If you have travel plans this summer, you might want to consider a route that avoids Iowa. Last week, the Iowa Supreme Court denied protection for an out-of-state medical marijuana patient.
After reading the 4-3 majority opinion in State v. Middlekauff, I felt something seemed amiss.
The case turned on whether a medical marijuana card is “a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice.” Iowa Code § 124.401(5), paragraph 1. That phrase is part of the original Iowa Uniform Controlled Substances Act enacted 51 years ago. See Iowa Session Laws, 1971, Chapter 148, § 401(3). State medical marijuana laws did not exist in 1971.
It’s unfortunate that Middlekauff relied on this old phrase, rather than relying on a state law enacted in 2017. Iowa’s medical marijuana program has a new section on reciprocity with other state medical marijuana programs. See Iowa Session Laws, 2017, Chapter 162, § 21.
A valid medical cannabidiol registration card, or its equivalent, issued under the laws of another state that allows an out-of-state patient to possess or use medical cannabidiol in the jurisdiction of issuance shall have the same force and effect as a valid medical cannabidiol registration card issued pursuant to this chapter, except that an out-of-state patient in this state shall not obtain medical cannabidiol from a medical cannabidiol dispensary in this state.
Chief Justice Susan Christensen's majority opinion mentioned in passing this newer law. “The 124E patient possession defense also applies to out-of-state registry cardholders if the registry card is a medical cannabidiol card, or its equivalent, and the cardholder is in the possession of medical cannabidiol. Id. § 124E.18.” Middlekauff, at page 27.
Instead of using Iowa Code § 124E.18, Middlekauff chose to make an equal protection claim, “Secondly, she argues that this statute improperly discriminates between out-of-state individuals authorized to use medical marijuana flower and Iowans authorized to use medical cannabidiol.” Middlekauff, at page 29.
Now, of course, § 124E.18 actually uses the word “equivalent” and equal protection is really the same thing. Equal protection just seems like an very odd way of making the same argument. Why not cut to the chase?
This is where it gets dicey. The board that regulates our program has been complaining for years, to no avail, that cannabidiol (“CBD”) is just one of many cannabinoids and not what section 124E.2(10) says it is, “any pharmaceutical grade cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof 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.” Keep this in mind as you read on.
When the federal 2014 Farm Bill was enacted, it set a federal limit for production of CBD to three tenths of one percent (“0.3%”) delta-9-THC. Coincidentally, that same year, Iowa enacted a so-called “CBD” program (the name was chosen to focus on CBD, but it covered over 100 cannaboids, CBD being just one of them).
Meanwhile, Iowa set a state limit for this new law at three percent (“3.0%”) THC, ten times the federal limit and dropping the “delta-9” prefix. Iowa Session Laws, 2014, Chapter 1125, § 3.
The board’s 2019 annual report, at page 8, recommendation 10, recommended renaming the program to medical cannabis instead of medical cannabidiol to avoid any confusion caused by calling the products cannabidiol. In 2020, the 3% limit on THC (both delta-8 and delta-9) was removed from Iowa’s medical CBD program. See Iowa Session Laws, 2020, Chapter 1116, § 4. The board’s 2021 annual report, at page 7, recommendation 1, again recommended renaming the program to medical cannabis “to reflect scientific reality.”
CBD has been gaining in popularity and is now available as an over-the-counter food supplement in Iowa. In 2021, 177 of the 230 acres (77%) of hemp planted in Iowa was for production of “CBD Biomass”. Iowa Hemp Production 2021 Year End Report. Iowa set a limit on delta-8-THC in hemp products to 0.3% in 2021, by removing the prefix “delta-9” from THC. See Iowa Session Laws, 2021, Chapter 93, § 37.
But, the Iowa Supreme Court said that despite these changes, Iowa’s program remains a low-THC program, not equal to the program in Arizona where Middlekauff obtained her medical marijuana registration card. (page 32)
Cannabidiol is distinctly different from THC “[b]ecause of its excellent tolerability in humans, the lack of psychoactive action and the low abuse potential.” Id. The legislature could have plausibly thought the use of cannabidiol had acceptable medical application as compared to marijuana generally. Even though Iowa law now allows for THC in cannabidiol products, THC is capped at a certain amount. See Iowa Code § 124E.9(14)–(15) (2021). Iowa’s current statutory scheme is rationally related to preventing the proliferation of medical marijuana that has a high or unregulated amount of THC and keeping 124E out of the controlled substances context.
