Conversation with David Young on H.R.2920

On Monday, December 11, 2017, I spoke with Congressman Young about H.R.2920 (CARERS Act of 2017).  Congressman Young is a co-sponsor of H.R.2920, and he was a co-sponsor of H.R.1538 (CARERS Act of 2015).

Both the 2015 and 2017 versions of the CARERS Act:

  • recognize an exemption from federal scheduling for state medical marijuana programs;
  • remove cannabidiol from the definition of marijuana, placing it at the end of a list of exemptions for industrial hemp;
  • create a federal definition of cannabidiol which is nearly identical to the federal definition of hemp, 7 U.S.C. § 5940 (no more than 0.3 percent delta-9 tetrahydrocannabinol on a dry weight basis); and
  • give Attorney General Jeff Sessions the right to determine whether a state is in compliance with this new federal definition of cannabidiol.

Beyond the fact that creating an exemption for state medical marijuana programs that does not include cannabidiol seems contradictory, between 2015 and 2017 Iowa created a state definition of cannabidiol that differs significantly from the federal definition of hemp.

Iowa Code § 124E.2(6) (2017) defines cannabidiol as “any pharmaceutical grade cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof that has a tetrahydrocannabinol level of no more than three percent” (3 percent is 10 times higher than 0.3 percent and cannabidiol is just one of over a hundred cannabinoids found in the cannabis plant).

I asked Congressman Young to amend the bill by removing the references to cannabidiol.  If the federal government wants to make cannabidiol a prescription drug, that’s fine.  But, currently there are no federally approved cannabidiol products.  States must be able to define cannabidiol’s medical use within their own states.

The federal government cannot have it both ways.  As the U.S. Supreme Court put it so eloquently in New York v. United States, 505 U.S. 144, 161 (1992):

Congress may not simply “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981).

Iowa Code Chapter 124E Exempt from Federal Schedules

State law must address federal scheduling because of the phrase used in the federal statute as a pre-condition for placement in schedule 1 “currently accepted medical use in treatment in the United States.”

The phrase “currently accepted medical use” is not defined in the federal statute.

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”

Colorado has two examples that highlight this situation very well.

In 2010, Colorado asked the DEA to reschedule marijuana to schedule 2 for pharmaceutical purposes.  See HB1284 at page 9, signed by the Governor of Colorado on June 7, 2010.

See C.R.S. 12-43.3-202(g) (2017):

In recognition of the potential medicinal value of medical marijuana, make a request by January 1, 2012, to the federal drug enforcement administration to consider rescheduling, for pharmaceutical purposes, medical marijuana from a schedule I controlled substance to a schedule II controlled substance

That request should have demanded removal from schedule 1 based on “currently accepted medical use” in the United States (Colorado) as a matter of constitutional law (federalism).

In 2015, the Colorado Supreme Court decided medical marijuana is not legal in Colorado because it remains in federal schedule 1.

Coats v. Dish Network, 350 P.3d 849, 850 (Colorado 2015):

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

People v. Crouse, 388 P.3d 39, 43 (Colorado 2017):

Consistent with our holding in Coats, then, we again find that conduct is “lawful” only if it complies with both federal and state law

Please note that Brandon Coats is a disabled paraplegic who thought his employment was protected if he abided by the terms of the state medical marijuana law which the Colorado voters added to their state constitution in 2000.

I’m not sure how much technical accuracy goes into a direct ballot initiative amending a state constitution, but we can do better in Iowa.  When a state refuses to claim state accepted medical use is exempt from schedule 1, it creates a conflict with schedule 1 which could have been avoided.  If Colorado had said state medical use is exempt from federal schedule 1, then the Colorado Supreme Court would have had to determine whether that is so.  Instead, the court just ruled it isn’t legal because the state did not challenge federal schedule 1.  We should not repeat this mistake here in Iowa.  Colorado has never included marijuana in its state schedule 1, so state schedule 1 has never been an issue in Colorado.

If state medical use is exempt from schedule 1, then it is legal under both state and federal law.  If state medical use is not exempt, then schedule 1 is illegal as applied to the “currently accepted medical use” in the states.

Grinspoon v. DEA, 828 F.2d 881, 886 (1st Cir. 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

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.

Iowa should say both things: (1) state accepted medical use is exempt from schedule 1; and (2) schedule 1 is invalid for any substance with accepted medical use in any state.  Federal schedules are not binding on the states, so a state could place marijuana in state schedule 1 even if the federal administrative agency entirely removed marijuana from all of the federal schedules.  So, it’s quite easy to make the case that federal schedule 1 is unlawful for marijuana if even one state accepts marijuana for medical use.  It does not deprive any state from finding marijuana has no medical use in that state, although there are only four states that have not accepted any form of marijuana for medical use.

What I am thinking is that the easiest thing for the Iowa legislature to do would be to add the same language to the statute that the Iowa Department of Public Health has included on the owner certification form.

Or, at least start the discussion with the language the Iowa Deparment of Public Health is using and then ask if it is sufficient.

