Senate File 501 — Federally Exempt

The pro­posed new sec­tion 20 to Iowa Code Chap­ter 124E say­ing that med­ical cannabid­i­ol is not fed­er­al­ly reg­u­lat­ed is incred­i­bly vague and uncer­tain.  It is kind of like say­ing the sky is blue.  No one has ever sug­gest­ed that state reg­u­lat­ed cannabis pro­grams are fed­er­al­ly reg­u­lat­ed.  Explain­ing the rela­tion­ship between state and fed­er­al drug law is def­i­nite­ly a good idea, but the cur­rent lan­guage being pro­posed falls short.

Senate File 501

19    Sec. 20.  NEW SECTION.  124E.20  Federal regulations not
20 applicable.
21    Notwithstanding any federal regulation to the contrary, the
22 use of medical cannabidiol pursuant to this chapter is not
23 subject to federal regulation.

5/7

Please con­sid­er adding stronger lan­guage in 2020, with par­tic­u­lar empha­sis on 21 U.S.C. §903 (2018):

Page 787

§ 903. Application of State law

  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.

(Pub. L. 91–513, title II, § 708, Oct. 27, 1970, 84
Stat. 1284.)

                    REFERENCES IN TEXT

  This subchapter, referred to in text, was in the original
“this title”, meaning title II of Pub. L. 91–513, Oct.
27, 1970, 84 Stat. 1242, as amended, and is popularly
known as the “Controlled Substances Act”. For complete
classification of title II to the Code, see second
paragraph of Short Title note set out under section 801
of this title and Tables.

Sug­ges­tion num­ber one:

If there is a fed­er­al law involved, and there is, add a direct ref­er­ence to it.  Don’t leave it to the imag­i­na­tion.  It is crit­i­cal to include a ref­er­ence to fed­er­al drug law (§903) in Iowa Code Chap­ter 124E.  The Iowa Gen­er­al Assem­bly could not have inten­tion­al­ly cre­at­ed a pos­i­tive con­flict with fed­er­al drug law.  The recent Iowa law legal­iz­ing hemp is a per­fect exam­ple.

See Sen­ate File 599 (Indus­tri­al Hemp).  SF 599 ref­er­ences fed­er­al law direct­ly:

Senate File 599, p. 2

   5.  “Federal hemp law” means that part of Tit. X of the
Agriculture Improvement Act of 2018, Pub. L. No. 115-334, that
authorizes hemp production according to a state plan approved
by the United States department of agriculture, as provided in
§10113 of that Act, amending the Agricultural Marketing Act
of 1946, 7 U.S.C. §1621 et seq., including by adding §§297A
through 297E.

Sug­ges­tion num­ber two:

If there is a fed­er­al reg­u­la­tion involved, and there is, add a direct ref­er­ence to it.  Don’t leave it to the imag­i­na­tion. Please con­sid­er adding stronger lan­guage in 2020, with par­tic­u­lar empha­sis on 21 C.F.R. §1307.03 (2019).  An exam­ple of an exemp­tion for a fed­er­al Sched­ule 1 con­trolled sub­stance in the same clas­si­fi­ca­tion as cannabis can be found in 21 C.F.R. §1307.31 (2019):

§ 1307.03  Exceptions to regulations.

  Any person may apply for an exception
to the application of any provision
of this chapter by filing a written request
with the Office of Diversion Control,
Drug Enforcement Administration,
stating the reasons for such exception.

SPECIAL EXEMPT PERSONS

§ 1307.31  Native American Church.

  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.

Set­ting a good exam­ple:

Obe­di­ence to the law is incred­i­bly impor­tant; all law, not just state law.  Pre­tend­ing this is not an issue will not make it go away.  As the Col­orado Supreme Court wrote in Coats v. Dish Net­work, 350 P.3d 849, 850 (Col­orado 2015), enact­ment of a state law with­out address­ing fed­er­al law was not suf­fi­cient to make med­ical use of cannabis law­ful in Col­orado:

Therefore, an activity such as medical marijuana
use that is unlawful under federal law is not a
‘lawful’ activity under section 24-34-402.5

To be fair, the attor­ney for Coats nev­er made any argu­ment that state law was con­sis­tent with fed­er­al law and did not leave the Col­orado Supreme Court any­where to turn.  Coats essen­tial­ly made the argu­ment that his med­ical use of cannabis wasn’t legal under fed­er­al law with­out excep­tion.  Coats should have made the claim the state was neg­li­gent for fail­ure to obtain a fed­er­al excep­tion, or that a fed­er­al excep­tion was implic­it by the exis­tence of the fed­er­al­ly unchal­lenged state law.  The fed­er­al gov­ern­ment has nev­er made the claim that states do not have the con­sti­tu­tion­al author­i­ty to enact med­ical cannabis laws.  Expect­ing a per­son with dis­abilites to under­stand and cor­rect these defects is con­trary to the state’s oblig­a­tion to pro­tect the cit­i­zens it rep­re­sents.  We can, and we must, do bet­ter.

Sure­ly the leg­is­la­ture does not intend the cit­i­zens of Iowa to obey only state law, leav­ing them out­laws in the eyes of the fed­er­al gov­ern­ment.  If the pur­pose of Iowa Code Chap­ter 124E was to defy fed­er­al law, then our work is fin­ished.  If not, then we have fur­ther work to do.  In order to com­ply with fed­er­al law, we must take the pos­i­tive step of apply­ing for an excep­tion to fed­er­al reg­u­la­tions.

The Drug Enforce­ment Admin­is­tra­tion (DEA) can­not deny an excep­tion to our state, because deny­ing an excep­tion would force the state into pos­i­tive con­flict with fed­er­al drug law.  The DEA does not have the con­sti­tu­tion­al author­i­ty to inten­tion­al­ly cause a pos­i­tive con­flict between state and fed­er­al gov­ern­ments.  Apply­ing for the excep­tion is sim­ply a min­is­te­r­i­al act required to fin­ish the work that has already begun.

Of course, repeal­ing Iowa Code Chap­ter 124E is cer­tain­ly one way to restore law and order, but that’s hard­ly an option now.  The cit­i­zens sim­ply want gov­ern­ment to func­tion prop­er­ly with­out going back­ward.  Please con­sid­er amend­ing the lan­guage for the pro­posed new sec­tion 20 to Iowa Code Chap­ter 124E, some­thing like this:

124E.20  Consistency with federal authority.

  This chapter is consistent with 21 U.S.C. §903. 
The authorized use of cannabis under this chapter
is an exception from federal regulations pursuant
to 21 C.F.R. §1307.03.  Formal acknowledgement
of this exception shall be obtained from the
Drug Enforcement Administration immediately upon
enactment of this section.

This request is con­sis­tent with the Rec­om­men­da­tions of the Iowa Med­ical Cannabid­i­ol Board on Jan­u­ary 1, 2020, on page 7 (“seek­ing exemp­tion for Iowa’s pro­gram from fed­er­al drug laws”).