Medical Marijuana: Review and Analysis of Federal and State Policies

Updated January 13, 2006
Mark Eddy
Specialist in Social Legislation
Domestic Social Policy Division
Medical Marijuana:
Review and Analysis of Federal and State Policies

Summary

   The issue before Congress is whether to continue the federal prosecution of medical marijuana patients and their providers, in accordance with marijuana’s status as a Schedule I drug under the Controlled Substances Act, or whether to relax federal marijuana prohibition enough to permit the medical use of botanical cannabis products by seriously ill persons, especially in the states that have created medical marijuana programs under state law. Bills have been introduced in recent Congresses to allow patients who appear to benefit from medical cannabis to use it in accordance with the various regulatory schemes that have been approved, since 1996, by the voters or legislatures of 11states. In the current Congress, the States’ Rights to Medical Marijuana Act (H.R.2087/Frank) would move marijuana from Schedule I to Schedule II of the Controlled Substances Act and make it available under federal law for medical use in the states with medical marijuana programs. The Steve McWilliams Truth in Trials Act (H.R.4272/Farr) would make it possible for defendants in federal court to reveal to juries that their marijuana activity was medically related and legal under state law. In June 2005, the House defeated, for the third time, the Hinchey-Rohrabacher amendment to prevent federal enforcement of the Controlled Substances Act against medical marijuana patients in the states that have approved such use. The
amendment is expected to be offered again in the 2nd session of the 109th Congress. Eleven states, mostly in the West, have enacted laws allowing the use of marijuana for medical purposes, and many thousands of patients are seeking relief from a variety of serious illnesses by smoking marijuana or using other herbal cannabis preparations. Meanwhile, the federal Drug Enforcement Administration refuses to recognize these state laws and continues to investigate and arrest, under federal statute, medical marijuana providers in those states and elsewhere. Claims and counterclaims about medical marijuana — much debated by journalists and academics, policymakers at all levels of government, and interested
citizens — include the following: marijuana is harmful and has no medical value; marijuana effectively treats the symptoms of certain diseases; smoking is an improper route of drug administration; marijuana should be rescheduled to permit medical use; state medical marijuana laws send the wrong message and lead to increased illicit drug use; the medical marijuana movement undermines the war on drugs; patients should not be arrested for using medical marijuana; the federal government should allow the states to experiment and should not interfere with state medical marijuana programs; medical marijuana laws harm the federal drug approval process; the medical cannabis movement is a cynical ploy to legalize marijuana and other drugs. With strong opinions being expressed on all sides of these complex issues, the debate over medical marijuana does not appear to be approaching resolution.

This report will be updated as legislative activity and other developments occur.

The author would like to acknowledge the assistance of summer intern Broocks Andrew Meade in the preparation of this report.

Contents
Introduction: The Issue Before Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background: Medical Marijuana Prior to 1937 . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Medical Marijuana Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Congressional Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
        The Marihuana Tax Act of 1937 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
        Controlled Substances Act (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
        Medical Marijuana Legislation in the 105th Congress (1998) . . . . . . . . . . .4
        The Hinchey-Rohrabacher Amendment (2003-2005) . . . . . . . . . . . . . . . . 4
        Medical Marijuana Bills in the 109th Congress (2005) . . . . . . . . . . . . . . . 5
    Executive Branch Actions and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . .6
        IND Compassionate Access Program (1978) . . . . . . . . . . . . . . . . . . . . . .6
        Approval of Marinol (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
        DEA’s Administrative Law Judge Ruling (1988) . . . . . . . . . . . . . . . . . . . 7
        NIH-Sponsored Workshop (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
        Institute of Medicine Report (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
        DEA Enforcement Actions Against Cannabis Buyers’ Clubs . . . . . . . . . . . . 9
    Medical Cannabis in the Courts: Major Cases . . . . . . . . . . . . . . . . . . . . . .10
        U.S. v. Oakland Cannabis Buyers’ Cooperative (2001) . . . . . . . . . . . . . . 10
        Conant v. Walters (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
        Gonzalez v. Raich (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
State and Local Referenda and Legislation . . . . . . . . . . . . . . . . . . . . . . . . .12
    States Allowing Use of Medical Marijuana . . . . . . . . . . . . . . . . . . . . . . . .12
        Statistics on Medical Marijuana Users . . . . . . . . . . . . . . . . . . . . . . . . 13
        California (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
        Arizona (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
        Oregon (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
        Alaska (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
        Washington (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
        Maine (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
        Hawaii (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
        Colorado (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
        Nevada (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
        Vermont (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
        Montana (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
        Rhode Island (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
    Other State and Local Medical Marijuana Laws . . . . . . . . . . . . . . . . . . . .16
        Maryland (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
        Other State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
        District of Columbia (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
        Local Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Public Opinion on Medical Marijuana . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Analysis of Arguments For and Against
    Medical Marijuana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
    Marijuana Is Harmful and Has No Medical Value . . . . . . . . . . . . . . . . . . .18
    Marijuana Effectively Treats the Symptoms of Some Diseases . . . . . . . . . 19
    Smoking Is an Improper Route of Drug Administration . . . . . . . . . . . . . .  22
    Marijuana Should Be Rescheduled to Permit Medical Use . . . . . . . . . . . . . 24
    State Medical Marijuana Laws Increase Illicit Drug Use . . . . . . . . . . . . . . 26
    Medical Marijuana Undermines the War on Drugs . . . . . . . . . . . . . . . . . 30
        Diversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
        Changed State and Local Law Enforcement Priorities . . . . . . . . . . . . . 31
        Distinguishing Between Legal and Illegal Providers and Users . . . . . . . . 32
    Patients Should Not Be Arrested for Using Medical Marijuana . . . . . . . . .  33
    The States Should Be Allowed to Experiment . . . . . . . . . . . . . . . . . . . .  35
    Medical Marijuana Laws Harm the Drug Approval Process . . . . . . . . . . . . 36
    The Medical Marijuana Movement Is Politically Inspired . . . . . . . . . . . . . 39
List of Figures
Figure 1. States That Have Legalized Medical Marijuana . . . . . . . . . . . . . .  13
List of Tables
Tables 1 and 2. States Ranked by Percentage of Youth Age 12-17 Reporting
Past-Month Marijuana Use, 1999 and 2002-2003 . . . . . . . . . . . . . . . . . . . . 28
Tables 3 and 4. States Ranked by Percentage of Persons 12 or Older Reporting
Past-Month Marijuana Use, 1999 and 2003-2004 . . . . . . . . . . . . . . . . . . . . 29

Medical Marijuana: Review and Analysis of Federal and State Policies

Introduction: The Issue Before Congress
 

    The issue before Congress is whether to continue the federal prosecution of medical marijuana¹ patients and their providers, in accordance with marijuana’s status as a Schedule I drug under the Controlled Substances Act, or whether to relax federal marijuana prohibition enough to permit the medical use of botanical cannabis products by seriously ill persons, especially in those states that have created medical marijuana programs under state law.

Bills have been introduced in recent Congresses to allow patients who appear to benefit from medical cannabis to use it in accordance with the various regulatory schemes that have been approved, since 1996, by the voters or legislatures of 11 states. In the current Congress, the States’ Rights to Medical Marijuana Act (H.R. 2087/Frank) would move marijuana from Schedule I to Schedule II of the Controlled Substances Act and make it available under federal law for medical use in the states with medical marijuana programs. Also, the Steve McWilliams Truth in Trials Act (H.R. 4272/Farr) would make it possible for defendants in federal court to reveal to juries that their marijuana activity was medically related and legal under state law.

In June 2005, the House of Representatives expressed its opposition to medical marijuana by rejecting an amendment that would have prevented the Department of Justice and its Drug Enforcement Administration from arresting and prosecuting medical marijuana patients and providers whose activities are sanctioned by the laws of their states. This and other congressional actions relating to the issue of medical marijuana are discussed below in greater detail.
 

Background: Medical Marijuana Prior to 1937

The Cannabis sativa plant has been used for healing purposes throughout history. According to written records from China and India, the use of marijuana to treat a wide range of ailments goes back more than 2,000 years. Ancient texts from Africa, the Middle East, classical Greece, and the Roman Empire also describe the use of cannabis to treat disease.


1 The term medical marijuana, as used in this report, refers to marijuana (Cannabis sativa) and to marijuana use that qualifies for a medical use exception under the laws of certain
states and under the federal Investigational New Drug Compassionate Access Program.
 

