Congressional Legislation Introduced to Get the Federal Government Out of the Marijuana Enforcement BusinessFebruary 23, 2015
House Resolution 1013, the Regulate Marijuana Like Alcohol Act, removes cannabis from the United States Controlled Substances Act. It also removes enforcement power from the US Drug Enforcement Administration in matters concerning marijuana possession, production, and sales — thus permitting state governments to regulate these activities as they see fit.
Said the bill’s primary sponsor, Democrat Jared Polis of Colorado: “Over the past year, Colorado has demonstrated that regulating marijuana like alcohol takes money away from criminals and cartels, grows our economy, and keeps marijuana out of the hands of children. While President Obama and the Justice Department have allowed the will of voters in states like Colorado and 22 other jurisdictions to move forward, small business owners, medical marijuana patients, and others who follow state laws still live with the fear that a new administration – or this one—could reverse course and turn them into criminals. It is time for us to replace the failed prohibition with a regulatory system that works and let states and municipalities decide for themselves if they want, or don’t want, to have legal marijuana within their borders.”
Separate legislation, House Resolution 1014: the Marijuana Tax Revenue Act, introduced by Democrat Rep. Earl Blumenauer of Oregon, seeks to impose a federal excise tax on the retail sale of marijuana for non-medical purposes as well as apply an occupational tax for state-licensed marijuana businesses. Such commercial taxes would only be applicable if and when Congress has moved to defederalize marijuana prohibition.
“It’s time for the federal government to chart a new path forward for marijuana.” said Rep. Blumenauer. “Together these bills create a federal framework to legalize, regulate and tax marijuana, much like we treat alcohol and tobacco. The federal prohibition of marijuana has been a failure, wasting tax dollars and ruining countless lives. As more states move to legalize marijuana as Oregon, Colorado, Washington and Alaska have done, it’s imperative the federal government become a full partner in building a workable and safe framework.”
Similar versions of these measures were introduced in the previous Congress but failed to gain federal hearings.
To contact your US House member and urge him/her to support House Resolution 1013, the Regulate Marijuana Like Alcohol Act and/or other pending federal marijuana law reform legislation, please visit NORML’s Take Action page here.
At issue is whether a rational basis exists for the government’s contention that cannabis is properly designated as a schedule I substance — defined as possessing a “high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety … under medical supervision.” A federal court has not heard evidence on the matter since the early 1970s.
Lawyers for the federal government argue that it is rational for the government to maintain the plant’s prohibitive status as long as there remains any dispute among experts in regard to its safety and efficacy. Defense counsel — attorneys Zenia Gilg and Heather Burke of the NORML Legal Committee — contend that the federal law prohibiting Justice Department officials from interfering with the facilitation of the regulated distribution of cannabis in over 20 US states can not be reconciled with the government’s continued insistence that the plant is deserving of its Schedule I status under federal law.
In October, defense counsel and experts presented evidence over a five-day period arguing that the scientific literature is not supportive of the plant’s present categorization. “Numerous clinical trials have been conducted using whole plant marijuana and have concluded the evidence strongly suggests therapeutic value,” defense counsel affirmed in a written brief filed with the court last month. “Physicians in 23 states and the District of Columbia have been recommending whole plant cannabis for treatment of a myriad of medical conditions. The United States, through SAMHSA (Substance Abuse Mental Health Services Administration, a branch of HHS), holds a patent [on the therapeutic utility of the plant.]”
“… It is unimaginable to believe that if heroin, cocaine, methamphetamine, or even over-the-counter medications were being distributed in 23 states and the District of Columbia, Congress and the President would abdicate all regulatory authority to those jurisdictions, and then cut off all funds … to intervene in related distribution activities. … Even the most vivid imagination would be hard pressed to reconcile such action with a ‘rational belief’ that marijuana is one of the most dangerous drugs in the nation.”
In a brief filed with the court by the federal government, it contends: “Congress’ decision to treat marijuana as a controlled substance was and remains well within the broad range of permissible legislative choices. Defendants appear to argue that Congress was wrong or incorrectly weighed the evidence. Although they failed to prove even that much, it would be insufficient. Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”
They add: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”
The Judge is anticipated to rule on defense’s motion within 30 days.
Legal briefs in the case, United States v. Pickard, et. al., No. 2:11-CR-0449-KJM, are available online here.
Newly appointed US Surgeon General Vivek Murthy believes that cannabis possesses therapeutic utility — an acknowledgment that contradicts the plant’s present placement as a Schedule I controlled substance under federal law.
Speaking to CBS News, Murthy said: “We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful.” He added, “I think we have to use that data to drive policy making and I’m very interested to see where that data takes us.”
Dr. Murthy was confirmed as US Surgeon General late last year.
His statements appear to be inconsistent with the Schedule I classification of marijuana under federal law — a scheduling that defines the plant and its organic compounds as possessing “no currently accepted medical use …. in the United States” and lacking “accepted safety … under medical supervision.”
Next week in Sacramento, a federal judge will hear final arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification. In October, defense counsel and experts presented evidence over a five day period arguing that the scientific literature is not supportive of the plant’s present categorization.
