States Continue to Develop Medical Marijuana Policies as Federal Stance Remains Firm

April 30, 2010

Topics: Controlled Substances

With the recent Iowa Board of Pharmacy recommendation that marijuana be reclassified as a Schedule II controlled substance, Iowa may be one of the next states to enact legislation legalizing the use of medical marijuana under certain circumstances. To date, 14 states have legalized the use of the drug for medical purposes, with New Jersey becoming the 14th on January 18, 2010. Several states that have implemented medical marijuana acts are confronting the issues of safe access by patients and ensuring that dispensaries are regulated effectively. As debates over medical marijuana issues continue nationwide – among lawmakers, regulators, health care providers, and the public – the federal status of marijuana as a Schedule I controlled substance remains unchanged.

Federal Policy on Not Pursuing Medical Marijuana Users

Kevin Sabet, PhD, special advisor for policy and strategic planning for the Office of National Drug Control Policy, stressed in his 2009 NABP Symposium presentation that marijuana will continue to be a Schedule I controlled substance, and that the Department of Justice decision to stop pursuing users and distributors of medical marijuana in the states that have legalized the practice, should not be interpreted to mean that the Obama administration is softening its stance on marijuana.

The Drug Enforcement Administration (DEA) “Position on Marijuana” makes clear that in the debate over legalization of medical marijuana, it is important to consider the difference between marijuana smoked for medicinal purposes and cannabinoid medicines which are currently still in the research and development process. DEA stresses that there is not a consensus of medical evidence demonstrating that smoking marijuana helps patients.

While the 1999 Institute of Medicine (IOM) report, Marijuana and Medicine: Assessing the Science Base, is often cited to support arguments in favor of the use of smoked marijuana as medicine, DEA emphasizes that the report actually undermines such arguments. The IOM report in fact argues for the need of further study in certain areas of cannabinoid drug research, and also suggests areas where research would not be beneficial.

Although the IOM study suggests that some active compounds in marijuana should be further researched to determine if and how they could be used as medicine, the study clearly states that “there is little future in smoked marijuana as a medically approved medication” because of the harmful substances delivered in the smoked form, and because plants contain various mixtures of active compounds and cannot deliver a precise dosage or effect. IOM found that cannabinoid drugs could provide some relief of pain, nausea, and vomiting associated with certain ailments, but emphasized that the effects of cannabinoids are “generally modest, and in most cases there are more effective medications.” The study concludes that using smoked marijuana in clinical trials “would not be to develop marijuana as a licensed drug,” but to assist in the development of nonsmoked cannabinoid medicine.

Other research and organizations, however, cite different evidence that support the effectiveness of medical marijuana. And these positive findings have moved some legislatures to legalize medical marijuana.

State Medical Marijuana Laws

The New Jersey Compassionate Use Medical Marijuana Act – signed into law by former Governor Jon Corzine on January 18, 2010 – was carefully written to guide who has access to the drug and how they can obtain it. The act will allow chronically ill patients, such as those suffering from cancer, AIDS, and multiple sclerosis, to use medical marijuana for treatment of severe pain or other severe symptoms. The New Jersey law states, “Compassion dictates that a distinction be made between medical and nonmedical uses of marijuana. Hence, the purpose of this act is to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions.”

Patients prescribed the drug must obtain registry identification cards through the New Jersey Department of Health and will be allowed to buy up to two ounces of medical marijuana per month at state-monitored dispensaries. The law does not allow patients to grow marijuana.

Under the Oregon Medical Marijuana Act which became Oregon state law in 1998, patients are also required to obtain registry identification cards. If granted a card, they are allowed to grow marijuana plants or designate a caregiver who will grow the plants for them. Importantly, in order to obtain a registry identification card from the Oregon Medical Marijuana Program (OMMP), patients must obtain a signed recommendation from a medical doctor or doctor of osteopathy with whom they have an established patient-physician relationship. According to the OMMP Web site, “Multiple states have requested information on Oregon’s program to use as a model for their own medical marijuana initiatives and registration systems.”

