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

On February 17, the Iowa Board of Pharmacy voted unanimously to support a motion recommending "that the legislature reclassify marijuana from Schedule I of the Iowa Controlled Substance Act ... to Schedule II ... with the further recommendation that the legislature convene a task force or study committee ... for the purpose of making recommendations back to the legislature regarding the administration of a medical-marijuana program."

That simple, unequivocal statement followed four public hearings in summer and fall 2009, and appeared to be a major victory for medical-marijuana advocates.

But that win looks largely symbolic today, as Democratic legislative leaders last month balked at forming a study group, and the Board of Pharmacy reiterated its desire for legislative guidance.

Yet the Board of Pharmacy's recommendation remains a clear first step toward allowing medical use of marijuana in Iowa. According to the Iowa Controlled Substances Act, a Schedule I drug has "no accepted medical use in treatment in the United States; or lacks accepted safety for use in treatment under medical supervision." A Schedule II drug has "currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions."

So a request to reschedule marijuana is an acknowledgment by the Board of Pharmacy that marijuana has an "accepted medical use." But who will make marijuana available for medicinal use in Iowa?

At this point, the answer from the Board of Pharmacy and the legislature could be drawn from that old Family Circus gag: "Not Me!"

Carl Olsen, the director of Iowans for Medical Marijuana, continues to litigate the issue, most recently asking the courts to compel the Iowa Board of Pharmacy to explain its recommendation to the legislature.

"I think the Board of Pharmacy made a huge mistake by not publishing the rationale for its conclusion," he said last week. "They sent the legislature a two-sentence conclusion that without an explanation doesn't make any sense."

Still, Olsen said he's not discouraged by recent developments, casting the political back-and-forth as part of a larger process. "It's difficult to undo all the reefer madness and stuff," he said. "It has to occur in small, tiny steps. ... What we hope to see happen is that we continue to make progress, and that it doesn't stall out at the level it's at. It's not surprising that it's got bumps along the way."

And the reality is that Olsen's larger interest isn't merely medical marijuana in Iowa. His ultimate aim is to get marijuana removed from the federal list of Schedule I drugs -- in other words, to make medical marijuana legal under federal law.

"It may not look like it to some people, but to me it looks like a huge change going on," Olsen said.

State Stalemate

The assumption after the Board of Pharmacy's February ruling was that the legislature would weigh in on the issue. On May 1, the Des Moines Register's Iowa Politics Insider blog noted that House Majority Leader Kevin McCarthy (D-Des Moines) "said he and other legislative leaders still intend to set up a study committee on the issue this summer, and they hope to reach a bipartisan consensus. But legislators might not need to change the law, he said. Instead, they might pass a resolution stating their stance on the issue."

McCarthy noted that state law already allows for medicinal use of marijuana -- if the Board of Pharmacy allows it. The Iowa Controlled Substances Act includes marijuana on Schedule I, "except as otherwise provided by rules of the board of pharmacy examiners for medicinal purposes."

But on June 14, McCarthy backtracked about a study committee. In the Iowa Politics Insider blog, McCarthy was quoted as saying: "There's no need for an interim committee, because it's already law."

McCarthy left out one important element: It's "law" only to the extent that the Board of Pharmacy acts on it.

In an e-mail to Senate President Jack Kibbie (D-Emmetsburg), Iowa Board of Pharmacy Executive Director Lloyd Jessen pleaded for legislative action: "The suggestion that the Board can implement a medical marijuana program entirely on its own is simply incorrect. The Board does not currently have the jurisdiction or legal authority to address all the necessary issues by administrative rule. Those issues include complex matters such as the growing and distribution of marijuana, the physician's role in making it available to Iowa patients, qualifying medical conditions, program funding, criminal sanctions for violations of the program, legal protection for those who comply with the program, and ... myriad ... other related matters. All of these critical issues exceed the Board's statutory jurisdiction."

Jessen elaborated on the board's role in a mid-June interview with Iowa Public Radio: "The Board of Pharmacy is limited in what it can do. It was created to regulate the practice of pharmacy. And this goes far beyond regulating the practice of pharmacy, because medical marijuana probably will not be distributed by pharmacy. It will be either grown by patients, or it will be provided by vendors, or it would be provided by the state." (Jessen did not respond last week to two requests for an interview for this article.)

