Source: Liberty (a bimonthly magazine) Pubdate: January 1998 Contact: Email: Liberty, Box 1181, Port Townsend, WA 98368 Website: http://www.libertysoft.com/liberty/index.html Update The Fight for Medical Marijuana by Paul Armentano The Wheels Of Reform Grind Exceeding Slow And Rough. A year has passed since California and Arizona voters approved the use of marijuana as medicine, a year of continuing legal maneuvering at both the federal and state levels. Here is a brief summary of what has happened. November 1996 11/05/96: Voters in Arizona and California overwhelmingly approve initiatives endorsing the legal use of marijuana under a doctor's supervision. Proposition 215 in California exempts patients using marijuana medicinally from state criminal charges and also authorizes the cultivation of marijuana for medicinal purposes. Proposition 200 in Arizona states that physicians may prescribe marijuana to seriously ill patients. 11/06/96: Arizona Governor Fife Symington (R) threatens to veto Proposition 200. Symington claims that he has the authority to veto successful ballot initiatives which pass with a simple majority of voters, but without a majority of all voters. John MacDonald, government affairs director for the Arizona Attorney General's office says that a veto by the governor would violate the state's constitution. 11/09/96: The Office of National Drug Control Policy (ONDCP) issues a press release reaffirming the Administration's opposition to passage of the medical marijuana initiatives. "Federal law is unchanged by the passage of these initiatives. . . . The decision to bring appropriate criminal or administrative enforcement action will be . . . decided on a case by case basis." 11/14/96: Drug Czar Barry McCaffrey holds a closed door meeting with California law enforcement officials to discuss the federal response to the passage of Proposition 215. Attendance is restricted to those who oppose the legal use of medical marijuana. December 1996 12/02/96: Senator Orrin Hatch (RUtah) calls a special hearing of the Senate Judiciary Committee to denounce the passage the California and Arizona initiatives. Thomas Constantine, Administrator of the Drug Enforcement Administration, testifies that the federal government could "take both administrative and criminal actions against doctors who violate the terms of their DEA drug registrations to prescribe controlled substances." Hatch lambastes the propositions as the work of "pothead doctors . . . [who] want to legalize drugs." 12/09/96: Symington grudgingly signs Proposition 200 into law, but vows not to implement many of its provisions. 12/12/96: McCaffrey and Department of Transportation Secretary Federico Pena hold a joint press conference to announce that medical marijuana users in California and Arizona will not be granted an exemption from federal drug testing laws. A press statement announces: "The law is clear. If you are a safetysensitive . . . worker and you're caught using drugs, these propositions don't mean a thing. You're out of a job." 12/30/96: The Clinton administration announces its plan to institute criminal prosecution of physicians who prescribe or recommend marijuana in California and Arizona, and to deprive them of their right to write prescriptions of any kind. The plan further recommends that such physicians be excluded from the Medicaid and Medicare programs. The federal plan also authorizes the DEA to "adopt" (take over) prosecution of cases resulting from seizures of marijuana and other Schedule I controlled substances made by state and local law enforcement officials in cases where state and local prosecutors cannot prosecute because of state laws. January 1997 1/08/97: Citing the passage of Proposition 215, California Superior Court Judge David A. Garcia lifts a fivemonth injunction on the San Francisco Cannabis Buyers' Club, a 10,000member organization that distributes marijuana to seriously ill patients. Garcia rules that the club may engage in the notforprofit cultivation and sale of marijuana for documented medical purposes. "The people of California have spoken," Garcia declares. "I don't think [the California Attorney General] or I are going to say that the people of California were ineffectual." 1/09/97: Responding to public opposition over the Clinton administration's proposal to arrest physicians who recommend or prescribe marijuana, the ONDCP commits nearly one million dollars to fund a comprehensive review by the National Academy of Sciences' (NAS) Institute of Medicine of the existing scientific literature regarding marijuana's medical potential. Many criticize the proposal as a "stalling tactic" and emphasizes that the move fails to authorize any research. The NAS conducted a similar review in 1982 and concluded: "Cannabis and its derivatives have shown promise in the treatment of a variety of disorders." 1/14/97: A group of California physicians and patients file a class action suit in federal court in San Francisco seeking an injunction to prevent federal officials from taking any punitive action against physicians who recommend the medical use of marijuana to their patients in compliance with state law. 1/21/97: Senator Lauch Faircloth (RN.C.) introduces legislation in Congress (S. 40) to sanction severely physicians who prescribe or recommend the medical use of marijuana. That same day, Senator Orrin Hatch includes similar provisions in a Republicanbacked anticrime bill (S. 3). 