Several lawmakers, organizations, and citizens in Oregon see the need for a system of registered growers, or regulated dispensaries so that patients do not need to grow their own marijuana. While legislation addressing this concern was introduced in both the Oregon Senate and House in 2009, no bills have yet passed. An initiative calling for a regulated system of dispensaries may be on the ballots of Oregon voters in November 2010 if enough signatures are collected by the July 2010 deadline. Advocates of the initiative hope it will help provide quality-controlled medical marijuana to patients.

Dispensary and Safety Issues

The New Jersey law includes stipulations for the alternative treatment centers that will be licensed to dispense medical marijuana. The law, for example, gives the Department of Health and Senior Services the ability to determine the sufficient number of centers needed in the state. Regulations will also be promulgated to require that the centers maintain documentation of marijuana delivered and amounts dispensed to patients. While the New Jersey law has been written with strict controls on the planned treatment centers, California and some other states that have legalized the use of medical marijuana do not have such regulations for dispensaries in their states. California legalized the use of medical marijuana by patients who possess a recommendation from their physician in 1996, and in 2004 passed additional laws clarifying the amount of marijuana a patient may possess and granting implied legal protection to the state’s medical marijuana dispensaries. Medical marijuana dispensaries have since grown dramatically in numbers.

According to news reports, there were only four such dispensaries in Los Angeles, CA, in 2005, but by 2009 there were as many as 1,000. Under California law, dispensaries are licensed through local city or county business ordinances and the regulatory authority lies with the State Attorney General’s Office. Due in part to community safety issues, the Los Angeles City Council passed an ordinance capping the number of dispensaries allowed in the city to 70, but also allowing for those who registered by 2007 to stay in business. The ordinance also designated guidelines for the locations of dispensaries. The ordinance, signed by the mayor on February 3, 2010, went into effect March 14, 2010. Other California cities and cities in other states such as Montana are also considering stricter dispensary ordinances and regulations.

Even as states struggle with implementing effective laws to govern medical marijuana dispensaries, the federal position on dispensaries reflects the federal status of marijuana. Kevin Sabet stated in his NABP Symposium presentation that the selling of marijuana for medicinal use by dispensaries belies the scientific process, since marijuana plant leaves are not Food and Drug Administration (FDA)-approved. Further, Sabet noted that medical marijuana raises complex issues including patient health issues, physician-patient confidentiality issues, and community safety issues. Indeed, issues including community safety spurred the movement in Los Angeles to cap the number of dispensaries in the city. Further, Sabet stressed that the quality and potency of marijuana sold in dispensaries can vary, unlike FDA-approved and regulated medications.

Iowa Board of Pharmacy’s Recommendation

Members of the Iowa Board of Pharmacy considered the dispensary issue and other problems encountered in California when debating the Board’s recent recommendation to the Iowa legislature. One Iowa Board member noted that adequate controls would be paramount in creating a safe medical marijuana program, as reported in the Des Moines Register on February 17, 2010. And, as part of its final recommendation, the Iowa Board advised that a task force of patients, medical professionals, and law enforcement officers should create guidelines for safely implementing a medical marijuana program. Bills relating to the creation of a medical marijuana act in Iowa were introduced to the House and Senate, but did not pass in the 2010 legislative session. The Board’s recommendation, however, could impact the outcome of future bills.

Thirteen states – Alabama, Delaware, Illinois, Iowa, Massachusetts, Mississippi, Missouri, New York, North Carolina, Pennsylvania, Tennessee, Wisconsin, and Virginia – are currently considering legislation that would legalize medical marijuana. While DEA’s position on the status of marijuana remains firm, and research on cannabinoid based drugs continues, states are moving forward with legalization laws with the intent of providing patients relief from chronic pain and other debilitating symptoms. Many questions remain as such medical marijuana programs are implemented. How can the purity, safety, and efficacy of medical marijuana be regulated? How can patient dosages be standardized for safety and efficacy? How can production, distribution, and access to the drug be regulated effectively? States and boards of pharmacy considering medical marijuana legislation and program implementation may want to consider such questions, even as they are aware of the DEA position that “Smoked marijuana has not withstood the rigors of science – it is not medicine and it is not safe.”