Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, June 2, 2015

Could the new medicial marijuana law in Texas really send doctors to jail?

The question in the title of this post is prompted by this notable new Dallas Observer article headlined "Texas' New Medical Marijuaan Law Could Send Doctors to Jail." Here is what it says:

Monday, Texas Governor Greg Abbott signed a law that is intended to make cannabis-based oils with low levels of THC legally available to people who suffer from intractable epilepsy.The problem is, no one is likely to be able to get it.  State Senator Kevin Eltife announced the plan to legalize CBD oil in January.  He was careful to emphasize that patients would not be able to get high from the oil, because THC content would be limited to 5 percent.  

Marijuana advocates and potential patients criticized the law, saying it failed to account for the benefits of whole-plant marijuana therapy and interfered with patients' and doctors' ability to seek out the best treatment available for epilepsy or other conditions.  "I'm glad the we're talking about medical marijuana with some actual sincerity now in Texas, because this entire state is just tragically behind the rest of the country," Shaun McAlister, the president of DFW NORML said. "On the other hand, I'm really nervous about a CBD-only push because, for one thing, CBD-only legislation represents a really shallow understanding of what cannabis actually is and what it can do."

Still, Eltife's bill snaked its way successfully through the Legislature, despite the objections and language that requires doctors to "prescribe" the oil to their patients. Unfortunately a doctor cannot prescribe what the federal government considers a Schedule I substance without a DEA license, and CBD is a Schedule I substance.  In other states, the “prescription” is referred to as a “recommendation” so that doctors can legally suggest that patients use it, says Amanda Reiman, the manager of Marijuana Law and Policy at the Drug Policy Alliance says.

Tamar Todd, the Drug Policy Alliance's Director of Marijuana Law and Policy, compared the Texas law to a 1996 Arizona law that did not lead to a single patient getting CBD oil. Arizona passed comprehensive medical marijuana legislation in 2010. Texas marijuana reform advocates are hoping for a similar evolution in the Lone Star State.

The headline of this article (and of my post) fails to deal with the reality that even if a legitimate doctor in Texas (or anywhere else) really did actually make an effort to "prescribe" marijuana to a patient under any circumstances, it is hard to believe any federal prosecutor would pursue a prosecution based on that prescription. So, the answer to the question in the title of this post is "No." But the more important point that this article is intended to highlight is that the new medical marijuana reform in the Lone Star State is not really a significant reform based on both its structure and its semantics.

Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink


I respectfully disagree. The question as posed is "could it?" and the answer is yes, it could. If the question were "would it?" the answer depends not on the law as it was written, but on prescutorial discretion. Clearly it is illegal for doctors to prescribe a Schedule 1 substance, as both the federal courts and the DEA have explained in response to the first medical marijuana law passed. For all the several states that have used the term "prescribe," none of them have functioned, so we don't actually know what federal prosecutors would do - likely because doctors are not inclined to take the risk.

Posted by: Chris Lindsey | Jun 3, 2015 6:54:56 AM

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