Here is what the Iowa Department of Public Health has written on the owner certification form:

any activity not sanctioned by Iowa Code chapter 124E and proposed administrative rules may be a violation of state or federal law and could result in arrest, prosecution, conviction, or incarceration

https://drive.google.com/file/d/0B-cZdbYdPoLGSnZRQWtBUnFTd2c/view

The commonly accepted argument is that the federal administrative agency can interpret the meaning of "currently accepted medical use" because that was the court’s ruling in 1991/1994.  Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936 (D.C. Cir. 1991); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).  However, the 1994 federal court ruling has never been reconsidered by a federal court on the constitutional law issue of state laws defining "currently accepted medical use."  California was the first state to accept the medical use of marijuana in 1996.  A federal administrative agency does not have the power to nullify a state law without the express consent of Congress, which is totally lacking here.  The federal government has never sued a state for enacting a state medical marijuana program.  So, how could it be a violation of a federal statute?  Forty-six state have enacted laws accepting some form of marijuana for medical use.  It would be absurd to imply those forty-six states intended to authorize the violation of a federal law.  When we vote for federal elected officials, we vote for them at a state voting location.  There is no federal voting booth.

A current Federal Aviation Administration regulation adopted in 1973 really hits the nail on the head:

https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=03efb7c1b34301bf39ff6d98084cdd45&rgn=div8&view=text&node=14:2.0.1.3.10.1.4.10&idno=14

Title 14: Aeronautics and Space
PART 91—GENERAL OPERATING AND FLIGHT RULES
Subpart A—General
§91.19  Carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances.

(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.

(b) Paragraph (a) of this section does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.

Anyone manufacturing, dispensing, or consuming these products here in Iowa should be able to sleep at night knowing they are in full compliance with all applicable laws, both state and federal.  Let’s resolve this matter in January when the Iowa legislature reconvenes and not leave it for a disabled Iowa citizen to fight it out in court.

Recognition of Extraordinary Work

Recognition of Extraordinary Work

641 Iowa Administrative Code 154
Rules 641—154.15(124E) to 641—154.65(124E)

October 13, 2017

I would like to compliment the Iowa Department of Public Health for the extraordinarily good work it is doing implementing the Medical Cannabidiol Act.  2017 Iowa Acts 451, Chapter 162 (H.F. 524), Iowa Code § 124E (2017).

As I stated in my comments on September 15, 2017, something should be added to the Iowa statutes or the Iowa regulations (or both) regarding compliance with the existing federal Controlled Substances Act.  Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Public law 91-513, 84 Stat. 1236, 1242, 21 U.S.C. ch. 13 §§ 801 et seq.

The U.S. Court of Appeals has clarified that the federal act does not define the term “medical use,” 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’”), and the U.S. Supreme Court has clarified that the term “medical use” under the federal act is defined by state statute.  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.

The Iowa Department of Public Health has flawlessly interpreted state and federal law by including the following statement on the “Owner Certification” form that all Iowa medical cannabidiol manufacturers and dispensaries must sign:

I further acknowledge I have actual notice that, notwithstanding any state law, Cannabis is a prohibited Schedule I controlled substance under Federal law; any activity not sanctioned by Iowa Code chapter 124E and proposed administrative rules may be a violation of state or federal law and could result in arrest, prosecution, conviction, or incarceration and that the $7,500 license application fee is non-refundable.

http://drive.google.com/file/d/0B-cZdbYdPoLGSnZRQWtBUnFTd2c/view?usp=sharing

This is an extremely important detail.  This topic has come up again and again regarding federal law and state medical marijuana programs.  Other states have failed to address it. We are clearly not authorizing federal criminal activity in Iowa.

After submitting my comments on September 15, 2017, I became aware of a federal transportation regulation from 1973 that makes this abundantly clear.

91.19 Carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances.
(a) Except as provided in paragraph (b) of this section, no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in Federal or State statutes are carried in the aircraft.
(b) Paragraph (a) of this section does not apply to any carriage of narcotic drugs, marihuana, and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.

https://www.ecfr.gov/cgi-bin/text-idx?SID=2f570630a822fec80462ab1f3f4dc714&mc=true&node=se14.2.91_119&rgn=div8

Originally, §91.12.  Federal Register, Vol. 38, No. 126, Monday, July 2, 1973, p. 17493 (a copy is attached hereto).

Thank you for your prompt attention to this matter.

Carl Olsen, Executive Director
Iowans for Medical Marijuana, Iowa Business No. 334412
Post Office Box 41381, Des Moines, Iowa 50311-0507
http://www.iowamedicalmarijuana.org/

Attention on medical marijuana shifts to Congress

Attention has shifted from state legislation to Congress and candidates running for federal office. While rumors have been spreading around that the DEA is going to reschedule marijuana in July of 2016, on July 6, Congressman David Young became the first federal elected official from Iowa to co-sponsor H.R. 1538: the CARERS Act of 2015.

david_young
Congressman David Young

Although the CARERS Act is overly complex, it would remove marijuana from federal schedule 1 and recognizes that marijuana does have medical use. I have asked Congressman Young to file an amendment to the CARERS Act that would simply remove marijuana from federal schedule 1 and require the federal administrative agencies to work with the states to come up with reasonable regulations.

On July 4, I wrote Senator Chuck Grassley asking him why his prediction that the DEA would reclassify cannabidiol in the first half of 2016 had not materialized. On July 5, I got a call from David Bleich in Senator Grassley’s DC office. What I learned is that the DEA is telling Senator Grassley that they will rule on the marijuana rescheduling petition filed in November of 2011 by the states of Washington and Rhode Island within the next couple of weeks.

