Chapter 124E is Poorly Written

Members of the subcommittee discuss HF 732 on April 1, 2019

Recently, Captain Marti Reilly of the Sioux City Police Department, a seasoned-law officer with years of experience investigating drug crimes said:

“Marijuana is an interesting drug, in the fact that the federal government says it’s illegal.  Being in law enforcement for more than 30 years.  They always said state laws can be more restrictive, but it can’t be less.  So, 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.

Compare this to what House Speaker Linda Upmeyer said in September of 2017 after Iowa Code Chapter 124E had been enacted:

“House Speaker Linda Upmeyer, R-Clear Lake, noted in a statement that 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 compare it to what State Representative John Forbes said in December of 2017 after Iowa Code Chapter 124E had been enacted:

“I mean, 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.

Introducing legislation at 3 a.m. on the last day of the session, passing it out of the House at 5 a.m. on a Saturday morning, and out of the senate at 6 a.m. that morning, is not how careful, thoughtful legislation should be crafted.

WARNING! DANGER!

Until 3 a.m. on Saturday, April 22, 2017, House File 524 was just a bill about prescription monitoring.  Around 3:00 a.m. on Saturday morning H-1461 was filed, changing the bill into a medical cannabidiol program.  At around 5:00 a.m. the amendment was passed in the House, and at around 6:00 a.m. on a Saturday morning, the amended bill passed in the Senate.

What’s Missing?

House File 732 needs an amendment to Iowa Code Chapter 124E that say:

“This chapter does not violate any federal law.”

What else?

“This chapter does not authorize the violation of any federal law.”

Please add the same amendment that was added to SF 501.

Please amend HF 732.

House File 732
1Amend File 732 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.

When Congress created the federal Controlled Substances Act in 1970, it gave a federal administrative agency the authority to remove marijuana from the act without any further action by Congress, 21 U.S.C. 811(a).  Congress also gave the administrative agency the authority to make exceptions to the act, which the agency has done for another federal Schedule 1 controlled substance, peyote, 21 C.F.R. 1307.31.

What Should Iowa Do?

Let the federal administrative agency know we are making an exception to the Controlled Substance Act for the medical use of marijuana!

Restrictive Senate Amendment to House Medical Cannabidiol Bill

Iowa State Capitol

After months of saying the 3% THC cap would never be lifted unless the Medical Cannabidiol Advisory Board recommended lifting it, the Iowa House mysteriously decided to lift the 3% cap on THC just days before the legislative funnel deadline on March 8.  House File 732 (medical cannabidiol) was introduced on March 6, voted out of subcommittee on March 6, and voted out of committee on March 7.  See, “What really happened last week with the medical cannabidiol bill”, Bleeding Heartland, April 1

On March 26 the Iowa House of Representatives voted overwhelmingly, by a vote of 96-3, in favor of HF 732.  HF 732 was immediately messaged to the Iowa Senate where it was referred to the Senate Judiciary Committee.  A Senate subcommittee met on April 1 and recommended passage without amendment.  Those in attendance at the Senate subcommittee hearing were told that any changes would kill the bill in the Iowa House and no amendments would be allowed.

However, when the bill was considered by the full committee on April 4, the committee passed an amendment, S-3124, on a staight party vote of 9 Republicans to 5 Democrats and then recommended passage with amendment by a vote of 13-1.  This might change the situation dramatically.  Further amendments might now be filed in the Senate, and the House will likely be considering an amended version of HF 732 which might be amended further in the House.  Fasten your seat belts.

Medical cannabis legislation has never been an easy task in Iowa.  Negotiations are typically not completed until the last day of the session and then only during overtime.  Senate File 2360 (Iowa Code Chapter 124D) was finally negotiated around 3:00 a.m. on May 1, 2014; and House File 524 (Iowa Code Chapter 124E) was finally negotiated around 5:00 a.m. on April 21, 2017.

To help us understand what is going on we need to know some history on the efforts of the current Chair of the Senate Judiciary Committee, Senator Brad Zaun.  Senator Zaun is a medical cannabis advocate.  A time line will help with our understanding.

April 15, 2015:

Senator Zaun was the only Republican to vote for Senate File 484 (medical cannabis), which passed in the Iowa Senate by a vote of 26-19.  26 votes are needed to obtain a constitutional majority in the Iowa Senate.  SF 484 did not pass in the Iowa House.

