Pages tagged "legal"

A Plaintiff Speaks: Why I'm Suing for Safe Access

I am a disabled United States Air Force veteran who is one of the plaintiffs suing over the placement of marijuana in the Controlled Substances Act, in the ASA v DEA case which will be heard by the United States Court of Appeal for the DC Circuit on October 16th. In order to understand why I would be willing to put my name on the line in this lawsuit over the schedule number of cannabis it is first important to review a little bit of history.

Most people know that marihuana (spelled just that way) was the subject of a national law called the Marihuana Tax Act but less known is the fact that this law was based upon the Machine Gun Tax Act. It was legal trickery at best, as the whole point of the new law was to prohibit the sale and possession without the bother of a Constitutional Amendment as was done with alcohol prohibition.

I think the chief drug bureaucrat at the time, Harry Anslinger, knew full well that the Marijuana Tax Act was on shaky Constitutional ground as he made it his life's work to sure up the law. In the 1960¹s he succeeded with the Single Convention treaty and thereby sought a back door Constitutional authority for his prohibition because it is written in our Constitution that treaties, once ratified, become “the supreme law of the land.”

The United States Supreme Court wasn¹t impressed with Mr. Anslinger¹s efforts. however, and in 1969 they sided with Dr. Timothy Leary and ruled the Marihuana Tax Act unconstitutional. This opened the door for Congress to create a new federal law on marihuana using the Interstate Commerce Clause to define their jurisdiction and the new treaty system as part of its basic constitutional authority.

The new federal law, the Controlled Substances Act, is a basically good law that allows for fairly seamless control of and access to thousands of medicinal substances, but unfortunately the arbitrary inclusion of marihuana in the most restrictive category - Schedule I - makes this good law as bad at the Marihuana Tax Act in practice.

Every day the federal government maintains marihuana's Schedule I status, the more damage it causes to our system of government. It is no surprise that this Schedule I placement of marihuana is now causing a serious rift between many states and the federal government that to an outside observer appears to be an extraordinary conflict, even a constitutional crisis.

The definition of cannabis as Schedule I has caused my fellow patients to be imprisoned, denied work, housing, right to own a firearm, a place on a transplant list, and of greatest concern to me, is the latest casualty of the drug war, my VA doctor. My Veterans Affairs Medical Center doctor is now prohibited from recommending cannabis to me and instead the VA has explicitly relegated their sovereign power to the state to handle all aspects of a veteran¹s medical treatment with cannabis. Since the recommendation of cannabis has been shown by court cases in the 9th Circuit to be a free speech activity crucial to the doctor patient relationship it is now apparent that the VA can not effectively operate while this conflict between state and federal law exists.

That is why I am very proud to put my name on this effort to right a wrong and acknowledge that cannabis does in fact have accepted medical use in the United States.

Michael Krawitz is a plaintiff in the case ASA v DEA.

Montana Supreme Court upholds a terrible law, but voters have final word

The Montana Supreme Court issued a ruling last week in the Montana Cannabis Industry Association's lawsuit against the State of Montana. The Supreme Court reversed a lower court's injunction against provisions of the state's medical marijuana law, known as SB423, and ordered it to reconsider its decision using a different standard of review than previously applied. It is not clear based on the language in the Supreme Court's decision whether or not the injunction is currently in effect, leaving hundreds of medical marijuana providers to wonder if they are currently in compliance with state law.

While many will be quick to blame the Montana Supreme Court for what they may consider a bad decision, the real fault lies with the state legislature for passing an unworkable medical marijuana law. The law is fraught with impossible standards and barriers to participation, many of which were blocked because of the injunction. With those legal protections removed, it will finally be clear the extent to which SB423 was intended to end medical marijuana in Montana. This law isn't regulation; it was never intended to be regulation. It was repeal in disguise and now voters can see it for what it is, when they vote in a referendum in November.

Despite this setback, the MTCIA is proud that it has been able to help protect thousands of patients from the worst effects of SB423 since it went into effect 15 months ago. And regardless of this ruling, the real solution lies ahead of us: Just because the Supreme Court says the legislature has a right to pass a bad law, that doesn't mean the voters shouldn’t demand the legislature overturn it and pass something workable. The overwhelming majority of voters who supported the original medical marijuana law in 2004 have a chance to overturn this awful law and demand that the legislature do its job. Voters in Montana can overturn the current bad law by voting “No” on IR-124 on November 6. In the mean time, our legal battle will continue. Our state representatives should stop trying to undo what the voters want. Instead, the legislature should develop a workable and rational system that serves both patients and their communities.

