House Concurrent Resolution 104 is a Bad Idea

On January 19, 2018, some Iowa legislators with good intentions filed House Concurrent Resolution 104 (HCR104), asking the federal government to reclassify marijuana.

Although the intention is good, HCR104 is bad.

Iowa needs to clean up its own affairs before making a fuss about the mess the federal government is perpetuating.  Before addressing federal drug law, legislators should consider why we have 50 different state drug laws that all differ from federal drug law and from each other.  It’s called “federalism” and it’s our system of government in these united states.

It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Justice Louis Brandeis’ dissent in New State Ice Co. v. Liebmann (1932)

The scheduling of marijuana in Iowa has not been consistent with federal scheduling since 1979 when the Iowa legislature decided to put marijuana into two schedules, schedule 1 and schedule 2.  Marijuana is only in federal schedule 1, not in two schedules.

Compare Iowa Code § 124.204(4)(m) (2018) and Iowa Code § 124.206(7)(a) (2018) with federal regulation 21 C.F.R. § 1308.11(d)(23) (2017).  And see, State v. Bonjour, 694 N.W.2d 511 (Iowa 2005) (detailing the history of Iowa’s dual scheduling of marijuana).

Furthermore, the scheduling of THC in Iowa has not been consistent with federal scheduling since 2008 when the Iowa legislature decided to put naturally extracted THC products in state schedule 3.  Naturally extracted THC products are in federal schedule 1, not in schedule 3.

Compare Iowa Code § 124.208(9)(b) (2018) with federal regulation 21 C.F.R. § 1308.13(g)(1) (2017).

It is beyond question that Iowa can determine it’s own scheduling on marijuana and THC, and Iowa has consistently done so.

Asking the federal government to reclassify marijuana to federal schedule 2 while leaving marijuana in state schedule 1 is a really bad idea.

Iowa should place marijuana in state schedule 2, as the bill the Iowa Board of Pharmacy filed in 2011 would have done, before asking the federal government to do something we won’t do as an act of good faith.

Iowa must show good faith and leadership by removing marijuana from state schedule 1 and then reminding the federal government that its illegal to violate our state sovereignty.

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Medical Professionals Practicing Law Without Licenses

Iowa has a new health crisis, medical professionals practicing law without licenses.

In an effort to make cannabidiol as unhealthy and risky as possible, medical professionals in the Iowa House of Representatives are claiming the law they just helped enact violates federal law.  This is known in law as criminal intent (known in legal terms as “mens rea” or guilty mind), if it was actually true that cannabidiol violates federal law (which it is not).

For a while, it seemed that the House Speaker, Linda Upmeyer, a registered nurse, was the only elected official making these absurd public statements about the law she just helped enact, but now we have Representative John Forbes, a licensed pharmacist, saying same thing.  At least we can say the effort to betray Iowans is non-partisan, but that doesn’t make it any less repugnant.

Here are the quotes from House Speaker Linda Upmeyer:

She says they are already anticipating doing this bill with the possibility of breaking two federal laws.

KGLO Radio – Mason City, Iowa – March 27, 2017

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.

Des Moines Register – Des Moines, Iowa – September 10, 2017

And, here is the quote from Representative John Forbes:

I mean, we are violating federal law with a cannabis bill here in the state of Iowa.

Iowa Public Television – Johnston, Iowa – December 22, 2017

We know this is some kind of an addiction to federal boot licking, but state legislators can do better than this!

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Congressman Young Betrays Iowans

Today, I was told that U.S. Representative David Young is co-sponsoring federal legislation, H.R. 2920, that he has now been notified creates a direct, positive conflict with our state law.

H.R. 2920 was written by U.S. Representative Steve Cohen who represents the state of Tennessee.

Last year, on July 6, 2016, Congressman Young co-sponsored Congressman Cohen’s federal legislation, H.R. 1538, that defined ‘cannabidiol’ as the substance cannabidiol, as derived from marihuana or the synthetic formulation, that contains not greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis, H.R. 1538 § 4(2).

H.R. 1538 further authorized the Attorney General of the United States to determine whether State law authorizing the cultivation and manufacture of marijuana to make cannabidiol is reasonably calculated to comply with the new federal definition of cannabidiol, H.R. 1538 § 5.

