Over the past 10 years two divergent paths have emerged for medical use of cannabis. One path, consumable hemp products (Iowa Code Chapter 204), took a hit last night in the U.S. Senate. H.R. 5371, Section 781 (119th Cong. 2025-2026). The other path, medical cannabis (Iowa Code Chapter 124E), has been sanctioned by Congress for the past ten years in the annual appropriations for the U.S. Department of Justice, your department. H.R. 5342, Section 531 (119th Cong. 2025-2026), and S. 2354, Section 531 (119th Cong. 2025-2026).
It is time to create a single path going forward. Take these state medical cannabis programs, sanctioned by Congress for the past decade in the annual appropriations for your department, out of the hands of criminal orgnizations. Forcing patients to choose between violating federal drug law or going without treatment is absurd and exposes the public to danger without good reason. Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 884 (10th Cir. 2017) (“Marijuana is a controlled substance under the CSA. 21 U.S.C. § 802(16). So the manufacture, distribution, and sale of that substance is, by definition, racketeering activity under RICO. 18 U.S.C. § 1961(1)(A), (D)”).
Your department is currently in the process of transferring cannabis from Schedule 1 of the Controlled Substances Act (CSA) to Schedule 3. Rule Making Docket ID: DEA-2024-0059. As I am sure you are aware by now, Schedule 3 will not legitimize any state cannabis program, medical or otherwise. There is a process your department could use to bring these state programs into compliance with the CSA, 21 U.S.C. § 822(d).
(d) Waiver
The Attorney General may, by regulation, waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.
Section 822(d) would resolve the perceived conflict between state law and the CSA, 21 U.S.C. § 903.
§ 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.
This may seem a bit awkward to you since the perceived conflict between state law and the CSA has been initiated by state law. But the proposed transfer of cannabis from Schedule 1 to Schedule 3 is a direct response from your department resulting from these state laws and Schedule 3 will not completely resolve the perceived conflict. Transferring cannabis from Schedule 1 to Schedule 3 signals that medical use of cannabis can be consistent with public health and safety, which is a requirement of 21 U.S.C. § 822(d).
In 2020, 2020 Iowa Acts Chapter 1116, Section 31, instructed the Iowa Department of Public Health to apply for a federal waiver, but Chapter 1116 did not cite Section 822(d) as the federal authority for granting the waiver. In 2021, the Iowa Department of Public Health send a letter (the text of Section 31) to the DEA, but your department hasn’t responded to it.
The Iowa Medical Cannabidiol Board has been recommending a legal task force to follow up with your department, but the legislature has not yet enacted it. See the annual reports for 2022, 2023, and 2024, Recommendation #8:
https://www.legis.iowa.gov/docs/publications/DF/1313462.pdf
https://www.legis.iowa.gov/docs/publications/DF/1441905.pdf
https://www.legis.iowa.gov/docs/publications/DF/1518508.pdf
8. Seek a Federal Exemption for Iowa’s program
The Board recommends that a task force of legal experts be authorized, similar to the current board of medical experts, to assist the department in navigating the legal issues involved with requesting an exemption for Iowa’s program from necessary Federal agencies. This is related to a recommendation in the Board’s 2019 Annual Report and the passage of HF2589 in June 2020.
Please invite the states to submit an application for a wavier under Section 822(d) and your department can evaluate these applications on a state-by-state basis to make sure they are consistent with current federal policy (the annual appropriations bills for your agency and the pending scheduling proposal).
Thank you!
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