Medical marijuana has finally made its legal entrance into Iowa’s culture with the legalization of cannabis oil on July 1, 2014 (Iowa Medical Cannabidiol Act of 2014). In response, a new business venture here in Iowa has shown an interest in supplying this product, iCann: Reasonable Cannabis Solutions in Urbandale, Iowa. I talked briefly with one of the owners today and I’ll be talking with him again soon to get more details. In an email to Crystal Brunt, Iowa NORML Women’s Alliance, the company said it is attempting to work with legislators and patients. Two of the organizations mentioned in the email were Advocacy Strategies and the University of Iowa College of Medicine, both of which would be key resources for any business venture to be successful in Iowa. I’m still trying to understand the legal issues. A pharmaceutical product by the name of Epidiolex manufactured by GW Pharmaceuticals is currently in phase 3 clinical trials in Iowa. What is important to understand is that the cannabis oil that has just been legalized here in Iowa is not Epidiolex, which explains why a company like iCann: Reasonable Cannabis Solutions would be interested in distributing it in Iowa. Cannabis oil has not been approved by the FDA and there is no sign the FDA will be considering it in the near future. One of the interesting developments is that Congress recently legalized the production of industrial hemp and industrial hemp has a high level of cannabidiol. So, although the FDA hasn’t approved it, it would appear that cannabis oil can actually be made from industrial hemp. The federal Agriculture Act of 2014, Section 7606, authorizes the production of hemp for both “agricultural or academic research”, so it appears that opens the door for cannabis oil production. Stay tuned for further developments.
In 2006, when the case of Gonzales v. Oregon, 546 U.S. 243 (2006), was decided, it became clear to me that states are still the decision makers on accepted medical use of controlled substances. We have 50 states with 50 drug laws, which would be totally unnecessary if federal drug law overruled them all. So, medical use of controlled substances is still a local, state decision. Because our state drug law here in Iowa uses federal language for scheduling, I decided to test this out on the Iowa Board of Pharmacy in 2008 and ask them to find that marijuana has accepted medical use in treatment in the United States based on 12 state laws that accepted the medical use of marijuana in treatment at that time. The board refused to answer that question and insisted that it must look at the science instead. I appealed from their ruling, and while my appeal was pending, the board decided to take an independent look at the science. When the board ruled unanimously in 2010 that marijuana is medicine based on science, the court dismissed my appeal as moot. This is because it does not matter whether the board finds that marijuana is misclassified as a matter of law or as a matter of science. The fact the board ruled that marijuana should be reclassified relieved them of having to answer the legal question. So, I got what I wanted even though I did not get what I wanted for the reason I gave, state laws in 12 other states accepting the medical use of marijuana in treatment in the United States.
I did not tell the board what to do with marijuana after it is removed from schedule I, because I would be perfectly happy if marijuana is removed from schedule I without any further action by the state, which would leave it legally equivalent to dandelions. The board recommended placing marijuana in schedule II and enacting a medical marijuana program like New Mexico. Just last week, Senator Joe Bolkcom from Iowa City, Iowa, actually filed two bills, SF 2214 and SF 2215, which fairly accurately reflect the recommendations of the board in 2010. My position is that because legislators are not medical experts, and because we have the advise of the Iowa Board of Pharmacy which represents the Iowa Department of Public Health, that the legislators should enact these two bills. But, now I have to qualify that by saying the board was very specific about SF 2214, but not very specific about SF 2215. The board recommended that we enact a medical marijuana program “like” New Mexico, but did not say “indentical.” So, there is some room to negotiate here on SF 2215.
Because SF 2214 and SF 2215 were introduced on the last day they could have been approved by the Senate Committee on Human Resources, they are both dead for this year and will have to be refiled again next year. Here’s where I think we should go with these two bills next year. I think these two bills should be combined into one bill, and here’s why.