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For most of American history, growing and using marijuana was legal under both federal law and the laws of the individual states. By the 1840s, marijuana’s therapeutic potential began to be recognized by some U.S. physicians. From 1850 to the early 1940s cannabis was included in the United States Pharmacopoeia as a recognized medicinal.² By the end of 1936, however, all 48 states had enacted laws to regulate marijuana.³ Its decline in medicine was hastened by the development of aspirin, morphine, and then other opium-derived drugs, all of which helped to replace marijuana in the treatment of pain and other medical conditions in Western medicine.⁴

Federal Medical Marijuana Policy

All three branches of the federal government play an important role in formulating federal policy on medical marijuana. Significant actions of each branch are highlighted here, beginning with the legislative branch.

Congressional Actions
 

The Marihuana Tax Act of 1937. Spurred by spectacular accounts of marijuana’s harmful effects on its users, by the drug’s alleged connection to violent crime, and by a perception that state and local efforts to bring use of the drug under control were not working, Congress enacted the Marihuana Tax Act of 1937.⁵ Promoted by Harry Anslinger, Commissioner of the recently established Federal Bureau of Narcotics, the act imposed registration and reporting requirements and a tax on the growers, sellers, and buyers of marijuana. Although the act did not prohibit marijuana outright, its effect was the same. Because marijuana was not included in the Harrison Narcotics Act in 1914,⁶ the Marihuana Tax Act was the federal government’s first attempt to regulate marijuana. Dr. William C. Woodward, legislative counsel of the American Medical Association (AMA), opposed the measure. In oral testimony before the House Ways and Means Committee, he stated that “there are evidently potentialities in the drug that should not be shut off by adverse legislation. The medical profession and

2 Gregg A. Bliz, “The Medical Use of Marijuana: The Politics of Medicine,” Hamline Journal of Public Law and Policy, vol. 13, spring 1992, p. 118.
3 Oakley Ray and Charles Ksir, Drugs, Society, and Human Behavior, 10th ed. (New York:McGraw-Hill, 2004), p. 456.
4 Bill Zimmerman, Is Marijuana the Right Medicine for You? A Factual Guide to Medical Uses of Marijuana (New Canaan, CT: Keats Publishing, 1998), p. 19.
5 P.L. 75-238, 50 Stat. 551, Aug. 2, 1937. In Leary v. United States (395 U.S. 6 (1968)), the Supreme Court ruled the Marihuana Tax Act unconstitutional because it compelled self-incrimination, in violation of the Fifth Amendment.
6 P.L. 63-223, Dec. 17, 1914, 38 Stat. 785. This law was passed to implement the Hague Convention of 1912 and created a federal tax on opium and coca leaves and their
derivatives.

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pharmacologists should be left to develop the use of this drug as they see fit.”⁷ Two months later, in a letter to the Senate Finance Committee, he again argued against the
act:

There is no evidence, however, that the medicinal use of these drugs [“cannabis and its preparations and derivatives”] has caused or is causing cannabis addiction. As remedial agents they are used to an inconsiderable extent, and the obvious purpose and effect of this bill is to impose so many restrictions on their medicinal use as to prevent such use altogether. Since the medicinal use of cannabis has not caused and is not causing addiction, the prevention of the use of the drug for medicinal purposes can accomplish no good end whatsoever. How far it may serve to deprive the public of the benefits of a drug that on further research may prove to be of substantial value, it is impossible to foresee.⁸
 

Despite the AMA’s opposition, the Marihuana Tax Act was approved, causing all medicinal products containing marijuana to be withdrawn from the market and leading to marijuana’s removal, in 1941, from The National Formulary and the United States Pharmacopoeia, in which it had been listed for almost a century.
 

Controlled Substances Act (1970). With increasing use of marijuana and other street drugs during the 1960s, notably by college and high school students, federal drug-control laws came under scrutiny. In July 1969, President Nixon asked Congress to enact legislation to combat rising levels of drug use.⁹ Hearings were held, different proposals were considered, and House and Senate conferees filed a conference report in October 1970.¹⁰ The report was quickly adopted by voice vote in both chambers and was signed into law as the Comprehensive Drug Abuse Prevention and Control Act of 1970 (P.L. 91-513).

Included in the new law was the Controlled Substances Act (CSA),¹¹ which placed marijuana and its derivatives in Schedule I, the most restrictive of five categories. Schedule I substances have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety standards for use of the drug under medical supervision.12 Other drugs used recreationally at the time also became Schedule I substances. These included heroin, amphetamine, methamphetamine, LSD, mescaline, peyote, and psilocybin. Drugs

7 U.S. Congress, House Committee on Ways and Means, Taxation of Marihuana, hearings on H.R. 6385, 75th Cong., 1st sess., May 4, 1937 (Washington: GPO, 1937), p. 114.
8 U.S. Congress, Senate Committee on Finance, Taxation of Marihuana, hearing on H.R. 6906, 75th Cong., 1st sess., July 12, 1937 (Washington: GPO, 1937), p. 33.
9 U.S. President, 1969-1974 (Nixon), “Special Message to the Congress on Control of Narcotics and Dangerous Drugs,” July 14, 1969, Public Papers of the Presidents of the United States 1969 (Washington: GPO, 1971), pp. 513-518.
10 U.S. Congress, Conference Committees, Comprehensive Drug Abuse Prevention and Control Act of 1970, conference report to accompany H.R. 18583, 91st Cong., 2nd sess., H.Rept. 91-1603 (Washington: GPO, 1970).
11 Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91- 513, Oct. 27, 1970, 84 Stat. 1242, 21 U.S.C. §801, et seq.
12 Ibid., Sec. 202, 84 Stat. 1247, 21 U.S.C. §812.

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with recognized medical uses were assigned to Schedules II through V, depending on their potential for abuse.¹³ Despite its placement in Schedule I, marijuana use increased, as did the number of health-care professionals and their patients who believed in the plant’s therapeutic value.

    The CSA does not distinguish between the medical and recreational use of marijuana. Under federal statute, simple possession of marijuana for personal use, a misdemeanor, can bring up to one year in federal prison and up to a $100,000 fine for a first offense.¹⁴ Growing marijuana is considered manufacturing a controlled substance, a felony.¹⁵ A single plant can bring an individual up to five years in federal prison and up to a $250,000 fine for a first offense.¹⁶

    The CSA is not preempted by state medical marijuana laws, under the federal system of government, nor are state medical marijuana laws preempted by the CSA. States can statutorily create a medical use exception for botanical cannabis and its derivatives under their own, state-level controlled substance laws. At the same time, federal agents can investigate, arrest, and prosecute medical marijuana patients, caregivers, and providers in accordance with the federal Controlled Substances Act, even in those states where medical marijuana programs operate in accordance with state law. Medical Marijuana Legislation in the 105th Congress (1998). In September 1998, the House debated and passed a resolution (H.J.Res. 117) declaring that Congress supports the existing federal drug approval process for determining whether any drug, including marijuana, is safe and effective and opposes efforts to circumvent this process by legalizing marijuana, or any other Schedule I drug, for medicinal use without valid scientific evidence and without approval of the Food and Drug Administration (FDA). With the Senate not acting on the resolution and adjournment approaching, this language was incorporated into the FY1999 omnibus appropriations act.¹⁷ In a separate amendment to the same act, Congress prevented the District of Columbia government from spending any appropriated funds on a medical marijuana ballot initiative.¹⁸ The Hinchey-Rohrabacher Amendment (2003-2005). In the first session of the 108th Congress, in response to federal Drug Enforcement Administration

13 Amphetamine and methamphetamine have since been moved to Schedule II, in recognition of their accepted medical use in treatment. Cocaine was initially put in Schedule II in 1970 and remains there today.
14 Sec. 404 of the CSA (21 U.S.C. §844) and 18 U.S.C. §3571. Sec. 404 also calls for a minimum fine of $1,000, and Sec. 405 (21 U.S.C. §844a) permits a civil penalty of up to
$10,000.
15 Sec. 102(15), (22) of the CSA (21 U.S.C. §802(15), (22)).
16 Sec. 401(b)(1)(D) of the CSA (21 U.S.C. §841(b)(1)(D)).
17 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, P.L. 105-277, Oct. 21, 1998, 112 Stat. 2681-760.
18 Ibid., District of Columbia Appropriations Act, 1999, Sec. 171, 112 Stat. 2681-150. This recurring provision of D.C. appropriations acts is known as the Barr Amendment.

