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Spring 2004
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

The Legal Status of Medical Marijuana

By Alice Mead
“Medical marijuana” —the name itself is heavily laden with innuendo. “Marijuana” is actually slang for Cannabis sativa, the plant’s proper name. It was used pejoratively during the early 1900s when the public came to associate the plant’s recreational use with ethnic and racial minorities, against whom discrimination and antipathy were widespread.
For thousands of years around the world, Cannabis sativa has been used as a medicine. The plant contains approximately 60 cannabinoids, primarily tetrahydrocannabinol (THC), which is psychoactive, and cannabidiol (CBD), which is not. The plant also contains hundreds of other substances, such as flavonoids and terpenes, many of which may have therapeutic potential in their own right. Supporters of natural cannabis medicines believe that the various elements of the cannabis plant work in synergy with one another to mitigate the side effects of THC and to enhance the plant’s therapeutic effectiveness.
The federal government contends that suffering patients already have legal access to a cannabinoid-containing medicine. Although a pharmaceutical product containing pure synthetic THC —Marinol—is available by prescription, many patients have expressed dissatisfaction with its mode of action. Because of its oral dosage form and its metabolism within the body, the medicine does not take effect for a significant period of time. Patients cannot adjust or “titrate” the dose to achieve symptom relief without experiencing excessive psychoactive effects. Moreover, patients suffering from nausea and vomiting may not be able to take a medicine in capsule form. Therefore, this option is an illusory one for many patients.

Cannabis and Federal Law
In the U.S., a complex patchwork of federal and state laws determines whether, and when,

a psychoactive substance with abuse potential can be made available for general medical use. The federal Controlled Substances Act (CSA) and the Food, Drug and Cosmetic Act (FDCA) are the two primary statutes that govern this field. The CSA has five “schedules” into which a psychoactive substance is placed, depending on its acknowledged medical usefulness, on the one hand, and dependence-producing potential, on the other. Cannabis is located in Schedule I, the most restrictive schedule, having been placed there by Congress when the CSA was first enacted in 1970.
Under the CSA, products containing Schedule I substances are not available for general prescriptive use. Rather, such substances can be used only within the context of a federally-approved research study. A Schedule I substance has
1) a high potential for abuse;
2) no “currently accepted medical use in treatment” in the US;
3) a lack of accepted safety for use under medical supervision.
By contrast, a Schedule II substance, such as OxyContin, can be prescribed by physicians, although it still “has a high potential for abuse” —indeed, its abuse “may lead to severe psychological or physical dependence.” However, it does have a currently accepted medical use. 21 USC sec. 812(b).


How to Escape Schedule I
In an attempt to reschedule cannabis, advocacy groups have on several occasions initiated a special petition procedure by which a substance can be transferred to another schedule or removed from the schedules altogether.1 These rescheduling efforts have spanned several decades, but the Drug Enforcement Administration, the Department of Health and Human Services, and the courts have ultimately rejected them.2
A new petition, filed in 2002, is currently pending. Because Schedule I status impedes research —which has been particularly true in the case of cannabis— there are no data from large “controlled clinical trials” sufficient to satisfy the exacting criteria for a prescription medicine. And the DEA has clearly stated that, however widespread, “anecdotal evidence” is not adequate to meet the CSA’s requirement of “accepted medical use.”

FDA approval esssentially constitutes “acceptable medical use”

If a specific cannabis-based product were to be approved by the Food and Drug Administration (FDA)—which approval essentially constitutes “accepted medical use”— that product would become available for prescription. However, while research is well underway in the UK, there appears to be no pharmaceutical company in the U.S. that is developing a whole plant, cannabis-based medicine as a prescription product.
The availability of herbal cannabis as an actual prescription medicine in the U.S. is therefore uncertain. The federal government has clearly indicated that medicinal cannabis will be judged by the rigorous criteria to which other investigational products are subject. Therefore, such a medicine would have to be cultivated, formulated, and tested in accordance with strict regulatory standards. Furthermore, even if one specific product were to achieve such approval, smokable cannabis itself and other unrefined cannabis-containing products would remain in Schedule I, just as Marinol is in Schedule III, while all other forms of THC remain in Schedule I.
What, then, is the future —at least in the short term— for medicinal cannabis in the U.S.? Cannabis dispensaries offer medicinal cannabis in various forms, such as tinctures, candies, etc., and a number of patients are able to obtain their medicine through home cultivation. Can this system flourish in some way independent of the federal regulatory structure?