In 2016, 2014 Iowa Acts, Chapter 1125 (S.F. 2360) allowed the possession only of cannabidiol, defined as a nonpsychoactive cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof that is essentially free from plant material, and has a tetrahydrocannabinol level of no more than three percent, Iowa Code § 124D.2(1) (2016).

Because Iowa law did not authorize the cultivation or manufacture of marijuana to make cannabidiol in 2016, H.R. 1538 did not create a direct, positive conflict with our state law.

However, in 2017, 2017 Iowa Acts, Chapter 162 (H.F. 524) allowed the cultivation and manufacture of marijuana to make cannabidiol in Iowa, and changed the definition of cannabidiol to 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, Iowa Code § 124E.2(6) (2017).

Please note the 2014 Iowa law defined cannabidiol as “a” cannabinoid (singular) and the 2017 Iowa law defines cannabidiol as “any” cannabinoid (plural).

The 2017 act became law on May 12, 2017.  Congressman Young co-sponsored H.R. 2920 on September 11, 2017, adopting Congressman Cohen’s definition of cannabidiol and creating a conflict with our state law rather than defending us.

Like a lot of other states, Iowa is not waiting around for the federal government to figure this out.  The federal government has been foot dragging and stone walling on this issue for decades.

When I asked Congressman Young to explain, his staff said they have contacted Congressman Cohen and Congressman Cohen’s staff did not know why that definition of cannabidiol is in his bill and why it gives the U.S. Attorney General any say in the matter.  According to Congressman Young’s staff, Congressman Cohen’s staff said it was put there at the request of U.S. Senator Kristin Gillibrand who represents the state of New York.

This is insane!  Congressman Young is not defending us.

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Chuck Grassley – a day late and a dollar short

Earlier this year, Iowa legalized the cultivation of marijuana for medical use, by a vote of 83-11 in the Iowa House and by a vote of 33-7 in the Iowa Senate.  The bill was signed into law by our governor on May 12, 2017 Chapter 162 (H.F. 524).

On December 18, 2017, I wrote U.S. Senator Chuck Grassley a letter asking him to sponsor legislation like his former chief of staff, U.S. Representative David Young has sponsored in Congress this year (H.R.2920) and last year (H.R.1358) protecting our state medical marijuana law.

On December 21, 2017, Chuck replied: “Over the years, some people have expressed the view that marijuana should be legalized for recreational, medical, and agricultural purposes.  However, I disagree with this view.”

“Some people,” as Chuck refers to, are the people he is supposed to represent in Washington, DC.  People to Chuck: “It’s too late to close the barn door after the horse has bolted.”

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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).

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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.

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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/

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Comments on Proposed Rules

Comments on Proposed Amendments to
641 Iowa Administrative Code 154
Rules 641—154.15(124E) to 641—154.65(124E)
September 15, 2017

The Medical Cannabidiol Act, 2017 Iowa Acts 451, Chapter 162 (H.F. 524), was signed into law on May 12, 2017, by Governor Terry E. Branstad.

Section 9(1) of the Act, Iowa Code § 124E.5(1) (2017), authorizes the Iowa Department of Public Health to issue a license to a “manufacturer” which allows cultivation and harvesting of cannabis in Iowa.

Section 10(8) of the Act, Iowa Code § 124E.6(8) (2017), requires a “manufacturer owner shall not have been convicted of a disqualifying felony offense.”  See, Section 5(4) of the Act, Iowa Code § 124E.2(4) (2017), referencing 21 U.S.C. § 802(6).

Section 11(1) of the Act, Iowa Code § 124E.7(1) (2017), authorizes the Iowa Department of Public Health to issue a license to a “dispensary” which allows distribution of cannabis products in Iowa.

Section 12(8) of the Act, Iowa Code § 124E.8(8) (2017), requires a “dispensary owner shall not have been convicted of a disqualifying felony offense.”  See, Section 5(4) of the Act, Iowa Code § 124E.2(4) (2017), referencing 21 U.S.C. § 802(6).