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(DEA) raids on medical cannabis users and providers in California and other states that had approved the medical use of marijuana under a doctor’s supervision, Representatives Hinchey and Rohrabacher introduced a bipartisan amendment to the Commerce, Justice, State appropriations bill for FY2004 (H.R. 2799). The amendment would have prevented the Justice Department from using appropriated funds to interfere with the implementation of medical cannabis laws in the nine states that had approved such use. The amendment was debated on the floor of the House on July 22, 2003. When brought to a vote on the following day, it was defeated 152 to 273 (66 votes short of passage).¹⁹

    The amendment was offered again in the second session of the 108th Congress. It was debated on the House floor on July 7, 2004, during consideration of H.R. 4754, the Commerce, Justice, State appropriations bill for FY2005. This time it would have applied to 10 states, with the recent addition of Vermont to the list of states that had approved the use of medical cannabis. It was again defeated by a similar margin, 148 to 268.²⁰

    The amendment was voted on again in the first session of the 109th Congress and was again defeated, 161-264, on June 15, 2005. During floor debate, a Member stated in support of the amendment that her now-deceased mother had used marijuana to treat her glaucoma. Opponents of the amendment argued, among other things, that its passage would undermine efforts to convince young people that marijuana is a dangerous drug.²¹ The amendment is expected to be offered again as an ongoing measure of sentiment in the House for marijuana law reform.

Medical Marijuana Bills in the 109th Congress (2005). The States’ Rights to Medical Marijuana Act (H.R. 2087/Frank) would transfer marijuana from Schedule I to Schedule II of the Controlled Substances Act. It would also provide that, in states in which marijuana may legally be prescribed or recommended by a physician for medical use, under state law, no provisions of the Controlled Substances Act or the Federal Food, Drug, and Cosmetic Act could prohibit or otherwise restrict a physician from prescribing or recommending marijuana for medical use, an individual from obtaining and using marijuana if prescribed or recommended by a physician for medical use, a pharmacy from obtaining and holding marijuana for such a prescription or recommendation, or an entity established by a state from producing and distributing marijuana for such a prescription or recommendation. (Versions of this bill have been introduced in every Congress since the 105th in 1997 but have not seen action beyond the committee referral process.)

19 “Amendment No. 1 offered by Mr. Hinchey,” Congressional Record, daily edition, vol. 149 (July 22, 2003), pp. H7302-H7311 and vol. 149 (July 23, 2003), pp. H7354-H7355.
20 “Amendment No. 6 Offered by Mr. Farr,” Congressional Record, daily edition, vol. 150 (July 7, 2004), pp. H5300-H5306, H5320.
21 “Amendment Offered by Mr. Hinchey,” Congressional Record, daily edition, vol. 151(July 15, 2005), pp. H4519-H4524, H4529.

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    The Steve McWilliams Truth in Trials Act (H.R. 4272/Farr) would amend the Controlled Substances Act to provide an affirmative defense for the medical use of marijuana in accordance with the laws of the various states. At the present time, medical marijuana defendants in federal court are not permitted to introduce evidence that their marijuana-related activities were undertaken for a valid medical purpose under state law. First introduced in the 108th Congress, this version of the bill was named for a Californian who took his own life while awaiting federal sentencing for marijuana trafficking. At his trial, the jurors were not informed that he was actually providing marijuana to seriously ill patients in San Diego in compliance with state law. The bill would also limit federal authority to seize marijuana authorized for medical use under state law and would provide for the retention and return of seized plants pending resolution of a case involving medical marijuana.

    Neither bill has seen action beyond the committee referral process.

Executive Branch Actions and Policies

    IND Compassionate Access Program (1978). In 1975, a Washington, DC, resident was arrested for growing marijuana to treat his glaucoma. He won his case by using the medical necessity defense,²² forcing the government to find a way to provide him with his medicine. In 1978, FDA created the Investigational New Drug (IND) Compassionate Access Program,23 allowing patients whose serious medical conditions could be relieved only by marijuana to apply for and receive marijuana from the federal government. Over the next 14 years, other patients, less than 100 in total, were admitted to the program for conditions including chemotherapy-induced nausea and vomiting (emesis), glaucoma, spasticity, and
weight loss. Then, in 1992, in response to a large number of applications from AIDS patients who sought to use medical cannabis to increase appetite and reverse wasting disease, the George H.W. Bush Administration closed the program to all new applicants. Several previously approved patients remain in the program today and continue to receive their monthly supply of government-grown medical marijuana.

    Approval of Marinol (1985). Marinol is the only cannabis-based drug approved by FDA for use in the United States. Made by Unimed, Marinol is the trade name for dronabinol, a synthetic form of delta-9-tetrahydrocannabinol (THC), one of the principal psychoactive components of botanical marijuana. It was approved in May 1985 for nausea and vomiting associated with cancer chemotherapy in patients who fail to respond to conventional antiemetic treatments. In December 1992, it was approved by FDA for the treatment of anorexia associated with weight loss in patients with AIDS. Marketed as a capsule, Marinol was originally placed in

22 The necessity defense argues that the illegal act committed (in this case, growing marijuana) was necessary to avert a greater harm (blindness).
23 Despite the program’s name, it was not a clinical trial to test the drug for eventual approval, but a means for the government to provide medical marijuana to patients demonstrating necessity. Some have criticized the government for its failure to study the safety and efficacy of the medical-grade marijuana it grew and distributed to this patient population.

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Schedule II.²⁴ In July 1999, in response to a rescheduling petition from Unimed, it was moved administratively by DEA to Schedule III to make it more widely available to patients.²⁵ The rescheduling was granted after a review by DEA and the Department of Health and Human Services found little evidence of illicit abuse of the drug. In Schedule III, Marinol is now subject to fewer regulatory controls and lesser criminal sanctions for illicit use.

    DEA’s Administrative Law Judge Ruling (1988). Congressional passage of the Controlled Substances Act in 1970 and its placement of marijuana in Schedule I provoked controversy at the time because it strengthened the federal policy of marijuana prohibition and forced medical marijuana users to buy marijuana of uncertain quality on the black market at inflated prices, subjecting them to fines, arrest, court costs, property forfeiture, incarceration, probation, and criminal records. The new bureaucratic controls on Schedule I substances were also criticized because they would impede research on marijuana’s therapeutic potential, thereby making its evaluation and rescheduling through the normal drug approval process unlikely.

    These concerns prompted a citizens’ petition to the Bureau of Narcotics and Dangerous Drugs (BNDD) in 1972 to reschedule marijuana and make it available by prescription. The petition was summarily rejected.²⁶ This led to a long succession of appeals, hearing requests, and various court proceedings. Finally, in 1988, after extensive public hearings on marijuana’s medicinal value, the chief administrative law judge of the Drug Enforcement Administration (the BNDD’s successor agency) ruled on the petition, stating that “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”²⁷ Judge Francis L. Young also wrote:

The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary

24 U.S. Dept. of Justice, Drug Enforcement Administration, “Schedules of Controlled Substances: Rescheduling of Synthetic Dronobinol in Sesame Oil and Encapsulation in Soft Gelatin Capsules From Schedule I to Schedule II; Statement of Policy,” 51 Federal Register 17476, May 13, 1986.
25 Ibid., “Schedules of Controlled Substances: Rescheduling of the Food and Drug Administration Approved Product Containing Synthetic Dronabinol [(-)-delta nine-(trans)-Tetrahydrocannabinol] in Sesame Oil and Encapsulated in Soft Gelatin Capsules From Schedule II to Schedule III,” 64 Federal Register 35928, July 2, 1999.
26 Ibid., Bureau of Narcotics and Dangerous Drugs, “Schedule of Controlled Substances: Petition to Remove Marijuana or in the Alternative to Control Marijuana in Schedule V of the Controlled Substances Act,” 37 Federal Register 18097, Sept. 7, 1972.
27 Ibid., Drug Enforcement Administration, “In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge,” Francis L. Young, Administrative Law Judge, Sept. 6, 1988. (Hereafter cited as the Young Opinion.) This quote and the following two quotes are at pp. 58-59, p. 68, and p. 67 respectively. This opinion is online at [http://www.druglibrary.org/olsen/MEDICAL/YOUNG/young.html].

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and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.

    Judge Young found that “the provisions of the [Controlled Substances] Act permit and require the transfer of marijuana from schedule I to schedule II,” which would recognize its medicinal value and permit doctors to prescribe it. The Judge’s findings and recommendation were soon rejected by the DEA Administrator because “marijuana has not been demonstrated as suitable for use as a medicine.”²⁸ Subsequent rescheduling petitions were also rejected, and marijuana remains a Schedule I substance.

    NIH-Sponsored Workshop (1997). NIH convened a scientific panel on medical marijuana composed of eight nonfederal experts in fields such as cancer treatment, infectious diseases, neurology, and ophthalmology. Over a two-day period in February, they analyzed available scientific information on the medical uses of marijuana and concluded that “in order to evaluate various hypotheses concerning the potential utility of marijuana in various therapeutic areas, more and better studies would be needed.” Research would be justified, according to the panel, into certain conditions or diseases such as pain, neurological and movement disorders, nausea of patients undergoing chemotherapy for cancer, loss of appetite and weight related to AIDS, and glaucoma.²⁹

    Institute of Medicine Report (1999). In January 1997, shortly after passage of the California and Arizona medical marijuana initiatives, the Director of the Office of National Drug Control Policy (the federal drug czar) commissioned the Institute of Medicine (IOM) of the National Academy of Sciences to review the scientific evidence on the potential health benefits and risks of marijuana and its constituent cannabinoids. Begun in August 1997, IOM’s 257-page report, Marijuana and
Medicine: Assessing the Science Base, was released in March 1999.³⁰ A review of all existing studies of the therapeutic value of cannabis, the IOM Report was also based on public hearings and consultations held around the country with biomedical and social scientists and concerned citizens.