Exceptions to federal prohibition?
In 1998, the federal government filed a number of federal civil actions against cannabis dispensaries in Northern California. The government contended that the dispensaries were being conducted in violation of federal law, which prohibits the sale, manufacture or distribution of cannabis. The federal district court agreed and turned away a motion to modify its injunction to allow the distribution of medicinal cannabis to seriously ill patients who could show “medical necessity,” i.e., those who had tried all standard medications without success and for whom medicinal cannabis was the only treatment that alleviated their symptoms. The U.S. Court of Appeals for the Ninth Circuit reversed, ruling that, notwithstanding the fact that cannabis is a Schedule I drug under the federal CSA, there could be a medical necessity defense to an action under the Act. 3

The U.S. Supreme Court granted certiorari and, in an 8-0 opinion (Justice Breyer abstaining), the Court determined that there is no “medical necessity” exception to the CSA’s statutory prohibitions against manufacturing and distributing cannabis.4
The Court concluded that placement in Schedule I establishes that cannabis has no medical benefits and cannot be used outside the confines of a federally-approved research project. Five members of the Court went even further in dictum to state that there should be no distinction drawn between the CSA’s prohibitions against manufacturing and distributing and its other prohibitions, such as possession for personal use. Therefore, it would appear that a medical necessity exception to the CSA would also not be available in an action against a patient for possession or cultivation for personal use.
However, the Court explicitly noted that it was not addressing the constitutional issues, if any, that might be raised by the application of the CSA in such cases. In the face of this apparent invitation, on remand a number of as-applied constitutional arguments were presented. Furthermore, independent actions were also filed, one by the Wo/man’s Alliance for Medical Marijuana, a cultivation cooperative (that had been raided by the Drug Enforcement Administration), joined in the suit by the governments of the county and city in which it is located (Santa Cruz).5
Another was filed by Angel Raich and Diane Monson, individual patients seeking declaratory and injunctive relief to establish their right to cultivate and use medicinal cannabis free from interference or punishment by the federal government.6 Raich v. Ashcroft, No. 03-15481 (9th Cir.).

There are two primary constitutional issues raised by these cases. First, the proponents of medicinal cannabis contend that the federal government lacks power under the Commerce Clause to regulate wholly intrastate, noncommercial cultivation of medicinal cannabis. (Interestingly, the FDCA regulates only misbranded or adulterated food and drugs that move in interstate commerce, whereas the CSA purports to regulate the use and distribution of controlled substances in both intrastate and interstate commerce.7
Such challenges have been very difficult to mount in the past, but recent decisions of the U.S. Supreme Court appear to have narrowed the reach of the Commerce Clause. In United States v. Lopez, 8 the Supreme Court struck down the Gun-Free School Zones Act of 1990 because
1) possessing a firearm within 1,000 feet of a school had nothing to do with commerce or any sort of economic enterprise;
2) there was no requirement in the statute that the firearm possession actually affect interstate commerce; and
3) there were no formal findings regarding the effect on interstate commerce of the firearm possession.
Similarly, in United States v. Morrison9, the Court invalidated the civil remedy established under the Violence Against Women Act because, despite Congressional findings regarding the economic effect of gender-motivated crimes of violence, the Court determined that intrastate violence against women is not economic activity and does not “substantially affect” interstate commerce.
The Court of Appeals for the Ninth Circuit has very recently followed the high Court’s lead

in this area. In United States v. McCoy10, the Ninth Circuit struck down a statute prohibiting possession of child pornography produced using materials that had traveled in interstate commerce, as applied to simple possession of a photograph that had not traveled in interstate commerce and was not intended for interstate distribution or economic use. In light of these opinions, the Commerce Clause argument in the medicinal cannabis cases may be credible and may have particular force in the situation involving individual cultivation of cannabis for personal medical use.

