is attached to this peti­tion.  21 C.F.R. § 1307.31 (2019).  Pey­ote, just like cannabis, is a fed­er­al Sched­ule I Con­trolled Sub­stance.  And, they are also in Sched­ule I of the Iowa Con­trolled Sub­stances Act.  So, they are sim­i­lar­ly sit­u­at­ed sub­stances as far as legal analy­sis goes.

Also, in Iowa Code Chap­ter 124E.12(4), the act cre­ates exemp­tions from Iowa Code Chap­ter 124 (Iowa Con­trolled Sub­stance Act) and Iowa Code Chap­ter 453B (Excise Tax on Unlaw­ful Deal­ing in Cer­tain Sub­stances).  This is fur­ther evi­dence of leg­isla­tive intent to cre­ate an exemp­tion from both state and fed­er­al con­trolled sub­stances acts.

Unlike Iowa law, fed­er­al law gives the Attor­ney Gen­er­al of the Unit­ed States, who has del­e­gat­ed this author­i­ty to the Unit­ed States Drug Enforce­ment Admin­is­tra­tion (DEA), the author­i­ty to add, remove, or reclas­si­fy con­trolled sub­stances with­out fur­ther action by Con­gress.  A copy of the fed­er­al law giv­ing the agency com­plete author­i­ty over con­trolled sub­stances is attached to this peti­tion.  21 U.S.C. § 811(a) (2019).

Iowa Code Chap­ter 124E autho­rizes the cul­ti­va­tion of cannabis for the pur­pose of pro­duc­ing cannabid­i­ol, so it includes both the cannabis plant and the prod­ucts made from the extract­ed cannabi­noids.

It could have been argued that reli­gious use is exempt sim­ply by exis­tence of reli­gion, but that is not the exam­ple in the fed­er­al admin­is­tra­tive code.  Reli­gious use of pey­ote is exempt by explic­it lan­guage in DEA reg­u­la­tions, 21 C.F.R. § 1307.31 (2019).  Cur­rent prac­tice, there­fore, is to add a writ­ten acknowl­edge­ment in a fed­er­al reg­u­la­tion.  Iowa has cre­at­ed a reli­gious exemp­tion for pey­ote by statute, Iowa Code § 124.204(8) (2019).  These exam­ples show that exemp­tions are cod­i­fied, not sim­ply left to chance.  Illi­nois reg­u­la­tions hint at this when they say “fed­er­al­ly approved” research.  How­ev­er, pey­ote is also “fed­er­al­ly approved” by exemp­tion.

The Solu­tion:

The Iowa Depart­ment of Pub­lic Health (IDPH) should noti­fy the DEA of the exemp­tion on behalf of our state and request acknowl­edge­ment from the DEA in writ­ing, prefer­ably in a reg­u­la­tion sim­i­lar to the exist­ing reg­u­la­tion exempt­ing the reli­gious use of pey­ote.

Please rec­om­mend that the IDPH noti­fy the DEA that Iowa Code Chap­ter 124E cre­ates an exemp­tion, either by join­ing the cur­rent fed­er­al peti­tion ini­ti­at­ed by the peti­tion­er on Jan­u­ary 28, 2019, or by fil­ing a sim­i­lar appli­ca­tion with the DEA.  See the attached Peti­tion to Exempt State-Autho­rized Use of Med­ical Cannabis, Jan­u­ary 28, 2019.

Thank you!

Carl Olsen
130 E Auro­ra Ave
Des Moines, IA 50313–3654
515–343-9933