    For the most part, the IOM Report straddled the fence and provided sound bites for both sides of the medical marijuana debate. For example, “Until a nonsmoked rapid-onset cannabinoid drug delivery system becomes available, we acknowledge that there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana, such as pain or AIDS-wasting” (p. 179) and

28 Ibid., “Marijuana Scheduling Petition; Denial of Petition,” 54 Federal Register 53767 at 53768, Dec. 29, 1989. The petition denial was appealed, eventually resulting in yet another
DEA denial to reschedule. See Ibid., “Marijuana Scheduling Petition; Denial of Petition; Remand,” 57 Federal Register 10499, Mar. 26, 1992.
29 National Institutes of Health. The Ad Hoc Group of Experts. Workshop on the Medical Utility of Marijuana: Report to the Director, Aug. 1997. (Hereafter cited as NIH Workshop.) [http://www.nih.gov/news/medmarijuana/MedicalMarijuana.htm]
30 Janet E. Joy, Stanley J. Watson, Jr., and John A. Benson, Jr., eds., Marijuana and Medicine: Assessing the Science Base (Washington: National Academy Press, 1999).(Hereafter cited as the IOM Report.) [http://www.nap.edu/books/0309071550/html/]

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“Smoked marijuana is unlikely to be a safe medication for any chronic medical condition” (p. 126). For another example, “There is no conclusive evidence that marijuana causes cancer in humans, including cancers usually related to tobacco use” (p. 119) and “Numerous studies suggest that marijuana smoke is an important risk factor in the development of respiratory disease” (p. 127).

    The IOM Report did find more potential promise in synthetic cannabinoid drugs than in smoked marijuana (p. 177):

The accumulated data suggest a variety of indications, particularly for pain relief, antiemesis, and appetite stimulation. For patients such as those with AIDS or who are undergoing chemotherapy, and who suffer simultaneously from severe pain, nausea, and appetite loss, cannabinoid drugs might offer broad-spectrum relief not found in any other single medication.
 

    In general, the report emphasized the need for well-formulated, scientific research into the therapeutic effects of marijuana and its cannabinoid components on patients with specific disease conditions. To this end, the report recommended that clinical trials be conducted with the goal of developing safe delivery systems.

    DEA Enforcement Actions Against Cannabis Buyers’ Clubs. Most arrests in the United States for marijuana possession are made by state and local police, not the DEA. This means that patients and their caregivers in the states that permit medical marijuana are largely protected from prosecution, because their own state’s marijuana prohibition laws do not apply to them and because federal law is not usually enforced against them.

    Federal agents do, however, move against medical cannabis growers and distributors in states with medical marijuana programs. In recent years, more than 20 large-scale raids of cannabis buyers’ clubs have occurred in California, and a handful of raids have taken place in other states.

    DEA’s actions to shut down medical marijuana growing and distribution operations have provoked lawsuits and other responses. In April 2003, for example, the city and county of Santa Cruz, CA, along with seven medical marijuana patients, filed a lawsuit in San Jose federal district court in response to DEA’s earlier raid on the Wo/Men’s Alliance for Medical Marijuana (WAMM). The court granted the plaintiffs’ motion for a preliminary injunction, thereby allowing WAMM to resume growing and producing marijuana medications for its approximately 250 member-patients with serious illnesses, pending the final outcome of the case.³¹ The suit is reportedly the first court challenge brought by a local government against the federal war on drugs.

31 County of Santa Cruz v. Ashcroft, 314 F.Supp.2d 1000 (N.D.Cal. 2004); the decision, however, rests on the 9th Circuit’s ruling in Raich, subsequently reversed by the Supreme
Court.

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Medical Cannabis in the Courts: Major Cases

    Because Congress and the executive branch have not acted to permit seriously ill Americans to use botanical marijuana medicinally, the issue has been considered by the judicial branch, with mixed results. Three significant cases have been decided so far, and other court challenges are moving through the judicial pipeline.³²

    U.S. v. Oakland Cannabis Buyers’ Cooperative (2001). The U.S. Department of Justice filed a civil suit in January 1998 to close six medical marijuana distribution centers in northern California. A U.S. district court judge issued a temporary injunction to close the centers, pending the outcome of the case. The Oakland Cannabis Buyers’ Cooperative fought the injunction but was eventually forced to cease operations and appealed to the Ninth Circuit Court of Appeals. At issue was whether a medical marijuana distributor can use a medical necessity defense against federal marijuana distribution charges.³³

    The Ninth Circuit’s decision found in September 1999 that “medical necessity” is a valid defense against federal marijuana trafficking charges if a trial court finds that the patients to whom the marijuana was distributed are seriously ill, face imminent harm without marijuana, and have no effective legal alternatives.³⁴ The Justice Department appealed to the Supreme Court.

    The Supreme Court held, 8-0, that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act” because “its provisions leave no doubt that the defense is unavailable.”³⁵ This decision had no effect on state medical marijuana laws, which continued to protect patients and primary caregivers from arrest by state and local law enforcement agents in the states with medical marijuana programs.

    Conant v. Walters (2002). After the 1996 passage of California’s medical marijuana initiative, the Clinton Administration threatened to investigate doctors and revoke their licenses to prescribe controlled substances and participate in Medicaid and Medicare if they recommended medical marijuana to patients under the new state law. A group of California physicians and patients filed suit in federal court, early in 1997, claiming a constitutional free-speech right, in the context of the doctor patient relationship, to discuss the potential risks and benefits of the medical use of cannabis. A preliminary injunction, issued in April 1997, prohibited federal officials from threatening or punishing physicians for recommending marijuana to patients suffering from HIV/AIDS, cancer, glaucoma, or seizures or muscle spasms associated

32 For a legal analysis of all three cases mentioned here, see CRS Report RL31100, Marijuana for Medical Purposes: The Supreme Court’s Decision in United States v. Oakland Cannabis Buyers’ Cooperative and Related Legal Issues, by Charles Doyle.
33 The necessity defense argues that the illegal act committed (distribution of marijuana in this instance) was necessary to avert a greater harm (withholding a helpful drug from
seriously ill patients).
34 523 U.S. 483 (2001).
35 Ibid. at 494 n. 7.

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with a chronic, debilitating condition.³⁶ The court subsequently made the injunction permanent in an unpublished opinion.

    On appeal, the Ninth Circuit affirmed the district court’s order entering a permanent injunction. The federal government, the opinion states, “may not initiate an investigation of a physician solely on the basis of a recommendation of marijuana within a bona fide doctor-patient relationship, unless the government in good faith believes that it has substantial evidence of criminal conduct.”³⁷ The Bush Administration appealed, but the Supreme Court refused to take the case.

    Gonzalez v. Raich (2005). In response to DEA agents’ destruction of their medical marijuana plants, two patients and two caregivers in California brought suit. They argued that applying the Controlled Substances Act to a situation in which medical marijuana was being grown locally for no remuneration in accordance with state law exceeded Congress’s authority under the Commerce Clause. In December 2003, the Ninth Circuit Court of Appeals in San Francisco agreed when a divided three-judge panel ruled that states are free to adopt medical marijuana laws so long as the marijuana is not sold, transported across state lines, or used for non-medical purposes.³⁸ Federal appeal sent the case to the Supreme Court.

    The issue before the Supreme Court was whether the Controlled Substances Act, when applied to the intrastate cultivation and possession of marijuana for personal use under state law, exceeds Congress’s power under the Commerce Clause. The Supreme Court, in June 2005, reversed the Ninth Circuit’s decision and held, in a 6-3 decision, that Congress’s power to regulate commerce extends to purely local activities that are “part of an economic class of activities that have a substantial effect on interstate commerce.”³⁹

    Raich does not invalidate state medical marijuana laws. The decision does mean, however, that DEA may continue to enforce the CSA against medical marijuana patients and their caregivers, even in states with medical marijuana programs.

    Although Raich was not about the efficacy of medical marijuana or its listing in Schedule I, the majority opinion stated in a footnote: “We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I.”⁴⁰ The majority opinion, in closing, notes that in the absence of judicial relief for medical marijuana

36 Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997).
37 Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002); the parties agreed that “a doctor who actually prescribes or dispenses marijuana violates federal law,” ibid. at 634.
38 Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003).
39 Gonzalez v. Raich, 125 S.Ct. 2195, 2205 (2005).
40 Ibid. at 2211 n. 37. For a legal analysis of this case, see CRS Report RS22167, Gonzales v. Raich: Congress’s Power Under the Commerce Clause to Regulate Medical Marijuana, by Todd B. Tatelman.