As recently as September 10, 2017, Speaker of the Iowa House, Linda Upmeyer, is quoted in the Des Moines Register, stating that the manufacture and distribution of cannabidiol in Iowa is a federal felony offense.  Des Moines Register, September 10, 2017, “AG tells agency to halt part of Iowa’s medical marijuana law.”[Footnote 1]  Speaker Upmeyer is quoted as stating:

no matter what the Legislature has decided, the state still would have been in violation of federal law

So, as stated by Speaker Upmeyer, a disqualifying offense disqualifies someone from participating in a disqualifying offense.  According to Speaker Upmeyer, the Iowa Department of Public Health will be licensing individuals to engage in disqualifying offenses (continuing criminal enterprises) that carry up to life in federal prison and fines of up to $50,000,000.[Footnote 2]

Federal Regulations

Although this author disagrees with Speaker Upmeyer’s assertion that H.F. 524 violates federal law, this clearly demonstrates what we are about to step into.  The Iowa Medical Cannabidiol Act of 2017 doesn’t explain how the intrastate manufacture and distribution of cannabidiol products is consistent with existing federal law.

The Drug Enforcement Administration (DEA) has recently published a notice in the Federal Register clarifying that cannabidiol products are federal schedule 1 controlled substances.[Footnote 3]  The DEA has further clarified that cannabidiol products are federal schedule 1 controlled substances on its website.[Footnote 4]

Without a statement of compliance with existing federal law, the rules the Iowa Department of Public Health is proposing will place manufacturers and distributors in extreme jeopardy, as well as the Iowa patients who will depend on them for their medicine.  Speaker Upmeyer has clearly warned you of the consequences of leaving this matter unsettled.  The fact that she would even put her name on a piece of legislation she thinks violates federal law is astounding.

The Iowa Department of Public Health can and must resolve this problem which has been clearly articulated by Speaker Upmeyer.  The administrative rules implementing this legislation must address the concerns she has raised.

Please see this author’s previous comments from July 25, 2017, for a complete legal analysis explaining why state medical marijuana programs are consistent with existing federal law and exempt from schedule 1.[Footnote 5]

Conclusion

The regulations implementing H.F. 524 must include an explanation of compliance with existing state and federal law.  This can’t be left to the imagination.  The Iowa Department of Public Health has the authority to take corrective action by administrative rule.  Each manufacturer and dispensary license must include a statement that the license immunizes the manufacturer or dispensary from federal prosecution that would result from the false assumption that intrastate medical use of marijuana is included in schedule 1 of the state and federal controlled substances acts.  H.F. 524 satisfies both state and federal requirements because it provides a complete exemption from state and federal schedule 1.

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/

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Comments on Proposed Rules

Comments on Proposed Amendments to
641 Iowa Administrative Code 154
“Medical Cannabidiol Act Registration Card Program”
July 25, 2017

The Medical Cannabidiol Act, 2017 Iowa Acts 451, Chapter 162 (H.F. 524), was signed into law on May 12, 2017, by Governor Terry E. Branstad.

Section 7(1) of the Act, Iowa Code § 124E.4(1) (2017), authorizes the Iowa Department of Public Health to issue a registration card to a “patient” which then provides that patient with an “affirmative defense” for the possession of cannabidiol products in Iowa.  See Section 15(4)(a) of the Act, Iowa Code § 124E.11(4)(a) (2017).

Section 7(3) of the Act, Iowa Code § 124E.4(3) (2017), authorizes the Iowa Department of Public Health to issue a registration card to a “primary caregiver” which then provides that primary caregiver with an “affirmative defense” for the possession of cannabidiol products in Iowa.  See Section 15(4)(b) of the Act, Iowa Code § 124E.11(4)(b) (2017).

Federal Regulations

The Iowa Medical Cannabidiol Act of 2017 does not explain how possession of cannabidiol products is consistent with existing federal regulations.

The Drug Enforcement Administration (DEA) has recently published a notice in the Federal Register clarifying that cannabidiol products are federal schedule 1 controlled substances.[1]  The DEA has further clarified that cannabidiol products are federal schedule 1 controlled substances on its website.[2]

Attached to this document are two letters from the Iowa Board of Pharmacy dated May 31, 2017, and June 7, 2017, confirming that cannabidiol products are both federal and state schedule 1 controlled substances.

There are no federally approved cannabidiol products.  Without an explanation in the rules the Iowa Department of Public Health is proposing, Iowa patients are left facing a potential hazard.

This document explains why the Iowa Department of Public Health must resolve any inconsistency or doubt by administrative rule.

Federal Penalties

The Federal penalties for possessing cannabidiol products are quite severe, with penalties ranging from 1 to 3 years in federal prison and fines ranging from $1,000 to $5,000.[3]

Federal Enforcement Policy

While Iowa House Speaker Linda Upmeyer has suggested that federal enforcement policy might continue to overlook state medical marijuana programs, recent statements from the United States Attorney General, Jeff Sessions, have indicated otherwise.[4]

Disabled Americans have been Negatively Impacted

Because of the consistent failure of state laws and regulations to address federal regulations appropriately, disabled Americans have been severely and negatively impacted.

