Cannabis Law Prof Blog

Marijuana Arrives at Midnight in Oregon, Minnesota

Much of the hoopla today surrounds the arrival of medical marijuana in Oregon, where thousands toked up at (and even before) midnight to celebrate legalization.

 

As it happens, midnight also ushered in medical marijuana in Minnesota.  It's a much more limited bill, of course, but the first three families got cannabis a few moments after midnight today.  Here's a good roundup of how the new law works.

Louisiana Gets MMJ Law: Proponents Worry About Effectiveness

Louisiana's new medical marijuana law is moving forward after signature by Gov. Bobby Jindal.  Like the Texas version passed earlier this year, advocates are concerned that it uses the term "prescription" in the text instead of the usual "recommendation," which can leave physicians open to having their licenses to prescribe drugs yanked by the Drug Enforcement Administration. 

    David Brown, the director of a group called Sensible Marijuana Policy for Louisiana, said changing out "prescription" for "recommendation" allows doctors and pharmacists to get marijuana to patients without risking their federal license with the Drug Enforcement Agency.

    The federal government, under President Barack Obama's administration, has taken a hands-off approach regarding enforcement of federal marijuana laws in states where it's legal. But the word "prescription" automatically triggers certain federal oversight from the DEA. Marijuana, after all, is still considered a schedule I controlled dangerous substance. As far as the technical law is concerned, it would be analogous to writing and filling a prescription for LSD or peyote, other schedule I drugs.

    "It's a big problem," Brown said. "It renders the new law structurally flawed and unworkable in its current form."

    The sponsor of the bill (SB 143), state Sen. Fred Mills, R-New Iberia, is aware of the concerns of Brown and other advocates. He said, however, that Louisiana Board of Pharmacy Director Malcolm Broussard has assured him the issue of prescription versus recommendation could be "worked through" during the rule-making process.

    Jacob Irving, a medical marijuana advocate and recent graduate of LSU, suffers from spastic quadriplegia -- a rare form of cerebral palsy that causes chronic muscle stiffness and has been effectively treated with marijuana. If the law in its current form is properly enacted, his disease is on the list of those that would quality for medical marijuana. Irving was the one who convinced a House panel to change the wording to "recommendation," before it was stripped out of the bill on the House floor.

    The Louisiana Family Forum, the state's most influential conservative Christian group, requested the word "prescription" be put back into the bill before it reached the House floor. Even the Louisiana Sheriff's Association, who had expressed strong opposition to the bill last year, were OK with "recommendation," Fred Mills said. Family Forum Director Gene Mills said early this month he told Fred Mills putting the prescription language in the bill was a requirement for his group to remain neutral on the bill. Opposition from the Family Forum could have hurt the bill's chance of passing and might have drawn a veto from Gov. Bobby Jindal, who closely follows Mills' guidance on social policies. Jindal, too, had requested the term prescription be used. 

    Gene Mills said the prescription requirement keeps the proposed law in the realm of medical practice, subjecting it to the oversight and "necessary safeguard."

    "That's why we're in the neutral zone," said Gene Mills, days after the House passed the version of the bill with "prescription" included. 

    Brown said the Louisiana Family Forum and Jindal's hardline position on calling it a prescription provides more evidence that the wording neuters the bill. 

    "Why on earth would you insist so hard on that language being included (in the bill) unless you were fully aware, like we are, that by including it you've essentially gutted the bill?" he said. 

    While Irving is hopeful the wording won't cause a problem as the bill's sponsor has suggested, he can't ignore the potential threat it has to thwart access to patients.

    "If a doctor writes a prescription, he may go to jail or lose his DEA license," Irving said.

    Brown said there's no pharmacist willing to put his or federal license at risk by signing off on dispensing a schedule I substance. By doing so, they would be "risking their whole livelihood -- for just that one prescription that they write."

    Broussard, however, acknowledged in an email provided by Mills that the use of the word "recommendation" has been suggested by other states to reduce risk to doctors and pharmacists. But he also indicated it made little difference.

    "The outcome of the process -- whether it is a 'recommendation' or a 'prescription' -- remains the same," Broussard said. "It is an order generated by the physician for filling at the pharmacy."

Unfortunately, while I'm sure Dr. Broussard is a very fine pharmacist, he's not a very good lawyer, and his view that a "recommendation" and a "prescription" are "the same" is simply wrong under Conant v. Walters.  To put it simply, under DEA regulations a prescription is an "order" to a pharmacy to fill a prescription for a patient.  A recommendation is merely the doctor's opinion, sent to a state-licensed facility, that the patient would benefit from the substance.  The former specifically falls within DEA jurisdiction, and prescribing a Schedule I controlled substance is illegal.  The latter is protected speech under the First Amendment and the DEA cannot punish it.

I suspect there are good reasons why opponents of the bill gave in after the word "prescription" was added . . . because they know it will be extremely difficult to make the system work.

Not impossible, though.  Assuming they get some lawyers involved in analyzing the issues, it's possible to work out a system under which physicians could comply with the statute without triggering license revocation by the DEA.  We'll keep watching.

Ohio Legislature Readies its Own Marijuana Ballot Issue

The marijuana legalization ballot measure sponsored by "Responsible Ohio" -- the proposal that would grant a monopoly on marijuana sales to the wealthy backers of the measure and lock it in the state constitution -- is facing blowback from the state legislature.  Ohio legislators yesterday put forth their own ballot measure that would block  the prospective monopoly.

    A campaign to legalize marijuana in Ohio took a step closer to making November’s ballot Tuesday, after its promoters turned in more than twice the required number of signatures.

    But the measure will face competition at the polls. Ohio legislators also approved their own ballot measure on Tuesday to undermine the pot plan, which lawmakers worried would amount to a “marijuana monopoly” because of its provision that only 10 growers would control the wholesale pot market. The lawmakers’ measure would block other measures that benefit select economic interest groups.

    The marijuana ballot measure campaign, dubbed Responsible Ohio, is just one of many ballot measures in recent history that are designed to benefit their backers. The companies funding the Responsible Ohio campaign would control — and likely profit from — the marijuana growth sites should the measure pass.

As detailed by the Center for Public Integrity, the campaign’s director, Democratic activist Ian James, came up with the idea and is planning to pay his own firm $5.6 million to push the ballot initiative.

    Ohio Rep. Mike Curtin, a Democrat, said he sponsored the anti-monopoly measure because he opposes the way Responsible Ohio is using the citizen-initiated constitutional amendment, not because he opposes pot legalization.

    “Are we going to allow a small group of investors, who have literally no background in drug policy… to carve themselves a special niche in our state’s founding document?” he said. “To me it’s galling. It’s nauseating.”

    But James said voters should have the right to decide the issue.

    “Some statehouse politicians believe the voters are smart enough to elect them, but they aren’t smart enough to decide ballot issues like marijuana legalization,” he said in an earlier statement.

Well, to be fair to the politicians, Mr. James himself doesn't appear to think Ohio voters are smart enough to understand the issues on their own, so his backers have a $20 million war chest to try to convince them through advertising.

"I Got A Marijuana Prescription And Pot In Minutes Without Leaving My Couch"

Following up on yesterday's note about California's new diagnose-and-deliver marijuana operation, known as Eaze, Forbes has a story on how it seems to be working.  Short version:

    Within an hour I used Eaze to video conference with a doctor, receive a marijuana recommendation and purchase an eighth of an ounce of “Sour Diesel” for delivery. The cannabis arrived shortly after the sausage and pepperoni pizza I had ordered to accompany it.