Chris Lindsey is the President of the Montana Cannabis Industry Association.

Medical Cannabis News in Review

Is Paul Ryan's statement similar to Obama's position on medical marijuana? Is there evidence that marijuana has accepted medical uses? Are there really more dispensaries than Starbucks in LA? Recent news about medical marijuana:

  • Paul Ryan’s position on medical pot: “up to Coloradans,” and “not a high priority” for a Romney/Ryan Administration. Associated Press in the San Jose Mercury News

  • What if Obama called a real marijuana user instead of actors? Huffington Post

  • From dispensary operator to illicit dealer. Is medical marijuana being driven underground? LA Times

  • Study shows marijuana use among teens in Colorado, a medical cannabis states, dropped even as it increased nationwide. Huffington Post

  • Far fewer dispensaries in Los Angeles than ban proponents claimed, UCLA study finds. UCLA Newsroom

  • Author Martin Lee presents slideshow of seminal moments in the post-ban history of cannabis - Huff Post Books

  • Summary of research in the Daily Beast finds strong evidence of cancer-fighting effects of cannabis. Daily Beast

  • Prescribing medical professionals launch sign-on letter disputing Federal position that cannabis has no medical value, in advance of the October 16th hearing. ASA

  • Southern California’s only Sheriff-permitted dispensary closed by US Attorney Laura Duffy. San Diego ASA

  • Senior learns to bust the myths around medical cannabis. HuffPost Post 50

Medical Prescribers Launch National Letter for Medical Cannabis

After this blog was posted, prescribing medical professionals have signed a letter acknowledging that cannabis has medical use and should be rescheduled.

Most would agree with the premise that medical decisions regarding the appropriateness of a treatments are best left to doctors and other medicine prescribers in conjunction with patients. When it comes to herbal marijuana or cannabis, Congress and federal regulatory authorities have taken it upon themselves to judge across the board whether this substance has a currently accepted medical use in treatment in the United States, taking little or no input from clinicians who are responsible for actually providing treatments in this country.

Responding to the fact that nothing has been done to organize individual medical professionals to clearly state with one voice to the federal regulatory authorities that there are indeed currently accepted medical uses for cannabis (aka herbal marijuana) in the United States today, the medical prescribers on the board of ASA have started a sign-on letter to give the opportunity for their colleagues to stand and be counted. On Friday August 31st, in collaboration with fellow ASA board and staff, an open national-sign on letter was launched. This sign-on letter is in advance of the federal DC Circuit Court of Appeals hearing on October 16 when judges will consider questions regarding the appropriate classification of marijuana or cannabis in the drug scheduling framework.

Invited signatories to the letter are licensed physicians, physician assistants, and advanced registered nurse practioners - professions with prescribing privileges - who recognize that safe, currently accepted medical uses in treatment for marijuana presently exist in the United States. The letter cites national medical professional consensus statements which signal that the current Schedule I status of cannabis is suspect.

Maintaining the Schedule I status for marijuana in federal law requires drug regulatory authorities to assert and maintain that no accepted medical use in treatment in the US currently exists for marijuana. To do so in the face of the accumulated evidence requires strained and ill-conceived arguments. In their July 2011 decision rejecting ASA’s petition to reschedule marijuana (the appeal of which is the subject of the upcoming hearing), the DEA included the required scientific assessment from the US Department of Health and Human Services (HHS) which had been prepared 5 years prior. Writing on December 6, 2006, HHS found that there were no "NDA-quality [new drug application] studies that have assessed…efficacy and…safety…of marijuana for any medical condition." They went on to say that "at this time, it is clear that there is not a consensus of medical opinion concerning medical applications of marijuana," that "a material conflict of opinion among experts precludes a finding that marijuana has been accepted by qualified experts", and finally that there is no opportunity for "adequate scientific scrutiny" of the existing scientific evidence as the data were "only in summarized form, such as a paper published in the medical literature, rather than in a raw data format."