1/22/97: The Massachusetts Department of Health issues regulations to create an affirmative medical defense for patients who use marijuana for a legitimate medical need. The Department also begins developing a blueprint for a staterun medical marijuana research project. Governor William Weld endorses the action and states that he has "no problem" with the use of marijuana as a therapeutic agent. 1/30/97: Dr. Jerome Kassirer, editor of The New England Journal of Medicine, opines that the federal policy that prohibits physicians from prescribing marijuana to seriously ill patients is "misguided, heavyhanded, and inhumane." He argues that the federal government should immediately reschedule marijuana to allow for its legal use by prescription. February 1997 2/14/97: DEA agents question California family practitioner Dr. Robert Mastroianni regarding evidence that he recommended marijuana to three seriously ill patients. The agents warn Mastroianni that he is under formal investigation. 2/20/97: A panel of prominent physicians call for clinical trials to examine marijuana's therapeutic potential in the treatment of AIDS, spasticity disorders, glaucoma, and chronic pain, and the side effects of cancer chemotherapy at the close of a twoday conference organized by the National Institutes of Health (NIH). Panelists announce that a full report recommending a course of action will be released in four weeks. 2/23/97: Four California medical groups the San Francisco Medical Society, the California Academy of Physicians, the Gay and Lesbian Medical Association, and the Marin Medical Society join the federal medical marijuana lawsuit filed on January 14. March 1997 3/06/97: A group of physicians, health organizations, and patients file a federal lawsuit in U.S. District Court for the District of Columbia challenging the federal government's refusal to allow physicians to prescribe marijuana in states that permit them to do so. The lawsuit cites state laws in Connecticut, Virginia, and Arizona permitting physicians to prescribe marijuana for patients suffering from serious illnesses. Plaintiffs seek a declaratory judgment that the federal policy prohibiting physicians from recommending or prescribing marijuana in accordance with state law violates the First, Ninth, and Tenth Amendments and the Commerce Clause of the U.S. Constitution. 3/18/97: New guidelines issued by the American Medical Association (AMA) and its California affiliate (CMA) support a physician's right to discuss freely the use of marijuana as a therapeutic agent with his or her patient. April 1997 4/03/97: Representative Gerald Solomon (RN.Y.) introduces a companion bill to Senator Faircloth's S. 40 in the House of Representatives. The bill is titled the "Medical Marijuana Prevention Act of 1997." 4/15/97: The Arizona Legislature guts medical marijuana provisions included in Proposition 200 by approving a law mandating that state licensed physicians may only prescribe marijuana after it has been approved by the federal Food and Drug Administration (FDA). Backers of Proposition 200 announce that they will file a referendum to block the Legislature's action. 4/21/97: Federal agents raid Flower Therapy, a medical marijuana buyers' club in San Francisco. Officials confiscate 331 marijuana plants, but leave dried marijuana that was marked for "medicinal purposes." No federal charges are filed and the club reopens the following day. 4/24/97: San Jose becomes the first city in the United States to pass zoning laws regulating cannabis buyers' clubs. 4/30/97: U.S. District Court Judge Fern Smith rules that federal officials may not sanction California doctors who recommend marijuana to their patients in compliance with state law. Plaintiffs' attorney Graham Boyd hails the ruling as a "tremendous victory." May 1997 5/01/97: Dr. Donald Abrams of the University of California at San Francisco submits a research proposal to NIH to study the shortterm effects of smoked marijuana on individuals suffering from AIDS. 5/22/97: The California Medical Association (CMA) publicly endorses state legislation introduced by Sen. John Vasconcellos (DSanta Clara) to establish a medical marijuana research program at a major California university. 5/27/97: A group of researchers from The Montana Clinic in Missoula submit a research proposal to the NIH regarding the use of marijuana in acute migraine treatment. June 1997 6/01/97: The Florida Medical Association, one of the largest state medical associations in the nation, passes resolution #97 61 urging state and federal governments to allow legal access to marijuana for medical purposes. 6/03/97: Representative Barney Frank (DMass.) introduces H.R. 1782 in Congress to provide for the medicinal use of marijuana in the states. The legislation eliminates the federal restrictions which currently interfere with an individual state's decision to permit the medical use of marijuana, and mandates the federal government to provide marijuana for medical research purposes to all FDA approved scientific protocols. 6/16/97: Nevada state prosecutors drop felony marijuana possession charges against a California cancer patient after the district attorney concedes that the marijuana was purchased in San Francisco and was for medicinal purposes only. Legal analysts claim that this is the first interstate proceeding involving medical marijuana imported from California. July 1997 7/02/97: The British Medical Association (BMA) overwhelmingly calls for the legalization of marijuana for medical use at a conference in Scotland. 