April 17, 2017:

The Iowa Senate voted 45-5 for Senate File 506 (medical cannabis).  Senator Zaun voted with the majority.  SF 506 did not pass in the Iowa House.

January 22, 2019:

Senator Zaun introduced Senate File 77 (medical cannabidiol), which proposed changing the THC cap from 3% to 13%.  A subcommittee approved SF 77 on January 31, but no further action was taken on it.

February 12, 2019:

Senator Zaun introduced Senate File 256 (medical cannabidiol), which left the THC cap at 3%.  A subcommittee approved SF 256 on February 18 and on March 5 the Senate Judiciary Committee passed SF 256 with an amendment on federalism.  The amendment to SF 256 passed by a vote of 14-1.

March 6, 2019:

SF 256 as amended was introduced as Senate Judiciary Committee bill Senate File 501.

What does it all mean?

Considering that Senator Zaun proposed raising the THC limit to 13% and then backed off to the current 3%, it’s no surprise that on April 4 when the Senate Judiciary Committee received HF 732 with no limit on THC, the committee amended it by striking that section and replacing it with the current 3% cap on THC.  However, the committee did not strike the 25 grams of THC per 90-day limit.  So, HF 732 now is more restrictive than current law regarding THC.  Obviously, this is a dramatic change from what the Iowa House passed.

It’s uncertain what the future holds for HF 732.  It could be amended if it gets debated on the Senate floor.  It could be amended if it gets debated on the House floor (if the Senate passes it with the amendment and sends it back to the House).  Certain committees and leadership can still file bills, so we could still see a different bill emerge before the session ends.

Perhaps there is still time for a very important amendment on federalism that got lost in all of this mysterious activity.  Here it is again, for those who are concerned about consistency between state and federal law.

Please add the same language to HF 732.

House File 732
1Amend File 732 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.

Stay tuned!

House File 732 (Medical Cannabidiol)

House File 732 is on the Daily House Debate Calendar for Tuesday, March 26, 2019.

The following statement of consistency with federal law is included in Senate Medical Cannabidiol bill, SF 501, on page 5 at lines 19 through 23.

SF501

Please add the same language to HF 732.

House File 732
1Amend File 732 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.

It is critically important that this statement of legislative intent be included in our state law.  State legislators frequently say that the Iowa Medical Cannabidiol Act authorizes violation of federal law, including legislators who voted for it (Rep. Linda Upmeyer and Rep. John Forbes).  Patients and their care givers should not be stigmatized as criminals.

The federal Drug Enforcement Administration (DEA) regulations exempt the religious use of a federal schedule 1 controlled substance, peyote.  See, 21 C.F.R. § 1307.31 (2019).  Churches do not have greater constitutional protection than states have.  For the same reason the DEA maintains an exemption for a church, DEA must exempt a state medical cannabis program.  In fact, states actually have the right to refuse to recognize the religious use of peyote.  See, Employment Division v. Smith, 494 U.S. 872 (1990).  We need to declare we have the right to authorize medical use of cannabis in Iowa and that DEA must include an exemption in Title 21 Section 1307 of the Code of Federal Regulations.

On January 28, a local attorney and I petitioned the DEA to grant an exemption to federal regulations for the Iowa Medical Cannabidiol program, Iowa Code Chapter 124E (2019), similar the one granted to the Native American Church for the religious use of peyote.  See 21 C.F.R. § 1307.03 (2019) and 21 C.F.R. § 1307.31 (2019).

Medical cannabidiol and peyote are both federal Schedule 1 controlled substances, as well as Iowa Schedule 1 controlled substances.  Medical cannabidiol is exempt from the Iowa Controlled Substances Act when used for medical purposes, Iowa Code § 124E.12(4) (2019).  Peyote is exempt from the Iowa Controlled Substance Act when used for religious purposes, Iowa Code § 124.204(8) (2019).  The religious exemption exists because of the constitutional guarantee of religious freedom.  A state medical cannabis law is exempt because of the constitutional guarantee of state autonomy and self-determination.  The DEA grants exemptions and it must do so even-handedly.

The DEA has the authority to completely remove cannabis from the federal Controlled Substances Act without any further authorization from Congress.  See, 21 U.S.C. § 811(a)(2).  It would be absurd to think the DEA cannot recognize an exemption for our state medical cannabis program.  The only reason we don’t have an exemption is because we didn’t ask for one.