It is without merit to assume that the only way that a drug or substance can be judged to have accepted medical use is through the completion of "NDA-quality studies," which is another way of saying "Phase III" randomized controlled trials. There are many medically accepted uses of drugs for indications that have not undergone Phase III level testing. For example, take the use of platelet-rich plasma (PrP) injections for the treatment of Achillies tendonitis or tennis elbow. While it is being prescribed by a great number of physicians and being reimbursed by insurance companies, there are no completed Phase III "NDA-quality" studies that have been done to evaluate this medical application. However, it would be wrong to say that that PrP has no currently accepted medical use in treatment in the United States – just ask the American Academy of Physical Medicine and Rehabilitation or other medical specialty societies who hold, sponsor, or advertise training workshops on PrP. Clearly, medical acceptance for treatments depends on presently accepted clinical practices by the medical community. Given that the two largest physicians groups in the United States, the AMA and the ACP, have both come on record saying that the Schedule I status of marijuana needs to be reviewed and that, according to the ACP, such a review would likely lead to reclassification of the drug, it is not accurate to say that there is not a consensus medical expert opinion about the medical utility of marijuana. While it is true that these positions of medical associations were formally taken after the 2006 position prepared by the HHS, they were available at the time the DEA issued its ruling.

In fact, many more patients have been involved in randomized-controlled clinical studies involving cannabis and cannabis-based medicinal extracts than many other drugs. While only a few of these studies rise to the level of Phase III, that does not mean that a strong evidence base is lacking (nearly all controlled clinical trials of cannabis done in the United States have been positive). One pharmaceutical company in England, GW Pharmaceuticals, has conducted large Phase III studies with a cannabis-based medicinal extract produced directly from liquid CO2 extraction of herbal cannabis. While the company would like to contend that studies related to this extract don’t apply to marijuana, as they indicated in a letter from their lawyer to HHS, it is hard to see how they do not apply to marijuana given that the long-standing enforced definition of "marihuana" in federal law since 1937 has been "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resins." Certainly the DEA has recently created a separate classification for cannabis extracts in their Scheduling schema, but it is clear that this is little more than pharmacolegal jujitsu to somehow create a privileged parsing of "marijuana extracts" from "marijuana" for the benefit of drug pipelines.

HHS’s claim that "raw data" is needed and that published papers in the medical literature will not do is bizarre and unusual. Medical education, research, and evidence-based consensus-statement writing relies on the same pool of data with findings commonly presented in journal articles. Not having it all together in "one big paper" is really no reason to deny judgment about accepted medical use of marijuana.

The prescribers signing on to the letter are able to judge based on their expertise developed out of clinical experience, study, and collegial discussions, that marijuana or cannabis has an accepted medical use in treatment in the United States. With likely over 10,000 physicians authorizing patients to used cannabis in medical marijuana programs, which have been around for 16 years, and with the string of positive outcome clinical trials of cannabis and cannabis extracts, there is more than enough medical experience and evidence available to recognize that a currently accepted medical use in treatment in the United States exists for marijuana. If strong scientific evidence and clinical professional opinions count for anything in policy, then it is time to re-schedule/de-schedule marijuana.

Sunil Aggarwal, M.D., Ph.D., is an Americans for Safe Access Foundation Board Member

Michigan Nears Passage of Mixed Bag of Reforms

The Michigan Senate will likely approve a set of four medical cannabis laws that should bring a handful of improvements and clarity to the law, but not without imposing needless provisions that may harm safe access and the rights of patients in the state. The quartet of bills were originally passed by the Michigan House earlier this year and appear to be destined the pass the Senate without alteration. None of the bills provides a regulatory structure for medical cannabis dispensaries in the state.

While just about everyone in the MI safe access community seems to agree that these bills are far from perfect, there are varying opinions as to whether the 4 bills, when taken as a whole, are good, bad or neutral. Thankfully, citizen activists who made their way to Lansing were able to influence the bills to some degree while they were being considered in the House. Without their efforts, these bills would have been much worse, and it goes to show that even if a citizen lobbyist does not earn a 100% victory, it is still very much worth the effort. Ultimately, ASA feels that these bills are somewhere between quarter and a half step forward for safe access in Michigan, below are the reasons why.

