State Legislation

George McMahon v. Board of Pharmacy

Carl Olsen — Tue, 18 Nov 2008 15:49:44 GMT

The State of Iowa has responded to the ACLU of Iowa's Civil Complaint regarding Iowa's drug law which claims that marijuana has no accepted medical use in treatment in the United States. I have filed a Motion to Intervene. For further information on this case, please see my web site at http://www.iowamedicalmarijuana.org/petitions/iowa.aspx

ACLU of Iowa files Petition for Review

Carl Olsen — Sun, 19 Oct 2008 18:36:02 GMT

The ACLU of Iowa Foundation has filed a Petition for Review of the October 7, 2008 Final Order of the Iowa Board of Pharmacy Examiners. My Petition to Intervene will be sent by certified mail tomorrow.

Board of Pharmacy Ruling - 10/7/2008

Carl Olsen — Sun, 12 Oct 2008 20:16:12 GMT

On October 7, The Iowa Board of Pharmacy Examiners issued its final order on my petition to reschedule marijuana. Judging from its order, it's hard to believe the board even bothered to read my petition. I'm working on a response and I've posted a rough draft on the Iowans for Medical Marijuana website.

Misunderstanding Gonzales v. Raich

Carl Olsen — Wed, 03 Sep 2008 13:39:43 GMT

Since the U.S. Supreme Court did such a poor job of chronicling the history of DEA marijuana rescheduling efforts in Gonzales v. Raich, 545 U.S. 1, 15 n.23 (2005), I have posted the relevant cases at: http://www.iowamedicalmarijuana.org/documents/young.aspx

Starting in 1972, the National Organization for the Reform of Marijuana Laws (NORML) began its campaign to reclassify marijuana. Grinspoon & Bakalar 13-17. After some fleeting success in 1988 when an Administrative Law Judge (ALJ) declared that the DEA would be acting in an "unreasonable, arbitrary, and capricious" manner if it continued to deny marijuana access to seriously ill patients, and concluded that it should be reclassified as a Schedule III substance, Grinspoon v. DEA, 828 F.2d 881, 883-884 (CA1 1987), the campaign has proved unsuccessful. The DEA Administrator did not endorse the ALJ's findings, 54 Fed. Reg. 53767 (1989), and since that time has routinely denied petitions to reschedule the drug, most recently in 2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the District of Columbia Circuit has reviewed the petition to reschedule marijuana on five separate occasions over the course of 30 years, ultimately upholding the Administrator's final order. See Alliance for Cannabis Therapeutics v. DEA, 304 U.S. App. D.C. 400, 15 F.3d 1131, 1133 (1994).

It is extremely interesting to note that the Supreme Court recognized that marijuana was in the wrong schedule of the Controlled Substances Act and none of the parties to the case picked up on it. Gonzales v. Raich, 545 U.S. 1, 28 n.37 (2005):

We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I. See, e.g., Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds. 1999) (recognizing that "[s]cientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea and vomiting, and appetite stimulation"); see also Conant v. Walters, 309 F.3d 629, 640-643 (CA9 2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents' submission, if accepted, would place all homegrown medical substances beyond the reach of Congress' regulatory jurisdiction.

Olsen gets denied in Santa Cruz

Carl Olsen — Mon, 01 Sep 2008 14:42:22 GMT

My Motion to File Amicus Curiae Brief was denied in Santa Cruz v. Gonzales on Thursday, August 28, 2008, following the Court's ORDER of Wednesday, August 20, 2008 allowing Santa Cruz to proceed with an argument that the federal government has exceeded it's powers under the Tenth Amendment. My objection was based on statutory law which prohibits the federal government from including anything in Schedule I of the Controlled Substances Act which has any accepted medical use. Obviously, California has a law which appears to accept the medical use of marijuana.

For a detailed examination of California's medical marijuana law, the following cases may be useful: People v. Kelly, California 2nd Appellate District (5/22/2008 - striking down quantity limits); San Diego v. NORML, California 4th Appellate District (7/31/2008 - explaining federal statute which allows states to enact medical marijuana laws).

The California Attorney General has just issued guidlines on medical use of marijuana in California: Medical Marijuana Guidelines, California Attorney General (August 2008)

Clarifying the issues

Carl Olsen — Wed, 30 Jul 2008 22:37:29 GMT

The Iowa Legislature put marijuana into Schedule II in 1987. They also left it in Schedule I. They also said it had medical use only when the Board creates administrative rules. That is a complete deviation from the way any other substance is scheduled in Iowa or under federal law and regulations.