I attended the subcommittee hearing on House File 733 on March 21, and HF 733 proves beyond any doubt that a state law authorizing the use of a controlled substance must be consistent with federal law.  See page 15, lines 11 through 21:

112. Nothing in this chapter shall be construed or applied to
12be in conflict with any of the following:
13a. Applicable federal law, …

Proposed Amendment to HSB 244

The following amendment became part of SF 501 on Tuesday, March 5, 2019, by a vote of 14 – 1 in the Iowa Senate Judiciary Committee. Please add the same language to HSB 244.

House Study Bill 244
1Amend House Study Bill 244 as follows:
21.  Page 2, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.
PROPOSED COMMITTEE AMENDMENT

It is critically important that this statement of legislative intent be included in our state law. State legislators frequently say that the Iowa Medical Cannabidiol Act authorizes violation of federal law, including legislators who voted for it (Rep. Linda Upmeyer and Rep. John Forbes). Stigmatizing patients as criminals should not be something suffering Iowans are burdened with. The federal Drug Enforcement Administration (DEA) regulations exempt the religious use of a federal schedule 1 controlled substance, peyote. See, 21 C.F.R. § 1307.31 (2019). For the same reason, DEA must exempt a state medical cannabis program. We need to declare we have the right to do this and that DEA must include an exemption in Title 21 Section 1307 of the Code of Federal Regulations.

Proposed Amendment to SF 256

A senator sent me a copy of a proposed amendment we would like added to SF 256 currently pending in the Iowa Senate Judiciary Committee. We would greatly appreciate your support.

Senate File 256
1Amend Senate File 256 as follows:
21.  Page 5, after line 18 by inserting:
3<Sec. ___.  NEW SECTION124E.20  Federal regulations not
4applicable.
5Notwithstanding any federal regulation to the contrary, the
6use of medical cannabidiol pursuant to this chapter is not
7subject to federal regulation.>
82.  By renumbering as necessary.
PROPOSED COMMITTEE AMENDMENT
Proposed Amendment to SF 256

It is critically important that this be included in our state law. State legislators frequently say that the Iowa Medical Cannabidiol Act authorizes violation of federal law, including legislators who voted for it (Rep. Linda Upmeyer and Rep. John Forbes). This is not something suffering Iowans should be burdened with. The federal Drug Enforcement Administration (DEA) regulations exempt the religious use of a federal schedule 1 controlled substance, peyote. See, 21 C.F.R. § 1307.31 (2019). For the same reason, DEA must exempt a state medical cannabis program. We need to declare we have the right to do this and that DEA must include this exemption in Title 21 Section 1307 of the Code of Federal Regulations.

Standing to Petition the DEA

On January 28, a local attorney and I petitioned the DEA to grant an exemption to federal regulations for the Iowa Medical Cannabidiol program, Iowa Code Chapter 124E (2019), similar the one granted to the Native American Church for the religious use of peyote.  See 21 C.F.R. § 1307.03 (2019) and 21 C.F.R. § 1307.31 (2019).  Medical cannabidiol and peyote are both federal Schedule 1 controlled substances, as well as Iowa Schedule 1 controlled substances.  Medical cannabidiol is exempt from the Iowa Controlled Substances Act, Iowa Code § 124E.12(4) (2019), when used for medical purposes and peyote is exempt from the Iowa Controlled Substance Act when used for religious purposes, Iowa Code § 124.204(8) (2019).  One could presume the religious exemption exists because of the First Amendment to the U.S. Constitution guaranteeing religious freedom, and it then follows that a state medical cannabis law should be exempt because of the Tenth Amendment to the U.S. Constitution guaranteeting state autonomy and self-determination.  The DEA grants exemptions and it must do so even-handedly.

Before we filed the DEA petition, we were talking about people who might have standing to file the petition.  We talked about a medical cannabidiol card holder and someone being denied assistance from the Veterans Administration (VA) in getting a cannabidiol card.  However, we filed the petition without anyone with standing to appeal if we get an adverse ruling.  The DEA could ignore our lack of standing and grant the exemption on the merits, but we won’t be able to appeal if the DEA decides not to grant the exemption.  I have no personal standing and I’m not an attorney.  The other petitioner is an attorney, but he also has no personal standing.  Unlike me, an attorney can represent a party that does have standing.  I have included more information on “standing” in the federal courts below.