Mr. Bleich referred to a series of letters from Senator Elizabeth Warren requesting updates on the status of pending FDA reviews on cannabis and cannabidiol. Letter of July 9, 2015; Letter of October 15, 2015; Letter of December 21, 2015; Letter of April 4, 2016; Letter of June 23, 2016.

Recent editorials from John Hudak and Grace Wallack at the Brookings Institution on May 27, 2016, and from Jacob Sullum at Reason Magazine on July 4, 2016, explain why they think rescheduling of marijuana by the DEA is very unlikely.

Mr. Bleich also mentioned a new bill being introduced in the Senate Judiciary Committee that seems to have strong bipartisan support, S. 3077: the MEDS Act.  When I wrote to Congressman David Young to thank him for cosponsoring the CARERS Act, I also suggested that he cosponsor the companion bill in the U.S. House of Representatives, H.R. 5549: the Medical Marijuana Research Act of 2016. Again, H.R. 5549 is overly complex and could simply be amended to remove marijuana from federal schedule 1 and instruct the federal agencies to work with the states to come up with reasonable regulations.

What these two bills scream out is that there is something wrong with the way cannabis is classified under federal law. Congress seems to be trying to bend over backward to avoid addressing the issue. S. 3077 and H.R. 5549 would create a slew of exceptions to schedule 1 for marijuana. For example, it would allow a doctor who has a license to prescribe drugs in schedule 5 to conduct research with marijuana without having a schedule 1 license. I’m asking my representatives in Congress to support these bills, even though they are extraordinarily complex, because something is better than nothing. But, I have also asked them to file amendments to simplify these bills.

Finally, Mr. Bleich said he did not expect the FDA review of cannabidiol to be completed before the end of the year. The FDA is still doing safety studies and it will take them an additional 6 months to analyze the 8 factors in 21 U.S.C. § 811(c). Mr. Bleich agrees there is no precedent for rescheduling a molecule and this is the first time the FDA has considered rescheduling a molecule that is not contained in a drug product being submitted for commercial marketing approval. Mr. Bleich said this FDA review was in response to a request from Senator Grassley and Senator Feinstein and was considered to be a petition for rescheduling of CBD. Mr. Bleich said clinical trials with Epidiolex are going well and that pharmaceutical grade CBD may be avaible from GW Pharmaceuticals in the next year or two. And, finally, Mr. Bleich said a company in the southwestern United States is working on manufacturing synthetic CBD.

Special thanks to Paul Armentano, Deputy Director at NORML for sending me information on the company making the synthetic CBD:

FYI: For those interested, the company is Insys Therapuetics and they received FDA orphan drug status for synthetic CBD two years ago:
http://finance.yahoo.com/news/insys-therapeutics-cannabidiol-gets-orphan-193003258.html

They also have a synthetic alternative THC drug (aka Syndros) that recently gained FDA approval: http://www.marketwatch.com/story/insyss-stock-soars-after-cannabis-based-oral-drug-gets-fda-approval-2016-07-05?siteid=yhoof2 joining a handful of other synthetic THC analogues in the market.

This is not an OTT stock but a larger US-based biotech.

Ankeny Legislative Forum April 9 2016

Rep. Kevin Koester
Rep. Kevin Koester
I live in an interesting Iowa House district. My state representative is a Republican. His name is Kevin Keoster and his profession is school administration. Another interesting character who lives in our neighborhood is Dale Woolery, Deputy Director of the Office of Drug Control Policy. As you can imagine, Kevin and Dale know each other and have worked together in the past.

Last week I got an email from Kevin saying that he was going to meet with the medical staff at the University of Iowa to follow up on the study that was called for in the 2014 Medical Cannabidiol Act. He said he might have some questions after that meeting. I didn’t hear from him and I was busy writing my trial brief which was due on Friday.

At our legislative forum yesterday, I asked Kevin how his meeting went with the medical staff. He said it sounded positive for CBD and epilepsy, which of course was the only thing the 2014 Medical Cannabidiol Act asked the University of Iowa to look at. Nevertheless, I was glad to hear the results were positive.

There were three couples there supporting medical marijuana. Two of them spoke and said they had Crohns Disease and wondered why Crohns Disease had been stripped from the bill that is currently pending, HF 2384. Kevin said that legislators were having a hard time understanding the science. The couple asked him what kind of science he was looking for, because they had it. Kevin said he would not understand it if he saw it.

I’ve been following this in the news a lot, and it seems like every legislator in Iowa says they support moving forward on this issue, but none of them can agree on what to do.

After the forum, I met another couple that had contacted me earlier in the week and were just there to listen. Another couple was talking to Kevin and they had a medical condition (I can’t remember if it was a child with epilepsy). A man sitting next to me said he knew one of the patients that spoke at the capitol on March 22, 2016. I’m amazed at how many people are expressing support for medical marijuana at these forums.

Kevin told the couple talking to him that I had single handedly presented this issue to the Iowa Board of Pharmacy in 2009 and the board agreed it was medicine. I told Kevin that we presented evidence to the Iowa Board of Pharmacy in 2009 because the law says that board is the authority in Iowa, but the legislators would not listen. So, that is why the legislators don’t understand the science now. When the board looked at it, as they are required by law to do, the legislators did not want to hear it. So, now medical decisions are being made by legislators who can’t agree on what to do. Oh my!