Fundamentally, Jessen is correct. The mission of the board is described in the Iowa Administrative Code: "The board of pharmacy promotes, preserves, and protects the public health, safety, and welfare by fostering the provision of pharmaceutical care to all Iowans through the effective regulation of the practice of pharmacy, the operation of pharmacies, the appropriate utilization of pharmacy technicians, the distribution of prescription drugs and devices, and the education and training of pharmacists."

Furthermore, Jessen argues, the law allowing for Board of Pharmacy-regulated use of medical marijuana is anachronistic. He told Iowa Public Radio: "That law is from 1978, and the circumstances that existed when that old law was in place are completely different today. Back in 1978, the federal government was permitting what they called investigational use of medical marijuana, and they actually supplied the medical marijuana. ... The federal government discontinued that program long ago. And federally, medical marijuana is not legal. ... The Obama administration and the U.S. attorney general have given some guidance saying that states that now have medical-marijuana laws won't be disturbed. So conditions have changed, and the issues that are involved here are many more than just a drug- or pharmacy-related issue."

He summarized that creating a medical-marijuana program in Iowa "would involve a lot more than a policy. The board believes that it requires a new law or some new legislation ... ."

The Board of Pharmacy's reluctance to tackle the issue of creating and implementing a medical-marijuana program in Iowa is hardly a surprise; from the outset, the board has been a hesitant player in this debate.

The Board of Pharmacy had previously rejected the requests of Olsen and others to change marijuana's controlled-substance classification, and undertook its study only after Polk County District Judge Joel D. Novak ordered the board to justify its decision. That led to last year's hearings and consequently the board's unanimous recommendation.

And it's also not a surprise that the Democratic leadership has decided to avoid directly dealing with the issue of medical marijuana. Although a February poll by the Des Moines Register found 64-percent public support in Iowa for medical marijuana, it seems likely that Democrats -- who control both houses of the legislature and the governor's office -- don't want to be portrayed as soft on drugs.

James Getman, director of the Iowa chapter of the National Organization for the Reform of Marijuana Laws (better known as NORML), offered a different perspective. "I'm disappointed but not surprised" by the current stalemate, he said. He added that the reason that the legislature refuses to act is the influence of the pharmaceutical industry. Drug companies, he said, "are definitely lobbying to prevent medical marijuana from moving forward." The aim is to stop "competition for the products that they sell."

The River Cities' Reader last week sent a survey on medical marijuana to Scott County state legislators and legislative candidates. While opinions varied, three of the four who responded appeared to agree that the legislature should give some guidance on the issue of medical marijuana -- even if the Board of Pharmacy has the legal authority to move forward on its own. (Read the full responses in the sidebar.)

Only Ray Ambrose, the Republican candidate for state representative in District 86, said the legislature should defer to the Board of Pharmacy: " The legislators will politicize any action taken by the pharmacy board."

"This is a complex issue crossing both state and federal jurisdictions," wrote State Representative Cindy Winckler, a Democrat from District 86. "This is a topic with much to debate." She declined to state whether she favors or opposes medical marijuana in Iowa, saying that "much more research is necessary."

State Senator Shawn Hamerlinck, a Republican representing District 42, said he is opposed to the medical use of marijuana in Iowa.

He said he believes that Iowa law gives the Board of Pharmacy the power to regulate medical marijuana: "According to current Iowa Code and rules adopted by the Board, it appears they have the authority."

He stressed, however, that lawmakers should take up the issue: "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, the Republican nominee for state-Senate District 43, said the Board of Pharmacy should not act alone: "I believe the role of the Iowa legislature is to decide whether the use of marijuana should be legal or not," he wrote.

In saying that he is opposed to allowing medical marijuana in Iowa, he wrote: "The California law has proven disastrous and is an 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."

He also said that the Board of Pharmacy has neither the resources nor the sanction to regulate medical marijuana: "They do not have the capacity. They do not have the regulatory authority or statutory authority. Would we ask them to to regulate Jack Daniel's or Black Velvet use for medical purposes?"


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.

Return to the main story.


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