Some people with standing might include (but not necessarily be limited to):

  • Someone who is being denied assistance in getting a card by the VA (this would have to be because of a VA policy, not the doctor simply declining to issue the certification as the Iowa laws allows doctors to decline).
  • A patient or caregiver who has a medical cannabidiol card.
  • A dispensary that has a dispensary license.
  • A manufacturer that has a manufacturing license.
  • A state legislator.
  • The state government.

These are the people we are claiming to represent.  As it stands now, patients, caregivers, dispensaries, and manufactures are walking on egg shells trying to get the program expanded and they haven’t volunteered to come forward to help us with standing and it’s highly unlikely that they will. 

I spent the afternoon on Monday, February 18, at the state capitol talking with legislators and state administrative officials.  Help should logically be forthcoming from legislators or a state administrative agency like the Iowa Department of Public Health (IDPH).  Legislators and administrative officials have a vested interest in defending and upholding state law and they are not manufacturers, dispensaries, caregivers, or patients (state officials are not personally at risk, but they do have standing).  I initiated contact with IDPH with this specific request on January 31 and followed up again on February 18 at the state capitol.  A state senator submitted an amendment to a proposed bill, SF 256, that would amend the Iowa Medical Cannabiol Act (Iowa Code Chapter 124E) with language based on our DEA petition.  I have been discussing this with legislator and IDPH for the past couple of years (since Chapter 124E was enacted in 2017), but the DEA petition has now started the clock ticking and it’s time for action.

For those who don’t know what standing is, below is an explanation given by the United States Court of Appeals for the District of Columbia Circuit.

Standing as an “Interested Party”

Petitioners contend that they have “automatic standing” to appeal the DEA’s denial of their petition because 21 U.S.C. § 811(a)(2) permits “any interested party” to file a petition to initiate rulemaking proceedings.  They suggest that this is enough — since they are the original petitioners before the DEA they should not be “held to heightened requirements for standing in pursuing judicial review of the DEA’s order,” and at no time during the administrative proceedings has the DEA claimed that they are not “interested parties” under 21 U.S.C. § 811(a)(2).  Petitioners misunderstand the law.  Petitioners may be “interested parties” under the statute, and therefore able to petition the agency, and yet not have Article III standing to bring this action in federal court.  See Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002).  “Participation in agency proceedings is alone insufficient to satisfy judicial standing requirements.”  Id.  Mere interest as an advocacy group is not enough.  The fact that Congress may have given all interested parties the right to petition the agency does not in turn “automatically”confer Article III standing when that right is deprived.  See id. at 27-28.  The Constitution requires a concrete and particularized injury.  This is not a “heightened requirement,” but rather the bare minimum.  Thus, the grant of a procedural right alone cannot serve as the basis for Article III standing unless “the procedures in question are designed to protect some threatened concrete interest of [petitioners’] that is the ultimate basis of his standing.”  Fund Democracy, 278 F.3d at 28 (quoting Lujan, 504 U.S. at 573 n.8).  The sufficiency of the sort of “interest” allowing an interested party to petition an agency at the will of Congress and the justicially protectable “interest” required for an injury to afford standing in the courts is fundamentally the difference between the political branches on the one hand and the Article III courts on the other.  While it is perfectly proper, and indeed appropriate and even necessary, for the political branches to respond to the abstract, ideological, philosophical or even idiosyncratic wishes and needs of citizens or, for that matter, persons at large, the courts are granted authority only for the purpose delineated in Article III, section 2, clause 1 of the Constitution and “may exercise power only ‘in the last resort and as a necessity.’“  Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984) (quoting Chicago & Grand Trunk Ry., 143 U.S. 339 at 345).

Therefore, contrary to petitioners’ suggestion, it is not at all anomalous that Congress could permit them as “interested parties” (assuming that they are) to participate in agency proceedings, and yet they be unable to seek review in the federal courts.  “Because agencies are not constrained by Article III, they may permit persons to intervene in the agency proceedings who would not have standing to seek judicial review of the agency action.”  Fund Democracy, 278 F.3d at 27; see Envirocare of Utah, Inc. v. NRC, 338 U.S. App. D.C. 282, 194 F.3d 72, 74 (D.C. Cir. 1999).  In other words, the “criteria for establishing ‘administrative standing’ therefore may permissibly be less demanding than the criteria for ‘judicial standing.’”  Envirocare, 194 F.3d at 74.  Thus, unless petitioners can demonstrate an injury in fact, both particularized and concrete, as required by the Constitution, they lack standing to appear before an Article III court.

