ASA Activist Newsletter - FEBRUARY 2012

Posted by on February 01, 2012

Volume 7, Issue 2

ASA Files Federal Appeal in Bid
to Reclassify Medical Cannabis

Americans for Safe Access is appealing the federal government’s refusal to reclassify cannabis for medical use. ASA is asking a federal appeals court to compel the federal government to make cannabis available for medical use.

The legal action comes in response to the federal Drug Enforcement Administration (DEA) denial of a petition by the Coalition for Rescheduling Cannabis (CRC), of which ASA is a member. That petition was originally filed in 2002 and only acted on by the DEA when the CRC sued the government for unreasonable delay.

'The Obama Administration, like those before it, is playing politics with medical cannabis at the expense of sick and dying Americans,' said ASA Chief Counsel Joe Elford, who filed the appeal today. “But now the government will have to answer in court why it continues to ignore the overwhelming weight of scientific evidence.'

Since 1970, two other rescheduling petitions have sought to restore cannabis to the list of recognized medicines, but the medical record was reviewed only once by the courts in 1994. Since then thousands of peer reviewed articles have been published on research exploring the medical applications and potential of cannabis and the cannabinoids that are its constituent chemicals.

ASA argues that the federal government acted arbitrarily and capriciously in ignoring medical research and practice, with the result that legal access to cannabis is being denied to the millions of patients throughout the United States who may benefit from it.

The DEA was only able to deny the therapeutic value of cannabis by applying different evaluative criteria to cannabis than other drugs, misrepresenting social science research, and relying on unsubstantiated assumptions, according to ASA’s brief.

ASA is urging the court to 'require the DEA to analyze the scientific data evenhandedly,' and order 'a hearing and findings based on the scientific record.' That record was even more conclusive in 2002 than it was in 1988 when the DEA’s Chief Administrative Law Judge reviewed it and ruled that denying medical access was “unreasonable, arbitrary and capricious.” Since the CRC petition was originally filed, considerably more peer-reviewed research has been published that shows the benefits of cannabis for treating a variety of serious conditions, and its therapeutic value has been more widely acknowledged. For instance, the National Cancer Institute, a division of the federal Department of Health and Human Services, has added cannabis to its list of Complementary Alternative Medicines, noting that it has been used therapeutically for millennia.

ASA argues in its appeal that the additional scientific evidence of the last decade is relevant and must be considered.

The original petition on behalf the CRC was filed by attorneys David Holland and Michael Kennedy. The CRC is comprised of several individual patients and advocacy groups, including Patients Out of Time and ASA.

More information:
ASA appeal brief
DEA answer to CRC petition
CRC rescheduling petition

California Supreme Court to Review Dispensary Cases

Controversial decisions affect distribution regulations

Two controversial medical cannabis cases that have resulted in the suspension of some local dispensary ordinances are being reviewed by the California Supreme Court, along with two others involving dispensaries.

In one case, Pack v. City of Long Beach, the court ruled that some dispensary regulations may be preempted by federal law. In the other, City of Riverside v. Inland Empire Patient's Health and Wellness Ctr., the court held that local governments could legally ban distribution. The rulings in both cases have been vacated.

“It’s no surprise these cases are being reviewed, as both flew in the face of established decisions,” said Joe Elford, ASA’s Chief Counsel, who filed a brief along with the American Civil Liberties Union, the Drug Policy Alliance, and the County of Santa Cruz requesting review of the Pack case. 'Most importantly, by vacating the rulings, the California Supreme Court has stopped local governments from use them to deny access to medical cannabis for patients in their communities.'

Although the October 2011 Pack decision contradicted other appellate court rulings, several cities and counties across California have used it as a basis for suspending regulatory ordinances or banning local distribution entirely. Even the U.S. Justice Department cited the Pack decision as a reason why local officials should not regulate distribution.

One of the cases that contradicted Pack was the November 2011 ruling in the Riverside case, now also under review, which held that medical cannabis distribution was not preempted by federal law, but cities could lawfully ban it anyway. The other two medical cannabis dispensary cases granted review by the California Supreme Court are Traudt v. City of Dana Point and People v. G3 Holistic.

It may be two or more years before the Supreme Court rules on the cases.