On the federal level, drugs are scheduled by the DEA because Congress set it up that way. Congress does not need to approve the scheduling. DEA picks one.

On the state level, drugs are scheduled by the Iowa Legislature after a recommendation by the Board. The Board makes a recommendation and the Iowa Legislature either accepts it or rejects it. Marijuana is the only exception to the normal process. The Iowa Legislature has put marijuana in two schedules and given the Board authority to move it between them at the Board's discretion.

This is where things breaks down. Congress did not tell the DEA to put marijuana into two schedules. Congress set the definitions for each schedule and the DEA has to pick one of them.

The Iowa Legislature has also set definitions, which are the same as the federal definitions. Apparently, the Iowa Legislature is saying those definitions don't mean anything when it comes to marijuana (because they say marijuana does have accepted medical use when it's used as a medicine, but marijuana does not have accepted medical use when it is not used as a medicine). This is complete nonsense. Cocaine is in Schedule II (both state and federal), because it has accepted medical use. Cocaine is a medicine no matter what it's being used for. It's illegal to possess cocaine without a prescription. Cocaine does not become a Schedule I drug when it's being abused. The definitions for Schedule I and Schedule II are based on whether a substance does or does not have medical use. To say something is in one or the other depending on whether it has medical use is just double talk. It doesn't add anything that isn't already there. It's a violation of due process because it only adds confusion (fixing something that isn't broken). Why do we need to say marijuana is in Schedule I if it has no medical use, when everything in Schedule I has no medical use? Why do we need to say marijuana is in Schedule II if it has medical use, when everything in Schedule II has medical use?

I would say the Iowa Legislature has a duty under Iowa law to pick one of the schedules and I would say it's the duty of the Board under Iowa law to recommend one of the schedules. That is what I'm saying, although I'm not limiting it to Schedule I and Schedule II. I'm telling them they have to pick Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, or no schedule at all (like alcohol and tobacco).

What they are doing is playing a game. They are saying the federal government is in control. However, the federal government does not put marijuana into two schedules, so they are not playing by the very rules they claim to be playing by. They are also not playing by the U.S. Supreme Court's interpretation of the federal drug laws in Gonzales v. Oregon, 546 U.S. 243 (2006), which says the states, and not the federal government, determine accepted medical practice.

So, I'm saying the Board has a duty to recommend one schedule, or none at all, to the Iowa Legislature. I'm also saying the Iowa Legislature has to pick one schedule, or none at all. I'm also saying Iowa does not have the authority, either the Board or the Iowa Legislature, to say marijuana does not have accepted medical use in the United States, because twelve states say it does have accepted medical use and federal law gives those twelve states the right to make that determination and federal law does not have a definition for accepted medical use.

Anyone who doesn't understand this has not read the statutes, the 1972 Marihuana Commission reports, the 1988 Marijuana Rescheduling Petition rulings, or the case law. If you have not read those things, you are going to have a difficult time following along. The cases are: NORML v. Ingersoll, 497 F.2d 654(D.C. Cir. 1974); NORML v. DEA, 559 F.2d 735 (D.C. Cir. 1977); Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987); ACT v. DEA, 930 F.2d 936 (D.C. Cir. 1991); and ACT v. DEA, 15 F.3d 1131 (D.C. Cir. 1994). You also want to read United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001); Gonazales v. Raich, 545 U.S. 1 (2005); and Gonzales v. Oregon, 546 U.S. 243; along with Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or., 2002), affirmed, 368 F.3d 1118 (9th Cir. 2004) (both district court and appeal court decisions).

Board says it is just an arm of the federal government

Carl Olsen — Tue, 29 Jul 2008 22:34:50 GMT

Today's hearing with the Iowa Board of Pharmacy was a demonstration of spineless bureacrats selling out the people of Iowa. The Board listened to what George and I had to say but said they were bound by federal scheduling, which is untrue. According to 21 U.S.C. § 903, as interpreted by the U.S. Supreme Court in Gonzales v. Oregon, 546 U.S. 243 (2006), the state has complete authority to make an independent finding on accepted medical use. So, the Board completely shirked its responsibility to make an independent determination on state scheduling. The Iowa Code allows the Board to adopt federal scheduling, but only when federal scheduling is lawful. The Board has complete, independent authority to deviate from federal scheduling, which is obvious from that fact that marijuana has been recognized as having medical use in Iowa since 1979 (federal regulations do not recognize any medical use of marijuana) and marijuana was placed in both Schedule I and Schedule II here in Iowa in 1987 (federal regulations classify marijuana only in Schedule I). See State of Iowa v. Lloyd Dean Bonjour, 694 N.W.2d 511, 515-516 (Iowa 2005) (Wiggins, J., dissenting). So, the Board just exposed itself as an agent of the federal government rather than a servant to the people of the state of Iowa, which it is statorily bound by law to do (by both state and federal statutes).

