How Federal Marijuana Laws Differ from States with Legal Medical Marijuana

What an interesting time we’re living in with marijuana. Since the 1970’s, marijuana has been classified by the Drug Enforcement Agency as a Schedule 1 Narcotic. Here are some other Schedule I narcotics: Ecstasy, Heroin, LSD, and Quaaludes.

Schedule 1 is reserved for drugs that have “no currently accepted medical use”. Therefore, physicians are not allowed to prescribe drugs in Schedule 1. Here are the 3 criteria for Schedule 1 placement:

1) The drug or other substance has a high potential for abuse

2) The drug has no currently accepted medical use in the treatment in the US

3) There is a lack of accepted safety for use of the drug or other substance under medical supervision

This occurred in 1970 under the advice of Assistant Secretary of Health at the time. His letter to Congress stated,

“Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marijuana be retained within schedule I at least until the completion of certain studies now underway to resolve the issue. If those studies make it appropriate for the Attorney General to change the placement of marijuana to a different schedule, he may do so in accordance with the authority provided under section 201 of the bill. . .

Sincerely yours, (signed) Roger O. Egeberg, M.D

Those “studies” were completed in 1972 with a report being released from the National Commission on Marijuana and Drug Abuse. This report recommended decriminalizing cannabis, which went ignored under President Nixon. Ever since that time, bills have been introduced to reschedule marijuana, with unsuccessful results. Most recently, a bill was introduced to remove cannabis completely from the federal schedules. This would simply limit the federal government to preventing cross-border or transfers between states where cannabis remains illegal.

Yes, marijuana is illegal. Since it cannot be prescribed, there are consequences federally for possession, distribution, etc. The Marijuana Tax Act was brought before Congress in 1937, which was passed and placed a tax on the sale of cannabis. This tax equaled roughly one dollar on anyone who commercially dealt marijuana. The ACT did not criminalize the possession or usage of marijuana however. The American Medical Association opposed the bill, arguing that cannabis was not dangerous and that its medicinal use would be severely curtailed by prohibition. Within 4 years, medical marijuana was withdrawn from the US pharmaceutical market because of the law’s requirements. So essentially marijuana went from being legal and a growing part of the business and medical fabric of the US, to heavily taxed in 1937, to illegal in 1970.

Between 1970 and 1996, plenty of research was accomplished, and Marinol (synthetic THC) was approved by the FDA for nausea and vomiting and wasting. The Netherlands actually legalized marijuana in the 1970’s almost overtly. Anyone over 18 can purchase it in a coffee shop openly.

In 1996, California became the first state to legalize marijuana for medicinal usage. Proposition 215 allowed patients freedom from prosecution with a physician’s recommendation. Since a prescription is not allowed, it is called a recommendation. The federal government at one point went after physicians for recommending medical marijuana, but federal court has protected physicians as part of the First Amendment rights. Colorado followed in 2000. Neither state saw extremely widespread use of medical marijuana due to the federal illegality still on the books.

Over the next few years, more and more states legalized marijuana medicinally. In 2009, the Ogden memo was released from President Obama’s administration. The US attorney’s office stated they would no longer use federal resources to go after patients as long as they complied with state laws. The memo made reference to dispensaries as well. That marked a turning point in the medical marijuana industry, as dispensaries began multiplying exponentially in Montana, California, and Colorado. As of this writing, 16 states plus DC have legalized medical marijuana – one third of the country.

While marijuana laws were being implemented in these states and programs growing, the federal stance changed in mid 2011. It looked like the federal government had decided it wasn’t worth the resources to pursue patients and dispensaries who were abiding by state law. To most medical marijuana patients and businesses who were in compliance with state law, it looked like the federal government was recognizing the legitmate benefits of marijuana for many debilitating conditions.

Whereas prior it appeared that the Department of Justice was taking a “hands off” approach to those abiding by state laws, multiple states received letters from US Attorneys in May of 2011 that marked a change of attitude. Those letters reiterated that patients would not be targeted by the Department of Justice, however, the stance versus dispensaries looked to be different. The letters referred to anyone participating in the selling, distribution, and profiting from marijuana being at risk of prosecution. In one state letter, it even theorized that state employees who were processing dispensary application were at risk of prosecution.

Multiple states have put their dispensary programs on hold or are re-evaluating. Some have continued business as usual. So the bottom line with states is it appears patients are fine to receive recommendations and ID cards. Then growing for themselves or getting marijuana from a designated caregiver or obtaining from a legal dispensary is ok for the patients. But having a dispensary or a growing operation remains a large question mark.

For now, marijuana is illegal federally and it’s unclear when the laws and Schedule 1 classification will change. Multiple states see medicinal benefits and have legalized marijuana for patients, and at least 10 others have pending legislation in the works.

Arizona has sued the Department of Justice for clarification on federal versus state law, which was unusual because the state passed medical marijuana legalization knowing full well the federal laws on marijuana. Those laws have not changed. The differences between how the federal government has classified medical marijuana versus legal states is causing significant confusion, but one thing remains clear. In states with legal medical marijuana programs, the federal government has consistently stated they are not looking to penalize individual patients. The main confusion remains over dispensaries and other business efforts.

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