Carl Olsen is a longtime advocate for expanding access to medical cannabis in Iowa and maintains the Iowans for Medical Marijuana website. -promoted by desmoinesdem
On Thursday, September 20, the Iowa Board of Pharmacy moved to dismiss my petition for the religious use of medical cannabidiol, in Olsen v. Board of Pharmacy, No. CVCV056841 (Iowa District Court, Polk County). The Board says the petition should have been filed with the Iowa legislature instead of the board.
The problem with the board's position is that the legislature has given the board the duty of recommending changes in the schedules of controlled substances and medical cannabidiol is a controlled substance in Iowa. There is also an existing exemption for the religious use of peyote, a Schedule 1 controlled substance. Iowa Code § 124.204(8) (2018).
RELIGIOUS USE OF PEYOTE - Iowa Code 124.204(8) (2018)
The Board says the exemption for the religious use of peyote was a response to the federal exemption for the religious of peyote. However, Iowa created its exemption for the religious use of peyote in 1967. 1967 Iowa Acts ch. 189, § 2. The federal exemption for the religious use of peyote was not created until 1970. See Peyote Exemption for Native American Church. And, see Peyote Exemption for Native American Church.
The board says it was never involved in creating the exemption for the religious use of peyote in Iowa, but that’s true of most of the substances in the various schedules. In 1971, the state legislature moved the exemption for the religious use of peyote from a separate code section into the newly created schedules and gave the Board of Pharmacy the duty of recommending changes to the schedules. Iowa Code Chapter 204A (1971) was repealed and the peyote exemption was moved into the newly created schedules in Iowa Code Chapter 204 (1973).
THE BOARD’S DUTY TO RECOMMEND CHANGES - Iowa Code 124.201(1) (2018)
The board says a request for a religious exemption to the schedules of controlled substances should go to the legislature, but the Iowa Supreme Court has made it clear that the board must act first. In State v. Bonjour, 694 N.W.2d 511 (Iowa 2005), the court wrote:
What [the legislature] has done, however, is to clearly and deliberately decide what the procedure shall be for making that determination. That procedure is to defer to the Board of Pharmacy Examiners, which is far better equipped than this court — and the legislature, for that matter — to make critical decisions regarding the medical effectiveness of marijuana use and the conditions, if any, it may be used to treat. The board has not done so, and we, by legislative directive, must wait until it does.
Bonjour, at 514.
Although the Board claims it has no authority to recommend religious exemptions, the exemption being sought is identical to the use of medical cannabidiol created by the Iowa Legislature in 2017. See, Iowa Medical Cannabidiol Act, 2017 Iowa Acts ch. 162. The board would have to accept that the Iowa legislature's decision to allow the medical use of cannabidiol proves beyond any doubt that no compelling interest exists in denying that same use for religious reasons.
And, because any decision of the board goes to Iowa District Court for judicial review, there’s really no good reason why someone seeking a religious exemption would bypass the board in light of the duty the legislature has given the board to recommend such changes.
THE FEDERAL AND UNIFORM ACTS
Under both the federal and uniform state acts, the scheduling of controlled substances is by administrative rule. A petition for an administrative rule is a formal rule making process filed with an administrative agency. The federal exemption for the religious use of peyote is a federal regulation. See 21 C.F.R. § 1307.31 (2018).
Iowa claims to have adopted the Uniform Controlled Substances Act. See, Iowa Code § 124.601 (2018). But Iowa omitted the administrative rule-making process for scheduling. This would also indicate that a petition for a religious exemption would begin with the board. The board says it needs to follow the federal process, but both federal and uniform controlled substances acts make scheduling an administrative process due to the technical expertise of the agency making the decision. Indeed, the federal administrative agency has guidelines for making requests for religious exemptions.
Editor's note: Court filings from Carl Olsen v Board of Pharmacy, a lawsuit now pending in Polk County District Court, are available here.
Top image: Carl Olsen.