Briefs in this ongoing federal case are available online here.
[Update: Perhaps predictably, the Surgeon General has dialed back his initial comments to CBS News. Late last night, The Department of Health and Human Services issued a statement attributed to Murthy stating: “Marijuana policy — and all public health policies — should be driven by science. I believe that marijuana should be subjected to the same, rigorous clinical trials and scientific scrutiny that the Food and Drug Administration (FDA) applies to all new medications. The Federal Government has and continues to fund research on possible health benefits of marijuana and its components. While clinical trials for certain components of marijuana appear promising for some medical conditions, neither the FDA nor the Institute of Medicine have found smoked marijuana to meet the standards for safe and effective medicine for any condition to date.”
Interesting that Dr. Murthy cites the IOM which hasn’t formally commented on the issue of medical marijuana since releasing its report some 15 years ago, long before the results of FDA-approved clinical trials like this had been completed. Also notable that he leans on the FDA for guidance when the agency largely does not review the safety and efficacy of botanical products.]
An updated policy statement issued today by the American Academy of Pediatrics (AAP) calls for the rescheduling of the cannabis plant under federal law to better facilitate clinical trial research and to promote the plant’s eventual pharmaceutical development.
The new position statement resolves: “The AAP strongly supports research and development of pharmaceutical cannabinoids and supports a review of policies promoting research on the medical use of these compounds. The AAP recommends changing marijuana from a Drug Enforcement Administration schedule I (controlled substance) to a Schedule II drug to facilitate this (clinical) research.”
By definition, schedule I controlled substances are defined as possessing no “accepted medical use.” Clinical protocols involving cannabis are strictly controlled and require authorization from various federal agencies, including DEA, FDA, and the National Institute on Drug Abuse (NIDA) – the latter of which is designated under federal law as the sole provider of cannabis and/or organic cannabinoids for research purposes.
“A Schedule 1 listing means there’s no medical use or helpful indications, but we know that’s not true because there has been limited evidence showing [marijuana] may be helpful for certain conditions in adults,” said Dr. Seth Ammerman, who co-authored the new policy statement.
The newly amended AAP resolution also acknowledges that certain types of cannabinoid-therapy may provide benefits to adolescents, particularly those patient populations with treatment-resistant forms of epilepsy and chronic seizures. It states, “The AAP recognizes that marijuana may currently be an option for cannabinoid administration for children with life-limiting or severely debilitating conditions and for whom current therapies are inadequate.”
Last year the Epilepsy Foundation of America issued a similar resolution, citing preclinical data and observational reports of the potential therapeutic benefit of the cannabinoid cannabidiol (CBD) in pediatric patients and calling for “an end to Drug Enforcement Administration (DEA) restrictions that limit clinical trials and research into medical marijuana for epilepsy.”
Separate language in the AAP’s position statement also addresses the social use of the plant, affirming, “AAP strongly supports the decriminalization of marijuana use for both minors and young adults and encourages pediatricians to advocate for laws that prevent harsh criminal penalties for possession or use of marijuana.” By contrast, the statement acknowledges the group’s continued opposition to the legalization of marijuana, a policy change that it alleges poses “potential harm to children.”
Text of the amended AAP position paper is online here. A summary of resolutions issued by other medical and health organizations in regard to patient access to therapeutic cannabis is available on the NORML website here.
United States District Judge Kimberly Mueller heard testimony over the course of the past five days in regard to the constitutionality of the federal statute designating marijuana as a Schedule I Controlled Substance. At issue in this evidentiary hearing is whether the scientific literature provides a rational basis for the federal classification of the plant as a substance with “a high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety” for use under medical supervision.
The federal government’s position was articulated in testimony provided by Dr. Bertha Madras, Professor of Psychobiology at Harvard Medical School and the former Deputy Director for Demand Reduction for the White House Office of National Drug Control Policy under President George W. Bush.
Expert witnesses for the defense who testified at the hearing were Dr. Carl Hart, Associate Professor of Psychology in the Department of Psychiatry and Psychology at Columbia University in New York City, retired physician Phillip Denny, Dr. Greg Carter, Medical Director of St. Luke’s Rehabilitation Institute in Spokane, Washington, and marijuana cultivation expert and archivist Chris Conrad.
Defense counsel for the litigants were NORML Legal Committee members Zenia Gilg of San Francisco and Heather Burke of Nevada City, CA. I assisted attorneys Gilg and Burke as a consultant in the case prior to the hearing and as their principle investigator during the hearing — a point that the federal government’s attorneys insisted on making public on Wednesday by insisting the judge recognize that: “Defense counsels’ investigator is the Deputy Director of NORML; he’s not some ordinary investigator.”
Representatives from California NORML as well as writer Jeremy Daw of TheLeafOnline were in attendance during the hearing and provide day-by-day coverage of events on their respective websites and at the links below. Dr. Madras was cross-examined both Wednesday afternoon and Thursday morning.
A ruling by Judge Mueller is not anticipated until after the first of the year.