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
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