The State Medical Use Argument proposes that Hawaii's Medical Use of Cannabis Program does NOT violate federal law, because the medical use of cannabis in Hawaii is currently accepted medical use in treatment in the United States, which means that the federal scheduling of marijuana, and the criminal penalties associated with the illegal use of marijuana as a Schedule I controlled substance, do not apply to the medical use of cannabis in Hawaii.
The federal scheduling of marijuana does not apply to the medical use of cannabis in Hawaii because:
(1) The federal Controlled Substances Act (CSA) says that a substance cannot be in federal Schedule I if it has "currently accepted medical use in treatment in the United States". (See 21 U.S.C. 812. Schedules of Controlled Substances, (b) Placement on schedules; findings required, (1) Schedule I, (B) The drug or other substance has no currently accepted medical use in treatment in the United States.)
(2) Congress never defined "currently accepted medical use", which leaves it up to the states to determine what constitutes accepted medical use in their state. (See ACT v. DEA, 930 F.2d 936,936 (D.C. Cir. 1991): Neither the statute nor its legislative history precisely defines the term "currently accepted medical use".)
(3) Having medical use in just one state is sufficient for there to be medical use in the United States. (See Grinspoon v. DEA, 828 F.2d 881,886 (1st Cir. 1987): Congress did not intend "accepted medical use in treatment in the United States" to require a finding of recognized medical use in every state.)
(4) States hold the authority to govern the practice of medicine within their state, which includes accepting the medical use of controlled substances under state law. This is a power that has been retained by the states under the division of powers established by our Constitution and our system of government known as federalism.
(5) The State of Hawaii exercised its authority to accept the medical use of a controlled substance when it enacted Hawaii's Medical Use of Cannabis Act in 2000, and created a state-regulated medical use of cannabis program. (See Hawaii's Uniform Controlled Substances Act, HRS 329, Part IX. Medical Use of Cannabis.)
(6) Federal preemption is not relevant to the medical use of cannabis in Hawaii because there is no direct conflict between state and federal law when it comes to the state-accepted medical use of a Schedule I controlled substance. State law says that cannabis has accepted medical use in Hawaii, and federal law says that a substance cannot be in Schedule I if it has accepted medical use.
(7) The U.S. Department of Justice (DOJ), including the Drug Enforcement Administration (DEA), does not have the authority to determine that a medical use that has been accepted under state law does not constitute currently accepted medical use in treatment in the United States. (See Gonzales v. Oregon (2006): The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard of care and treatment of patients that is specifically authorized under state law.)
(8) An interpretative rule from a federal administrative agency, such as the DEA, that was adopted before any state had accepted the medical use of cannabis, does not invalidate a subsequent finding of accepted medical use under state law. (See 57 Fed. Reg. 10,506 (1992): To summarize, the five necessary elements of a drug with currently accepted medical use in treatment in the United States are: (i) The drug’s chemistry must be known and reproducible; (ii) There must be adequate safety studies; (iii) There must be adequate and well-controlled studies proving efficacy; (iv) The drug must be accepted by qualified experts; and (v) The scientific evidence must be widely available.)
(9) The CSA does not require that a substance be approved by the Food and Drug Administration (FDA) in order to have accepted medical use. The FDA is only required to give scientific and medical recommendations to the DEA during scheduling considerations and to administer the drug approval process for drug products that are intended for inter-state distribution. Like the DEA, the FDA does not have the authority to determine what constitutes accepted medical use under state law.
(10) The federal regulation that still has marijuana on the Schedule I list does not preempt a determination of accepted medical use under state law. (See 21 CFR 1308.11 Schedule I. (d) Hallucinogenic substances. (23) Marihuana and (31) Tetrahydrocannabinols.)
Schedule I and the Medical Use of Cannabis
THE LOW DOWN
Some folks still believe that marijuana is a Schedule I controlled substance. However, in order to be regulated as a controlled substance, there must be a valid scheduling provision in place at the state and federal level. Currently, in Hawaii, we have neither.
To be classified as a Hawaii state Schedule I controlled substance, state law requires that marijuana have the "highest degree of danger". However, the Administrator of the Drug Enforcement Administration (DEA) has already informed us, by way of his denial of the RI-WA Rescheduling Petition, that marijuana is not as dangerous as other controlled substances in lower schedules. Furthermore, over the past sixteen (16) years, there have been on average about 6,300 patients a year who have engaged in the medical use of marijuana in Hawaii. That's over 100,000 patient-years of medical use without a single marijuana-related death. And yet, the Hawaii State Department of Health (DOH) has reported that prescription opioid pain relievers, which are scheduled lower than marijuana, have caused about 50 patient deaths a year in Hawaii over nearly the same time period. In addition, Hawaii's own penal code excludes marijuana from the state definition of "dangerous drugs". These facts confirm that marijuana does not qualify as a Hawaii state Schedule I controlled substance.
To be classified as a federal Schedule I controlled substance, federal law requires that marijuana must have "no currently accepted medical use in treatment in the United States". However, Hawaii has already accepted the medical use of Marijuana, by way of its authority to accept the medical use of controlled substances, and the only thing holding marijuana in federal Schedule I is an outdated federal regulation that continues to be mistaken for law. Furthermore, FDA approval is just one form of accepted medical use, and the DEA does not have the authority to declare illegitimate a standard of medical care that is accepted under state law, which was confirmed in the supreme court case Gonzales v. Oregon. These facts confirm that marijuana does not qualify as a federal Schedule I controlled substance.