I asked Kevin if he could send me anything from the University of Iowa presentation earlier in the week and he sent me these two files. The first one is the slide presentation Dr. Joshi presented to the Iowa House legislators last week. The second one is a presentation by Dale Woolery of the Office of Drug Control Policy.

Stay tuned for further developments on this story.

The Marijuana Scheduling Story

Jon Gettman
Jon Gettman

Jon Gettman wrote an article in High Times Magazine by the title Pot Matters: The Rescheduling Trap, on Monday, February 29, 2016, detailing his attempts to have marijuana federally rescheduled. I was a petitioner in Mr. Gettman’s most recent attempt to have marijuana rescheduled, and I will share my perspective.

The trap Mr. Gettman refers to is known in technical legal jargon as the rational basis test[1]. What that means is the expert decision of the administrative agency charged with keeping marijuana’s classification current will not be overturned by a court if the decision is rational. Mr. Gettman argued that the classification was not rational. Like many before him and many after him, Mr. Gettman’s argument was rejected. It’s an argument that is guaranteed to fail. If Mr. Gettman wants to call that a trap, so be it. The outcome was predictable.

Judges are not medical experts and differences of opinion between medical experts on marijuana’s medical use are simply resolved in favor of the status quo. To win the rational basis argument the witnesses would have to be in total agreement[2].

The 1972 Rescheduling Petition

I was a petitioner in the marijuana rescheduling petition filed by NORML in 1972. I joined the NORML petition in 1985. The petition was granted by the DEA’s Chief Administrative Law Judge, Francis L. Young, in 1988[3]. The administrative law judge’s ruling was overruled by the DEA Administrator citing a difference of opinion among medical experts[4]. The appeal court applied the “rational basis” analysis and upheld the administrator’s denial of the administrative law judge’s ruling citing a difference in opinion among the expert witnesses.

My 1983 Rescheduling Petition

I filed a petition with the DEA in 1983 asking for an exemption from federal scheduling for the Ethiopian Zion Coptic Church, similar to the one that exists for the sacramental use of peyote by the Native American Church[5]. The Ethiopian Zion Coptic Church is a Rastafarian church incorporated in Jamaica in 1976 that uses cannabis as it’s sacrament[6]. My request was denied, but the court specifically said I had Article III (U.S. Constitution) standing to access the federal courts[7].

In 1990, the United States Supreme Court rejected my request by refusing to recognize a federal exemption for the sacramental use of peyote[8]. This ruling was later overturned by Congress[9]. However, the court had the last word and overruled Congress[10]. So, the end result is that state law trumps a federal regulation as long as the state law is neutral toward religion and generally applicable (hold that thought of state law being of greater authority than a federal regulation, because I’m going to come back to it again later).

My 1992 Rescheduling Petition

I filed a petition with the DEA in 1992 arguing that THC had been rescheduled to federal schedule 2 in 1986 and internationally in 1991. I argued the plant THC comes from should be scheduled no higher than the principle psychoactive ingredient in the plant. My petition was denied because THC was being manufactured synthetically and marijuana was not used to make it[11].

While my appeal was pending in the federal courts, my attorney started a class action based on the rational basis argument that failed to make it out of federal district court in Pennsylvania[12].

Gettman’s 1995 Rescheduling Petition

Dr. Gettman and High Times Magazine filed their first petition to reschedule marijuana in 1995. When they tried to appeal from the denial of their request, the United States Court of Appeals said they did not have standing to access federal courts[13]. Standing is a legal term that means a concrete injury. The court ruled that because Dr. Gettman and High Times were merely advocates, they did not have the direct injury required to have Article III (U.S. Constitution) standing to access the federal courts.

Gettman’s 2002 Rescheduling Petition

Dr. Gettman filed another rescheduling petition in 2002 and asked me and several others, including Americans for Safe Access (ASA) and the National Organization for the Reform of Marijuana Laws (NORML), to join as co-petitioners. Dr. Gettman told me the rescheduling petitions I filed in 1983 and 1992 inspired him to file his own rescheduling petitions and he wanted to include me.

My 2008 Rescheduling Petition

I want to come back now to that thought I told you to hold about state laws superseding federal regulations. In 2006 the United States Supreme Court ruled that state laws defining medical use of controlled substances to assist in suicide were lawful because the federal government does not have the authority to preempt them using federal regulations[14]. I spoke to Mr. Gettman about this and suggested that we amend our petition to include this argument, because there were 8 states that had accepted the medical use of marijuana in 2002 and several more by 2006. Mr. Gettman said he did not want to amend the petition and that we were going to win based on science (the rational basis argument).

So, in 2008 I filed a petition to reschedule marijuana with the Iowa Board of Pharmacy and the only evidence I presented was 12 state laws accepting the medical use of marijuana. I said this was accepted medical use in the United States. Iowa law says marijuana must continue to have no accepted medical use in the United States, just like federal law, so I argued the accepted medical use of marijuana in other states was proof that marijuana is incorrectly classified under both state and federal law. Federal scheduling is done by regulation, not by statute, so I argued state laws supersede federal regulations and Iowa law refers to other laws in other states (because Iowa gets that phrase from federal scheduling).