7/03/97: Drug reform activists in Washington state submit more than 242,000 signatures to the Secretary of State to place the "Drug Medicalization and Prevention Act of 1997" on the November 1997 ballot. Initiative 685 would allow physicians to "recommend" the use of marijuana or any other Schedule I drug to a seriously ill patient. The initiative also calls for substantive criminal justice reforms. 7/17/97: Medical marijuana proponents in Arizona turn in twice the necessary number of signatures to resurrect a Proposition 200 provision allowing doctors to prescribe marijuana to seriously ill patients. August 1997 8/07/97: In The New England Journal of Medicine , Dr. George Annas of the Boston University School of Medicine demands that seriously ill patients be given immediate legal access to medical marijuana. Annas writes: "Research should go on, and while it does, marijuana should be available to all patients who need it to help them undergo treatment for lifethreatening illnesses." 8/08/97: After an almost five month delay, the NIH releases a promised report on the therapeutic potential of marijuana. The NIH report concludes that marijuana "looks promising enough [in the treatment of certain serious illnesses] to recommend that there be new controlled studies done," and urges the federal government to play an active role in facilitating clinical evaluations of medical marijuana. White House spokesman Mike McCurry tells the Associated Press that the administration continues to oppose the use of marijuana to treat sick people despite the NIH findings. September 1997 9/12/97: The California Legislature fails to act on legislation introduced by Sen. John Vascocellos to establish a Medical Marijuana Research Center at a campus of the University of California. Backers of the research proposal included the American Cancer Society, Attorney General Dan Lungren, the California Narcotics Officers Association, the California Medical Association, and the California District Attorney's Office. 9/16/97: Federal officials provide a $170,000 grant to Washington state antidrug coordinators to fund a full, statewide antimarijuana effort. Proponents of Initiative 685 immediately file a complaint with the Public Disclosure Commission and state Ethics Board alleging that the federal funds are being used illegally to campaign against the "Drug Medicalization and Prevention Act of 1997." Federal and state laws prohibit tax dollars from being used to fund a political campaign. 9/18/97: NIDA officially announces on September 18 that Dr. Donald Abrams of UCSan Francisco will receive his full grant request of $978,000 for a study of the use of smoked marijuana, oral dronabinol, and a placebo, in HIVpositive patients. The aim of the revised protocol is to determine whether marijuana has serious shortterm side effects on the health of HIVpositive patients. Only if the findings of this initial study scheduled to take nearly 18 months to complete are negative, would Abrams then be permitted to research safety and efficacy of the chronic use of marijuana for HIVassociated anorexia and weight loss. October 1997 10/01/97: Witnesses on both sides of the medical marijuana issue testify before Congress at a hearing before the House Judiciary Committee, Subcommittee on Crime. Proponents liken marijuana's medical utility and safety to drugs such as penicillin and urged the federal government to support legislative efforts to allow physicians to prescribe the drug, while opponents urge federal officials to take a more vocal stance opposing pending state marijuana initiatives. Republican antidrug zealot Bob Barr (RGa.) vocally attacks libertarian witness Roger Pilon of the Cato Institute and calls spectators "walking testimonials to drug use." 10/08/97: Federal law enforcement officials raid a Cannabis Buyers' Club in Sacramento. For the first time since the passage of Proposition 215, federal arrests are issued against a California CBC. November 1997 11/01/97: Americans for Medical Rights (AMR), the Californiabased group that spearheaded the successful passage of Proposition 215 in California, announces that it will coordinate medical marijuana initiatives for 1998 in Colorado and Maine. Colorado's reform effort seeks to amend the state's constitution to allow anyone holding a stateissued identification card to legally possess up to an ounce of marijuana for medical use with a physician's recommendation. Cultivation limits are set at six plants, with no more than three plants producing usable marijuana at any one time. A similar proposal filed in Maine would limit the use of marijuana to patients suffering from AIDS, glaucoma, multiple sclerosis, or undergoing cancer chemotherapy. As in Colorado, the proposal allows patients to grow up to six marijuana plants. 11/02/97: The NIH rejects a research proposal to study the use of marijuana in acute migraine treatment. 