The Supreme Court of Colorado recently rejected an employment discrimination claim by a severely disabled person.  Coats v. Dish Network, 350 P.3d 849, 850 (Colorado 2015) (“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.”)

And see Gonzales v. Raich, 545 U.S. 1 (2015) (possession of marijuana for medical use under state program unlawful under federal classification), while noting marijuana’s federal schedule 1 classification may be invalid, 545 U.S., at 28 n.37; and see Casias v. Walmart, 695 F.3d 428 (6th Cir. 2012) (discrimination in employment allowed against participant in state medical marijuana program); and see James v. Costa Mesa, 700 F.3d 394 (9th Cir. 2012) (Americans with Disabilities Act does not protect participation in state medical marijuana program).

The Iowa Medical Cannabidiol Act of 2017 gives the Iowa Department of Public Health sufficient authority to resolve this potential hazard by administrative rule.   State medical marijuana programs are lawful under federal law.  The federal drug act was never intended to prevent the medical use of controlled substances.  The federal drug act is intended to prevent the abuse, not the authorized medical use, of controlled substances.

As we have noted before, the CSA “repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Raich, 545 U.S., at 12.  In doing so, Congress sought to “conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.”  Ibid.  It comes as little surprise, then, that we have not considered the extent to which the CSA regulates medical practice beyond prohibiting a doctor from acting as a drug “‘pusher’” instead of a physician.  Moore, 423 U.S., at 143.

Gonzales v. Oregon, 546 U.S. 243, 269 (2006).

Federal Law

States do not surrender their sovereignty when they become members of the union (“united states”).

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).

New York v. United States, 505 U.S. 144, 161 (1992).  Federal law does not prohibit the state from accepting the medical use of a controlled substance, and federal regulations must maintain that same balance.  What seems like a paradox is a question of balance between state and federal law.

Federal drug law was written to provide flexibility in the classification of controlled substances.  Marijuana is currently classified as a substance with no accepted medical use in the United States.  States have a significant role in federal classification.[5]

See 21 U.S.C. § 903 (2017):

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

(Pub. L. 91–513, title II, § 708, Oct. 27, 1970, 84 Stat. 1284.)

Marijuana’s placement in federal schedule 1 depends on whether the DEA’s interpretation of the statutory language “currently accepted medical use in treatment in the United States” is lawful.  The DEA adopted its current interpretation in 1992.  A federal appellate court upheld the DEA’s interpretation of that language in 1994, two years before any state had accepted the medical use of marijuana.  See Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994).

Let that sink in for a moment.  Marijuana’s current placement in federal schedule 1 is based upon a federal administrative decision in 1992, affirmed by a federal appellate court in 1994, determining that marijuana had no accepted medical use in the United States at the time it made the decision, just two years before any state had accepted marijuana for medical use, beginning in 1996.

Initial Classification by Congress

The National Commission on Marihuana and Drug Abuse was created by the Controlled Substances Act of 1970, Public Law 91-513, to study the question of marijuana abuse in the United States.  While the Controlled Substances Act was being drafted in a House committee in 1970, Assistant Secretary of Health Roger O. Egeberg had recommended that marijuana temporarily be placed in schedule I, 21 U.S.C. § 812(c), Schedule 1(c)(10) (1970), the most restrictive category of drugs, pending the Commission’s report.  On March 22, 1972, the Commission’s chairman, Raymond P. Shafer, presented a report to Congress and the public entitled “Marihuana, A Signal of Misunderstanding,” which favored ending marijuana prohibition and adopting other methods to discourage use.  No action was taken on the commission’s report and marijuana has remained in federal schedule 1 since that time.

Duty to Update the Classification

DEA is required to update the classifications annually as necessary.  See 21 U.S.C. § 812(a) (1970).  The Attorney General of the United States, in conjunction with the Secretary of Health and Human Services, may add substances to, transfer substances between, or remove substances from the classifications.  See 21 U.S.C. § 811(a) (1970).  The Drug Enforcement Administration (DEA) has been delegated by the Department of Justice to perform this function for the Attorney General, in conjunction with the Food and Drug Administration which has been delegated by the Department of Health and Human Services to perform its responsibilities under the act.  See 21 U.S.C. § 811(b) (1970).