Gettman v. DEA, 290 F.3d 430, 433-434 (D.C. Cir. 2002).

Proposed State Legislation for 2019

Add the following section to Iowa Code §124E.12:

New Section 10

10.   Notwithstanding federal administrative regulations, 21 C.F.R. §1308.11 Schedule I, (23) Marihuana, (31) Tetrahydrocannabinols, and (58) Marihuana Extract, Administration Controlled Substances Code Numbers 7360, 7370, and 7350, state authorized use of cannabis, tetrahydrocannabinols, and cannabis extracts, are exempt from federal regulations pursuant to the state’s historic police power to define the accepted medical use of controlled substances.  See 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”).  This is also because Congress did not define the term “accepted medical use” in the Controlled Substances Act of 1970, Public Law 91-513, 84 Stat. 1236, October 27, 1970.  See Grinspoon v. DEA, 881 F.2d 877, 886 (1987) (“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”); and Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991) (“neither the statute nor its legislative history precisely defines the term ‘currently accepted medical use’”).  See, for example, 14 C.F.R. §91.19(b) (“this section does not apply to … marihuana … authorized by or under any … State statute or by any … State agency”).

Request for State Legislation 2019

Iowa Code Chapter 124E, the Iowa Medical Cannabidiol Act, lacks a section on compliance with existing federal law.

Cannabis is a federal schedule 1 controlled substance, and yet Iowa Code Chapter 124E doesn’t even mention it.  Why?

In 2018, the Iowa Senate passed SF 2398 by a vote of 49-0.  Section 6 is titled “Compliance with federal law.”

SF 2398 proves Iowa legislators know federal law exists, but the legislature failed to address federal law in Iowa Code Chapter 124E.

This causes numerous problems for patients and providers, some of which are documented in an Article from November 30, 2018, in the Des Moines Register.

This year is a perfect time to address the situation by stating clearly that Iowa is creating an exemption from existing federal schedule 1.  Any law the state has a federal constitutional right to enact is a law the federal government must honor and respect.

Federal schedule 1 is only for substances that have no accepted medical use in the states.  The legislature has created an accepted medical use for cannabis in Iowa.

This state protection under existing federal law doesn’t extend beyond the state’s borders, but it does provide Iowa patients and providers with the protection they need when being accused of violating federal law here in Iowa.

Please fix this broken law so the people it was intended to help do not needlessly suffer due to the state’s gross negligence to explain how it complies with existing federal law.

Carl Olsen

Board Moves to Dismiss Religious Claim for Cannabidiol

On Thursday, September 20, the Iowa Board of Pharmacy moved to dismiss my petition for the Religious use of medical cannabidiol, in Olsen v. Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County).  The Board says the petition should have been filed with the Iowa Legislature instead of the Board.

The problem with the Board’s position is that the Iowa Legislature has given the Board the duty of recommending changes in the schedules of controlled substances and medical cannabidiol is a controlled substance in Iowa.  There is also an existing exemption for the religious use of peyote, a Schedule 1 controlled substance.  Iowa Code § 124.204(8) (2018).

RELIGIOUS USE OF PEYOTE – Iowa Code 124.204(8) (2018)

The Board says the exemption for the religious use of peyote was a response to the federal exemption for the religious of peyote.  However, Iowa created its exemption for the religious use of peyote in 1967.  1967 Iowa Acts ch. 189, § 2.  The federal exemption for the religious use of peyote was not created until 1970.  See Peyote Exemption for Native American Church.  And, see Peyote Exemption for Native American Church.

The Board says it was never involved in creating the exemption for the religious use of peyote in Iowa, but that’s true of most of the substances in the various schedules.  In 1971, the Iowa Legislature moved the exemption for the religious use of peyote from a separate code section into the newly created schedules and gave the Board the duty of recommending changes to the schedules.  Iowa Code Chapter 204A (1971) was repealed and the peyote exemption was moved into the newly created schedules in Iowa Code Chapter 204 (1973).