The board denied my petition without ruling on my argument, but an Iowa District Court remanded the case and ordered them to rule on my argument[15]. The board then ruled unanimously in 2010 that marijuana is medicine and should be removed from schedule 1. I contacted Mr. Gettman again and showed him my results. Mr. Gettman still refused to amend our petition, saying he was going to win on science (the rational basis argument). I then notified all of the parties and the DEA that I was withdrawing from the other petitioners and intervening separately on my own.

The Rest of the Story

In 2011, the DEA rejected Mr. Gettman’s petition citing a difference in expert medical opinion, and in 2013, the U.S. Court of Appeals rejected Mr. Gettman’s petition citing a rational basis based on conflicting expert testimony[16]. The Court did not rule on my argument, but simply said I had a religious interest in marijuana. The dissenting judge said my argument was federalism and that was not the argument the other petitioners were making.

The most ironic part of the case was that the petitioners almost failed to show standing. They failed to show standing in their opening appeal brief, and failed again to show standing in their reply brief. At the oral argument, one of the petitioners who said he was being denied Veterans Administration benefits in Virginia (a state that did not allow medical use of marijuana) said that he lived in Oregon part of the year and possessed an Oregon medical marijuana card. The court asked for supplemental briefs and affidavits on standing and then gave the petitioner standing to lose the case on the merits because of the rational basis analysis. It’s ironic, because that was my argument. State laws matter.

So, Mr. Gettman’s warning should simply be don’t do what he did. There is an argument for rescheduling, but it’s not the one he made.

[1] Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013); Americans for Safe Access v. DEA, 134 S. Ct. 267, 187 L. Ed. 2d 151 (U.S., 2013); Olsen v. DEA, 134 S. Ct. 673, 187 L. Ed. 2d 422 (U.S., 2013).

[2] See, United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal., Apr. 17, 2015).

[3] DEA Docket No. 86-22, Sept. 6, 1988.

[4] Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 289 U.S. App. D.C. 214 (1991); 15 F.3d 1131, 304 U.S. App. D.C. 400 (1994).

[5] 21 C.F.R. § 1307.31.

[6] Olsen v. DEA, 279 U.S. App. D.C. 1, 878 F.2d 1458 (1989); Olsen v. DEA, 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990); See, Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979) (“the Ethiopian Zion Coptic Church represents a religion within the first amendment to the Constitution of the United States, the use of cannabis is an essential portion of the religious practice, the Ethiopian Zion Coptic Church is not a new church or religion but the record reflects it is centuries old and has regularly used cannabis as its sacrament”).

[7] Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990). The Court of Appeals found: “Olsen is a member and priest of the Ethiopian Zion Coptic Church,” 878 F.2d at 1459, “the Ethiopian Zion Coptic Church is a bona fide religion with marijuana as its sacrament” 878 F.2d at 1460, and “even if the DEA were not empowered or obliged to act, Olsen would be entitled to a judicial audience” 878 F.2d at 1461.

[8] Employment Division v. Smith, 494 U.S. 872 (1990).

[9] Religious Freedom Restoration Act of 1993 (RFRA), Public Law 103-141, 187 Stat. 1488, Nov. 16, 1993.

[10] Boerne v. Flores, 521 U.S. 507 (1997).

[11] 1996 U.S. App. LEXIS 30353; Olsen v. DEA, 519 U.S. 1118, 117 S. Ct. 964, 136 L. Ed. 2d 849 (1997).

[12] Kuromiya v. United States, 37 F. Supp. 2d 717, 1999 U.S. Dist. LEXIS 2627 (E.D. Pa., 1999); Kuromiya v. United States, 78 F. Supp. 2d 367, 1999 U.S. Dist. LEXIS 18297 (E.D. Pa., 1999).

[13] Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002).

[14] Gonzales v. Oregon, 546 U.S 243 (2006).

[15] McMahon v. Iowa Board of Pharmacy, No. CV7415 (Iowa District Court, Polk County, April 21, 2009). I filed the petition and McMahon intervened in it. McMahon filed the appeal and I intervened in it. McMahon was represented by the ACLU of Iowa, and I represented myself.

[16] See footnote 1.

Massacre at the Iowa Statehouse

Sally Gaer speaks at the Press Conference
Sally Gaer speaks at the Press Conference

I spent some time at the State Capitol this week attending a press conference for House Study Bill 607 on February 9 and a subcommittee hearing on the bill on February 17.

Bob Vander Plaats speaks at the Press Conference
Bob Vander Plaats speaks at the Press Conference
Peter Cownie speaks at the Press Conference
Peter Cownie speaks at the Press Conference
Rep. John Forbes, Rep. Guy Vander Linden, and Rep. Zach Nunn
Rep. John Forbes, Rep. Guy Vander Linden, and Rep. Zach Nunn

I took a few pictures and made an audio recording of the hearing, but I forgot to turn on the recording device for the first ten minutes. The audio recording picks up about half way through the first witness, Dr. David Drake.

