Why I'm asking Iowa to seek an exemption from federal drug laws

Carl Olsen recounts his long battle to reschedule cannabis and the latest legal steps in his effort to reconcile state and federal drug laws. -promoted by Laura Belin

Last month, I filed a petition with the Iowa Department of Public Health, asking the agency to start the process of obtaining a federal exemption for Iowa’s medical cannabis law.

I had presented this idea to Iowa’s Medical Cannabidiol Board in August 2019. The board members unanimously approved the concept and recommended in January 2020 that the legislature protect schools and long-term care facilities, which “are hesitant to allow medical cannabidiol products to be administered and stored at the facilities due to the current scheduling of Cannabis at the federal level.” The board suggested “Developing language to protect these facilities or seeking exemption for Iowa’s program from federal drug laws.”

Instead of adopting my proposal, Republican lawmakers approved and Governor Kim Reynolds signed House File 2589, which instructed the Department of Public Health to “request guarantees” from federal agencies that they would not withhold federal funding from educational or long-term care facilities that allow patients to possess or staff to administer medical cannabidiol.

That approach makes no sense, because it would put Iowa in direct conflict with federal drug law. As I wrote in my petition, “There is no formal process for requesting guarantees from federal agencies not to withhold funding for violation of federal drug laws.”

Here’s why Iowa should take a different path.

In 1985, I joined a coalition of marjuana reform organizations seeking to reschedule cannabis. (21 C.F.R. § 1308.43 – Initiation of proceedings for rulemaking)

In 1988, an administrative law judge for the U.S. Drug Enforcement Administration (DEA) found, “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.” Source: DEA Docket No. 86-22 (September 6, 1988), pp. 58-59

The petitioners ultimately lost, the case turning on a five-factor test formulated by the DEA to determine whether a substance has accepted medical use in treatment in the United States.

(21 U.S.C. § 812(b)(1)(B)) Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 938 (D.C. Cir. 1991) (“eight factor test”); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994) (“five-part test”).

While the administrative hearings were being held, the U.S. Court of Appeals for the First Circuit found,

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, 886 (1st Cir. 1987).

However, because there were no states in the United States that accepted the medical use of cannabis in 1987, 1991, or 1994, the five-factor test did not violate state sovereignty.  There was no need for the DEA to include state sovereignty as a factor.

Although cannabis had been accepted for medical use prior to the federal Controlled Substances Act of 1970, its medical use had been discontinued due to a propaganda campaign in the 1930s exemplified by “Reefer Madness.”

It was not until 1996 that states began accepting the medical use of cannabis again.  As of this writing (June 2020), a total of 47 states and a majority of federal territories have now accepted the medical use of cannabis in treatment in the United States.

In 2002, I joined another coalition of marjuana reform organizations seeking to reschedule cannabis.  While the petition was pending, the U.S. Supreme Court reversed a decision by the Attorney General to block the implementation of Oregon’s Death With Dignity (assisted suicide) statute as being outside the scope of accepted medical treatment under 21 U.S.C. § 812(b).  The court found:

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.

Gonzales v. Oregon, 546 U.S. 243, 258 (2006).

I notified my co-petitioners that the five-factor test the DEA had been using in making scheduling determinations was no longer valid because of state laws authorizing the medical use of cannabis, but the petitioners did not want to amend their petition.

In 2010, I notified the DEA that I was separating myself from the other petitioners because they were not using state sovereignty as an argument in their petition.  By that time the DEA had already received a recommendation from the Department of Health and Human Services (DHHS) on December 6, 2006, to maintain status quo and keep marijuana in federal schedule 1.  76 Fed. Reg. 40,552 (July 8, 2011).

I intervened in the appeal, but the court never considered my argument because the DEA had not considered my argument and had not made any ruling on it.  Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013).

I memorialized my argument that the DEA’s five-factor test violates state sovereignty in an application for certiorari to the U.S. Supreme Court.  Olsen v. DEA, No. 13-484, figuring that I would use it again in the future.  The National Organization for the Reform of Marjuana Laws (NORML) added my application for certiorari to their legal brief bank in 2013.

As it turns out, Iowa’s Medical Cannabidiol Act enacted in 2017 provides an alternative to 21 C.F.R. § 1308.43 (Initiation of proceedings for rulemaking).  21 C.F.R. § 1307.03 – Exceptions to regulations provides an exemption from federal scheduling, which eliminates the need for federal rescheduling or descheduling.

In a very interesting development, a federal researcher filed an appeal on May 12, 2020, in the U.S. Court of Appeals claiming that the federal schedule 1 classification of cannabis is making it too difficult to do research.  The appeal makes the same argument I made in the U.S. Supreme Court in 2013: the five-factor test is invalid because it violates state sovereignty.  Scottsdale Research Institute v. DEA, No. 20-71433 (9th Circuit).

In my petition to initiate federal exemption proceedings filed with the Iowa Department of Public Health on June 7, 2020, I noted that without an exemption, federal scheduling would violate state sovereignty. I also argued that the DEA’s five-factor test is invalid because it would give the DEA unconstitutional authority to interfere with state law (“The DEA’s five-part test would seem to nullify these state laws without a clear delegation from Congress of that kind of constitutional authority over the states”).  Petition, at pages 3-4.

Carl Olsen has been a leading advocate for medical cannabis in Iowa for many years and closely follows legislative happenings related to the issue. He maintains the Iowans for Medical Marijuana website.

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