The federal Controlled Substances Act is likely un-constitutional as applied to the intrastate, noncommercial cultviation, possession and use of medicinal cannabis

On December 16, 2003, the United States Court of Appeals for the Ninth Circuit ruled in one of these cases —Raich v. Ashcroft— that the federal Controlled Substances Act is likely unconstitutional as applied to the intrastate, noncommercial cultivation, possession and use of medicinal cannabis, where that medical use has been recommended by a physician. Under the court’s analysis, Congress has no jurisdiction to regulate such activity under the Commerce Clause of the federal constitution.
The Court remanded the case to the district court for entry of a preliminary injunction against the federal government. The federal government unsuccessfully sought rehearing and rehearing en banc. At t the time of this writing, the cultivation and use of medicinal cannabis under such circumstances would seem to be lawful under both state and federal law.11
Second, the medicinal cannabis cases contend that individual patients have a fundamental right to rely on their physicians’ recommendation to use medicinal cannabis, when it is the only medicine that has been demonstrated to alleviate their suffering. This, then, is the “medical necessity” argument raised to a constitutional level.
Past cases have generally found that there is no fundamental right to choose an unapproved medicine.12 However, those opinions arose out of different factual settings, and the specific question raised by the current cases was not directly addressed. Indeed, in Carnohan, which rejected the plaintiff’s argument that he had a fundamental right to obtain and use laetrile for the prevention of cancer, the Court of Appeals stressed that it was not deciding whether the plaintiff had “a constitutional right to treat himself with home remedies of his own confection.”13 Again, patients who cultivate their own medicinal cannabis or who obtain it from intrastate sources avowedly beyond the jurisdiction of the FDA, may be able to distinguish their situation from those in Carnohan and Rutherford.
Furthermore, the fundamental rights argument may have been bolstered by a recent U.S. Supreme Court decision which may portend a loosening of the fundamental rights doctrine’s narrowness. In Lawrence v. Texas,14 the Court found a Texas statute criminalizing sexual relations between persons of the same sex to be an unconstitutional restriction on liberty under the Due Process Clause of the Fourteenth Amendment.
Thus far, federal district courts have rejected these arguments, but partially (at least with regard to the Commerce Clause) because those courts perceived themselves to be bound by prior Ninth Circuit precedent.15 The medicinal cannabis cases were recently argued before two different panels of the Ninth Circuit, and the parties are awaiting the panels’ rulings. It may be that the CSA does not, after all, comprise a totally “closed” system for the distribution of all controlled substances.

The Role of Proposition 215
Enacted by 56% of the electorate in November 1996, Proposition 215, or the Compassionate Use Act, codified at Health & Safety Code section11362.5, stands in stark contrast to the narrow constraints of federal law. Proposition 215 authorizes a seriously ill patient (and the patient’s “primary caregiver”), who has the oral or written approval or recommendation of a physician, to cultivate and/or possess cannabis for medical purposes. A recent California Attorney General opinion states that the term “marijuana” in the initiative includes concentrated cannabis, i.e., hashish.16
At first glance, one might think that the initiative must be inconsistent with federal law and hence, under the Supremacy Clause, invalid. However, Proposition 215 merely abrogates the State’s own criminal laws prohibiting cultivation and possession of cannabis, as they apply to qualifying patients/primary caregivers. The State is unquestionably free to abolish its own laws without running afoul of the Supremacy Clause. Nevertheless, although Proposition 215 is not itself in conflict with federal law, patients, primary caregivers, cannabis dispensaries—and in some cases, even physicians-who act in accordance with its text and purpose, may still be at risk of federal prosecution or other sanction.


Prop 215’s Protections
Soon after enactment of Proposition 215, many commentators, as well as state and local law enforcement personnel,

In many counties, patients who clearly possessed physicians’ recommendations were arrested and forced to stand trial.

concluded that the initiative provided only an affirmative defense, which the patient-defendant would have to raise at trial. Accordingly, in many counties, patients who clearly possessed physicians’ recommendations were arrested and forced to stand trial. Patients, by contrast, argued that they were entitled to complete immunity from arrest and prosecution.
This uncertainty was finally resolved by the California Supreme Court in People v. Mower .17 In Mower, the Court ruled that a patient may raise his/her status as a patient or primary caregiver
1) as a basis for moving to set aside an indictment or information before trial on the ground of the absence of reasonable or probable cause to believe that he/she is guilty or
2) as an affirmative defense at trial. The Court further ruled that, although the patient-defendant has the burden of proof regarding the facts of his/her status, he/she need only raise a reasonable doubt as to his/her guilt, rather than having to prove his/her status by a preponderance of the evidence. In so doing, the Court also reaffirmed the validity and vitality of Proposition 215.