It's time to put aside this false belief that Hawaii's Medical Use of Marijuana Program is violating federal law. Federal law says that marijuana cannot be in federal Schedule I if it has accepted medical use, and the State of Hawaii has accepted the medical use of marijuana under state law. There is no need to invoke federal preemption, since state and federal law actually complement each other in this regard. In fact, this is a perfect example of how state law pre-empts federal regulation.
This false belief persists because the U.S. Department of Justice (DOJ), by way of the DEA, continues to ignore the accepted medical use of marijuana that exists in Hawaii. This false belief also persists because Hawaii is allowing the DEA to maintain this position by failing to recognize that state-accepted medical use is currently accepted medical use in treatment in the United States, and that it is unlawful for an outdated federal regulation to be applied to Hawaii's Medical Use of Cannabis Program.
Somewhere along the way, the State of Hawaii lost its political will to stand up for the state-accepted medical use of marijuana. Maybe it started from the very beginning, when Hawaii's Medical Use of Marijuana Program was created and placed under the administration of the Department of Public Safety (PSD), rather than DOH, as was originally intended. Or maybe it was a result of the supreme court case Gonzales v. Raich, which popularized the notion that federal law trumps state law, even when the real issue at hand is federal regulation, not federal law, and even though this case never addressed the impact that California's Compassionate Use Act has upon the federal classification of marijuana.
In addition, without a state that's willing to stand up for its own state-accepted medical use of marijuana, it's easy to understand why the DEA continues to apply an outdated interpretative rule to these rescheduling petitions that keep asking for a determination that the DEA is not authorized to make. The DEA should no longer be asked to evaluate whether marijuana has accepted medical use. This is something that has already been established by the states.
The current situation has created an unnecessary conflict between the state and federal regulation of marijuana, which in turn has created a host of unintended consequences:
1. In order to engage in the state-accepted medical use of marijuana in Hawaii, patients must violate the federal regulation that still has marijuana in federal Schedule I, creating the appearance of violating federal law, which exposes patients to the criminal prosecution under the federal Controlled Substances Act (CSA), which is keeping many law-abiding patients, including those with terminal cancer, from enrolling in Hawaii's Medical Use of Marijuana Program.
2. In order to engage in the state-licensed production and dispensing of marijuana for medical use in Hawaii, Dispensaries must violate the same federal regulation, creating the appearance of violating federal law, which also exposes Dispensaries to criminal prosecution under the CSA. This puts Dispensaries at risk of property confiscation and forfeiture, even when funding to the DEA for investigating state-licensed operations is being restricted, because the High Intensity Drug Trafficking Areas Program (HIDTA), a branch of the Office of National Drug Control Policy (ONDCP), and not the DOJ, can still investigate organizations that it feels are violating federal regulation.
3. In order to engage in the testing of marijuana and manufactured marijuana products as required under Hawaii state law, local certified analytical labs must violate the federal regulation that is still holding marijuana in federal Schedule I, which puts them at risk of criminal prosecution under the federal CSA.
4. Local banks cannot create accounts with or receive cash from Dispensaries because of the perceived conflict with federal banking laws.
5. Physicians cannot be associated with Dispensaries without appearing to be aiding and abetting patients in gaining access to a Schedule I controlled substance, which means that their DEA controlled substance prescribing license can be revoked, which would trigger revocation of their state controlled substance registration, as well as suspension of their state medical license.
6. Veterans cannot be certified by VA Physicians to enroll in Hawaii's Medical Use of Marijuana Program.
7. Certain local Healthcare Organizations forbid their Physicians from certifying patients to enroll in Hawaii's Medical Use of Marijuana Program.
8. Local Hospice Organizations forbid their terminally ill patients from engaging in the medical use of marijuana on site for fear of losing Medicare Part B reimbursements.
9. The University of Hawaii, including the UH Cancer Center, is unable to engage in direct research on the medical use of marijuana for fear of violating federal regulation and losing federal funding.
10. Our County Police Departments are denying new firearms applications if they find that the applicant is also a registered patient with Hawaii's Medical Use of Cannabis Program.
Aside from waiting for changes to occur at the federal level, the real solution for the current conflict between state medical use and the federal regulation of marijuana rests with the state. Hawaii needs to stand up for its authority to accept the medical use of marijuana, not only to change the attitude of our state and local law enforcement agencies, but also to recognize the impact that state-accepted medical use has upon federal regulation, and to ultimately allow patients and legitimate businesses to engage in the medical use of marijuana at the state level without the threat of federal interference or the appearance of violating federal law.
The problem is that we don't have time to wait for Congress or our new President to act on this issue. Dispensaries in Hawaii have already crossed that fateful line of commercial sale of a Schedule I controlled substance, which goes far beyond patients cultivating small amounts of marijuana for their own personal use in the privacy of their own homes. The state needs to take action to protect the accepted medical use of marijuana in Hawaii before the DOJ begins to target our dispensaries as Continuing Criminal Enterprises.
Standing up for the medical use of cannabis in Hawaii means amending Hawaii's Medical Use of Cannabis Act to specifically recognize that the medical use of cannabis in Hawaii is currently accepted medical use in treatment in the United States, and that the current federal classification of marijuana cannot apply to Hawaii's Medical Use of Cannabis Program.
Once it has been recognized in state law that Hawaii's program is not violating federal law, then it will be possible for Banks, our Universities, and our Police Departments to cooperate in making sure that our patients are well cared for.