11/04/97: Initiative 685, the "Drug Medicalization and Prevention Act of 1997" receives only 40 percent support from Washington state voters. The defeat comes as a disappointment to reformers, but medical marijuana proponents say that public support for medical marijuana remains strong. "The defeat of I685 was not a defeat for medical marijuana," NORML Director R. Keith Stroup, Esq., says, citing exit poll results indicating 46 percent of those opposed to the initiative would support a measure dealing only with medical marijuana. "It further supports our belief that a majority of Americans favor focused legislation allowing a patient to use marijuana medicinally under a physician's supervision." The Outlook It is apparent that the federal government is not about to relent in its opposition to the use of marijuana as a medicine. Threats by Washington to severely sanction doctors in California who recommended marijuana to a patient ceased only after a federal court ruling. No federal agency has yet to begin clinical trials involving the effectiveness of medical marijuana. As approved by the National Institute of Health (NIH), the muchanticipated protocol submitted by Dr. Donald Abrams will only determine the safety or toxicity profile of cannabinoids in persons with HIV. It will not evaluate marijuana's medical potential in alleviating the weight loss associated with the AIDS. NIH flatly rejected a proposal submitted by researchers from The Montana Clinic in Missoula to study the use of marijuana in acute migraine treatment, and hasn't acceded to a Massachusetts Board of Health request to provide government grown marijuana to state certified patients. Increased public scrutiny may finally encourage the NIH to approve a limited number of medical marijuana research studies, but there is no indication that the federal government will stop arresting and jailing current medical marijuana users while these studies take place. Recent statements by the White House indicate that medical marijuana users will still be punished to the fullest extent of federal law regardless of whether medical marijuana research is scheduled to take place. For the second session in a row, Congressman Barney Frank introduced legislation to make marijuana legally available as a medicine. Frank's bill emphasizes Congressional sentiment in favor of states' rights and seizes on momentum created by the Arizona and California initiatives. On October 1, Congress allowed testimony from medical marijuana proponents for the first time since the passage of last year's initiatives. Not surprisingly, proponents found little support among Congressional Republicans and were outnumbered twotoone by witnesses opposed to the medical use of marijuana. Even so, National Organization for the Reform of Marijuana Laws (NORML) Executive Director R. Keith Stroup called the hearing a positive step toward reform. "The good news for the medical marijuana movement is that McCaffrey and other federal officials no longer claim that there is no currently available medical marijuana research or refer to our position as 'Cheech and Chong medicine,'" Stroup said. "Now they have fallen back to the position that physicians and scientists should decide this issue, a position NORML also favors. This change represents a step in the right direction, and we are accustomed to making progress in small increments when the final goal is changing decadesold ideologies on Capitol Hill." Legislation in Congress punishing physicians who recommend or prescribe marijuana under the authority of state law emerged as a backlash to the successful California and Arizona initiatives, but much of the language included in these bills appears too extreme for most members of Congress. In addition, U.S. District Judge Fern Smith's ruling makes clear that the First Amendment protects physicianpatient communications and that the government has no authority to determine the content of physicians' speech. Therefore, it is unlikely that Congress will support either the Faircloth or Hatch provisions. A more likely tactic Congressional opponents may pursue would be to encourage state representatives to introduce legislation repealing several active state laws endorsing marijuana's medical use. In 1997, Ohio lawmakers repealed a seldomused medical marijuana defense law. But legislators in Virginia refused to annul an 18yearold law allowing doctors to prescribe marijuana to patients suffering from glaucoma or undergoing cancer chemotherapy. Today, federal officials from the Drug Czar's office seem to be taking a decidedly lower profile in their opposition to pending state marijuana initiatives than they did last year. Barry McCaffrey only voiced minor opposition to the "Drug Medicalization and Prevention Act of 1997" in Washington state and potential initiatives in Florida, the District of Columbia, Arkansas and elsewhere. Overall, federal opposition has appeared disorganized. However, there is evidence that federal funds may have been used to help fund an antimedical marijuana campaign in Washington. Recently, McCaffrey told reporters that his office would limit involvement campaigning against future initiatives. "I'm not in charge of America," McCaffrey told Reuters News Service on October 1 in response to Congressional criticism that he has not been vocal enough in his denunciation of state medical marijuana initiatives. "I'll provide information for the debate. . . . I'll inform [the public] of federal law. [But] I'm not America's nanny. The American people are perfectly capable . . . of making up their own minds." Statements like these suggest that federal drug policy wonks will stop interfering with state initiatives. But Congress seems determined to continue to pressure the ONDCP into the arena. Since November 1996, physicians and medical organizations have increased their public support