“Now that these bad rulings are set aside, it’s important that local officials help their communities by establishing sound dispensary regulations,” said ASA Executive Director Steph Sherer. “Dispensaries provide safe access for those with the most serious medical conditions who have few other options.”

More information:
Ruling in Pack v. City of Long Beach
Ruling in City of Riverside v. Inland Empire Patient's Health and Wellness Ctr.
ASA, et al amicus brief urging review by the California Supreme Court

Maryland Considering Comprehensive
Medical Cannabis Bill

House Bill Would Replace Last Year’s Temporary Measure

A comprehensive medical cannabis bill was introduced in Maryland’s House of Delegates this month. House Bill 15, introduced by Delegate Cheryl Glenn (D-Baltimore) would replace a bill passed last year as a stop-gap measure while a state-appointed workgroup studied the issue.

The Maryland Medical Marijuana Act would establish a strictly regulated production and distribution system with clear rules for qualified patients and law enforcement. HB 15, developed with input from ASA, would also shield patients from housing and workplace discrimination.

Maryland’s existing law, passed by the legislature last year, has limited protections for patients but does not address how patients could legally obtain medical cannabis, nor does it protect patients from arrest and prosecution.

The 18-member 'workgroup' the legislature created when it passed the law has issued two legislative proposals, supported by an almost equal number of workgroup members.

One proposal, backed by workgroup chair Maryland Health & Mental Hygiene Secretary Dr. Joshua Sharfstein, would create a unique distribution system through 'Academic Medical Centers.' Similar state-run arrangements, such as New Mexico’s attempt to create a distribution program staffed by state employees, have faced aggressive federal legal challenge.

The other proposal, backed by Maryland Del. Dr. Dan Morhaim (D-Baltimore County), mirrors a bill that failed to pass out of committee last year because of objections from Secretary Sharfstein and a fiscal note that alleged exorbitant costs to Maryland taxpayers.

'As a legislator dedicated to addressing the needs of medical marijuana patients in Maryland, I am very disappointed in both legislative proposals being offered by the commissioned workgroup,' said Del. Glenn. 'I am offering a different bill -- what I believe is a common-sense approach to this issue, taking into account not only the needs of medical marijuana patients, but also the needs of the larger communities in which they live.'

One of the key differences between Del. Glenn's bill and the workgroup proposals is that HB15 would allow patients to produce their own medicine, while the other proposals would not.

'In places that have ignored the need for patients to cultivate their own medical marijuana -- such as Delaware, New Jersey, and the District of Columbia -- thousands of patients have been forced to go without,' said Del. Glenn. 'This is unacceptable and should be a lesson we learn from, not one we repeat in Maryland.'

HB 15 will first be heard by the Health and Government Operations & Judiciary Committees. If passed, HB 15 will take effect on June 1st and require the Department of Health and Mental Hygiene to adopt regulations on or before September 1st of this year.

Further information:
HB 308
Workgroup proposals
ASA one-pager on importance of patient cultivation

Ariz. Governor Restarts State Dispensary Program

Arizona’s medical cannabis dispensary program should be restarting soon after a hiatus. A week after a federal court dismissed Arizona’s lawsuit over its state medical cannabis law, Govrenor Jan Brewer not only announced she will not re-file the suit but directed the state Department of Health Services to begin processing dispensary applications and issuing licenses as soon as a state lawsuit is resolved.

A prospective operator of dispensaries in Arizona filed suit against the state when the program was suspended by Gov. Brewer.

Gov. Brewer has actively worked to thwart the program voters established via initiative. She sued the federal government over her state’s law in a legal action the Justice Department regarded as unusual and the federal judge dismissed.

Gov. Brewer has also asked the U.S. Attorney for Arizona for guidance on the federal government’s position on state employees regulating dispensaries. Federal prosecutors in several states have sent threatening letters to state and local officials warning that they could be prosecuted under federal law for implementing state medical cannabis laws.

“We’re glad Governor Brewer has recognized her obligation to implement the laws of her state, even the ones she may not personally endorse,” said ASA Executive Director Steph Sherer. “Federal threats aimed at interfering with the sworn duty of state officials are unconstitutional, and no one should hide behind them.”

More information:
Proposition 203 and Arizona Medical Marijuana Act
Pending lawsuit filed by prospective dispensary operator