Think about this for a minute. A bill Governor Kim Reynolds signed in June 2020 dropped the 3% THC cap. Iowa now allows 4.5 grams of pure THC per 90 days. Iowa now has a limit on the amount of pure THC that can be purchased within a specific period of time.
Other states with CBD programs limit the amount of THC in the products, as Iowa previously did, usually to less than 3%. States with Legal Cannabidiol (CBD), Britannica, ProCon.org, December 3, 2020. Iowa’s program is clearly no longer a CBD program.
The board that regulates our program deserves a lot of credit for pointing out the obvious. We have a medical “cannabis” program, not a CBD program or a low-THC program. The board’s unheeded recommendation might have actually had an impact on the outcome of Middlekauff’s case.
A vape product has been approved by the Iowa Department of Public Health that is 80% THC (400 milligrams, 0.4 grams). Middlekauff had ten grams of raw flower. The average THC content of flower is around 20%, so that would be 2 grams of THC (the equivalent of 5 Iowa vape products). Cash MC, Cunnane K, Fan C, Romero-Sandoval EA. Mapping cannabis potency in medical and recreational programs in the United States. PLoS One. 2020;15(3):e0230167.
Middlekauff had less than half the amount of THC that an Iowa patient is allowed to have, and it was in a much weaker concentration. In addition to that, the trooper let her drive away after issuing a citation and taking her marijuana because, “she showed no signs of impairment.” Middlekauff, at page 5.
“As of February 3, 2022, 37 states, four territories and the District of Columbia allow the medical use of cannabis products.” National Conference of State Legislatures, State Medical Cannabis Laws, last updated May 27, 2022. So, do we now assume the Iowa Supreme Court would not allow reciprocity for anyone with a valid medical marijuana registration from any of those 37 states?
Of the eleven states with so-called “low-THC” laws, Iowa now ranks the highest for THC concentration by a factor of over 20 times. How does that show Iowa is a low-THC state? This seems so awkward. Iowa laws keep changing, and so do laws in the other states.
Let’s take another look at what Iowa law actually says.
A person may knowingly or intentionally recommend, possess, use, dispense, deliver, transport, or administer cannabidiol if the recommendation, possession, use, dispensing, delivery, transporting, or administering is in accordance with the provisions of chapter 124E. For purposes of this paragraph, “cannabidiol” means the same as defined in section 124E.2.
“Medical cannabidiol” means any pharmaceutical grade cannabinoid found in the plant Cannabis sativa L. or Cannabis indica or any other preparation thereof 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.
There are no out-of-state “medical cannabidiol” products approved by the Iowa Department of Public Health, so that is an impossibility. Out-of-state medical marijuana registrations do not allow out-of-state patients to purchase “medical cannabidiol” products in Iowa, so that is an impossibility.
What did the legislature actually intend by adding reciprocity? Did the legislature intend to entrap Middelkauff into believing she was protected by the law?
Two recent Iowa district court decisions considered this question and found the same activity lawfully protected under the new reciprocity law.
In State v. Minor, issued in December 2021, the defendant was charged with having 14 grams of marijuana. The defendant had a medical marijuana registration card from the State of Missouri. The district court found that Iowa Code § 124E.18 (reciprocity) means that medical marijuana is not a controlled substance under Iowa Code Chapter 124.
In State v. Orear, issued in January 2022, the defendant was charged with having marijuana-infused gummies. The defendant had a medical marijuana registration card from the State of Missouri. The district court found that Iowa Code § 124E.18 (reciprocity) applies and the charge should be dismissed.
The state did not appeal either of these two decisions. The simple, no-nonsense, approach in these two cases was obviously correct. So, if you still plan to travel through Iowa this summer, avoid the convoluted “prescription or order” and “equal protection” defenses and go with the staight up reciprocity defense that was added to Iowa’s drug laws in 2017.
Editor's note from Laura Belin: Justices Thomas Waterman, Christopher McDonald, and Dana Oxley joined Christensen's majority opinion. Justice Edward Mansfield would have reversed Middlekauff's conviction and sentence, he wrote in a dissenting opinion joined by Justices Brent Appel and Matthew McDermott. The dissenters held that Middlekauff "had, in the view of Arizona, 'a valid . . . order of a practitioner while acting in the course of the practitioner’s professional practice' in satisfaction of Iowa Code section 124.401(5)."
Top image: Official Iowa Supreme Court photo from summer 2020. Front row, from left: Justice Brent Appel, Chief Justice Susan Christensen, Justice Thomas Waterman. Back row, from left: Justices Dana Oxley, Edwards Mansfield, Christopher McDonald, and Matthew McDermott.