Contextual Analysis

The Medical Cannabidiol Act of 2017 recognizes and accepts a medical use for the marijuana plant in the state of Iowa.  Section 5(6) of the Act, Iowa Code § 124E.2(6) (2017):

“Medical cannabidiol” means 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 and that is delivered in a form recommended by the medical cannabidiol board, approved by the board of medicine, and adopted by the department pursuant to rule.

(emphasis added).

A federal regulation (schedule 1) says marijuana has no accepted medical use in the states.  See 21 C.F.R. § 1308.11(d)(22)(2017).  The outdated federal regulation has not been updated since 1994, when marijuana actually had no accepted medical use in any state.  The people of Iowa have now accepted the medical use of marijuana in 2017.  Iowa is a state in the union (“in the United States”).  The state of Iowa is not authorizing the “abuse” of marijuana.  The state of Iowa is authorizing “medical use” of marijuana.

Before marijuana became accepted for medical use in any state, federal courts considering this matter determined that Congress did not define the term “currently accepted medical use,” and that accepted medical use in the United States can be solely intrastate without any federal approval for interstate marketing.  The best evidence of “accepted” medical use in the United States is a state law accepting the medical use of marijuana.  Accepted medical use that is solely intrastate is within the meaning of “currently accepted medical use” under existing federal law.

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.

Grinspoon v. DEA, 828 F.2d 881, 887 (1st Cir. 1987):

Unlike the CSA scheduling restrictions, the FDCA interstate marketing provisions do not apply to drugs manufactured and marketed wholly intrastate.  Compare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a).  Thus, it is possible that a substance may have both an accepted medical use and safety for use under medical supervision, even though no one has deemed it necessary to seek approval for interstate marketing.

After the ruling in Grinspoon, the federal courts and the DEA began to address the question of how the DEA determines whether a controlled substance has accepted medical use in the United States.

Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 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.

In 1992, the DEA acknowledged that Congress did not authorize the DEA to decide whether the states can or should accept the medical use of marijuana.  The DEA can only acknowledge the decision “others” have made.

Marijuana Scheduling Petition, DEA Docket No. 86-22, 57 Fed. Reg. 10499 (March 26, 1992) 10506:

Clearly, the Controlled Substances Act does not authorize the Attorney General, nor by delegation the DEA Administrator, to make the ultimate medical and policy decision as to whether a drug should be used as medicine.  Instead, he is limited to determining whether others accept a drug for medical use.  Any other construction would have the effect of reading the word “accepted” out of the statutory standard.

It would be strange indeed if “others” did not include states.  We are a nation of laws.  State medical marijuana laws are proof beyond any doubt that marijuana has accepted medical use in the United States.  Opinions don’t matter; but laws do.  It is not reasonable, or lawful, for the DEA to reject state laws as evidence of “accepted” medical use.

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.

State Law

The Iowa Medical Cannabidiol Act of 2017, H.F. 524, Section 5(6), Iowa Code § 124E.2(6) (2017), defines “medical cannabidiol” as a “pharmaceutical grade cannabinoid found the plant Cannabis.”  The Act specifically authorizes the cultivation and harvesting of marijuana plants to make medical cannabidiol products.  See H.F. 524, Section 9(1)(a), Iowa Code § 124E.5(1)(a) (2017).

Iowa has determined that there is an “accepted” medical use for marijuana and the federal courts have determined that state laws accepting the medical use of a controlled substance are harmonious with the federal Controlled Substances Act.  The Iowa legislature hasn’t included this statement of compliance with existing federal law in the Medical Cannabidiol Act.  A statement of compliance needs to be included in 641 IAC 154 so that patients and their families are not left in doubt about their legal status and personal safety.

The Elephant in the Room

“Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions – it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).

Gonzales v. Oregon, 546 U.S. 243, 267 (2006):

H.F. 524 also fails to remove marijuana from Iowa schedule 1.  Iowa schedule 1, like it’s federal counterpart, says marijuana has no accepted medical use in treatment in the United States (unless the Iowa Board of Pharmacy says it does by an administrative rule).  Iowa Code § 124.204(4)(m) (2017); Iowa Code § 124.203(1)(b) (2017).  State law, H.F. 524, now says marijuana does have an accepted medical use in the state.