The hearing was brutal. The bill that was supposed to be on the table was House Study Bill 607, but at the beginning of the hearing they announced it has been switched for substitute amended version. I did not get a copy of the substitute amended version until the next day. They were handing something out at the hearing which could have been a printed copy of the substitute amended version, but people came prepared to speak on a bill that was no longer on the table and that was the most savage thing I’ve ever seen. The original bill included several medical conditions and the substitute amended version only had three. So, people were there who actually had illnesses that were removed from the bill while they were sitting there waiting to give their testimony. Several people had complete emotional breakdowns. It was not pretty. After this grisley affair, the subcommittee voted on the substitute amended version favorably by a vote of 3-0 and sent it to House Committee on Commerce which then voted favorably on it by a vote of 17-6.

Of particular interest to me, the rescheduling of the marijuana plant was removed from the substitute amended version. Also, of particular interest to me were the objections from Chip Baltimore, chair of the House Committee on Judiciary. Rep. Baltimore objected to the bill because it does not comply with federal scheduling. The substitute amended version removed rescheduling so it is now completely inconsistent with federal scheduling. It seems stupid to remove rescheduling, but so does getting sick people to fill a room and testify under false pretenses. I hope the photo op was worth torturing those people.

Iowa Board of Pharmacy Open Records Request 2015

This is an update to my two previous articles:

On January 14, 2015, the Office of Drug Control Policy (ODCP) made changes to the Iowa Board of Pharmacy (IBPE) legislative proposal for 2015, without notifying me.

Ruling to Maintain Marijuana in Schedule 1 January 5, 2015: Ruling on Marijuana 45 KB
Ruling to Transfer Cannabidiol to Schedule 2 January 5, 2015: Ruling on Cannabidiol 48 KB
Minutes from the January 5-6 Meeting January 10, 2015: IBPE Meeting Minutes 5,568 KB
Email to Carl Olsen and ODCP with the 2 Rulings January 14, 2015: Email to Carl Olsen and ODCP 65 KB
Email to ODCP with the Revised Cannabidiol Ruling January 14, 2015: Email to ODCP 146 KB
Revised Ruling on Cannabidiol January 14, 2015: Revised Ruling on Cannabidiol 50 KB

Not only was I not notified, the January 10, 2015, meeting minutes were altered without any documentation noting the change or who authorized it. You can see the substituted ruling attached to those minutes, which are still signed and dated on January 10, 2015. These changes were not significant, as far as my petition is concerned, but it does show a complete disregard for due process. The Office of Drug Control Policy got a copy of the changed ruling on my petition, but the courtesy was not extended by sending me a copy of the changed ruling when they made the changes to it.

But, the purpose of my open records request was not to uncover chicanery. I wanted to know what happened to the cannabidiol proposal. Was the governor notified? Was the legislature notified? The typical process the Iowa Board of Pharmacy follows is to prefile a bill before the legislative session begins, which they did in 2012, 2014, and 2015 and are doing now for 2016. Iowa Code § 2.16 allows state agencies to prefile legislation 45 days in advance of a session. Cannabidiol is not in the proposed legislation for 2015 or 2016, so what happened to it?

Senator Steven J. Sodders
Senator Steven J. Sodders

So, we’ve established through this open records request that the usual process used to notify the legislature did not take place. On January 16, 2015, Senator Steven Sodders invited the executive director of the pharmacy board to attend the hearing on his proposal (SSB1005) to transfer marijuana from schedule 1 to schedule 2. Remember now, the board just voted against this on January 5, 2015. But, the board actually did vote to transfer marijuana from schedule 1 to schedule 2 in 2010. Can you say mixed signals?

Invitation to Hearing on SSB1005 January 16, 2015: Invitation to Hearing on SSB1005 50 KB
Cancellation of Hearing on SSB1005 January 20, 2015: Cancellation of Hearing on SSB1005 15 KB

The last entry for SSB1005 is January 14, 2015. The proposed meeting on January 20, 2015, never took place.

However, this was not the end of it. Toward the end of the legislative session, the Democrats decided to get aggressive and introduced a medical marijuana bill. In preparation, the pharmacy board was again invited to particpate. The executive director of the pharmacy board resigned suddenly and unexpectedly at the end of March 2015. So, the interim director, Terry Witkowski, provided input to the Republican Caucus Staff. I’m guessing this is because Senator Charles Schneider sent me an email on April 19, 2015, reminding me that he voted in favor of transferring marijuana from schedule 1 to schedule 2 at the interim study committee hearing on September 11, 2014.

Email from Terry Witkowski to Josh Bronsink April 7, 2015: Email to Republican Caucus Staff 438 KB
Attachment #1 January 14, 2015, Recommendation from the Pharmacy Board 341 KB
Attachment #2 February 17, 2010, Recommendation from the Pharmacy Board 9 KB
Attachment #3 February 17, 2010, Minutes from the Pharmacy Board 95 KB

On April 14, 2015, Senator Sodders filed an amendment to SF 484, which would transfer marijuana from schedule 1 to schedule 2, S-3123. All of the Republicans in attendance on April 15, 2015, voted in favor of S-3123 by a vote of 44-0-6, but then voted against SF 484 which narrowly passed by a vote of 26-19-5.

Again, on April 30, 2015, Senator Sodders filed an amendment to HF 567, which would transfer marijuana from schedule 1 to schedule 2, S-3148, which narrowly passed on May 5, 2015, by a vote of 27-23.

