Logical, but disappointing: Reynolds vetoes medical cannabis bill

Carl Olsen analyzes the big news the governor tried to bury in a pre-holiday weekend news dump. He has been a leading advocate for medical cannabis in Iowa for many years and closely follows legislative happenings related to the issue. -promoted by Laura Belin

Governor Kim Reynolds vetoed House File 732 on May 24. The bill passed by overwhelming bipartisan majorities in both legislative chambers: 96 to 3 in the Iowa House and 40 to 7 in the Iowa Senate. The full text of the governor’s veto letter is enclosed at the end of this post.

This is a tough issue for me to write about. I totally agree with the governor’s logic. At the same time, I am disappointed with the outcome.

The legislature created Iowa’s Medical Cannabidiol Advisory Board in 2017. The governor cannot get around the board. Legislators write laws, not governors.

As someone who has observed the advisory board’s work, I didn’t expect the governor to grant any special favors. I take that board seriously, which is why I attend all of their meetings.

I was nervous about both of Senator Brad Zaun’s bills this year, Senate File 77 and Senate File 256. Both bills went beyond the board’s recommendations for 2019

However, House Speaker Linda Upmeyer’s bill, HF 732, takes the cake. That legislation was so far outside the scope of the board’s recommendations, and so carelessly crafted at the last minute, that it was painful to watch it unfold.

A board member resigned on March 29 in protest.  The board held an emergency meeting on April 16 to review it.  Without the input of former State Representative Clel Baudler, who played the leading role in crafting the 2014 and 2017 legislation, Upmeyer ran the ship aground.

I reluctantly supported SF 256 after my amendment on federalism was added to it.  See Senate File 501, page 5, lines 19-25.  My amendment says the Iowa Medical Cannabidiol Act (Iowa Code Chapter 124E) is not federally regulated.

Unlike the state controlled substances act, which cannot be amended by administrative rule, the federal controlled substances authorizes a federal administrative agency to add and remove substances, or to reclassify them, by administrative rule. The federal agency also has the authority to create exemptions. Federal regulations currently contain an exemption for the religious use of a federal schedule 1 controlled substance.  See, 21 C.F.R. § 1307.31 (2019).  A state medical cannabis program is exempt for the exact same reason, although we really need an acknowledgement from the federal government.

In January, Iowa’s advisory board recommended keeping the 3 percent THC limit. SF 256 did not increase that limit.  However, at its emergency meeting on April 16, the board changed its position and recommended a limit of 4.5 grams of THC every 90 days, instead of the 25 grams every 90 days in HF 732.

Reynolds made the right decision by sticking with the board’s recommendation, but Upmeyer decided not to follow the board’s advice. As the governor says, the purpose of having that board is to listen to what it says.  You can’t have your board and eat it, too.

If Upmeyer’s bill had included abolishing the board, the lack of consistency with the board’s recommendations would have made sense.  There’s no way the board can function if its recommendations are ignored.

The board is intimidated by the arbitrary cap on THC the legislators added, ostensibly to make the products abuse-proof.  But that means we can’t trust the company we’ve authorized to produce and distribute the medicine.  The board said it best in its meeting minutes from February:

A member of the board commented, questioning the continued purpose of the Advisory Board, suggesting that perhaps they should make the recommendation to abolish themselves due to lack of ability to effect changes. Several members agreed, feeling that it is important that the legislature know it makes them extremely unhappy that they have no authority, or voice, and that the board is trying to bring science to a non-science industry.

Reynolds was correct, in a sense. Having said that, consider the governor’s signing statement on Senate File 599 (the “Iowa Hemp Act”). She explained that CDB is not legal until the federal government says it’s okay.

But Iowans should be aware that this bill does not legalize the sale or manufacturing of all hemp-derived products, such as cannabidiol (“CBD”).  The retail sale and manufacturing of hemp-derived products is still governed by federal law.  While the Food and Drug Administration (“FDA”) has approved some hemp-derived food ingredients for human and animal consumption, it has not approved CBD.  The FDA has also declared that CBD is not a dietary supplement.  State law cannot preempt the federal law, and Iowans engaging in the manufacture, sale, or purchase of hemp-derived products should carefully consider the legality of their actions under Iowa and federal law.