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users there remains “the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”⁴¹

    Thus, the Supreme Court reminds that Congress has the power to reschedule marijuana, thereby making it available to patients. Congress, however, does not appear likely to do so. Neither does the executive branch, which could reschedule marijuana through regulatory procedures authorized by the Controlled Substances Act. In the meantime, actions taken by state and local governments continue to raise the issue.

State and Local Referenda and Legislation

    Perceiving federal intransigence on the issue, advocates of medical marijuana have turned to state and local governments in a largely successful effort, as outlined here, to pass laws and establish programs that enable patients to obtain and use botanical marijuana therapeutically in a legal and regulated manner.

States Allowing Use of Medical Marijuana⁴²

    Twelve states, covering about 22% of the U.S. population, have enacted laws to allow the use of cannabis for medical purposes.⁴³ These states have removed state level criminal penalties for the cultivation, possession, and use of medical marijuana, if such use has been recommended by a medical doctor. All of these states (except Arizona) have in place, or are developing, programs to regulate the use of medical marijuana by approved patients. Patients in state programs may be assisted by caregivers, persons who are authorized to help patients grow, acquire, and use the drug. Physicians in these states are immune from liability and prosecution for discussing or recommending medical cannabis to their patients in accordance with the law.

    Nine of the 12 states that have legalized medical marijuana are in the West. Only three of the 37 states outside the West — Maine, Vermont, and Rhode Island — have adopted medical cannabis statutes. Hawaii, Vermont, and Rhode Island have the only programs initiated by an act of the state legislature. The medical
marijuana programs in the other nine states were approved by the voters in statewide

41 Ibid. at 2215.
42 The information in this and the following section is drawn largely from: State-by-State Medical Marijuana Laws: How to Remove the Threat of Arrest, Marijuana Policy Project, July 2004, available at [http://www.mpp.org/statelaw/index.html]. More recent information is from press reports.
43 Alaska (Stat. §11.71.090); Arizona (Ariz.Rev.Stat.Ann. §13-3412.01(A)); California (Cal.Health & Safety Code Ann. §11362.5); Colorado (Colo.Const. Art. XVIII §4); Hawaii (Rev.Stat. §§329-121 to 329-128); Maine (Me.Rev.Stat.Ann. tit.22 §1102 or 2382-B(5)); Montana (Mont.Code Ann. §§50-46-101 to 50-46-210); Nevada (Nev.Rev.Stat.Ann. §§453A.010 to 453A.400); Oregon (Ore.Rev.Stat. §§475.300 to 475.346); Rhode Island (R.I.Gen.Laws Ch. 21-28.6); Vermont (Vt.Stat.Ann. tit. 18, §§4472-4474d); Washington (Wash.Rev.Code Ann. §§69.51A.005 to 69.51A.902).

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referenda or ballot initiatives, beginning in 1996 with California and Arizona. Since then, voters have approved medical marijuana initiatives in every state where they have appeared on the ballot. Bills have been introduced in the legislatures of additional states and have received varying levels of consideration but have so far not been enacted.

Figure 1. States That Have Legalized Medical Marijuana

State medical marijuana laws do not attempt to overturn or otherwise violate federal laws that prohibit doctors from writing prescriptions for marijuana and pharmacies from distributing it. In the 10 states with medical marijuana programs, doctors do not actually prescribe marijuana, and the marijuana products used by patients are not distributed through pharmacies. Rather, doctors recommend marijuana to their patients, and the cannabis products are grown by patients or their caregivers, or they are obtained from cooperatives or other alternative dispensaries. The state medical marijuana programs do, however, contravene the federal prohibition of marijuana. Medical marijuana patients, their caregivers, and other marijuana providers can, therefore, be arrested by federal law enforcement agents, and they can be prosecuted under federal law.

Statistics on Medical Marijuana Users. Determining exactly how many patients use medical marijuana with state approval is difficult. According to a 2002 study published in the Journal of Cannabis Therapeutics, an estimated 30,000 California patients and another 5,000 patients in eight other states possessed a physician’s recommendations to use cannabis medically.⁴⁴ More recent estimates are much higher. The New England Journal of Medicine reported in August 2005, for

44 Dale Gieringer, “The Acceptance of Medical Marijuana in the U.S.,” Journal of Cannabis Therapeutics, vol. 3, no. 1 (2003), pp. 53-67. The author later estimated that there were more than 100,000 medical marijuana patients in California alone (personal communication dated Apr. 30, 2004).

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example, that an estimated 115,000 people have obtained marijuana recommendations from doctors in the states with programs.⁴⁵

    Although 115,000 people may be approved medical marijuana users, the number of patients who have actually registered is much lower. A July 2005 CRS telephone
survey of the state programs revealed a total of 14,758 registered medical marijuana users in eight states. (Maine and Washington do not maintain state registries, and Rhode Island had not yet passed its law.) This number vastly understates the number of medical marijuana users, however, because California’s state registry was in pilot status, with only 70 patients so far registered.

    A brief description of each state’s medical marijuana programs follows. The programs are discussed in the order in which they were approved by voters or passed by the state legislatures.

California (1996). Proposition 215, approved by 56% of the voters in November, removed the state’s criminal penalties for medical marijuana use, possession, and cultivation by patients with the “written or oral recommendation or approval of a physician” who has determined that the patient’s “health would benefit from medical marijuana.” Called the Compassionate Use Act, it legalized cannabis for “the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” The law permits possession of an amount sufficient for the patient’s “personal medical purposes.”

Arizona (1996). Arizona’s law, approved by 65% of the voters in November, permits marijuana prescriptions, but there is no active program in the state because federal law prohibits doctors from prescribing marijuana. Patients cannot, therefore, obtain a valid prescription. (Other states’ laws allow doctors to “recommend” rather than “prescribe.”)

Oregon (1998). Voters in November removed the state’s criminal penalties for use, possession, and cultivation of marijuana by patients whose physicians advise that marijuana “may mitigate the symptoms or effects” of a debilitating condition. The law, approved by 55% of Oregon voters, does not provide for distribution of cannabis but allows up to seven plants per patient (changed to 24 plants by act of the state legislature in 2005). The state registry program is supported by patient fees. (In the November 2004 election, Oregon voters rejected a measure that would have expanded the state’s existing program.)

Alaska (1998). Voters in November approved a ballot measure to remove state-level criminal penalties for patients diagnosed by a physician as having a debilitating medical condition for which other approved medications were considered. The measure was approved by 58% of the voters. In 1999, the state legislature created a mandatory state registry for medical cannabis users and limited the amount a patient can legally possess to 1 ounce and six plants.

45 Susan Okie, “Medical Marijuana and the Supreme Court,” New England Journal of Medicine, vol. 353, no. 7 (Aug. 18, 2005), p. 649.

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    Washington (1998). Approved in November by 59% of the voters, the ballot initiative exempts from prosecution patients who meet all qualifying criteria, possess no more marijuana than is necessary for their own personal medical use (but no more than a 60-day supply), and present valid documentation to investigating law enforcement officers. The state does not issue identification cards to patients.

    Maine (1999). Maine’s ballot initiative, passed in November by 61% of the voters, puts the burden on the state to prove that a patient’s medical use or possession is not authorized by statute. Patients with a qualifying condition, authenticated by a physician, who have been “advised” by the physician that they “might benefit” from medical cannabis, are permitted 1¼ ounces and six plants. There is no state registry of patients.

Hawaii (2000). In June, the Hawaii legislature approved a bill removing state level criminal penalties for medical cannabis use, possession, and cultivation of up to seven plants. A physician must certify that the patient has a debilitating condition for which “the potential benefits of the medical use of marijuana would likely outweigh the health risks.” This was the first state law permitting medical cannabis use that was enacted by a legislature instead of by ballot initiative.

Colorado (2000). A ballot initiative to amend the state constitution was approved by 54% of the voters in November. The amendment provides that lawful medical cannabis users must be diagnosed by a physician as having a debilitating condition and be “advised” by the physician that the patient “might benefit” from using the drug. A patient and the patient’s caregiver may possess 2 usable ounces and six plants.

Nevada (2000). To amend the state constitution by ballot initiative, a proposed amendment must be approved by the voters in two separate elections. In November, 65% of Nevada voters passed for the second time an amendment to exempt medical cannabis users from prosecution. The amendment requires the state legislature to develop a program that allows qualified patients to use, possess, and grow marijuana for medicinal purposes.