Who Qualifies?
The ballot arguments and the text of the initiative indicate that the law was intended to apply to seriously ill patients. Proposition 215 specifies a number of serious diseases and conditions that are effectively presumed to constitute “serious illness” for which treatment with medicinal cannabis is appropriate —cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis and migraine. However, the Act is not limited only to these enumerated conditions. Rather, the Act applies with equal effect to any seriously ill patient if 1) the person suffers from “any other illness for which marijuana provides relief” and 2) a physician has determined that the person’s health would benefit from such a therapeutic option. The Act therefore has a broad scope, enabling patients with a variety of conditions to qualify for its protections.

Patients Obtaining Cannabis
Unfortunately, many patients are too ill to cultivate their own cannabis. Furthermore, a patient’s “primary care-giver,” defined as the individual, designated by patient, “who has consistently assumed responsibility for the housing, health, or safety of that person,” may not be skilled enough (or have the space) to manage a successful garden. However, Proposition 215 did not establish any other distribution mechanism, potentially forcing patients to obtain their medicine from the black market.
Recognizing this need, even before Proposition 215 was passed, a number of dispensaries, then called “cannabis buyers clubs,” opened their doors. The operator of the San Francisco Cannabis Buyers Club, Dennis Peron, was designated by thousands of patients as the patients’ “primary caregiver.” However, a California Court of Appeal determined that, under the circumstances of that case, the operator did not meet the statutory criteria and therefore was not covered by the Act.18 Hence, many cannabis dispensaries may be operating in violation of both state and federal law.
Nevertheless, in some areas, such dispensaries —operating with the approval, or at least without the objection, of local governments— have proliferated. A small section of downtown Oakland has been denominated “Oaksterdam,” because of the large number of dispensaries that flourish there. By contrast, in other parts of the state, there are no dispensaries at all.
Even home cultivation, however, does not ensure that a qualifying patient (or a primary caregiver) will not be arrested and even convicted under state law. One of the most contentious issues has centered on the amounts —the weight of dried herbal cannabis and/or the number of plants— that a patient or caregiver can legitimately possess or cultivate. In some cases, law enforcement has contended that the amount possessed or cultivated demonstrates that the cannabis was intended for sale, rather than the patient’s personal use, in violation of Health & Safety Code sections 11359-60. By contrast, patients seek to establish that the amount was actually reasonable for the patient’s needs. Different counties have promulgated “plant limit” guidelines, but these have not been consistent across the state.
Furthermore, Proposition 215 did not exempt patients from the state criminal law prohibitions against transporting cannabis. One California Court of Appeal has suggested that a patient may lawfully transport cannabis if the method, timing and distance of transportation are reasonably related to the patient’s medical needs.19 However, more recently, another state appellate court construed Trippet as applying only to “incidental transportation of marijuana from the garden to a qualifying patient.”20 This narrow decision had the potential further to complicate patients’ ability to obtain and carry cannabis medicines.

“Clarification” —SB 420
It became increasingly apparent that the interpretation and application of Proposition 215 were not fulfilling—and in some ways were undermining—the initiative’s purpose. However, under California law, an initiative cannot be amended by statute, unless its language so permits,21 and Proposition 215 did not allow for such amendment. In 1999,

Attorney General Lockyer convened a Medical Marijuana Task Force to draft guidelines to attempt to address the initiative’s implementation problems. This effort resulted in a bill, SB 420, which, after four years, was finally signed into law on October 13, 2003, by outgoing Governor Davis. SB 420 adds Article 2.5, commencing with Section 11362.7, to the Health and Safety Code.
SB 420 was intended, not to amend, but to “clarify the scope” of the initiative, to “facilitate the prompt identification” of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals, and to “provide needed guidance” to law enforcement officers.” It also sought to “promote uniform and consistent application” of the act across the state.
The new law requires the California Department of Health Services to establish a fee-based, voluntary identification card system. While the bill was moving through the legislature, the Office of the Legislative Counsel determined that a mandatory ID card system would have constituted an invalid amendment to Proposition 215.22