These two bills, SF 484 and HF 567 are currently pending in the Iowa House of Representatives. HF 567 has already been passed in the Iowa House, but the amendment, H-1340 (S-3148 in the Iowa Senate), must still be considered before it becomes final.

It’s Not Over Yet

Dreaming
Dreaming of a brighter future in Iowa
There has been a lot of partisan bickering in the Iowa legislature over medical marijuana this year, and it’s not over yet.  Since Iowa enacted a medical cannabis extract law (2015 Iowa Code Chapter 124D – Medical Cannabidiol Act) last year, no one has been able to obtain it legally.  Cannabidiol is not approved by the Food and Drug Administration (FDA) and cannot be obtained legally anywhere in the United States.  So, the question is when a state enacts a law accepting the medical use of something that is not approved by the federal government, how does that work?

You’ll have to admit, this doesn’t happen very often.  Without a thorough understanding of the foundations of the international, federal, and state drug laws, it’s a difficult question to answer.  The answer lies, however, in the prefatory notes in the Uniform Controlled Substances Act, “Legitimate use of controlled substances is essential for public health and safety, and the availability of these substances must be assured.”

Iowa Democrats have been promoting the cultivation and use of marijuana for medical purposes here in Iowa.  A phrase you’ll often hear at the Capitol is, “Twenty-three states have already done this and Iowa does not need to reinvent the wheel.”  But, is it really that simple?  Have twenty-three states actually figured this out, or do we need to reinvent the wheel?

My opinion is that until states partner with the federal government, a safe and regulated supply of medical cannabis will not happen and patients will be at risk.  Major professional medical organizations (the American Academy of Neurology and the American Academy of Pediatrics) have already begun to ask the federal government to cooperate by removing marijuana from the restrictive federal classification that says it’s not medicine anywhere in the United States.  Really?  I thought there were twenty-three states that had accepted it.

I think it’s time we had a serious discussion with the federal government, but I don’t think major professional medical organizations carry as much weight as state governments.  After all, what is the federal government?  Isn’t the federal government just a union of states?  I thought so.  I think that’s what I learned in school.

When I talked to my state senator, Jack Whitver, he agreed to give this approach a try.  Senator Whitver is a Republican and an attorney by profession.  He understands law.  So, I have a unique situation.  My senator understands law and I have a legal argument.  We actually speak the same language.  However, when he tried to get the other Republicans to sign on to it, the Senate Republican Caucus refused and came up with a defective plan to trade the Democrats nothing for something.  The details follow.

The story begins on April 15, 2015, with Senate Amendment S-3126 (a proposal to change marijuana’s classification in Iowa) offered by the Senate Republicans in return for striking the entire Medical Cannabis Act, SF 484, proposed by the Democrats.  Changing the classification of marijuana in Iowa without changing it at the federal level does absolutely nothing.  It might be good symbolism and that’s a good reason to do it, but in reality it does absolutely nothing for sick and injured people.  It was not a good deal (nothing for something) and the Senate voted it down (thanks for nothing, Republicans).  Here is a breakdown of the votes on S-3126 by party: 19 Senate Republicans – Aye; 5 Senate Republicans – Absent; 1 Senate Democrat – Aye; 24 Senate Democrats – Nay; 1 Senate Democrat – Absent.

After that bogus deal, the Senate Democrats offered Senate Amendment S-3123 (a proposal to change marijuana’s classification in Iowa) offered as an addition to the Medical Cannabis Act, SF 484, proposed by the Democrats.  Reclassification does nothing, but it’s nice symbolism and goes along nicely with the Medical Cannabis Act, SF 484.  The Senate voted to adopt S-3123 unanimously.  Here is a breakdown of the votes on S-2123 by party: 19 Senate Republicans – Aye; 5 Senate Republicans – Absent; 25 Senate Democrats – Aye; 1 Senate Democrat – Absent.

Stop now and realize that every Democrat and every Republican just agreed that marijuana is medicine.  Think about that for a moment, or longer if you have time.

However, the vote on the Medical Cannabis Act was divided again.  Here is a breakdown of the votes on SF 484 by party: 1 Senate Republican – Aye; 18 Senate Republicans – Nay; 5 Senate Republicans – Absent; 25 Senate Democrats – Aye; 1 Senate Democrat – Nay.  You can see that a single Republican (thank you, Senator Zaun) gave the Democrats enough votes to barely squeak this one through.  SF 484 was then assigned to the House Committee on Public Safety to die.

Not willing to go down easy, on May 5, 2015, the Senate Democrats proposed amendment S-3148 (reclassifying marijuana as medicine) to HF 567 (adding synthetic poisons to the same classification marijuana is currently in).  The Senate narrowly adopted the amendment and sent the bill back to the House (thank you, again and again, Senator Zaun).  Here is a breakdown of the votes on S-3148 by party: 1 Senate Republican – Aye; 23 Senate Republicans – Nay; 25 Senate Democrats – Aye; 1 Senate Democrat – Nay.  Here is a breakdown of the votes on HF 567 by party: 1 Senate Republican – Aye; 23 Senate Republicans – Nay; 26 Senate Democrats – Aye.

