FederalismThe Missing Piece in State Medical

Marijuana Laws

Carl Olsen (six arrests)• 1970 – 1 gram, Iowa City, IA (misdemeanor)• 1973 – 6 pounds, Ankeny, IA (case dismissed)• 1978 – 100 pounds, West Liberty, IA (5 years state prison)• 1979 – 2 pounds, Newton, IA (misdemeanor)• 1980 – 20 tons, Deer Island, ME (5 years federal prison)• 1984 – 800 plants, Miami Beach, FL (case dismissed)• 1984 – Muscatine, Oakdale, Mt. Pleasant, Ft. Madison, Des

Moines• 1985 – Leavenworth FP, Terra Haute FP, Talladega FCI,

Tallahassee• 1986 – Des Moines, IA (1 year of parole)

Carl Olsen (three petitions)• Olsen v. DEA (exemption from schedule 1),

495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990),Petition filed in 1983.

• Olsen v. DEA (THC lowered from schedule 1 to schedule 2),519 U.S. 1118, 117 S. Ct. 964, 136 L. Ed. 2d 849 (1997),Petition filed in 1993.

• Olsen v. DEA (schedule 1 and state medical marijuana laws),___ U.S. ___, 134 S. Ct. 673, 187 L. Ed. 2d 422 (2013),Petition filed in 2002.

NORML (first petition in 1972)• In the Matter of Marijuana Rescheduling Petition, DEA

Docket No. 86-22 (1988) (“Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”),Petition filed in 1972.

• ACT v. DEA930 F.2d 936, 289 U.S. App. D.C. 214 (1991)

• ACT v. DEA15 F.3d 1131, 304 U.S. App. D.C. 400 (1994)

Coalition for Rescheduling Cannabis• Gettman v. DEA (no standing to appeal),

290 F.3d 430, 351 U.S. App. D.C. 344 (2002),Petition filed in 1995 (by Gettman and High Times Magazine).

• ASA v. DEA (standing, but only “after” oral argument),706 F.3d 438, 403 U.S. App. D.C. 388 (2013),Petition filed in 2002 (by Jon Gettman, High Times Magazine, NORML, Americans for Safe Access, Patients Out of Time, and Carl Olsen).

Timeline (1967 to 1996)• 1967 – US adopts 1961 Single Convention on Narcotic Drugs • 1970 – CSA and UCSA place marijuana in schedule 1• 1972 – Shafer Commission & NORML Petition• 1986 – Pure THC (‘synthetic’) in a pill moved to schedule 2• 1987 – Grinspoon v. DEA• 1988 – DEA Administrative Law Judge says reschedule

marijuana• 1991 – US amends 1971 Psychotropic Convention for THC• 1994 – U.S. Court of Appeals (approves 5 factor test)• 1996 – California first state to accept medical use of marijuana

Timeline (1997 to 2015)• 1997 – Olsen v. DEA (only ‘synthetic’ THC moved to schedule

2)• 1999 – Pure THC (‘synthetic’) in a pill moved to schedule 3• 2001 – U.S. v. Oakland Cannabis Buyers Coop., 532 U.S. 483

(2001)• 2005 – Iowa v. Bonjour, 694 N.W.2d 511 (Iowa 2005)• 2005 – Gonzales v. Raich, 545 U.S. 1 (2005)• 2006 – Gonzales v. Oregon, 546 U.S. 243 (2006)• 2010 – Olsen v. Iowa Board of Pharmacy (No. 09-1789)• 2013 – ASA v. DEA (applies 5 factor test from 1994)• 2014 – Iowa enacts CBD law (possession only and expires in

2017)

1961 Single Convention (schedules)• Schedule 4 (liability not offset by therapeutic advantages)• Schedule 1 (limited therapeutic use with severe

restrictions)• Schedule 2 (more use / less restrictions than schedule 1)• Schedule 3 (more use / less restrictions than schedule 2)

• Opium plants and morphine are in schedule 1.• Coca plants and cocaine are in schedule 1.• Marijuana and cannabinoids are in schedule 4 and

schedule 1.