Vermont (2004). In May, Vermont became the second state to legalize medical cannabis by legislative action instead of ballot initiative. Vermont patients are allowed to grow up to three marijuana plants in a locked room and to possess 2 ounces of manicured cannabis under the supervision of the Department of Public Safety, which maintains a patient registry. The law went into effect without the signature of the governor, who declined to sign it but also refused to veto it, despite pressure from Washington.

Montana (2004). In November, 62% of state voters passed Initiative 148, allowing qualifying patients to use marijuana under medical supervision. Eligible medical conditions include cancer, glaucoma, HIV/AIDS, wasting syndrome, seizures, and severe or chronic pain. A doctor must certify that the patient has a debilitating medical condition and that the benefits of using marijuana would likely outweigh the risks. The patient may grow up to six plants and possess 1 ounce of dried marijuana. The state public health department registers patients and caregivers.

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Rhode Island (2006). In January, the state legislature overrode the governor’s veto of a medical marijuana bill, making Rhode Island the 12th state to pass such legislation since 1996. Allowing patients to possess up to 12 plants or 2½ ounces to treat cancer, HIV/AIDS, and other chronic ailments, the law includes a sunset provision and will expire on July 1, 2007.

Other State and Local Medical Marijuana Laws

    Maryland (2003). Maryland’s General Assembly became the second state legislature to protect medical cannabis patients from the threat of jail in March 2003 when it approved a bill, later signed by the governor, providing that patients using marijuana preparations to treat the symptoms of illnesses such as cancer, AIDS, and Crohn’s disease would be subject to no more than a $100 fine.⁴⁶ Falling short of full legalization, patients in Maryland can still be arrested and forced to prove in court that they use cannabis for legitimate medical needs, but the law does create a medical necessity defense in court for people who use marijuana on their own for medical purposes.

    Other State Laws. Laws favorable to medical marijuana have been enacted in 36 states since 1978.⁴⁷ Except for the state laws mentioned above, however, these laws do not currently protect medical marijuana users from state prosecution. Some laws, for example, allow patients to acquire and use cannabis through therapeutic research programs, although none of these programs has been operational since 1985, due in large part to federal opposition. Other state laws allow doctors to prescribe marijuana or allow patients to possess marijuana if it has been obtained through a prescription, but the federal Controlled Substances Act prevents these laws from being implemented. Several states have placed marijuana in a controlled drug schedule that recognizes its medical value. State legislatures continue to consider medical marijuana bills, some favorable to its use by patients, others not.

    District of Columbia (1998). In the nation’s capital, 69% of voters approved a medical cannabis initiative to allow patients a “sufficient quantity” of marijuana to treat illness and to permit nonprofit marijuana suppliers. Congress, however, has blocked the initiative from taking effect.

    Local Measures. Medical cannabis measures have been adopted in several localities throughout the country. San Diego is the country’s largest city to do so. One day after the Supreme Court’s anti-marijuana ruling in Gonzalez v. Raich was issued, Alameda County in California approved an ordinance to regulate medical marijuana dispensaries, becoming the 17th locality in the state to do so. Localities in non-medical marijuana states have also acted. In November 2004, for example, voters in Ann Arbor, MI, and Columbia, MO, approved medical cannabis measures. Although largely symbolic, such local laws can influence the priorities of local law enforcement officers and prosecutors.

46 Md. Crim.Code Ann. §5-601.
47 State-by-State Medical Marijuana Laws: How to Remove the Threat of Arrest, Marijuana Policy Project, July 2004, p. 3. The laws in some of these states have expired or been repealed.

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Public Opinion on Medical Marijuana

    Voters have approved every medical marijuana initiative that has appeared on state ballots. Likewise, American public opinion has consistently favored access to medical marijuana by seriously ill patients. ProCon.org, a nonprofit and nonpartisan public education foundation, has identified 21 national public opinion polls that asked questions about medical marijuana from 1995 to the present. Respondents in every poll were in favor of medical marijuana by substantial margins, ranging from 60% to 80%.⁴⁸

    The Journal of the American Medical Association analyzed public opinion on the War on Drugs in a 1998 article. The authors’ observations concerning public attitudes toward medical marijuana remain true today:

While opposing the use or legalization of marijuana for recreational purposes, the public apparently does not want to deny very ill patients access to a potentially helpful drug therapy if prescribed by their physicians. The public’s support of marijuana for medical purposes is conditioned by their belief that marijuana would be used only in the treatment of serious medical conditions.⁴⁹
 

Analysis of Arguments For and Against Medical Marijuana

    At least in public opinion polls, the majority of Americans appear to hold that seriously ill or terminal patients should be able to use marijuana if recommended by their doctors. In 9 of the 11 states with medical marijuana laws, a majority has supported that belief in the voting booth. The federal government and most state governments, however, remain strongly opposed to medical marijuana.

    In the ongoing debate over cannabis as medicine, certain arguments are frequently made on both sides of the issue. These arguments are briefly stated below and are analyzed in turn. Equal weight is not given to both sides of every argument. Instead, the analysis is weighted according to the preponderance of evidence as currently understood. CRS takes no position on the claims or counterclaims in this debate.

    What follows, then, is an attempt to analyze objectively the claims frequently made about the role that herbal cannabis might or might not play in the symptomatic treatment of certain diseases and about the possible societal consequences should its role in the practice of modern medicine be expanded beyond the handful of states where it is now permitted.

48 The questions asked and the results obtained can be viewed at [http://www.medicalmarijuanaprocon.org/pop/votesNat.htm].
49 Robert J. Blend on and John T. Young, “The Public and the War on Illicit Drugs,” Journal of the American Medical Association, vol. 279, no. 11 (Mar. 18, 1998), p. 831.

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Marijuana Is Harmful and Has No Medical Value

Suitable and superior medicines are currently available for treatment of all symptoms alleged to be treatable by crude marijuana.
— Brief of the Drug Free America Foundation, et al., 200450
 

    The federal government — along with many state governments and private anti-drug organizations — staunchly maintains that botanical marijuana is a dangerous drug without any legitimate medical use. Marijuana intoxication can impair a person’s coordination and decision-making skills and alter behavior. Chronic marijuana smoking can adversely affect the lungs, the cardiovascular system, and possibly the immune and reproductive systems.⁵¹

   Of course, FDA’s 1985 approval of Marinol proves that the principal psychoactive ingredient of marijuana — THC — has therapeutic value. But that is not the issue in the medical marijuana debate. Botanical marijuana remains a plant substance, an herb, and its opponents say it cannot substitute for legitimate pharmaceuticals. Just because one molecule found in marijuana has become an approved medicine, they argue, does not make crude marijuana a medicine. The Drug Free America Foundation calls medical marijuana “a step backward to the times of potions and herbal remedies.”⁵²

    The federal government’s argument that marijuana has no medical value is straightforward. A drug, in order to meet the standard of the Controlled Substances Act as having a “currently accepted medical use in treatment in the United States,” must meet a five-part test:

(1) The drug’s chemistry must be known and reproducible,
(2) there must be adequate safety studies,
(3) there must be adequate and well-controlled studies proving efficacy,
(4) the drug must be accepted by qualified experts, and
(5) the scientific evidence must be widely available.⁵³
 

    According to the DEA, botanical marijuana meets none of these requirements. First, marijuana’s chemistry is neither fully known nor reproducible. Second, adequate safety studies have not been done. Third, there are no adequate, well-

50 Brief for the Drug Free America Foundation, Inc. et al. as Amici Curiae Supporting Petitioners at 13, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454). The amici curiae briefs filed in Raich contain a wealth of information and arguments on both sides of the medical marijuana debate. They are available online at [http://www.angeljustice.org].
51 See, for example, “Exposing the Myth of Medical Marijuana,” on the DEA website at [http://www.usdoj.gov/dea/ongoing/marijuanap.html].
52 Ibid at 25.
53 This test was first formulated by the DEA in 1992 in response to a marijuana rescheduling petition. See U.S. Department of Justice, Drug Enforcement Administration, “Marijuana Scheduling Petition; Denial of Petition; Remand,” 57 Federal Register 10499, Mar. 26, 1992, at 10506.

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controlled scientific studies proving marijuana is effective for any medical condition. Fourth, marijuana is not accepted by even a significant minority of experts qualified to evaluate drugs. Fifth, published scientific evidence concluding that marijuana is safe and effective for use in humans does not exist.⁵⁴

    The same DEA Final Order that set forth the five requirements for currently accepted medical use also outlined scientific evidence that would be considered irrelevant by the DEA in establishing currently accepted medical use. These include individual case reports, clinical data collected by practitioners, studies conducted by persons not qualified by scientific training and experience to evaluate the safety and effectiveness of the substance at issue, and studies or reports so lacking in detail as to preclude responsible scientific evaluation. Such information is inadequate for experts to conclude responsibly and fairly that marijuana is safe and effective for use as medicine.⁵⁵ The DEA and other federal drug control agencies can thereby disregard medical literature and opinion that claim to show the therapeutic value of marijuana because they do not meet the government’s standards of proof.