HB 4834 - 2 Years for Valid ID Cards, but Warrentless Searches Expressly Permitted

The most controversial bill in the deals with the patient/caregiver registry system. Some of the it's less worrisome provisions would require patients to submit a photograph when applying for an ID card, and the bill would actually double the period of time that a card is valid, improving from 1 to 2 years before needing to renew. The bill also requires the the Department of Health to appoint no more than 15 members (at last 3 or whom must be non-physicians) to a board to review new qualifying condition petitions.

But when you get to Section (h) of the bill, the language becomes troubling.  The bill would expressly give police the right access the patient/caregiver registry without a warrant. This is clearly the biggest flaw in the legislation, one that threatens the right to privacy of patients, caregivers, and the rest of the state's population, as the law (by accident or design) allows officers to comb the registry merely if the officer has "probable cause to believe that a violation of the law" involving marijuana has taken place, and specifically "does not require the officer or official to obtain a search warrant to obtain access to the system." Yuck, talk about putting the gross in gross overreach!

In fact, ASA has already received several reports of persons who have been arrested because a police officer was able to snoop through the registry, and this new legislation will have very little practical protection, likely only helping if a case goes to trial...and the patient/caregiver bears the expense and embarrassment of having to face the judicial system.

While  HB4834 fails to establish a warrant standard, it does is create the skeletal structure for future reform. Should the bill go into law, A) a level of protection has already been established as necessary for the public good, and B) the legislative fix for this to strike the words "probable cause" and replace with "a search warrant," and striking the final sentence in Section (h)(3)(B)(ii). Clearly this fix will be on the agenda for future safe access legislation in Michigan.

HR 4851 - Bona Fide Doctor-Patient Relationship

Many patients are concerned that by establishing a definition for the type of relationship required between patients and their physicians, some patients with legitimate medical need will be denied access.  This seems unlikely, at least not directly, as the definition fits what most people would expect a patient-physician relationship to look like: an complete history/evaluation and an expectation of ongoing physician care of some sort if the condition is ongoing. However, the record keeping requirements, Sec. 3(a)(2) and 3(a)(4), mean that the legitimacy of a patient's physician-patient relationship could be in jeopardy through no fault of the patient, simply because the physician may keep sloppy records. This could put patients who received good-faith examinations from a doctor who appeared legitimate might face legal trouble should the patient's doctor has poor record keeping. As a result, patients may have a harder time finding a physician who has a known reputation maintaining quality records. (Is that sort of thing available on Angie's List?)

HR 4853  - Level G Sentencing Classification

This is easily the most neutral of the four bills passed, as it simply places  the sentencing classification for selling medical cannabis in violation of the state card registry program as a Class G felony. Currently, sentencing for this act is punishable up to 2 years in prison. A class G felony carries an maximum of a 2-year sentence. This is basically a wash as no greater harm has been created.

HR 4856 - Medicine Storage Within a Vehicle

The final of the four bills defines the legal space within a vehicle where a medical cannabis can be stored. The definition is overly strict, and applies to both moving and stationary vehicles, but it does provide patients and caregivers with a clear set of rules to where they can keep their medicine in their vehicle. The bill would require that medical cannabis be stored in an enclosed case in the truck of the car, or if the vehicle does not have a trunk, in a  enclosed case elsewhere in the car that is not readily accessible to the interior of the vehicle. Patients and caregivers who drive vehicles with trunks should have little trouble abiding by this law, as should patients who drive trucks or other vehicles that have exterior storage space, but what about drivers of hatchbacks and station wagons? And what exactly is "a case" and what is meant by not readily accessible from the interior of the vehicle? It seems as if patients in these situations will need to keep their medicine in a locked container stored in the most rear part of the vehicle's cabin. Perhaps they will need to install fencing in the backs of the interior vehicles...but even then, the medicine could still be viewed as accessible.

The vagueness and potential breadth of this legislation is troubling, but it's a good first step and one that can easily be fixed, as the intent of the law seems pretty clear - keep it in your trunk or as far away from the driver as possible.

Moving Forward

The legislation ready to be approved by the Michigan legislature is lackluster set of bills patients and caregivers, and legislative reforms in the next session will be necessary. Moving forward, citizen lobbyists should recognize that while these four bills need modification, they do provide a starting point and basic framework from which meaningful reforms can be amended and implemented.

