Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Friday, March 21, 2014

Did Alabama just legalize medical marijuana?

Not really. But both houses of the state legislature did just pass a limited measure (called Carly’s Law) that is expected to be signed by the governor. The measure would ostensibly legalize a marijuana extract known as Cannabidiol (CBD) to treat epilepsy. CBD, like other forms of marijuana, is banned by federal law, though it contains none of the psychoactive content (THC) normally found in marijuana. For the story, see this Reuters report. Supporters of the law have a Facebook page as well.

The only reason this development is even worth noting is that it’s occurring in Alabama, the heart of the deep South, where the marijuana reform movement has yet to make any headway. But even in that context, the measure is a rather small victory for reformers. Vanishingly small. Indeed, I’m confident saying this would be the narrowest medical marijuana law any state has troubled to pass, and it might not even meet its quite limited ambitions.

The text of the house and senate versions of the bill can be found here. In a nutshell (it’s a big nut), the law creates an affirmative defense against prosecution for simple possession of CBD by someone who has been diagnosed by a University of Alabama,Birmingham employed physician, as suffering from a debilitating epileptic condition; and for whom a UAB employed physician has also prescribed CBD. Lastly, the UAB shall be the sole supplier of CBD for such persons (the law provides legal protections for UAB employees). Oh, and the law has a sunset provision—it expires in 5 years.

To explain how limited (and potentially ineffective) the measure is, consider that: (1) patients can still be charged with possession of CBD and they (rather than the prosecution) bear the burden of persuading a jury that their possession of the drug was in compliance with the law; (2) CBD isn’t for everybody, especially those who believe marijuana’s medical benefits stem from THC; (3) the provision only protects those suffering from serious epilepsy, and not the myriad other conditions for which other states have allowed treatment (wasting syndrome, PTSD, glaucoma, etc.); (4) patients must be under the care of a UAB employed physician, not just any state-licensed physician; (5) the law requires a physician prescription, which, as I explained in a earlier comment regarding NY’s proposed medical marijuana law, might be impossible to get; that’s because the DEA can take away a physician’s authority to prescribe any legal drug if the physician prescribes a Schedule I controlled substance like CBD; (6) patients must obtain their CBD from the UAB, but the UAB probably can’t supply CBD; as I’ve pointed out repeatedly, direct state supply of marijuana is preempted by federal law, and regardless of whether the DOJ would sue to stop UAB, many other people could probably do so, meaning that perhaps no one – not even sufferers of serious epileptic conditions being treated by UAB physicians who don’t mind putting their medical practices at risk – will get the drug.

http://lawprofessors.typepad.com/marijuana_law/2014/03/did-alabama-just-legalize-medical-marijuana-.html

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