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”).
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