1961 Single Convention (exception)• Single Convention on Narcotic Drugs, 1961, as

amended by the 1972 Protocol, May 25, 1967, 18 U.S.T. 1407, 30 T.I.A.S. No. 6298, 520 U.N.T.S. 151 • Article 35 Action against the Illicit Traffic: • Article 35 “Having due regard to their constitutional, legal

and administrative systems, …” • Article 36 Penal Provisions: • Article 36(1)(a) “Subject to its constitutional limitations, …” • Article 36(2) “Subject to the constitutional limitations of a

Party, its legal system and domestic law, …”

What is federalism?• Bond v. United States,

34 S. Ct. 2077, 2089, 189 L. Ed. 2d 1, 12 (2014),“It is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the usual constitutional balance of federal and state powers.”

• Brandon Coats v. Dish Network,350 P.3d 849, 851 (Colo. 2015),“an activity such as medical marijuana use that is unlawful under federal law is not a ‘lawful’ activity”

Federalism and the CSA• Gonzales v. Oregon, 546 U.S. 243, 258 (2006):

“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.”

1970 Controlled Substance Act• Schedule 1 (liability not offset by therapeutic advantages)• Schedule 2 (limited therapeutic use with severe

restrictions)• Schedule 3 (more use / less restrictions than schedule 2)• Schedule 4 (more use / less restrictions than schedule 3)• Schedule 5 (more use / less restrictions than schedule 4)• Opium plants and morphine are in schedule 2.• Coca plants and cocaine are in schedule 2.• Marijuana and cannabinoids are in schedule 1.

21 U.S.C. § 903• No provision of this subchapter shall be construed as

indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.• (Pub. L. 91–513, title II, §708, Oct. 27, 1970, 84 Stat.

1284.)

21 U.S.C. § 811(a)• the Attorney General may by rule -• (1) add to such a schedule or transfer between such

schedules any drug or other substance if he - • (A) finds that such drug or other substance has a potential for

abuse, and• (B) makes with respect to such drug or other substance the

findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed; or

• (2) remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.

21 U.S.C. § 811(a)• Rules of the Attorney General under this subsection

shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by subchapter II of chapter 5 of title 5. Proceedings for the issuance, amendment, or repeal of such rules may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party.

21 U.S.C. § 812(b)(1)(B)• (1) Schedule I. – • (A) The drug or other substance has a high potential

for abuse.• (B) The drug or other substance has no currently

accepted medical use in treatment in the United States.• (C) There is a lack of accepted safety for use of the

drug or other substance under medical supervision.

What is “in the United States”?A. in a state.B. in some states.C. in all of the states.D. none of the above.

Grinspoon v. DEA (1st Cir. 1987)• Grinspoon v. DEA,

828 F.2d 881, 886 (1st Cir. 1987):“We add, moreover, that the Administrator's clever argument conveniently omits any reference to the fact that the pertinent phrase in section 812(b)(1)(B) reads ‘in the United States,’ (emphasis supplied). We find this language to be further evidence that the 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 (1st Cir. 1987)• Grinspoon v. DEA,

828 F.2d 881, 887 (1st Cir. 1987):“Unlike the CSA scheduling restrictions, the FDCA interstate marketing provisions do not apply to drugs manufactured and marketed wholly intrastate. Compare 21 U.S.C. § 801(5) with 21 U.S.C. § 321 (b), 331, 355(a). Thus, it is possible that a substance may have both an accepted medical use and safety for use under medical supervision, even though no one has deemed it necessary to seek approval for interstate marketing.”

ACT v. DEA (D.C. Cir. 1994)• ACT v. DEA, (factors for FDA ‘medical use’)

15 F.3d 1131, 1135 (1st Cir. 1994):(1) The drug's chemistry must be known and reproducible;(2) there must be adequate safety studies;(3) there must be adequate and well-controlled studies proving efficacy;(4) the drug must be accepted by qualified experts; and(5) the scientific evidence must be widely available.

• This test was applied in ASA v. DEA, 706 F.3d 438 (D.C. Cir. 2013).