Mike Liszewski is ASA's Policy Director.

Cannabis News Around the Nation

Two weeks of medical cannabis news in review.
  • Congresswoman Introduces Bill to Protect Landlords of Compliant Medical Marijuana Businesses - ASA PR
  • Michigan court rules localities cannot use federal law as an excuse for violating state laws protecting medical cannabis patients - The Detroit News
  • Case on Benefits of Marijuana Heads to Court - Huffington Post
  • LA Councilman Bill Rosendahl comes out at as a medical cannabis patient - LA Times
  • Detailed Rules for Medical Marijuana Proposed in Maine - Kennebec Journal
  • Pharmacy Shutdown Hoax Revealed - San Diego ASA
  • Medical Marijuana Advocates Mourn Pot Club Closures with Mock Funeral - SF Weekly
  • Arizona prosecutors urge Governor Jan Brewer to end the medical marijuana program, citing threats from federal prosecutors. The Governor declined to intervene - Arizona Republic
Jonathan Bair is ASA's Social Media Director.

Wake Up Obama: Cannabis Patients Vote!

This is a photo of me at the 2008 Democratic National Convention. I had just heard one of the most politically motivating speeches of my life from a candidate for president. I was moved to tears, joyous, and inspired. This candidate not only filled me with hope about the future of our nation, but said he would not interfere with access to legal medical cannabis.

I was ecstatic to be shedding the dark days of the Bush Administration's war on medical cannabis patients. As a patient myself, I felt counted and part of the Change that would be coming to Washington, and I was proud to support and volunteer for Barack Obama's victorious campaign.

For his 2008 campaign, I donated money, I went to rallies to show support, I knocked on doors in VA,  and on election night I joined thousands in D.C. who descended on the White House to celebrate and sing "Na, Na, Na, Na, Good bye" to President Bush. I went to sleep that night excited about a new direction for this country that would include me as a recognized medical cannabis patient.

From the beginning, the new administration made supportive statements about medical cannabis, including that the President was "not going to be using Justice Department resources to try to circumvent state laws." On October 19, 2009, we got the policy document we had been waiting for. Then-Deputy Attorney General David Ogden issued a memorandum, now know as the "Ogden Memo," instructing U.S. attorneys to limit marijuana enforcement to those operating out of compliance with state law.

With this legal guidance, the medical cannabis movement went to work to pass new state laws protecting patients and those who provided their medication. Advocates, community members, and officials spent thousands of hours drafting legislation and regulations in at least eleven states. But when legislators and other state and local officials came close to passing or implementing these laws, they received letters from U.S. attorneys, threatening federal arrest and prosecution.

Dismayed by this apparent reversal in the Obama Administration's policy, patients demanded the President rein in the US Attorneys. Instead we got the "Cole Memo," issued by Deputy Attorney General James Cole, laying out a new interpretation of the Obama Administration's policy. The memo gave the Justice Department free rein in medical cannabis states, to undermine state laws and coerce local lawmakers. The Cole Memo launched an unprecedented attack on the medical cannabis community unprecedented in its scope.

In fewer then fours years of President Obama, we have seen more raids on dispensaries than during the Bush Administration's entire eight-year tenure. The Obama Administration has taken property from landlords, threatened local officials, forced the release of patient records, used the Internal Revenue Service to bankrupt legitimate dispensaries, told banks to purge medical cannabis clients, evicted patients from low-income housing, and denied a petition to recognize the well-established medical value of cannabis.

Now as President Obama approaches the vote on his reelection, I and other medical cannabis patients are finding it impossible to renew our support. How can I vote for someone who has broken his promise? How can I vote for someone who can't see very real public health needs? How can I vote for someone who wages war on my fellow patients and me?

There are more than one million legal medical cannabis patients across the country and millions more waiting to become legal. We have friends and family in every state, and there are many of us in states that are key to the Obama reelection campaign: Colorado, Nevada, and New Mexico.