A “serious medical condi-dition” is one that “substantially limits the ability of the person to conduct one or more major life activities”


SB 420 sets forth a transparent process by which qualified patients and their primary caregivers may obtain ID cards. It defines the concept of “serious medical condition” to include any condition that “substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act,” or which, “if not alleviated, may cause serious harm to the patient’s safety or physical or mental health.”23
It also clarifies that a copy of the patient’s medical record shall constitute the “written documentation” that a patient must submit in order to substantiate his/her physician’s conclusion that he/she has a serious medical condition and that the use of medicinal cannabis is “appropriate.” The ID cards will actually be issued by the patient’s county health department.
Amongst other issues, SB 420 attempts to address, in a limited way, the “supply problem.” Section 11362.775 recognizes the existence and legitimacy of collective or cooperative cannabis cultivation projects, although those concepts are not specifically defined in the text. It also explicitly permits a primary caregiver to be designated by more than one patient, if all patients reside in the same county as the primary caregiver, and allows the primary caregiver to receive reimbursement for the expenses incurred in cultivation, as well as reasonable compensation for his/her services.
Finally, the law sets forth specific amounts of dried herb and numbers of plants, which are intended to protect patients against improper arrest and prosecution and to provide guidance to the law enforcement sector.

What about the physicians?
Proposition 215 depends upon physicians for its effective implementation. If a physician has not approved or recommended a patient’s use of medicinal cannabis, the patient cannot claim the Act’s protections. Recognizing the importance of the physician’s role, the electorate sought to encourage physicians’ involvement by affording them explicit protection against punishment or other sanction for having recommended or approved medicinal cannabis: “Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.”
Thus far, this forceful language has not been sufficient to attract physicians in significant numbers. Many physicians do not like the idea of “smoking a medicine” and are further discomforted by the unstandardized nature of crude herbal cannabis products; some are not informed enough to discuss —much less recommend— medicinal cannabis; and still others are fearful of incurring punishment from the state and/or federal governments.
Those fears, at least until very recently, may have been well-founded. Proposition 215, as a state law enactment, could not protect physicians from the wrath of the federal government. Immediately upon Proposition 215’s passage, former Attorney General Janet Reno, former drug czar Barry McCaffrey, and former DHHS Secretary Donna Shalala publicly announced a federal “policy,” pursuant to which physicians who recommended medicinal cannabis would be stripped of their licenses to prescribe all controlled substances (a death knell for most physicians’ practices), barred from MediCal and Medicare, and potentially subjected to criminal prosecution.
The federal government did not actually have to act on the threat. Indeed, more than six years later, the Drug Enforcement Administration (DEA) has taken action against only one physician —one who had not only issued many recommendations, but was also cultivating cannabis, albeit for personal medical use. However, the chill from that threat has hung heavy in the air all this time, deterring most physicians from being willing even to discuss the subject with their patients. Only recently, have physicians had reason to feel a measure of comfort (see discussion below of the First Amendment).
Unfortunately, the paucity of physicians cannot be alleviated through the participation of allied health practitioners, such as chiropractors. Proposition 215 repeatedly states that only physicians may recommend medicinal cannabis. Therefore, although other health professionals, such as nurse practitioners, might be willing to enter the fray, the clear text of the Act precludes this option.
This physician scarcity has had two consequences. First, many patients have been unable to obtain recommendations from their physicians, even though the patients’ conditions might have been improved by the use of medicinal cannabis. Faced with the risk of arrest and prosecution by state or local police, such patients may have foregone the use of medicinal cannabis altogether.
Second, a small number of stalwart physicians rose to the occasion and initiated a type of sub-specialty —evaluating patients to determine if treatment with medicinal cannabis would be appropriate and, if so, approving/recommending its use. These physicians in most cases did not serve as the primary treating physician. For example, they did not establish a treatment plan for the patient’s underlying medical condition. Rather, they confined their role to medicinal cannabis assessment and recommendation. Many of them issued hundreds, even thousands, of recommendations, sometimes traveling to rural areas where there was not a single physician willing to recommend medicinal cannabis.
The inevitable visibility of this group brought to the fore the meaning of the immunity language contained in Proposition 215. The Medical Board began to investigate these physicians, further deepening the intimidation of physicians as a whole. Beleaguered, the physicians argued that “Notwithstanding any other provision of law” established an absolute and unqualified immunity. However, it is virtually impossible to believe that the electorate would have intended such a result, which would protect even the most reckless, incompetent, or avaricious physician from investigation and punishment. Hence, the question seems to be what sort of “specialized” physician-patient relationship can meet the standard of care embodied in California’s Business & Professions Code. This must be decided with great care. It would be a great irony if a small group of physicians, having thus far avoided the federal government’s scrutiny, were now to be at risk of “unprofessional conduct” and subject to sanction from their own medical board, essentially only because they recommended medicinal cannabis.
So, threatened from both afar and at home, most physicians have been sitting on the sidelines. But the United States Supreme Court recently handed them a bit of good news.