Reclassifying marijuana as medicine doesn’t make much sense without creating a means of access. So, these two bills really should be one bill, not two. The reason they ended up as two bills is a long story. Senator Bolkcom just ignored the board in 2011 and 2012 and didn’t file anything the board recommended. In 2013, Senator Bolkcom attached the language in SF 2214 to his bill from 2011 and 2012, which is SF 79, and which is also not what the board recommended. So, now, Senator Bolkcom has finally introduced bills the board recommended, but now they are two separate bills instead of one. Senator Bolkcom really should get this right in 2015 and file everything the board recommended in just one bill. It’s just so much cleaner that way.
New Mexico’s legislation specified an initial list of conditions, and then gave the New Mexico Department of Health the authority to add additional conditions. This is a bad idea for Iowa. Legislators should not be deciding which conditions marijuana should be used in treating, nor should legislators be deciding the best forms of delivery for those conditions. Medical decisions should be made by medical professionals, not legislators practicing medicine without a license.
So, I see how we could follow the spirit of the Iowa Board of Pharmacy’s recommendations and do it better than New Mexico by making our state law the first state law to reclassify marijuana as medicine and to leave the medical decisions to the Iowa Department of Public Health. I’m not saying this will happen. After all, no other state has gotten this right yet. But, Iowa could be the first state to get it right.
And, remember, by removing marijuana from schedule I, we’ve basically said it does not belong in federal schedule I, so we’ve made the critical argument that needs to be made to address federal scheduling (which has not yet been resolved).
The Des Moines Register carried a blog article about the court ruling against me in my lawsuit against the Iowa Board of Pharmacy. The article was fairly accurate. The only real error in the article, and it runs consistently throughout the history of this entire project started in 2006, is that everyone keeps paraphrasing the argument incorrectly. The author incorrectly states, “Iowa law classifies ‘schedule I’ drugs as having no medical purpose.” The problem with this truncated version “medical purpose” is that it distorts the meaning of the law. What Iowa law actually says is that schedule I “substances” (not “drugs”) have “no accepted medical use in treatment in the United States.” By truncating that phrase to “medical purpose” the real issue of where a substance has accepted medical purpose gets entirely lost.
Where is “in the United States?”
Notice it does not say “in Iowa.” The phrase “accepted medical use in treatment in the United States” actually comes from the federal Controlled Substances Act. And, that phrase has been interpreted for us by a federal court in Grinspoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987) (“We add, moreover, that the Administrator’s clever argument conveniently omits any reference to the fact that the pertinent phrase in section 812(b)(1)(B) reads ‘in the United States,’ (emphasis supplied). We find this language to be further evidence that the Congress did not intend ‘accepted medical use in treatment in the United States’ to require a finding of recognized medical use in every state or, as the Administrator contends, approval for interstate marketing of the substance.”) So, you can see my argument gets distorted by the pharmacy board, the courts, and the media, when they substitute the truncated phrase “medical purpose” for the legally accurate phrase “accepted medical use in treatment in the United States.”
What to do?
This overwhelming, monolithic distortion of the meaning of this statute has made it extremely difficult to make any progress because it leaves patients in jeopardy. For example, we now have 20 states that have accepted the medical use of marijuana in treatment in the United States, and none of them has made the argument that marijuana is unlawfully classified under federal regulations. The result is an odd situation of state laws allowing medical use that federal regulations forbid. Although federal regulations do not specifically require that marijuana be classified as having no accepted medical use in treatment in the United States, the absence of any state objection to this unlawful classification combined with recalcitrance from the U.S. Department of Justice responsible for maintaining the current classification, results in the illusion of a violation of federal law. While it is true that numerous petitions to have marijuana federally reclassified as medicine have been filed over the years, including one currently pending by the states of Washington and Rhode Island, the arguments have always been about “medical purpose” and not about who gets to make the decision. Obviously, 20 states have decided that marijuana does indeed have a “medical purpose.” And, since none of those states thinks federal law recognizes a state’s right to determine “accepted medical use” of a controlled substances, these petitions obviously cede that authority to the Attorney General of the United States.