In 2010, the Iowa Board of Pharmacy, which is authorized by law to make recommendations to the legislature pursuant to Iowa Code § 124.201 (2017), recommended that marijuana be removed from Iowa schedule 1.

Attached to this document is the February of 2010 recommendation from the Iowa Board of Pharmacy, the February of 2010 press release from the Iowa Department of Public Health, and the legislation that was pre-filed in December of 2010 by the department and the board in the 84th General Assembly (2011-2012) of Iowa.

Moving forward without addressing marijuana’s classification in schedule 1 can and will have tragic consequences.

The Iowa Senate bill, S.F. 506, that passed by a vote of 45-5 on April 17, 2017, in the Iowa Senate, included the Iowa Board of Pharmacy’s recommendation from February 17, 2010, recommending the removal of marijuana from schedule 1.  The House version did not include the board’s recommendation.  The House version, H.F. 524, wasn’t made publicly available until 3:00 a.m. on the morning of the day after the legislature was scheduled to adjourn for the year on April 21, 2017.  H.F. 524 passed in the Iowa House at 5:30 a.m. on April 22, 2017, and in the Iowa Senate at 6:30 a.m. on April 22, 2017.  The House version was not carefully vetted.

Comparing Classifications

Both state and federal drugs laws reveal that we do not put plants with medical use in schedule 1.[6]

Marijuana has Medical Use in 46 States

Since 1996, four years after the DEA issued it interpretive rule in 1992, thirty states have accepted the medical use of marijuana, and another sixteen states have accepted the medical use of a marijuana extract (cannabidiol), bringing the total to 46 out of 50 states now depending on marijuana plants for medical use or for making extracts for medical use.  In addition, DC, Puerto Rico, and Guam have accepted the medical use of marijuana.

See National Conference of State Legislatures, July 7, 2017, State Medical Marijuana Laws:

http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx

Conclusion

Regulations must include an explanation of compliance with existing state and federal laws.  This can’t be left to the imagination.  Failure to address classification of marijuana in H.F. 524 leaves Iowa patients and their loved ones at risk of losing access to medical cannabidiol and facing severe federal penalties.  The Iowa Department of Public Health has the authority to take corrective action by administrative rule.  Each medical cannabidiol registration card must include a statement that the card immunizes the patient and/or caregiver from federal prosecution that would result from the false assumption that marijuana is lawfully classified as a schedule 1 substance.  The Iowa Board of Pharmacy has the authority to fix the state classification because it has the authority to reclassify marijuana by administrative rule[7].  H.F. 524 satisfies federal requirements because it nullifies federal schedule 1 (either on its face, or as applied).

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/

[1] Federal Register
Vol.81, No. 240, Wednesday, December 14, 2016, pp. 90194-90196.

[2] DEA Clarification on Cannabidiol
https://www.deadiversion.usdoj.gov/schedules/marijuana/m_extract_7350.html

[3] Federal Penalties

21 U.S.C. § 844(a) (2017)
First offense
$1,000 fine – up to one year in prison
21 U.S.C. § 844(a) (2017)
Second offense
$2,500 fine – up to two years in prison
21 U.S.C. § 844(a) (2017)
Third and subsequent offense
$5,000 fine – up to three years in prison

[4] Media Reports

March 27, 2017, KGLO Radio, Mason City, Iowa, “Upmeyer says legislators working on medical marijuana issue.”
June 13, 2017, The Cannabist, an edition of the Denver Post, Denver, Colorado, “Jeff Sessions has asked Congress to allow him to prosecute medical marijuana providers.”
June 16, 2017, Globe Gazette, Mason City, Iowa, “Sessions wants flexibility to prosecute Iowa medical marijuana program.”
June 23, 2017, Quad City Times, Davenport, Iowa, “Editorial: Jeff Sessions eyes pot crackdown on Iowa, Illinois.”

[5] Federal Classifications

Schedule 1
21 U.S.C. § 812(b)(1) (2017)
no medical use and high potential for abuse without consideration for physical or psychological dependence.
Schedule 2
21 U.S.C. § 812(b)(2) (2017)
medical use with high potential for abuse with physical dependence and high psychological dependence.
Schedule 3
21 U.S.C. § 812(b)(3) (2017)
medical use with low to moderate physical dependence and high psychological dependence.
Schedule 4
21 U.S.C. § 812(b)(4) (2017)
medical use with physical dependence and psychological dependence less than schedule 3.
Schedule 5
21 U.S.C. § 812(b)(5) (2017)
medical use with physical dependence and psychological dependence less than schedule 4.