The First Amendment
In 1997, shortly after the “federal threat” had been broadcast across the country, a group of physicians and patients brought an injunctive action against the federal government. The suit asserted that physicians had a First Amendment right to discuss and advise their patients concerning medicinal cannabis. The federal district court agreed, as did the Court of Appeals for the Ninth Circuit.24
The Ninth Circuit stated that the federal government cannot prosecute or otherwise punish a physician merely because he/she has discussed and recommended the use of medicinal cannabis. Indeed, the Court stressed, the federal government cannot even initiate an investigation against a physician solely because the physician gave such opinion unless the government in good faith believes that it has substantial evidence that the physician has acted unlawfully. On October 14, 2003, the Supreme Court denied certiorari, rendering the Ninth Circuit’s decision final. The victorious plaintiffs claimed that physicians could now recommend medicinal cannabis without fear of federal intervention.
However, the victory was not quite so unqualified, and physicians’ freedom of speech is still not without boundaries. Both the federal district court and the Court of Appeals in the Conant case emphasized that, if a physician steps out of his/her role as a medical adviser and issues a recommendation for the sole purpose of assisting the patient to obtain cannabis, the physician could be guilty of aiding and abetting, or conspiring in, a violation of federal law. Such conduct would fall outside the First Amendment.

Confusion Over Terms
Regrettably, the term “recommendation” in Proposition 215’s text has caused a huge amount of confusion. Since it is the “key’ that unlocks a patient’s access to both Proposition 215’s protections and to cannabis dispensaries, a physician’s advice has now come under close scrutiny by state and federal governments. But the federal government has never before challenged a physician’s right fully to discuss a potential treatment option. For example, if a pregnant woman were heroin-dependent and could not find a space in a methadone maintenance program, a physician could certainly advise the woman not to attempt to withdraw from heroin during her pregnancy, since doing so could cause a miscarriage. It would simply be good medical practice to provide such information and advice, even though heroin, like cannabis, is a Schedule I substance.
Thus, before Proposition 215, everywhere in the United States a physician and patient could freely discuss and consider the potential usefulness of any medication, whether or not its use was off-label or even if the medication were not approved in this country. As part of that discussion, the physician could give his/her informed opinion as to whether or not it might be desirable for the patient to pursue such a treatment wherever it was available. And, of course, in accordance with the standard of care, the physician should document such a discussion in the medical record.
Ironically, after Proposition 215, things were no longer so straightforward. In order to understand why, one must examine the meaning of the term “recommendation” and the functions that a recommendation can now serve.
The term “recommendation” is ambiguous because a recommendation can take several forms. Ostensibly, the term “recommendation” or “approval” is just a type of shorthand for the traditional process wherein a physician, when discussing a medical treatment option with a patient, provides information and professional advice. In general, such a “recommendation” would be given orally to the patient and then documented in the medical record. Under California law, a patient has a right to request a copy of his/her medical record and may do so for any reason.25 See also the regulations promulgated pursuant to the Health Insurance Portability and Accountability Act (HIPAA)26.
The physician may also embody his/her conclusions and advice in a separate letter or other document. Giving such a separate letter is often what is meant by the phrase “issuing a medicinal cannabis recommendation.” Providing such separate documentation is not without precedent, particularly when the patient is using a prescription medicine containing a controlled substance.
For example, the California Pain Patient’s Bill of Rights, Health & Safety Code sections 124960-61, allows patients to request documentation of their physicians’ conclusion that opioid treatment is appropriate. One purpose of such documentation is to provide evidence for law enforcement personnel, if necessary, to establish that the patient’s use is legitimate.
Finally, a physician also might have occasion, if requested by a third party (and permitted by the patient), to confirm the veracity of either the written recommendation or the copy of the medical record.
A recommendation can also be issued for several reasons. First, the physician may genuinely believe that the information and advice about the therapeutic potential of medicinal cannabis will assist the patient in making medical decisions. Or, as the Court of Appeals in Conant suggested, it might enable the patient to enroll in a clinical trial, decide to obtain treatment abroad, or assist the patient in seeking a change in the laws governing medicinal cannabis. A physician who provides information and advice under such circumstances could be said to have an “informational purpose.”