I care a lot about this country and my fellow Americans, and I have always volunteered for candidates during election years. Now, instead of going to rallies or buying tickets to fundraisers, I will be protesting at campaign stops like the one today in downtown Oakland. Instead of working to elect a president, I'll be joining thousands of medical cannabis advocates at Camp Wakeupobama, a virtual summer camp during which we will press our case to the President.

President Obama, you can move medical cannabis policy forward and win this election - 74% of voters disagree with your attacks on state compassionate use laws.

Medical cannabis patients will be on the campaign trail, however you can still determine what our signs will say.

Cutting through the legal quagmire, patients demand safe and legal access to medical marijuana











Last Friday, patient advocates Americans for Safe Access (ASA) filed an amicus ‘friend of the court’ brief in City of Riverside v. Inland Empire Patient’s Health and Wellness Center to convey the urgent need for safe and legal access to medical marijuana. In what is possibly the most important issue currently facing hundreds of thousands of patients in California, ASA urged the State Supreme Court to reject the notion that municipalities can ban local distribution of medical marijuana, thereby cutting off access. Specifically, ASA argued in its brief that:
While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely. These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.

In addition to the Riverside case, the State Supreme Court is reviewing the Pack v. City of Long Beach decision, which involves issues of federal preemption. Adding even more appellate decisions to the mix, last week the Second District issued two conflicting rulings. One of the rulings in County of Los Angeles v. Alternative Medicinal Cannabis Collective held that dispensaries were legal under state law and that municipalities could not ban them.

At the time, ASA Chief Counsel Joe Elford said in a prepared statement that:
The court of appeal could not have been clearer in expressing that medical marijuana dispensaries are legal under state law, and that municipalities have no right to ban them. This landmark decision should have a considerable impact on how the California Supreme Court rules in the various dispensary cases it’s currently reviewing.

There are a staggering 178 cities in California that have completely ignored the needs of patients in their community by adopting bans against medical marijuana dispensaries. However, there are more than 50 municipalities, which have adopted regulatory ordinances that have safely and legally accommodated for the needs of their patients, as well as other members of their communities. An increasing number of studies also show that regulating dispensaries will decrease crime and increase the quality of life in surrounding neighborhoods.

Patient advocates are not putting all their eggs in the California Supreme Court basket. There is still an effort afoot to pass legislation next year to regulate medical marijuana at the state level. The statewide ballot initiative process is yet another option available to patient advocates and one that will definitely be considered in the months ahead.

Medical Marijuana Reading - June 11th 2012

Catch up on the latest news about medical marijuana throughout the county.
  • Feds Attack California’s Medical Marijuana Trade - Again (Reuters)
  • Mass. Medical Marijuana Opponents Mobilize Efforts (Bloomberg)
  • Report: Medical Marijuana Dispensaries Not Linked to Neighborhood Crime (US News and World Report)
  • Cedars-Sinai Again Denies Transplant to Medical Marijuana Patient (Opposing Views)
  • DEA Raids Sacramento Pot Shop (SacBee)
  • New blog by Hearst Media - Smell the Truth.

CA Supreme Court Rules in Favor of Cannabis Collectives

In a major victory for patients and medical cannabis cooperatives, today the California Supreme Court rejected calls from the California Attorney General and law enforcement to review the Appeals Court ruling in People v. Colvin (PDF). At issue in this case was Attorney General Kamala Harris’s interpretation of the Medical Marijuana Program Act to require an undefined percentage of the membership of a medical marijuana collective to actively participate in some way in the operation of the collective. The court’s ruling today means that medical cannabis collectives in California may operate like any other collective, such as REI or Costco, in which a member of the collective participates solely through purchasing products distributed by the collective.

At ASA, we were of course very concerned with the Attorney General’s argument that patients had to participate actively in the operations of a medicinal cannabis collective, because many patients are not physically able to do so (among other objections). Harris’s interpretation of the law was invented from whole cloth, and the Second Appellate district recognized it as such. That Court of Appeal in its ruling that was upheld today, stated that the Medical Marijuana Program Act imposes no such restriction on medical marijuana collectives.

The California Supreme Court’s rejection of efforts by the CA Attorney General and law enforcement to review the Colvin case effectively puts an end to this issue and makes clear that medical marijuana collectives should be treated the same as others under the law. This is a big victory for patients and our movement.

Joe Elford is the Chief Counsel for Americans for Safe Access.