Alaska Arizona California Colorado

Connecticut Delaware Hawaii Illinois

Louisiana Maine Maryland Massachusetts

Michigan Minnesota Montana Nevada

New Hampshire New Jersey New Mexico New York

Oregon Rhode Island Vermont

There are currently 24 states with medical cannabis laws

Alabama Florida Georgia Iowa

Kentucky Mississippi Missouri North Carolina

Oklahoma South Carolina Tennessee

There are currently 16 states with medical cannabis extract laws

DC

Three federal jurisdictions with medical cannabis laws

Guam

Utah Virginia

Texas

Puerto Rico

Carl Olsenhttp://www.carl-olsen.com/http://www.iowamedicalmarijuana.org/

Washington

Wisconsin

The U.S. Drug Enforcement Administration says there is no accepted medical use of cannabis

or cannabis extract in the United States.

United States v. Taylor (pages 6-7)• Case 1:14-cr-00067-RJJ Doc #502 Filed 09/08/14• A Long Litany of Case Law Holds that Marijuana is

Rationally Classified on Schedule I.• Defendants’ claim is not novel. Since the CSA was first

passed nearly forty-five years ago, it has been challenged in many courts and in many circuits. To date, every reviewing court has held that Congress acted rationally in drafting the CSA, placing marijuana on Schedule I, and setting up an agency procedure for scheduling changes.

United States v. Taylor (page 8)• First, as a matter of procedure, Congress has entrusted scheduling changes

under the CSA to the DEA, not to the courts for ad-hoc decisions in every federal drug prosecution. This is not merely a rational decision, but a decision pivotal to achieving the goals of the CSA, and the practical operation of the trial courts. It is hard to imagine any other process that would provide the flexibility needed to change scheduling in light of ongoing scientific development; the uniformity needed for national drug policy; and an orderly enforcement process necessary to prevent the Courts from grinding to a halt while re-litigating scheduling decisions in each and every drug case. [Footnote 2]

• [Footnote 2] The Court does not agree with the government that Congress’ decision to delegate scheduling decisions to the DEA deprives this Court of subject matter jurisdiction to evaluate a constitutional challenge to application of the Act. See 21 U.S.C. § 877; see also United States v. Firestack-Harvey, No. CR-13-24-FVS (E.D. Wash. June 24, 2014) ECF 409. However, the procedures Congress established are an integral part of the overall regulatory framework of the CSA and in evaluating the rational basis of the Act, the Court must account for the procedural mechanisms chosen by Congress to change Congress’ original scheduling decisions.

United States v. Taylor (page 10)• Case 1:14-cr-00067-RJJ Doc #502 Filed 09/08/14• If the Court had to determine in each separate drug

prosecution whether Congress or the DEA acted rationally in each and every scheduling decision made, the Courts would be overwhelmed. Congress, on the other hand, is a legislative body and is indeed the appropriate body to make determinations such as this. In fact, Congress contemplated future scheduling decisions in drafting the CSA and delegating future decisions to the experts at the DEA and Department of Health and Human Services. This was a rational choice by Congress and one that protects the ability of trial courts to function.

Gonazles v. Raich (page 28, note 37)• 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1(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.• 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.

Statement of Joseph T. RannazzisiDeputy Assistant AdministratorDrug Enforcement AdministrationBefore the Caucus on International Narcotics ControlUnited States SenateJune 24, 2015

Congress placed “marihuana” in Schedule I of the CSA and defined “marihuana” as all parts of the plant Cannabis sativa L., with certain exceptions for the parts of the plant that are not the source of cannabinoids. Among the parts of the cannabis plant included in the definition of marijuana are: the flowering tops, the leaves, viable seeds, and the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. 21 U.S.C. § 812(c) Schedule I; 21 U.S.C. § 802(16); 21 C.F.R. § 1308.11(d). CBD derived from the cannabis plant is controlled under Schedule I of the CSA because it is a naturally occurring constituent of marijuana. While there is ongoing research into potential medical uses of CBD, at this time CBD has no currently accepted medical use in the United States.

More information:• www.iowamedicalmarijuana.org• www.carl-olsen.com

• Carl OlsenPost Office Box 41381Des Moines, Iowa 50311-0507515-343-9933carl@carl-olsen.com