    The official view of medical marijuana is complicated by the wider War on Drugs. It is difficult to disentangle the medical use of locally grown marijuana for personal use from the overall policy of marijuana prohibition, as the Supreme Court made clear in Raich. To make an exemption for medical marijuana, the Court decided, “would undermine the orderly enforcement of the entire regulatory scheme... The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition...”⁵⁶

    It remains the position of the federal government, then, that the Schedule I substance marijuana is harmful — not beneficial — to human health. Its use for any reason, including medicinal, should continue to be prohibited and punished. Despite possible signs of a more tolerant public attitude toward medical marijuana, its therapeutic benefits, if any, will continue to be officially unacknowledged and largely unrealized in the United States so long as this position prevails at the federal level.

Marijuana Effectively Treats the Symptoms of Some Diseases

It cannot seriously be contested that there exists a small but significant class of individuals who suffer from painful chronic, degenerative, and terminal conditions, for whom marijuana provides uniquely effective relief.
— Brief of the Leukemia & Lymphoma Society, et al., 2004⁵⁷

54 Ibid., p. 10507.
55 Ibid., pp. 10506-10507.
56 Gonzalez v. Raich, 125 S.Ct. 2195, at 2212 and 2213 (2005).
57 Brief for the Leukemia & Lymphoma Society, et al. as Amici Curiae Supporting Respondents at 4, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).

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    Proponents of medical marijuana point to a large body of reports and journal articles from around the world that support the therapeutic value of marijuana in treating a variety of disease-related problems, including:

• relieving nausea,
• increasing appetite,
• reducing muscle spasms and spasticity,
• relieving chronic pain,
• reducing intraocular pressure, and
• relieving anxiety.⁵⁸

    Given these properties, marijuana has been used successfully to treat the debilitating symptoms of cancer and cancer chemotherapy,⁵⁹ AIDS, multiple sclerosis, epilepsy, glaucoma, anxiety, and other serious illnesses.⁶⁰ As opponents of medical marijuana assert, existing FDA-approved pharmaceuticals for these conditions are generally more effective than marijuana. Nevertheless, as the IOM Report acknowledged, the approved medicines do not work for everyone.⁶¹ Many medical marijuana users report trying the drug only reluctantly and as a last resort after exhausting all other treatment modalities. A distinct subpopulation of patients now relies on whole cannabis for a degree of relief that FDA-approved synthetic drugs do not provide.

    Medical cannabis proponents claim that single-cannabinoid, synthetic pharmaceuticals like Marinol are poor substitutes for the whole marijuana plant, which contains more than 400 known chemical compounds, including about 60 active cannabinoids in addition to THC. They say that scientists are a long way from knowing for sure which ones, singly or in combination, provide which therapeutic effects. Many patients have found that they benefit more from the whole plant than from any synthetically produced chemical derivative.⁶² Furthermore, the natural plant can be grown easily and inexpensively, whereas Marinol and any other cannabis

58 Ibid., at 1-2.
59 A 1990 survey of oncologists found that 54% of those with an opinion on medical marijuana favored the controlled medical availability of marijuana and 44% had already broken the law by suggesting at least once that a patient obtain marijuana illegally. R. Doblin and M. Kleiman, “Marijuana as Antiemetic Medicine,” Journal of Clinical Oncology, vol. 9 (1991), pp. 1314-1319.
60 There is evidence that marijuana might also be useful in treating arthritis, migraine, menstrual cramps, alcohol and opiate addiction, and depression and other mood disorders.
61 IOM Report, pp. 3-4: “The effects of cannabinoids on the symptoms studied are generally modest, and in most cases there are more effective medications. However, people vary in their responses to medications, and there will likely always be a subpopulation of patients who do not respond well to other medications.”
62 Brief for the Leukemia & Lymphoma Society et al. as Amici Curiae Supporting Respondents at 18, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).

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based pharmaceuticals that might be developed in the future will likely be expensive
— prohibitively so for some patients.⁶³

    In recognition of the therapeutic benefits of botanical marijuana products, various associations of health professionals have passed resolutions in support of medical cannabis. These include the American Public Health Association, the American Nurses Association, and the California Pharmacists Association. The New England Journal of Medicine has editorialized in favor of patient access to marijuana.⁶⁴ Other groups, such as the American Medical Association, are more cautious. Their position is that not enough is known about botanical marijuana, that more research is needed.⁶⁵

    The recent discovery of cannabinoid receptors in the human brain and immune system provides a biological explanation for the claimed effectiveness of marijuana in relieving multiple disease symptoms. The human body produces its own cannabis like compounds, called endocannabinoids, that react with the body’s cannabinoid receptors. Like the better known opiate receptors, the cannabinoid receptors in the brain stem and spinal cord play a role in pain control. Cannabinoid receptors, which are abundant in various parts of the human brain, also play a role in controlling the vomiting reflex, appetite, emotional responses, motor skills, and memory formation. It is the presence of these natural, endogenous cannabinoids in the human nervous and immune systems that provides the basis for the therapeutic value of marijuana and that holds the key, some scientists believe, to many promising drugs of the future.⁶⁶

    The federal government’s own IND Compassionate Access Program, which has provided government-grown medical marijuana to a select group of patients since 1978, provides important evidence that marijuana has medicinal value and can be used safely. A scientist and organizer of the California medical marijuana initiative, along with two medical-doctor colleagues, has written:

    Nothing reveals the contradictions in federal policy toward marijuana more clearly than the fact that there are still eight patients in the United States who receive a tin of marijuana ‘joints’  (cigarettes) every month from the federal government. ... These eight people can legally possess and use marijuana, at government expense and with government permission. Yet hundreds of thousands of other patients can be fined and jailed under federal law for doing exactly the same thing.⁶⁷

63 Marinol currently sells at retail for about $17 per pill.
64 “Federal Foolishness and Marijuana,” New England Journal of Medicine, vol. 336, no. 5 (Jan. 30, 1997), pp. 366-367.
65 The website “Medical Marijuana ProCon” [http://www.medicalmarijuanaprocon.org] contains information on organizations that both support and oppose medical marijuana.
66 For a summary of the growing body of research on endocannabinoids, see Roger A. Nicoll and Bradley N. Alger, “The Brain’s Own Marijuana,” Scientific American, Dec. 2004, pp. 68-75.
67 Bill Zimmerman, Is Marijuana the Right Medicine For You? A Factual Guide to Medical Uses of Marijuana (Keats Publishing, New Canaan, CT: 1998), p. 25.

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Smoking Is an Improper Route of Drug Administration

Can you think of any other untested, home-made, mind-altering medicine that you self-dose, and that uses a burning carcinogen as a delivery vehicle?
— General Barry McCaffrey, U.S. Drug Czar, 1996-2000⁶⁸

    That medical marijuana is smoked is probably the biggest obstacle preventing its acceptance. Opponents of medical marijuana argue that smoking is a poor way to take a drug, that inhaling smoke is an unprecedented drug delivery system. DEA Administrator Karen Tandy writes:

    The scientific and medical communities have determined that smoked marijuana is a health danger, not a cure. There is no medical evidence that smoking marijuana helps patients. In fact, the Food and Drug Administration (FDA) has approved no medications that are smoked, primarily because smoking is a poor way to deliver medicine. Morphine, for example has proven to be a medically valuable drug, but the FDA does not endorse smoking opium or heroin.⁶⁹

    Medical marijuana opponents argue that chronic marijuana smoking is harmful to the lungs, the cardiovascular system, and possibly the immune and reproductive systems. These claims may be overstated to help preserve marijuana prohibition. For example, neither epidemiological nor aggregate clinical data show higher rates of lung cancer in people who smoke marijuana.⁷⁰ The other alleged harms also remain unproven. Even if smoking marijuana is proven harmful, however, the immediate benefits of smoked marijuana could still outweigh the potential long-term harms — especially for terminally ill patients.⁷¹ The therapeutic value of smoked marijuana is supported by existing research and experience. For example, the following statements appeared in the American

68 Barry R. McCaffrey, “We’re on a Perilous Path,” Newsweek, Feb. 3, 1997, p. 27.
69 Karen Tandy, “Marijuana: The Myths Are Killing Us,” Police Chief Magazine, Mar.
2005, available at [http://www.usdoj.gov/dea/pubs/pressrel/pr042605p.html].
70 Lynn Zimmer and John P. Morgan, Marijuana Myths Marijuana Facts (New York: Lindesmith Center, 1997), p. 115.
71 Medicines do not have to be completely safe to be approved. In fact, no medicine is completely safe; every drug has toxicity concerns. All pharmaceuticals have potentially harmful side effects, and it would be startling, indeed, if botanical marijuana were found to be an exception. The IOM Report states that “except for the harms associated with smoking, the adverse effects of marijuana use are within the range of effects tolerated for other medications.” (p. 5)