Did Congress actually intend the decision on “accepted medical use” to be determined by the Attorney General of the United States? It would be extremely hard to believe that when the federal drug law was enacted in 1970 the Uniform Laws Commission would recommend all 50 states adopt their own versions of the federal Controlled Substances Act, with detailed scheduling criteria for determining whether substances have accepted medical use, if that decision was to be determined solely by a federal administrative agency. In fact, Iowa law hasn’t been consistent with federal regulations since 1979 when the Iowa Board of Pharmacy was given the authority to make marijuana a schedule II controlled substance in Iowa. If you’re wondering how this could happen, we have an explanation from the United States Supreme Court in Gonzales v. Oregon, 546 U.S. 243, 258 (2006) (“The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law”). If the Attorney General cannot make a rule that violates state authority, neither can the Attorney General maintain one. However, the lack of any objection by any state clearly leaves the Attorney General in a dilemma. The Obama Administration has responded by saying that Congress should resolve the issue. State officials refuse to represent the people who elected them. The Obama Administration will not petition the U.S. Department of Justice to make a decision that clearly belongs to the states.
I should have written my petition for judicial review more clearly. I alleged the Iowa Board of Pharmacy violated five sections of the Iowa Administrative Procedures Act. And, I probably shot myself in the foot here. Iowa Code Chapter 17A(10): (b) Beyond the authority delegated to the agency by any provision of law; (c) Based on an erroneous interpretation of law whose interpretation has not been clearly vested by a provision of law in the discretion of the agency; (d) Taken without following the prescribed decision-making process; (j) The product of a decision making process in which the agency did not consider relevant and important matter relating to the propriety or desirability of the action in question that a rational decision maker in similar circumstances would have considered prior to taking that action; and, (n) Is otherwise, arbitrary and capricious or an abuse of discretion.
In hindsight, I should have cited these two instead. Iowa Code Chapter 17A(10): (c) Based on an erroneous interpretation of law whose interpretation has not been clearly vested by a provision of law in the discretion of the agency; (h) Action other than a rule that is inconsistent with the agency’s prior practice or precedents, unless the agency has justified that inconsistency by stating credible reasons sufficient to indicate a fair and rational basis for the inconsistency.
Because I cited Iowa Code Chapter 17A(10)(c), I have sufficient grounds to file an appeal. I spoke with my attorney today and he agrees with my legal analysis, but he is unsure if he has time to file the appeal. I can file the appeal myself, but its always better to have an attorney file it. So, I’ll wait for my attorney to make a decision. I have until March 18 to file the notice of appeal.
At trial, a question came up about sufficiency of the evidence. My attorney moved to amend my complaint to include it and the judge granted it. However, during the discussion on the motion, the state attorney admitted that the board still thinks marijuana is medicine, which made the argument on sufficiency of the evidence moot. However, in the ruling, the judge said the board no longer believes marijuana is misclassified and that we did not include any evidence the court could review to see if they made the right decision. The judge was not listening when the state attorney said the board agrees with us that the evidence shows what we said it does, so there was no reason to show the court evidence that both parties to the case agree means the same thing. What a mess.
We hope the Iowa Supreme Court will straighten out this mess and we’ll be filing our appeal soon.
I have two legal arguments, but they are almost identical: if the board finds for any reason that marijuana has medical use, then it has a duty under Iowa Code Chapter 124 Section 203 to recommend reclassification or removal from the schedules. So, if the board still thinks marijuana is medicine (which the board’s attorney says it still agrees marijuana is medicine), then marijuana is misclassified as a matter of law. If the board does not think marijuana is medicine, that does not change the fact that marijuana now has accepted medical use in treatment in 20 states and is misclassified here in Iowa as a matter of law regardless of whether the board thinks it has medical use. Under either of those two arguments, the board has a duty under Iowa Code Chapter 124 Section 203 to recommend reclassification or declassification of marijuana.
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