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Bumps in the Road to Medical Marijuana: The Current Iowa Stalemate Doesn’t Change the Endgame -- Federal Legalization - Page 2 PDF Print E-mail
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Written by Jeff Ignatius   
Thursday, 08 July 2010 05:45

Olsen's Endgame

Olsen doesn't deny that the Board of Pharmacy is, technically speaking, the wrong body to develop a medical-marijuana program. Like the board's executive director, Olsen believes pharmacy distribution of marijuana is impractical. "The idea that it's going to be distributed from a pharmacy is ridiculous, because ... the federal government would revoke the pharmacy's license if they did that," Olsen said. Most of "the other states [that have legalized medical marijuana] have avoided that altogether" by allowing patients to grow their own pot.

But that hasn't stopped Olsen from pursuing the medical-marijuana issue through litigation against the Board of Pharmacy. Olsen said that even though the Board of Pharmacy might not be the appropriate body to craft a medical-marijuana program, he didn't have many other options. "We don't have a voter initiative, or any way to get this on the ballot," he said. "There was no way to get the issue any attention without doing it that way, just because of the state we live in. ...

"The point of the reclassification here in Iowa was to get some attention," Olsen said. "That was a total success."

That highlights the absurdity of the situation. Olsen is using the courts to force the Iowa Board of Pharmacy to reclassify marijuana, even though he believes there's no logical place for medical marijuana in the Board of Pharmacy's purview.

Even so, Olsen said the Board of Pharmacy did itself no favors by requesting a Schedule II designation for marijuana. "It doesn't fit in Schedule II where they put it," he said. "In other words, their decision to move it to Schedule II was a political decision. The science and the medical evidence justified a much lower classification. They just went too severe. And then they refused to explain their decision."

As a result, Olsen said, the legislature has no idea what to do with the Board of Pharmacy recommendation. "The legislature is just sort of responding to the Board of Pharmacy by going, 'Wow. You reviewed the classification of this stuff and found it was ... [in the same class as] morphine? Are you kidding? What are we supposed to do with that?'"

Olsen argues that marijuana should be scheduled no higher than Schedule III, where the federal government currently classifies "synthetic THC in sesame oil/soft gelatin": "Marijuana couldn't possibly be in a higher schedule than the pharmaceutically pure psychoactive ingredient."

But arguing about classification ignores an essential truth: Federal law recognizes no legal therapeutic use for pot, and as long as that's the case, there's no legally correct way to allow medicinal use of marijuana. Put differently, one of Iowa's problems is that it's trying to go through proper channels with medical marijuana when there are no proper channels.

"The other states that have legalized marijuana haven't even bothered to fool around with the classification of it," Olsen said. "They've just said people can grow it at home."

According to NORML, 14 states have legalized medical marijuana since 1996. In addition, Maryland has set a maximum state fine of $100 for people convicted of marijuana-related crimes who prove that they have a medical need for the drug. In all of those states, voter initiative or legislative action was the channel through which decriminalization occurred.

Iowa's administrative path to reclassification is what makes it so important, Olsen said. By recommending Schedule II -- thus claiming that marijuana has "accepted medical use in treatment in the United States" -- the Iowa Board of Pharmacy is essentially challenging the federal classification when other states have simply ignored it. "None of the other states that have legalized medical marijuana have started out by having the classification reviewed under the existing criteria of the Controlled Substances Act," Olsen said.

Because the state and federal criteria for drug schedules are identical, the first step in rescheduling a drug federally is to do it at the state level, he said: "We're poised now to tell the federal government that marijuana has accepted medical use." (The Oregon Board of Pharmacy in June reclassified marijuana to Schedule II, following Iowa's lead.)

Olsen added that he's going to continue to push at the state level, trying to get Iowa to permit medical use of marijuana.

"The only solution is to allow patients to grow their own," he said. "It doesn't cost the state a dime. ... They can just leave the situation like that for as long as they want. And when they get some money they want to pour into it, they can figure out something better."

Possession of marijuana is still a violation of federal law, but the Obama administration has said prosecution is not a priority. "That's how the whole thing fits together right now," Olsen said. "It's just totally loosey-goosey. Until the states tell the federal government to reclassify marijuana as having accepted medical use ... it's going to be impossible to do anything except to allow patients to grow their own and tell the patients, 'Hey, you're on your own.'"

Olsen said he's waiting to see how his current case comes out before he files additional lawsuits, but most of the strategies he's considering involve compelling the Board of Pharmacy to take action. Olsen listed four approaches he might take, starting with filing a petition for rule-making.

"I have a lot of options right now, and I'm not going to stop complaining on this, but I'm not sure what direction I'm going to go," he said. "We're in the middle of a tournament here, and it's hard to say where the next shot is coming from."

Sidebar: Scott County Legislative Survey

The following questions were e-mailed last week to state legislators and legislative candidates from Scott County. Their responses are presented unedited. Return to the main story.

1) Do you support allowing marijuana to be used for medicinal purposes in Iowa? Why or why not?

2) If you support medical marijuana in Iowa, what do you believe is the best mechanism to supply patients with the drug?

3) If you support medical marijuana in Iowa, what do you believe is the correct narcotic classification for it? (The Iowa Board of Pharmacy has recommended reclassifying marijuana as Schedule II.)

4) What role, if any, should the Iowa legislature play in establishing a program and/or guidelines for medical marijuana?

5) Do you believe that the Iowa Board of Pharmacy has the statutory authority, regulatory authority, and administrative capacity to establish and administer a program and/or guidelines for medical marijuana absent further legislative action?

Shawn Hamerlinck, Republican state senator, District 42

1) I do not support marijuana use in a medicinal form. Shortly after finishing graduate school I was employed locally by a substance abuse treatment facility. I watched youth justify their own use of this gateway drug with the rationale of their parents and grandparents self-medicating for ailments. Each time I questioned if similar relief could be offered in an alternative pill form, users denied. For these families, the potential beneficial affects of use outweighed the long-term affects on the youth I worked with. This lasting impression greatly weighs on my opinion today.

4) The legislature must be involved in order to have a full and honest debate on the issue.

5) According to current Iowa Code and rules adopted by the Board it appears they have the authority, however, this type of change is something that should be debated by the legislature. Politicians should not hide from the issue by passing responsibility onto a board which is reluctant to fully take on the issue.

Mark J. Riley, Republican candidate for state senator, District 43

1) No The California law has proven disastrous and is a underhanded attempt to legalize use through the charade of medical purposes. This also has the unintended consequence of corrupting state institutions such as state pharmaceutical boards. These institutions are charged with regulating and keeping safe our system of dispensing pharmaceuticals to Iowans. To task them with recreation drug dispensing under the guise of medical use is corrupting.

4) I believe the role of the Iowa legislature is to decide whether the use of marijuana should be legal or not. To entertain medical marijuana use is to subvert the will of the people by giving it legal status with out consent from the legislature. (this does not address the legal challenge to marijuana use by the courts as an individual right)

5) They do not have the capacity. They do not have the regulatory authority or statutory authority. Would we ask them to to regulate Jack Daniels or Black velvet use for medical purposes?

Ray Ambrose, Republican candidate for state representative, District 86

1) Yes, if the pharmacy board supports it.

2) Through a doctor's recommendation (prescription).

3) I agree.

4) The legislators will politicize any action taken by the pharmacy board.

5) We are told they do by the State.

Cindy Winckler, Democratic state representative, District 86

This is a complex issue crossing both state and federal jurisdictions. This is a topic with much to debate. It is still a Schedule I substance regulated by the federal government. As I've read and listened to both sides of this issue, much more research is necessary.

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