for medical marijuana research and, in some cases, legal access. No doubt, much of this outpouring of support from the medical community comes as a response to the heavyhanded remarks made by federal officials. Both federal lawsuits challenging the government's stance against medical marijuana were spearheaded by physicians and local medical groups. In addition, calls for research and legal protections for physicians by the California Medical Association, The New England Journal of Medicine , and others further legitimize the medical marijuana issue. In hindsight, it appears that the government's threats to sanction physicians was a strategic miscalculation. Not only did it inspire public furor, but more importantly it encouraged medical groups like the AMA who may have otherwise remained silent on the medical marijuana issue to come forward in support of its members. In the last year alone, the British Medical Association, the Florida Medical Association, the American Cancer Society, AIDS Action Council, the California Academy of Physicians, the San Francisco Medical Society endorsed medical marijuana use or research. In California, even unlikely organizations such as the California Narcotics Officers Association and the California District Attorney's Association pledged their support to legislation proposed to establish a "medical marijuana research center" at a campus of the University of California. Continued support from these prestigious and highprofile groups could inspire a relaxation of federal policy. California and Arizona have taken different paths since November 1996. While some California legislators and law enforcement agencies voiced opposition to Proposition 215 before the election, most now accept the decision of the voters and cooperate with proponents in implementing and interpreting the law. Guidelines to state police officers from the Attorney General advise law enforcement to "use common sense when applying the Compassionate Use Act of 1996 and abide by the spirit of the voters' . . . intention." This discretion in enforcement led police to return marijuana plants and grow equipment to an AIDS patient after he produced a framed doctor's statement supporting use of the drug. In another case, the Sacramento County District Attorney's Office dropped charges against an AIDS patient who was cited after smoking marijuana in public. Most judges interpret Proposition 215 broadly. In significant trial court rulings, judges have declared that Proposition 215 is a valid affirmative defense for qualified patients, the initiative may be applied retroactively, cannabis buyers' clubs may qualify as "primary caregivers" and operate legally under state law; the amount of marijuana allowable per patient under the initiative depends on the medical facts of the case; and that transportation of medical marijuana is legal in some instances. Ongoing legislative developments will keep California on the cutting edge of the medical marijuana movement and spearhead the growing national debate. In Arizona, the legislature has refused to implement Proposition 200. Recently, a referendum submitted by druglaw reform proponents resurrected a provision allowing doctors to prescribe marijuana pending a public vote in November 1998. However, because this provision is in direct conflict with federal law, it is unlikely that Arizona patients will have legal access to the drug. Proposition 200 may allow patients to make an affirmative defense of "medical necessity" if they are facing state marijuana charges. So far, threats from the federal government to arrest patients who use marijuana and physicians who recommend it as authorized by California's or Arizona's new laws have proved hollow. Federal officials did question at least one physician for allegedly recommending his patients use marijuana medicinally, but so far have taken no further action. Raids on at least two aboveground California Buyer's Clubs were executed by federal officials in the past year. No arrests were made in the first raid, but charges are pending after the October 8 bust of a Sacramento club. The latter raid and subsequent arrests of the proprietor and two employees may signify a shift in federal policy from rhetoric to action but only time will tell. At this point, it still remains unlikely that federal officials will intentionally target specific medical marijuana patients or physicians. Local and state law enforcement will most likely continue to be the primary enforcers and interpreters of state medical marijuana laws. State voters and legislatures continue to address the issue of medical marijuana and move the topic forward. In 1997, ten states introduced laws endorsing medical marijuana. Medical marijuana proponents anticipate more endorsements in 1998. Signatures are currently being gathered to place narrowly focused medical marijuana initiatives on the 1998 ballot in at least seven states. The passage of future initiatives is crucial to keep the battle for medical marijuana an issue of national importance. Depending on the number of successful initiatives in 1998 and 1999, the government may take a serious look at rescheduling marijuana to Schedule II to legally allow for its medical use by the year 2000. Until then, states, medical marijuana activists, and medical organizations will continue to lead the charge toward additional research and limited legal access. © Copyright 1997, Liberty Foundation