Requested Amendments to SF2397 (2018)

Proposed Amendment to SF 2397 (a bill by the Senate Committee on Ways and Means)

 

AN AMENDMENT TO SF 2397

 

Section 124E.1, Code 2018, is amended by adding the following new subsection and renumbering the remaining subsections:

NEW SECTION.  124E.2  Legislative purpose and intent.

The purpose and intent of this chapter is all of the following:

1.  The framers of the United States Constitution, recognizing state sovereignty, secured its protection in the Tenth Amendment to the United States Constitution.

2.  Beginning with California in 1996, a total of forty-six states have now enacted laws defining marijuana or extracts of marijuana as medicine.

3.  Congress did not intend the term “accepted medical use in treatment in the United States” to require a finding of recognized medical use in every state, Grinspoon v. Drug Enforcement Administration, 828 F.3d 881, 886 (1st Cir. 1987).

4.  Congress did not define the term “currently accepted medical use” in the federal Controlled Substances Act, Alliance for Cannabis Therapeutics v. Drug Enforcement Administration, 930 F.2d 936, 939 (D.C. Cir. 1991).

5.  In Gonzales v. Oregon, 546 U.S. 243 (2006) the Supreme Court of the United States acknowledged the decision-making authority to accept the medical use of controlled substances is a police power historically reserved to the states.

6.  The state and federal classification of marijuana as a substance without accepted medical use in treatment in the United States does not apply to the accepted medical use of marijuana in the state of Iowa.

Online Copy: 2018 Amendment One SF2397


 


Proposed Amendment to SF 2397 (a bill by the Senate Committee on Ways and Means)

 

AN AMENDMENT TO SF 2397

 

Amend Senate File 2397 as follows:

By inserting:

<Section 1.  Section 124.204, subsection 4, paragraphs m and u, Code 2017, are amended by striking the paragraphs.

Sec. 2.  Section 124.204, subsection 7, Code 2017, is amended by striking the subsection.

Sec. 3.  Section 124.206, subsection 7, Code 2017, is amended to read as follows:

7. Hallucinogenic substances.  Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, or, for purposes of paragraphs “a” and “b”, which contains any of its salts, isomers, or salts of isomers whenever the existence of such salts, isomers, or salts of isomers is possible within the specific chemical designation (for purposes of this paragraph only, the term “isomer” includes the optical, positional, and geometric isomers):

a.  Marijuana when used for medicinal purposes pursuant to rules of the board.

b.  Tetrahydrocannabinols, meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (Cannabis plant) as well as synthetic equivalents of the substances contained in the Cannabis plant, or in the resinous extractives of such plant, and synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:

(1)  1 cis or trans tetrahydrocannabinol, and their optical isomers.

(2)  6 cis or trans tetrahydrocannabinol, and their optical isomers.

(3)  3,4 cis or trans tetrahydrocannabinol, and their optical isomers.  (Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)

b. c.  Nabilone [another name for nabilone: (+-) -trans-3-(1,1-dimethylheptyl)-6,6a,7,8,10,10a-hexahydro-1-hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9-one].>

Online Copy: 2018 Amendment Two SF2397

Candidate Questionnaire 2018

HAS IOWA TURNED TO CRIME?

We’ve been hearing some startling comments on Iowa’s new cannabis oil law lately, 2017 Iowa Acts Chapter 162, HF 524.  Iowa’s new law authorizes “production and distribution” in Iowa of products containing “any cannabinoid” found in marijuana plants which contains no more than 3% tetrahydrocannabinol.  Iowa Code § 124E.2(6) (2018).  The previous version of this law, 2014 Iowa Acts Chapter 1125, SF2360, authorized only the “possession and use” in Iowa of products containing “a cannabinoid” found in marijuana containing no more than 3% tetrahydrocannabinol.  Iowa Code § 124D.2(1) (2017).

Here are some quotes from Iowa 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 a quote from State 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

 

WHAT DO YOU THINK?

  1. Are state lawmakers violating any federal law by authorizing the use and possession of cannabis oil in Iowa?
     
  2. Are state lawmakers violating any federal law by authorizing the cultivation of marijuana in Iowa for the production of cannabis oil?
     
  3. Are state-licensed users of cannabis oil in violation of any federal law for using and possessing cannabis oil in Iowa?
     
  4. Are state-licensed cultivators of marijuana in violation of any federal law for growing marijuana in Iowa?
     
  5. Are state-licensed distributors of cannabis oil in violation of any federal law for distributing cannabis oil in Iowa?
     

 

THE OPINION OF SOME LEGISLATORS IN HAWAII

SB2217: clarifies that medical use of cannabis is not considered to be a state or federal crime

HB2572: clarifies that medical use of cannabis is not considered to be a state or federal crime

HB2031: authorizes interisland transportation of cannabis

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.

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!

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.

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.”

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/

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/