Wednesday November 22nd 2017

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The Future of Marijuana Enforcement: How State and Federal Laws Govern Weed

The future of medical marijuana is uncertain. Unless the FDA changes its rigorous medication approval process, it is highly unlikely that the FDA will ever approve the marijuana plant as medicine. State legislators will continue taking the matter into their own hands and move forward hoping that the DEA never intervene in the process.

More here on the laws and their enforcement. Then, we invite your questions or comments at the end. In fact, we try to respond to all reader comments personally and promptly.

The Problem With Marijuana Legislation

According to the NCSL (National Conference of State Legislatures), 29 states, the District of Columbia, Guam and Puerto Rico have enacted state legislation approving medical use of marijuana.

According to the DEA (U.S. Drug Enforcement Administration), marijuana is classified federally as an illegal Schedule I controlled substance, which means that it has a high potential for abuse and no accepted medical use in the U.S. Medical marijuana proponents are attempting to have marijuana reclassified from Schedule I to Schedule II, which would indicate there is an accepted medical use for the substance in the eyes of the Federal Government. The DEA will not re-classify botanical marijuana until the FDA (U.S. Food and Drug Administration) approves it as an accepted form of medicine.

The FDA has not found any indication that botanical marijuana is safe or effective for the treatment of any disease or condition. Further, the FDA will likely never approve marijuana as medicine, because it will never pass the FDA’s current rigorous evaluation and approval process. So, marijuana will remain in a legal “limbo”, between legal and illegal.

How Marijuana is Being Standardized for Testing

Legislators who are medical marijuana proponents continue to plead with the DEA to reclassify marijuana as a Schedule II controlled substance which would then allow physicians to prescribe it legally under the Federal Controlled Substances Act. However, botanical marijuana has hundreds of chemical variables which makes it difficult to create a standardized testing model for the FDA. The best that the FDA can do is continue to evaluate and potentially approve a standardized extraction from the plant.

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An example of this would be CBD oil or cannabinol, the non-psychoactive marijuana extract. This is administered in a liquid form and has low levels of THC (Tetrahydrocannabinol), which is the ingredient in cannabis that causes the user to get high.

GW Pharmaceuticals is in the final process of obtaining FDA approval for Epidiolex, a CBD medicine to treat seizures in children. If the FDA approves this medicine, it could change the future of state laws that allow sales of medical marijuana in the form of CBD oil. Most state legislation is drafted in a way that a practitioner must first utilize an FDA approved equivalent prior to recommending a state authorized medical marijuana treatment.

How is the DEA Handling States that Legalize Medical Marijuana?

On August 19, 2013, the U.S. Deputy Attorney General issued guidance to all U.S. Attorneys on marijuana enforcement under the Controlled Substances Act. The memorandum lists enforcement priorities and states:

“the U.S. Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property”. The memorandum further states that, “the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws”.

The memorandum is written in a way that infers the feds will allow the respective states to monitor marijuana, but leaves the door open for the DEA or another federal agency to open an investigation at any time they deem necessary. It appears to be written in a manner that the federal government is relying on the state agencies to ensure compliance with their respective state laws. The underlying problem with state legalization is that marijuana is still considered illegal federally and federal drug enforcement action can come at any time.

The Federal Stance

Furthermore, in 2014, the Rohrbacker-Farr Federal amendment was passed which prohibits the U.S. Department of Justice from using federal funds to prevent certain states from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana. This was translated in a recent 9th Circuit Court of Appeals case, as the U.S. Department of Justice may not prosecute violations of the Controlled Substance Act with respect to marijuana unless a court concludes the individual or organization was not in compliance with state marijuana medical law.

The Enforcement of Recreational Marijuana

In the U.S., eight states and the District of Columbia have enacted state legislation approving the recreational use of marijuana. In all states, users must be at least 21 years of age to legally possess marijuana for recreational use. Each state has varying limits of how much marijuana a person can possess and/or cultivate. It seems as with medical marijuana, recreational marijuana will be monitored by the respective state authorities; however, the feds can launch a criminal investigation at their discretion.

What is the Trump Administration Stance?

President Trump claimed to be a proponent of medical marijuana during his presidential campaign prior to the election. However, now he seems very cautious as to what position to take on the issue and he has not yet expressed his opinion on the issue publicly since being elected. Attorney General Sessions is adamantly opposed to legalizing marijuana and reports indicate he wants to pursue prosecution on medical marijuana providers.

The Future of Marijuana Enforcement

As the legalization of medical marijuana continues to expand throughout the country, we really do not know what the future holds as to what, if any, enforcement action will be taken against medical marijuana providers and/or users. As long as the feds refrain from enforcement action, it seems the medical marijuana route will continue to expand to other states.

However, in order to make the transition into the acceptance of medical marijuana, extensive training needs to be implemented for all law enforcement, state medical boards and physicians who choose to recommend medical marijuana to patients. These entities must learn specifics about the legislation such as quantities allowed and medical conditions that qualify patients to receive physician recommendations to receive medical marijuana. Most states are implementing a system of issuing a medical marijuana card identifying the individual as having a physician recommendation to receive the drug.

Got any questions?

What is your view on medical marijuana legalization? Are you a supporter or a skeptic? Leave your comments below. We value our reader’s feedback and invite you to also send us your questions via the section at the end of the page. We do our best to respond to all legitimate inquiries personally and promptly.

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About the Author: Practitioners who desire to have their practice audited for DEA compliance relative to prescribing controlled substances, or if you would like to receive training on the diversion of pharmaceutically controlled substances from retired DEA Special Agent Drug Diversion Expert Warren Rivera, please visit www.trainingidea.com or www.linkedin.com/in/warren-rivera-aa4a3221
Reference Sources: Department of Health Board of Medical Examiners: Marijuana for Therapeutic Use
FSMB: Model Guidelines for the Recommendation of Marijuana in Patient Care
U.S. Department of Justice: Memorandum For All U.S. Attorneys
Washington Post: Jeff Sessions personally asked Congress to let him prosecute medical-marijuana providers
Cannabis Law Now: The States of Marijuana
SYLVA international: FDA Approval of Epidiolex Would Reshape the Marijuana and Nutraceuticals Landscape & How GB Sciences (GBLX) May Benefit

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About Warren Rivera

Warren Rivera is a retired Assistant Special Agent in Charge from the U.S. Drug Enforcement Administration. Mr. Rivera is an experienced public speaker, trainer and an expert in the diversion of pharmaceutical controlled substances. Mr. Rivera currently owns Training Idea, LLC, a private consulting firm that provides training on DEA matters to the healthcare industry, law enforcement and the community.

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