Then consider her veto of HF 732, where she indicated she would have signed a law authorizing the use of CBD if the THC limit had been lower:

House File 732 would make a number of changes to expand Iowa’s medical cannabidiol (“CBD”) program.  Our program was originally established to provide CBD as a treatment option for Iowans suffering from specific medical conditions.  Since our program began, I have heard countless stories of the relief and remarkable improvements that CBD has offered Iowans.  And I support our program and efforts to strengthen and improve the program, so that it continues to be a safe, rational, and compassionate medical CBD program.

How could she sign any law that makes CDB legal without federal approval?  Has the state of Iowa even thought of asking for federal approval?

If I were governor, I would have signed HF 732 and written several paragraphs on how sloppily the bill was put together. Then I would have written several more paragraphs on how sloppily Iowa Code Chapter 124E was crafted in 2017. Finally, I would have stated clearly that we are not violating any federal laws or authorizing the violation of any federal laws.

I would have called out Upmeyer and Democratic State Representative Forbes, as I often have done, for having criminal intent, because they say Iowa Code Chapter 124E violates federal law and authorizes the violation of federal law after signing their names to the legislation that created it.  And, of course, the state of Iowa is negligent for failure to get a letter from the DEA recognizing our state program is exempt from federal regulations.  The federal government has recognized an exemption for a church and it can certainly recognize one for a state government.

We can do this.  Let’s do it.

But I realize there is a genuine lack of understanding from every corner.  WHO-TV anchors reported this weekend that Iowa’s current law limits THC to 3 grams in a 90-day period, which is false.  There is currently no limit on the amount of THC a patient can purchase in a 90-day period.  HF 732 would have placed a limit of 25 grams per 90 days, which is less than what you can buy now, and the board recommended 4.5 grams at its emergency meeting in April.  So, we still have no limit on the amount of THC a patient can purchase in any given period of time.  The abundance of disinformation is disturbing, to say the least.

Appendix: Full text of Governor Reynolds’ May 24 veto letter to Secretary of State Paul Pate

Dear Mr. Secretary,

I hereby transmit House File 732, an Act relating to the medical cannabidiol act.

House File 732 would make a number of changes to expand Iowa’s medical cannabidiol (“CBD”) program. Our program was originally established to provide CBD as a treatment option for Iowans suffering from specific medical conditions. Since our program began, I have heard countless stories of the relief and remarkable improvements that CBD has offered Iowans. And I support our program and efforts to strengthen and improve the program, so that it continues to be a safe, rational, and compassionate medical CBD program.

Unlike some states, Iowa’s medical CBD program is not a medical marijuana program. To this end, current Iowa law limits the level of tetrahydrocannabinol (“THC”)—the psychoactive chemical in the cannabis plant—in medical CBD products to three percent. But recognizing the limited experience with medical CBD and potential questions surrounding the three percent limit, the Legislature had the foresight to establish a Medical Cannabidiol Board, primarily made up of medical experts. The Board is tasked with governing our program and advising the Legislature on potential statutory changes to the definition of medical CBD, including the THC limit. The Legislature was wise to understand that we were entering uncharted territory and could benefit from the Board’s expertise in navigating any potential expansion of the program.

Most of the changes included in House File 732 were the result of the Legislature and the Medical Cannabidiol Board coming together to reach agreement on appropriate and positive improvements to our medical CBD program. I fully support these changes. But unfortunately, the bill would also remove the three percent limit on THC in medical CBD products and replace it with a limit of 25 grams of THC per 90-day period. This change was not recommended by the Board. And if approved, it would drastically expand Iowa’s medical CBD program far beyond its original scope of CBD-based treatments and could open the door to significant unintended consequences to the health and safety of Iowans.

I agree that there should be some change to the three percent THC limit. There appears to be consensus, including from the Board, that a gram-based limit would be more appropriate than a percentage-based limit. But I have not been unable to discern any evidence-based justification for the specific 25-gram limit proposed in this bill. And after its review of the available evidence, the Board recommended a limit of only 4.5 grams per 90-day period.

It may be that a THC limit higher than 4.5 grams is appropriate. But the 25-gram limit in this bill would allow a person to consume more than 277 milligrams of THC per day—an amount higher than one would typically consume even with aggressive recreational marijuana use. This is all the more concerning because a participant in the program is not prescribed a particular dosage by a medical practitioner or monitored on an ongoing basis for any adverse health consequences. Iowa’s program only requires a practitioner to certify that the participant suffers from a qualifying condition on an annual basis.