THE BOARD’S DUTY TO RECOMMEND CHANGES – Iowa Code 124.201(1) (2018)

The Board says a request for a religious exemption to the schedules of controlled substances should go to the Iowa Legislature, but the Iowa Supreme Court has made it clear that the Board has to act first.  In State v. Bonjour, 694 N.W.2d 511 (Iowa 2005), the court wrote:

What [the legislature] has done, however, is to clearly and deliberately decide what the procedure shall be for making that determination.  That procedure is to defer to the Board of Pharmacy Examiners, which is far better equipped than this court — and the legislature, for that matter — to make critical decisions regarding the medical effectiveness of marijuana use and the conditions, if any, it may be used to treat.  The board has not done so, and we, by legislative directive, must wait until it does.

Bonjour, at 514.

Although the Board claims it has no authority to recommend religious exemptions, the exemption being sought is identical to the use of medical cannabidiol created by the Iowa Legislature in 2017.  See, Iowa Medical Cannabidiol Act, 2017 Iowa Acts ch. 162.  The Board would have to accept that the decision of the Iowa Legislature to allow the medical use of cannabidiol proves beyond any doubt that no compelling interest exists in denying that same use for religious reasons.

And, because any decision of the Board goes to Iowa District Court for judicial review, there’s really no good reason why someone seeking a religious exemption would bypass the Board in light of the duty the Iowa Legislature has given the Board to recommend such changes.

THE FEDERAL AND UNIFORM ACTS

Under both the federal and uniform state acts, the scheduling of controlled substances is by administrative rule.  A petition for an administrative rule is a formal rule making process filed with an administrative agency.  The federal exemption for the religious use of peyote is a federal regulation.  See 21 C.F.R. § 1307.31 (2018).

Iowa claims to have adopted the Uniform Controlled Substances Act.  See, Iowa Code § 124.601 (2018).  But Iowa omitted the administrative rule making process for scheduling.  This would also tend to lead to the conclusion that a petition for a religious exemption would begin with the Board.  The Board says it needs to follow the federal process, but both federal and uniform controlled substances acts make scheduling an administrative process due to the technical expertise of the agency making the decision.  Indeed, the federal administrative agency has guidelines for making requests for religious exemptions.

What is the Religious Freedom Restoration Act?

The Religious Freedom Restoration Act (RFRA) was enacted in 1993 to reverse the U.S. Supreme Court ruling in Employment Division v. Smith, 494 U.S. 872 (1990).  In the Smith case, the court ruled that religious freedom alone was not guaranteed by the U.S. Constitution without an additional constitutional claim, such as equal protection.  The court found that although there was a federal regulation allowing the religious use of the schedule 1 controlled substance peyote, the state of Oregon did not allow any use of peyote and could constitutionally deny the religious use of peyote in Oregon.  The ruling in Smith was that laws neutral on their face toward religion and generally applicable to everyone do not violate the First Amendment if they burden religious exercise.  In response Congress passed RFRA to reverse that ruling.  See, The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993).

Reacting to RFRA, the U.S. Supreme Court ruling in City of Boerne v. Flores, 521 U.S. 507 (1997), held RFRA unconstitutional as applied to the states, basically upholding its decision in the Smith case and invalidating its application to the states while leaving RFRA intact as far as the federal government is concerned.  So, this is the first reason that the Drug Enforcement Administration (DEA) has issued guidelines for religious exemptions to the federal Controlled Substances Act under RFRA.

Following the decision in Flores, the court’s first decision on the religious use of schedule 1 controlled substances was in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006).  In O Centro, the court found there was no compelling interest in federal interference with the shipment of a schedule 1 controlled substance from South America to the state of New Mexico.  So, this is the second reason that the Drug Enforcement Administration (DEA) has issued guidelines for religious exemptions to the federal Controlled Substances Act under RFRA.

What was unique about the O Centro case, unlike the Smith case, was that there was no interference with the religious practice of O Centro by the state of New Mexico.

To draw an analogy to my own situation, the Iowa Supreme Court has specifically denied religious protection for the religious use of cannabis in State v. Olsen (1984).  RFRA does not apply to state actions, so the Smith case determines the outcome.  Beginning in 2018, the state of Iowa plans to produce and distribute cannabis extracts in the state of Iowa, which means the Iowa law is no longer neutral toward religion or generally applicable to everyone.

Finally, because O Centro was actively practicing the religion without any interference from the state of New Mexico, O Centro had an injury that could be redressed by the federal courts.  In comparison. the injury in State v. Olsen would first have to be redressed favorably by the Iowa Supreme Court before a federal claim could be made under the Smith ruling.  We’ll see what happens next:

Olsen v. Iowa Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County)