Saturday, September 16, 2017
In Iowa, elected executives are advising the State's Department of Public Health to refrain from corroborating with its neighboring states to obtain cannabis oil. Barbara Rodriguez reports on how the lack of federal enforcement is causing confusion among states concerning how to implement medical marijuana legislation, according to an article in The Des Moines Register:
An unusual attempt by Iowa to work with another state to transport medical marijuana oil across state lines is on hold amid legal concerns it could invite scrutiny from the federal government.
The Iowa Attorney General's office advised the Iowa Department of Public Health this month that it should not implement a small section in Iowa's new medical marijuana law that requires the state, before the end of the year, to license up to two "out-of-state" dispensaries from a bordering state. Those entities would have been expected to bring cannabis oil into Iowa in order to sell it.
That's considered illegal under federal law, which categorizes marijuana as a type of controlled substance that is prohibited from being moved across state lines. But during the final hours of the legislative session in April, some Republicans in the GOP-controlled Legislature suggested adding the language to open the door for a partnership with a neighboring state like Minnesota.
The development is not expected to impact other provisions in the law that call for establishing an in-state production system for cannabis oil by the end of 2018. Still, some GOP lawmakers expressed frustration with the news because the provision was also aimed at creating more immediate access to cannabis oil. Currently, Iowans have no way of getting the product within the state.
House Speaker Linda Upmeyer, R-Clear Lake, noted in a statement that no matter what the Legislature had decided, the state still would have been in violation of federal law.
"As I've said before, the federal government needs to act on this issue or let the states do their work," she said, adding, "The out-of-state distributors are the quickest way to supply sick Iowans with a product that doctors say could be beneficial. If that provision doesn't work out, then people will have to wait another year, and that's disappointing."
Possessing, manufacturing and selling marijuana remains illegal under federal law. In 2013, the Department of Justice issued a memorandum offering assurance that states could proceed with medical marijuana programs without fear of federal prosecution, in part by avoiding agreements that would move marijuana from one state to another.
Geoff Greenwood, a spokesman for the attorney general's office, said in an email that if a state program authorizes or encourages diversion from one state to another, "it is possible that state's program may come under increased scrutiny from the federal government." He said the halt on implementation should remain "until the federal government provides further guidance regarding state medical marijuana programs."
The out-of-state dispensaries provision is tucked into the second-to-last page of a 20-page law, and is separate from requirements that Iowa license up to two cannabis oil manufacturers in Iowa and up to five dispensaries to sell it in-state. The oil would be supplied in Iowa by the end of 2018. Smoking marijuana remains prohibited.
Fear of federal enforcement against states who have legalized marijuana in some form is not new, but rather has steadily increased since the Trump administration assumed office in 2016. Although the Obama administration issued memorandums assuring states with medical marijuana regimes that they would be free from scrutiny if they followed certain standards, that may not be the case much longer. The United States Attorney General, Jeff Sessions, firmly believes marijuana is a dangerous drug and claims he will reconsider existing marijuana policies.
Assuming nothing changes in President Trump's federal enforcement of marijuana, Iowa's proposal to work with neighboring states presents a potential problem, even under the Obama administration's prosecutorial guidelines. The Cole II Memo stated that states could avoid federal intervention of its medical marijuana regime if they followed eight federal priorities. The pertinent priority here being to prevent the diversion of marijuana from legal states to illegal ones.
While Iowa's proposal only includes corroborating with its direct neighbors who have also legalized medical marijuana, the transportation of marijuana products across state lines is considered interstate commerce, thus invoking Congress' authority under the Constitution's Commerce Clause.
Therefore, Iowa's proposal not only clearly contradicts Congress' Controlled Substance Act, but may also trigger judicial review because Congress has clearly preempted the transfer of interstate marijuana. By proposing such a law, Iowa's legislature is inviting scrutiny from all three branches of government, something marijuana advocates attempt to avoid whenever possible.