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Medical Association’s “Council on Scientific Affairs Report 10 — Medicinal Marijuana,”⁷² adopted by the AMA House of delegates on December 9, 1997:

• “Smoked marijuana was comparable to or more effective than oral THC [Marinol], and considerably more effective than prochlorperazine or other previous antiemetics in reducing nausea and emesis.” (p. 10)
• “Anecdotal, survey, and clinical data support the view that smoked marijuana and oral THC provide symptomatic relief in some patients with spasticity associated with multiple sclerosis (MS) or trauma.” (p. 13)
• “Smoked marijuana may benefit individual patients suffering from intermittent or chronic pain.” (p. 15)

    The IOM Report expressed concerns about smoking (p. 126): “Smoked marijuana is unlikely to be a safe medication for any chronic medical condition.” Despite this concern, the IOM Report’s authors were willing to recommend smoked marijuana under certain limited circumstances. For example, the report states (p. 154):

Until the development of rapid-onset antiemetic drug delivery systems, there will likely remain a subpopulation of patients for whom standard antiemetic therapy is ineffective and who suffer from debilitating emesis. It is possible that the harmful effects of smoking marijuana for a limited period of time might be outweighed by the antiemetic benefits of marijuana, at least for patients for whom standard antiemetic therapy is ineffective and who suffer from debilitating emesis. Such patients should be evaluated on a case-by-case basis and treated under close medical supervision.

The IOM Report makes another exception for terminal cancer patients (p. 159):
 

Terminal cancer patients pose different issues. For those patients the medical harm associated with smoking is of little consequence. For terminal patients suffering debilitating pain or nausea and for whom all indicated medications have failed to provide relief, the medical benefits of smoked marijuana might outweigh the harm.

    Smoking can actually be a preferred drug delivery system for patients whose nausea prevents them from taking anything orally. Such patients need to inhale their antiemetic drug. Other patients prefer inhaling because the drug is absorbed much more quickly through the lungs, so that the beneficial effects of the drug are felt almost at once. This rapid onset also gives patients more control over dosage. For a certain patient subpopulation, then, these advantages of inhalation may prevail over

72 American Medical Association, Council on Scientific Affairs Report: Medical Marijuana (A-01), June 2001. An unpaginated version of this document can be found on the Web at[http://www.mfiles.org/Marijuana/medicinal_use/b2_ama_csa_report.html].

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both edible marijuana preparations and pharmaceutical drugs in pill form, such as Marinol.

    Moreover, medical marijuana advocates argue that there are ways to lessen the risks of smoking. Any potential problems associated with smoking, they argue, can be reduced by using higher potency marijuana, which means that less has to be inhaled to achieve the desired therapeutic effect. Furthermore, marijuana does not have to be smoked to be used as medicine. It can be cooked in various ways and eaten.⁷³ Like Marinol, however, taking marijuana orally can be difficult for patients suffering from nausea. Many patients are turning to vaporizers, which offer the benefits of smoking — rapid action, ease of dose titration — without having to inhale smoke. Vaporizers are devices that take advantage of the fact that cannabinoids vaporize at a lower temperature than that required for marijuana to burn. Vaporizers heat the plant matter enough for the cannabinoids to be released as vapor without having to burn the marijuana preparation. Patients can thereby inhale the beneficial cannabinoids without also having to inhale the potentially harmful by-products of marijuana combustion.⁷⁴
 

Marijuana Should Be Rescheduled to Permit Medical Use

The administrative law judge concludes that the provisions of the [Controlled Substances] Act permit and require the transfer of marijuana from Schedule I to Schedule II. The Judge realizes that strong emotions are aroused on both sides of any discussion concerning the use of marijuana. Nonetheless it is essential for this Agency [DEA], and its Administrator, calmly and dispassionately to review the evidence of record, correctly apply the law, and act accordingly.
— Francis L. Young, DEA Administrative Law Judge, 198875

    Proponents of medical marijuana believe its placement in Schedule I of the CSA was an error from the beginning. Cannabis is one of the safest therapeutically active substances known.⁷⁶ No one has ever died of an overdose.⁷⁷ Petitions to reschedule marijuana have been received by the federal government, and rejected, ever since the original passage of the Controlled Substances Act in 1970.

73 Cannabis preparations are also used topically as oils and balms to soothe muscles, tendons, and joints.
74 Several companies offer vaporizers for sale in the United States, but their marketing is complicated by marijuana prohibition and by laws prohibiting drug paraphernalia. The advantages of the vaporizer were brought to the attention of the IOM panel. The IOM Report, however, devoted only one sentence to such devices, despite its recommendation for research into safe delivery systems. The IOM Report said, “Vaporization devices that permit inhalation of plant cannabinoids without the carcinogenic combustion products found in smoke are under development by several groups; such devices would also require regulatory review by the FDA.” (p. 216)
75 The Young Opinion, p. 67.
76 Ibid., pp. 58-59.
77 Ibid., p. 56.

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    Rescheduling can be accomplished administratively or it can be done by an act of Congress. Administratively, the federal Department of Health and Human Services (HHS) could find that marijuana meets sufficient standards of safety and efficacy to warrant rescheduling. Even though THC, the most prevalent cannabinoid in marijuana, was administratively moved to Schedule III in 1999, no signs exist that botanical marijuana will similarly be rescheduled by federal agency ruling anytime soon.

    An act of Congress to reschedule marijuana is only slightly less likely, although such legislation has been introduced in recent Congresses including the 109th.⁷⁸ The States’ Rights to Medical Marijuana Act (H.R. 2087/Frank), which would move marijuana from Schedule I to Schedule II of the Controlled Substances Act, has seen
no action beyond committee referral.⁷⁹

    Schedule II substances have a high potential for abuse and may lead to severe psychological or physical dependence but have a currently accepted medical use in treatment in the United States. Cocaine, methamphetamine, morphine, and methadone are classified as Schedule II substances. Many drug policy experts and laypersons alike believe that marijuana should also reside in Schedule II.

    Others think marijuana should be properly classified as a Schedule III substance, along with THC and its synthetic version, Marinol. Substances in Schedule III have less potential for abuse than the drugs in Schedules I and II, their abuse may lead to moderate or low physical dependence or high psychological dependence, and they have a currently accepted medical use in treatment in the United States.

    Rescheduling seems to be supported by public opinion. A nationwide Gallup Poll conducted in March 1999 found that 73% of American adults favor “making marijuana legally available for doctors to prescribe in order to reduce pain and suffering.” An AARP poll of American adults age 45 and older conducted in mid-November 2004 found that 72% agree that adults should be allowed to legally use marijuana for medical purposes if recommended by a physician.⁸⁰

78 When Congress directly schedules a drug, as it did marijuana in 1970, it is not bound by the criteria in section 202(b) of the CSA (21 U.S.C. 812(b)).
79 Congress could also follow the lead of some states that have a dual scheduling scheme for botanical marijuana whereby its recreational use is prohibited (Schedule I) but it is permitted when used for medicinal purposes (Schedules II or III). Congress could achieve the same effect by leaving marijuana in Schedule I but removing criminal penalties for the medical use of marijuana, commonly called decriminalization. Congress could also opt for legalization by removing marijuana from the CSA entirely and subjecting it to federal and state controls based on the tobacco or alcohol regulatory models or by devising a regulatory scheme unique to marijuana. None of these options seem likely given the current political climate in which both political parties support marijuana prohibition.
80 These and other poll results can be consulted at [http://www.medicalmarijuanaprocon.org/pop/votes.htm]. This website states: “Because 100% of the voter initiatives and polls we located were favorable (50.01% or more pro) towards the medical use of marijuana, we contacted several organizations decidedly ‘con’ to medical marijuana — two of which were federal government agencies — and none knew of any voter initiatives or polls that were ‘con’ (50.01% or more con) to medical marijuana.”

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    Few Members of Congress, however, publicly support the rescheduling option. The States’ Rights to Medical Marijuana Act (H.R. 2087/Frank), which would move marijuana from Schedule I to Schedule II of the Controlled Substances Act, currently has 37 cosponsors.

State Medical Marijuana Laws Increase Illicit Drug Use

The natural extension of this myth [that marijuana is good medicine] is that, if marijuana is medicine, it must also be safe for recreational use.
— Karen P. Tandy, DEA Administrator, 2005⁸¹
 

    It is the position of the federal government that to permit the use of medical marijuana affords the drug a degree of legitimacy it does not deserve. America’s youth are especially vulnerable, it is said, and state medical marijuana programs send the wrong message to our youth, m