Ultimately, I believe Iowa must proceed cautiously to ensure that any expansion of our medical CBD program is thoughtful and deliberate—particularly because Iowa’s program is in its infancy and the body of research that analyzes the efficacy of medical CBD is limited. So I look forward to working with the Legislature and the Medical Cannabidiol Board to find an evidence-based THC limit that we can work to enact along with the rest of the provisions in House File 732 that I support. The health and safety of Iowans is too important for us not to get this right.

For these reasons, I respectfully disapprove of House File 732 in its entirety.

Editor’s note: State Representative Steven Holt, who chairs the House Judiciary Committee, voted for House File 732 in March but tweeted on May 24,

I am in complete support of the governor’s decision to veto this legislation. Although there were many good things in the bill, raising the allowable THC limit to 25 grams in a 90 day period was ill-advised and went against the far lower recommendation of 4.5 grams from the medical board we established to advice the legislature on the administration of the program.

The Legislature, as a result of bad communication, made a mistake on the THC limit. I regret that the governor was forced to correct our mistake through a veto.

I look forward to working with the governor next session to advance the good things that were in this bill, change the THC limit to match the medical board’s recommendation and passing a good piece of legislation that will safely benefit those using CBD for medical reasons.

  • This strikes me as a generous assessment

    It’s hard for me to look past the cowardice of Reynolds announcing her veto at 4:58 pm on the Friday before Memorial Day. If she believes what she says, she should call a press conference and be ready to defend her position. She hid behind a press release and hoped few people would be paying attention to the news when this was reported.

    I also wonder why the governor wasn’t communicating her views to legislators during the session. She and her staff didn’t hesitate to tell lawmakers what they wanted to happen on judicial selection, felon voting, or other changes. If it was important to her that the legislature not go beyond the advisory board’s recommendations, she should have conveyed that to key members of the House and Senate when they were working on the bill. Now suffering people have to wait until next year.

    I completely agree with you that House Speaker Linda Upmeyer is most to blame for this fiasco. She’s been the biggest obstacle to sensible medical cannabis policy for years.

    • I agree

      I agree with you on the timing. The board’s recommendations were available on January 1 and there were no bills filed with those recommendations in them. All of the bills went beyond those recommendations. However, the key piece is the THC recommendation, because that one is the most controversial. The way Upmeyer made the announcement that she was lifting the THC cap after talking with “some” of the board members a week or two before the deadline for filing new bills made me cringe when I heard it. That board votes on its recommendations and “some” of the board members cannot speak for the board without taking it to a vote first. So, Reynolds could not have possibly anticipated that Upmeyer would do something like this.

      • there was plenty of time

        The House committee passed the bill the first week of March. The full House passed it the last week of March. The board held its emergency meeting on April 16. The legislature adjourned for the year on April 27. Plenty of time for Reynolds to have her staff communicate clearly to legislators that she was unwilling to sign a bill going beyond the board’s recommendations. If that communication didn’t happen, it’s on the governor.

        They rewrote the judicial selection plan a day before adjournment. No reason they could not have come up with a last-minute agreement on medical cannabis that would satisfy the governor. Reynolds either didn’t have a clear position or didn’t care enough about progress on this issue to make something happen this year.

        • Reynolds has been consistent

          Reynolds have been consistent in following the direction from the board, and it was consistent to veto a bill that does not follow the direction from the board. The bill removes the 3% cap on THC and replaces it with 25 grams per 90 days. The board recommended leaving the cap in it’s annual report, which is how it let’s the legislature know it’s position on THC. The Iowa Medical Cannabidiol Act assigns both of these duties to that board, reviewing the cap and making an annual report. These are mandatory duties. A board member resigning in protest on March 30. The Senate Judiciary Committee then amended the bill to return to the 3% THC cap. Then the board held an emergency meeting on April 16 and sent a letter to the legislators and the governor recommending replacement of the 3% THC cap with a 4.5 gram per 90 day limit, which wasn’t in the bill or the Senate amendment. The senate decided not to spend any more time on it and rejected the Senate Judiciary Committee amendment and passed the bill with the 25 grams per 90 day limit. So, Governor Reynold received a bill that did not conform to either of the board’s recommendations.

          The arguments made to the board on April 16 should have been made before the annual report was filed in January. That’s how it should have been done. It’s the same board. If they accepted a gram limit instead of a percent limit, that could have been done before the session started.

          You want to blame the Governor, but I blame whoever thought up this stupid end run around that board. The bill should have simply abolished the board to make it consistent with the approach that was taken.

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