[6] Classification Comparisons

Schedule 1
Iowa Code § 124.204(4)(m) (2017) Marijuana
Schedule 2
Iowa Code § 124.206(2)(a)(1) (2017) Raw Opium
Iowa Code § 124.206(2)(a)(7) (2017) Codeine
Iowa Code § 124.206(2)(a)(10) (2017) Hydrocodone
Iowa Code § 124.206(2)(a)(13) (2017) Morphine
Iowa Code § 124.206(2)(c) (2017) Opium Poppy and Poppy Straw
Schedule 3
Iowa Code § 124.208(5)(a)(1) (2017) Codeine
Iowa Code § 124.208(5)(a)(2) (2017) Codeine
Iowa Code § 124.208(5)(a)(3) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(4) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(5) (2017) Hydrocodone
Iowa Code § 124.208(5)(a)(7) (2017) Opium
Schedule 5
Iowa Code § 124.212(2)(a) (2017) Codeine
Iowa Code § 124.212(2)(b) (2017) Hydrocodone
Iowa Code § 124.212(2)(e) (2017) Opium

[7] Iowa Board of Pharmacy

Iowa Code § 124.204 (2017)
Schedule I.
4. Hallucinogenic substances.
m. Marijuana, except as otherwise provided by rules of the board for medicinal purposes.

Iowa Code § 124.206 (2017)
Schedule II.
7. Hallucinogenic substances.
a. Marijuana when used for medicinal purposes pursuant to rules of the board.

(emphasis added).  See State v. Bonjour, 694 N.W.2d 511 (Iowa 2005), for the history of this authority.

Posted in Federal, States | Comments Off on Comments on Proposed Rules

Overlooking the Medical Boards

Rep. Jarad Klein

Rep. Jarad Klein

July 2, 2017

Jarad Klein
Keota, Iowa

Dear Rep. Klein,

Thank you for your work in expanding the Iowa Medical Cannabidiol Act in 2017.  While Iowans for Medical Marijuana (Iowa Business No. 334412) is concerned the program does not go far enough, production of CBD in Iowa is a huge step forward.

As you mention in your interview with KCII Radio, Washington, IA, on June 30, the new Medical Cannabidiol Advisory Board can recommend expansion of the program.  Production in Iowa is the cornerstone that makes it all possible.

You also mention in your interview that the Medical Cannabidiol Advisory Board is often overlooked by critics of the program.  I would like to point out that the Iowa Board of Pharmacy has also been overlooked throughout this process.  There is a pattern here that deserves your attention.

In 2010, the Iowa Board of Pharmacy recommended the reclassification of marijuana as a substance with accepted medical use in the United States.  The authority for their recommendation can be found in Iowa Code § 124.201 (2017), and the requirement that substances classified in schedule 1 must have no medical use in the United States is found in Iowa Code § 124.203 (2017).

I have included the pharmacy board’s recommendation from February 17, 2010, and the legislation the board filed in 2011, to refresh your memory.

It’s certainly an empty promise if the pharmacy board’s recommendations are not taken seriously.  That could be the reason people are overlooking the significance of this new board now.  We can keep creating boards, but the boards don’t mean much without serious consideration of their recommendations.

I do realize that production of CBD in Iowa has been the biggest obstacle we’ve had to overcome.  I also realize the pharmacy board’s recommendation may have been premature.

However, now that we have agreed on production of CBD in Iowa, let’s get this plant out of schedule 1 so we are not making medicine from a plant classified as having no medical use in the United States.  Forty-six states have accepted the marijuana plant for medical use or extracts[1] from the plant as medicine.  Either way, the plant is essential in all forty-six states.

Compare this to morphine produced from opium plants, or cocaine produced from coca plants.  Opium plants and coca plants are not in schedule 1 and have never been in schedule 1, showing a legislative intent at the time these laws were created to exclude plants with medical use from schedule 1.

It’s time to fix the classification.

Thank you for listening!

Sincerely,

Carl Olsen
http://iowamedicalmarijuana.org/

[1] CBD is one of many cannabinoids.  State laws vary on the level of THC that is allowed in a CBD product, but they don’t specify any levels for the other cannabinoids.  These products are referred to as “marijuana extracts.”

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