Second, a physician’s advice, whether contained in a copy of the medical record or in a separate document, could also be issued with the intent and for the sole purpose of enabling the patient to go to a cannabis dispensary to obtain cannabis. Many dispensaries will not provide cannabis without such proof of physician approval. This could be called the “procurement” purpose, and Conant suggests that this would not enjoy First Amendment protection.
Third, a physician may provide a patient with written proof of the physician’s opinion or recommendation in order to enable the patient 1) to obtain an identity card through the State’s new certification program or, if the patient chooses not to seek an ID card but is otherwise qualified under Proposition 215, 2) to attempt to avoid arrest if the patient is discovered to be cultivating or possessing cannabis. Furthermore, if arrested, a patient can use proof of a physician’s recommendation or approval to prove before trial that he/she is entitled to the protections of Proposition 215. This could be called a “defensive” purpose.
The Conant ruling indicates that a physician is protected by the First Amendment if he/she provides a recommendation for an informational, and probably also for a defensive, purpose. The “procurement” issue creates a grey area, though. If a physician talks with a cannabis dispensary on the telephone to confirm the legitimacy of a patient’s medical record, or writes a letter of recommendation at the request of a patient who explicitly informs the physician that the patient intends to go to a cannabis dispensary, has the physician crossed into forbidden territory? Faced with that residual degree of uncertainty, some physicians may still be reluctant to document their professional opinion. And without proof of that opinion/recommendation, a patient is not protected under Proposition 215. Thus, the extent of Conant’s salutary effect remains to be ascertained.

Conant and the Medical Board
Conant v. Walters did not totally protect physicians against any risk of federal sanctions. However, it did have a rather unexpected and, in some ways, even more powerful impact on the ability of the state Medical Board to pursue “recommending” physicians. In theory, the Conant ruling does not apply only to the federal government. Since it is based on the First Amendment, the ruling also applies to any state or local governmental entity, including the Medical Board,

The Conant ruling applies to any state or local governmental entity, including the Medical Board, that may try to investigate or restrict a physician merely for having recommended cannabis.


that may try to investigate or restrict a physician merely for having recommended cannabis.
This has some very interesting consequences. As noted above, the Conant decision makes it clear that if a physician’s opinion or recommendation is offered for the sole purpose of enabling a patient to obtain cannabis, it could constitute aiding and abetting a violation of federal law and thus be stripped of constitutional protection. This inquiry is rather straightforward from the federal government’s perspective. It focuses only on the physician’s purpose, i.e., whether or not the physician sought to aid and abet, not on the quality of the physician’s patient care practices (although a truly “sham” practice could be evidence of intent). Standard-of-care issues are the province of state medical boards.
However, in light of Proposition 215, a physician’s intent should not be the primary focus of the Medical Board. Even if a physician actually intends to assist a patient in obtaining cannabis (and so does not qualify for First Amendment protection), Proposition 215 still immunizes the physician from punishment or scrutiny under state law, unless there is good reason to believe that his/her conduct falls beneath the standard of care.
The interplay of federal and state law becomes a bit complex at this point. Nestled within the “unprofessional conduct” statutes is Business & Professions Code section 2238, which provides: “A violation of any federal statute or regulation or any of the statutes or regulations of this state regulating dangerous drugs or controlled substances constitutes unprofessional conduct.” One might conclude, therefore, that a physician acting with a “procurement” purpose would be subject to sanction by the Medical Board. However, Proposition 215, which flatly protects physicians from punishment under state law for having made a recommendation, is a more recent and more specific enactment than Section 2238. Hence, its provisions should prevail.
Of course, the Medical Board can have legitimate concerns. However, after Conant and Proposition 215, such concerns should focus only on the quality of the physician’s patient-care practices. The Medical Board should seek to investigate a physician who has recommended medicinal cannabis, only if it in good faith believes that it has substantial evidence that the physician has failed to meet appropriate and relevant practice standards. But physicians’ freedom to practice should be not be more circumscribed, nor more closely scrutinized, in this area than in any other.