So, the House Republicans got really upset about HF 567 being amended by the Senate.  On May 20, 2015, House Republicans proposed an amendment H-1365 (adding synthetic poisons to the same classification marijuana is currently in) to SF 510 (the standing appropriations bill).  Not to be outdone, the House Democrats propose their own amendment H-1379 (legalizing medical marijuana) to H-1365.  Both amendments were ruled not germane to the standing appropriations bill, but the House Democrats were unable to suspend the rules to vote on their amendment while the House Republicans were able to successfully suspend the rules to vote on their amendment.  Here is a breakdown of the votes to suspend the rules for H-1379: 2 House Republicans – Aye; 53 House Republicans – Nay; 2 House Republicans – Absent; 41 House Democrats – Aye; 2 House Democrats – Absent.  Here is a breakdown of the votes on H-1365: 55 House Republicans – Aye; 2 House Republicans – Absent; 41 House Democrats – Nay; 2 House Democrats – Absent.

So, what does all of this mean?  We have SF 484 dead in the House.  We have HF 567 dead in the House.  We have SF 510 dead in the Senate.  We know there will be a budget bill.  And, we know synthetic poison isn’t going to be ignored another year.  But, all the bills appear to be dead.

My state senator, Senator Whitver, tells me the House amendment, H-1365 (adding synthetic pot to the list of controlled substances and granting a longer period for temporary scheduling from 60 days to 2 years), to SF 510 (the budget appropriations bill) is probably dead.  The senate will not adopt the amendment.  He does not know exactly how the budget will be resolved, but it could go to a conference committee.

My state representative, Representative Koester, tells me SF 484 can still be debated in the House if there is a motion to suspend the rules, and it can still be tacked onto another bill as an amendment if it’s germane, or by motion to suspend the rules if it’s not germane.

So, everything is still on the table until the legislature adjourns.  If you support SF 484, now is the time to get on down to the state Capitol and ask for a motion to suspend the rules to get this on the House floor for debate this year.  There’s not much time left.

My Plan

Grotesque 1
Grotesque 1
People are always asking me what my plan is, so I’m going to try to explain. I made my plan in 2006, shortly after the U.S. Supreme Court decision in Gonzales v. Oregon, 546 U.S. 243 (2006). In Gonzales v. Oregon, the U.S. Supreme Court found that states make most of the medical decision under the federal controlled substances act. The Court starts out by affirming that Congress can preempt state laws on accepted medical practice. Gonzales v. Oregon, 546 U.S. at page 271 (“Even though regulation of health and safety is ‘primarily, and historically, a matter of local concern,’ there is no question that the Federal Government can set uniform national standards in these areas”) (citations omitted). The Court goes on to say that Congress has only preempted state public health and safety laws in one area. Gonzales v. Oregon, 546 U.S. at page 271 (“the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts”).

Grotesque 2
Grotesque 2
Having studied federal scheduling of controlled substances for many years, I was aware that previous court rulings had mentioned that Congress did not define the phrase “accepted medical use in treatment in the United States,” the sole condition for placing a substance in federal schedule 1. Alliance for Cannabis Therapeutics v. Drug Enforcement Administration (ACT v. DEA), 930 F.2d 936 at page 939 (D.C. Cir. 1991) (“The difficulty we find in petitioners’ argument is that neither the statute nor its legislative history precisely defines the term ‘currently accepted medical use’; therefore, we are obliged to defer to the Administrator’s interpretation of that phrase if reasonable”). When I read Gonzales v. Oregon, a light turned on in my head. In 1991, when ACT v. DEA was decided, there were no states that had accepted the medical use of marijuana in treatment, so the DEA administrator’s interpretation seemed reasonable at that time. The DEA administrator in ACT v. DEA ruled there was a lack of consensus among medical experts. There were obviously no state laws legalizing the medical use of marijuana in treatment in 1991 for the administrator to consider.

Grotesque 3
Grotesque 3
So, a plan was born. The plan is simple, and this is what throws people off. People think I’m trying to legalize marijuana for recreational or medical use, both of which I support. But my plan is not some detailed legislative proposal to enact a state law that would still leave marijuana illegal under federal law. This is the failure of state medical and recreational marijuana laws; you are still a federal criminal if you use marijuana for any reason. So, my plan is simply to get marijuana out of schedule 1, both state and federal. I have to start somewhere, so I’m starting at the state level first.

Grotesque 4
Grotesque 4
People then ask me if I’ll propose recreational or medical marijuana after marijuana is removed from state schedule 1. The answer is no. I’ll propose removing marijuana from federal schedule 1 when marijuana is removed from state schedule 1. It’s that simple. It’s so simple, it throws people off. It should not be this difficult to understand, but it is for some reason. I suppose the simple explanation is that we’ve had these schedules for 45 years and nothing in schedule 1 has ever been accepted for medical use by any state, except marijuana. Since 1996, a total of 34 states and two federal jurisdictions (DC and Guam) have accepted the medical use of marijuana in treatment. An additional 4 states have legalized recreational use since 2012. Unlike other substances in schedule 1, marijuana even had accepted medical use in treatment in the United States before these laws were written 45 years ago.

The reason we have 50 state drug laws is because the federal drug law was never intended to be one drug law to rule them all (50 states). We have 50 state drug laws for a good reason. It’s because our government is a dual system known as federalism.