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Legal Considerations of Medical Marijuana

Many experts recommend reclassifying marijuana from a Schedule I to Schedule II substance. Learn more about how reclassification may open the way to more research avenues to study the medicinal role of cannabis.

Q: Marijuana is categorized as a Schedule I substance. What does that mean for pain specialists who want to recommend medical marijuana for selected patients?

Dr. Reiman: The Controlled Substances Act of the 1970s was developed as a way to categorize the potential addictive nature and dangerousness of various substances. Marijuana was put in Schedule I originally as a placeholder, with the idea that a long research study would be commissioned to assess what schedule it should be in.

Richard Nixon was President at the time, and he commissioned the Shafer Commission Report, asking scientists to study marijuana. The scientists’ report stated that they did not feel that marijuana should be in Schedule I. However, Richard Nixon was determined to get marijuana designated as Schedule I as a way to garner support for his campaign to return law and order to the country by demonizing the behaviors of the hippie culture, including marijuana use. Thus, the Shafer Commission findings were ignored. Nixon quashed the report and didn’t allow any copies to be released.

Shortly after, the first petition to remove marijuana from a Schedule I was filed, and additional petitions have been filed since then.

Q: Please discuss the legislation to reclassify marijuana as a Schedule II substance and the Drug Policy Alliance’s role in this legislation.

Dr. Reiman: The Drug Policy Alliance’s Office of National Affairs has been working on the Compassionate Access, Research Expansion, and Respect States (CARERS) Act of 2015.1 The Act has many different components, one of which is to reschedule marijuana into Schedule II.

My organization also strongly believes that marijuana should be de-scheduled. We don’t believe it belongs in the schedule system at all. We don’t think that it rises to the level of dependence or danger of any of the substances that are on the schedule. In fact, the synthetic version of tetrahydrocannabinol (THC), dronabinol (Marinol)—the same exact chemical that is in the plant but made synthetically—is a Schedule III substance.

There are several states, including Oregon, that have decided on a state level to change the scheduling of marijuana, and that is highly symbolic, given that the Controlled Substances Act is a federal law.

Q: What impact would reclassification of marijuana as a Schedule II substance have on clinical practice?

Dr. Reiman: In clinical practice, I don’t think that reclassifying marijuana as a Schedule II substance would change things. The biggest impact a Schedule II reclassification would have is to open up research.

The Schedule I status not only makes it difficult to conduct research because of a number of extra hoops researchers have to jump through, but also marijuana is the only drug in the Schedule I category that can only be obtained for research from the federal government’s supply. The National Institute on Drug Abuse (NIDA) has basically held a monopoly on the source of cannabis for research purposes and funds upwards of 80% of the world’s research on drugs. It is difficult to get research on the benefits of marijuana funded through NIDA, although they are starting to get better.

In addition, the federal government’s marijuana supply is not very reliable and has a low THC percentage.

Q: Are clinicians protected from prosecution if they recommend medical marijuana?

Dr. Reiman: Doctors are not allowed to prescribe a drug the federal government has deemed to have no medical value, but, because of the ruling in Conant v. Walters, they cannot be punished for recommending medical marijuana.2

A recommendation means that a patient meets with a doctor to talk about a physical or mental health issue. If the state law on medical marijuana where the doctor practices cites specific conditions for which a patient may obtain cannabis, the patient must provide evidence of having one of those conditions. Then, the doctor is allowed to discuss whether cannabis may be helpful. The doctor is allowed to say, “I believe cannabis may be helpful for you” but is not allowed to say, “I, therefore, prescribe it to you.”

Unfortunately, some of the recent medical marijuana laws that have been passed, such as in Louisiana and Texas, have a problem with semantics because the laws use the word “prescribe.” Both states are going through the process to change “prescribe” to “recommend.”

Q: What should clinicians do in states that do not have medical marijuana laws?

Dr. Reiman: Doctors can recommend medical marijuana even in states without formal programs. This is simply a conversation about the potential benefits and risks of using marijuana, and it does not mean that you are telling patients where to get marijuana or helping them commit a crime. Having that discussion with a patient is absolutely legal, and I think it is important because there are a lot of doctors out there who feel bound by the fact that their states do not have medical cannabis laws.

Q: What role does the Drug Policy Alliance play in helping states pass medical marijuana laws?

Dr. Reiman: In our Office of National Affairs, in Washington, D.C, we pay close attention to what is going on at the federal level and help educate legislators so they can transform the law. The Drug Policy Alliance prides itself on being the most robust and up-to-date source of information about drug use and drug policy.

We also have state offices in New York, New Jersey, Colorado, New Mexico, and California. We are working closely with Colorado on the passage of Amendment 64 to legalize marijuana for adult use and on implementation of this initiative. Our Office of Legal Affairs houses our Marijuana Law and Policy Unit, from which we work with states and cities to develop initiatives to change their marijuana laws and evaluate local regulations. I am located in the Bay Area and work closely with the cities of Oakland, Berkeley, and San Francisco on maintaining their proactivity related to cannabis regulation. We also are working with countries like Puerto Rico and Uruguay on medical marijuana laws.

Q: What other legal ramifications regarding medical marijuana should our readers be aware of?

Dr. Reiman: It is important for clinicians who are involved in treating people with pain to educate themselves on the current literature on medical marijuana. A myriad of continuing medical education opportunities on cannabis are being hosted by organizations, such as the New Mexico Hispanic Medical Association, National College of Natural Medicine, and local dispensaries.

—Reported by Kristin Della Volpe

Last updated on: September 15, 2015
First published on: September 1, 2015
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