The Immediate Future
The next few years should bring further legal and scientific developments. At present, 10 states have recently enacted statutes or initiatives authorizing (to a greater or lesser extent) the use of medicinal cannabis. Other states are considering the enactment of such laws. At some point, faced with a massive insurrection at the state level, the federal government may back down. On the other hand, as the past has indicated, unless there is widespread cooperation and involvement from physicians, such laws will have incomplete implementation.
One thing cannot be denied. Thousands of patients believe that medicinal cannabis —not a synthetic component—has provided them with inestimable, perhaps life-saving, relief from their suffering. Surely our government can find a solution to this problem —a solution that meaningfully addresses what is clearly a legitimate demand for a medicine.

Alice Mead is a legal consultant whose clients include pharmaceutical companies and healthcare organizations. This is a longer version of a copyrighted article, reprinted with permission, that appeared in California Lawyer, January 2004.

References
1. 21 U.S. Code, Section 811
2. See, 57 Fed. Reg. 10,499 (Mar. 26, 1992); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C.Cir. 1994); 66 Fed Reg. 20,038 (April 18, 2001); Gettman v. DEA, 290 F.3d 430 (D.C.Cir. 2002).
3. U.S. v. Oakland Cannabis Buyers’ Cooperative (OCBC) (9th Cir. 1999) 190 F.3d 1109.
4. U.S. v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 149 L.Ed.2d 722.
5. Wo/Men’s Alliance for Medical Marijuana v. U.S. (No. 03-15062) (9th Cir.).
6. Raich v. Ashcroft, No. 03-15481 (9th Cir.).
7. Compare 21 USC sec. 331(a)-(d) with 21 USC sec. 801. )
8. 514 U.S. 549 (1995),
9. 529 U.S. 598 (2000),
10. 323 F.3d 114 (9th Cir. 2003),
11. Raich v. Ashcroft 2003 WL 22962231.
12. See, e.g., Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) (per curiam); United States v. Rutherford, 442 U.S. 544 (1979).
13. 616 F.2d at 1122.
14. Lawrence v. Texas, 539 U.S. ___, 123 S.Ct. 2472 (2003),
15. See, e.g., County of Santa Cruz v. Ashcroft, F.Supp. (N.D.Cal. 2003), WL 22024235; Raich v. Ashcroft, 248 F.Supp.2d 918 (N.D. Cal.2003).
16. Cal. Ops. Atty. Gen. No. 03-411 (Oct. 21, 2003).
17. (2002) 28 Cal.4th 457, 122 Cal.Rptr.2d 326.
18. Lungren v. Peron (1997)
59 Cal.App.4th 1383, 70 Cal.Rptr.2d 20.
19. People v. Trippet (1997)
56 Cal.App.4th 1532, 66 Cal.Rptr.2d 559.
20. People v. Young, (2001)
92 Cal. App. 4th 229, 111 Cal.Rptr.2d 726.
21. Cal. Const., Art. II, Sec. 10(c),
22. Office of the Legislative Counsel of California, “Medical Marijuana: Identification Program (S.B.420),” #16771 (Aug. 20, 2003)
23. Section 11362.7(h)(12).
24. Conant v. Walters 309 F.3d 629 (9th Cir. 2002).
25. Health & Safety Code sec. 123100 et seq.
26. 45 C.F.R. sec, 164.524(a)(1).

 

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.