Motion docketed in U.S. v. Lynch

Carl Olsen — Fri, 25 Jul 2008 01:46:09 GMT

My motion was added to the docket today but postdated back to July 21 the day it was actually delivered to the court. My name was also added to the list of parties as a "movant." I've started a new section of the web site to track the activities, at: http://www.iowamedicalmarijuana.org/lynch/

Olsen files appearance in Lynch case

Carl Olsen — Mon, 21 Jul 2008 17:39:17 GMT

Carl Olsen has filed a motion to appear as amicus curiae in United States v. Charles C. Lynch, No. CR 07-689-GW, United States District Court for the Central District of California at Los Angeles. Trial is scheduled for Tuesday, July 22, 2008.

The Marijuana Policy Project has a couple of recent articles about Charles Lynch on it's web site: Toke On Down! and Law suit against county and sheriff, as well as Americans for Safe Access Drew Carey on DEA Raids & Medical Marijuana Use by Minors

Reason.TV has a nice video narrated by Drew Carey Raiding California: Medical Marijuana and Minors.

The Federal Public Defender indicates that his client, Charles Lynch, will join in Mr. Olsen's motion

Hawaii Governor Vetoes Medical Marijuana Legislation

Carl Olsen — Fri, 11 Jul 2008 13:31:55 GMT

Here we go again. The Governor of Hawaii is claiming that federal law prevents the medical use of marijuana when both state and federal law agree it's legal. Will someone in Hawaii please complain?

EXECUTIVE CHAMBERS

HONOLULU

July 8, 2008

STATEMENT OF OBJECTIONS TO HOUSE BILL NO. 2675

Honorable Members
Twenty-Fourth Legislature
State of Hawaii

Pursuant to Section 16 of Article III of the Constitution of the State of Hawaii, I am returning herewith, without my approval, House Bill No. 2675, entitled "A Bill for an Act Relating to Medical Marijuana."

The purpose of this bill is to create a "medical marijuana task force" within the University of Hawaii for administrative purposes. This task force is required to study whether current law affords an adequate supply of medical marijuana, whether it is feasible to establish marijuana growing facilities on each island, and whether inter-island marijuana transport can be made possible for traveling patients. The task force is also required to examine other issues and obstacles that patients encounter as well as research other states' medical marijuana programs and laws.

This bill is objectionable because it is an exercise aimed at finding ways to circumvent federal law. The use of marijuana, even medical marijuana, is illegal under federal law. It is, therefore, inappropriate for the State to recommend ways to maintain or increase the supply of marijuana, to make recommendations regarding the development of marijuana growing facilities, or to seek ways to circumvent federal prohibitions regarding the transport of marijuana.

STATEMENT OF OBJECTIONS
HOUSE BILL NO. 2675
Page 2

Moreover, requiring the task force to be administratively attached to the University of Hawaii is inappropriate. Mandating the University's involvement when there is a clear conflict between State and federal law has the potential to adversely affect funding for a number of programs and research projects that rely on federal grants. Requiring the College of Tropical Agriculture and Human Resources to administer the work of the task force is also inappropriate as the legal, medical, public health, public safety, and transportation issues surrounding medical marijuana are far outside the college's purview.

Additionally, the composition of the task force itself is questionable because three of the eleven task force members are from a single private organization, the Drug Policy Forum of Hawaii. Seven of the eleven members are prescribers, patients, or members of the Drug Policy Forum, and are all likely to favor the expansion of medical marijuana access and programming.

While I am sympathetic towards those who suffer debilitating illnesses and appreciate organizations and advocates who are representing their interests, the task force should also have at heart the interests of the community at large. There are a host of unintended consequences related to the proliferation of medical marijuana that this task force is not required to address. Since I firmly believe that considerations must be made to ensure that Hawaii's communities remain safe and drug free, I must question whether this task force is capable of balancing the interests of both the community and medical marijuana patients.

STATEMENT OF OBJECTIONS
HOUSE BILL NO. 2675
Page 3

Additionally, the federal Office of National Drug Policy notes that there are other prescription drugs approved by the Federal Drug Administration that are safe and medically deemed effective in helping those with AIDS, glaucoma, cancer, and other painful illnesses.

For the foregoing reasons, I am returning House Bill No. 2675 without my approval.

Respectfully,

LINDA LINGLE
Governor of Hawaii