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December 15, 2011

Cannabis and the Regulatory Void

by nampadmin

Introduction

Cannabis is a plant (“botanical”) known popularly as “marijuana”.

Federal law classifies cannabis as a Schedule I drug meaning it has no accepted medical use and a high potential for abuse and therefore cannot be prescribed by physician for any use outside of research settings — it is “illegal” to prescribe.

Cannabis use has also been associated with several health risks including addiction, memory loss and slower reaction time, psychotic disorders, and reproductive risks.

Cannabis acquired in California today is unregulated. Both medical and recreational cannabis have no mandatory labeling standards of concentration or purity (harmful pesticides or herbicides present).

Legalization vs. Decriminalization

The legalization of cannabis is a continuing source of debate at both the national and state levels. Legalizing cannabis consists of allowing for the cultivation, sale, and use of the substance.

Decriminalization of cannabis may consist of a range of activities such as reducing penalties for cannabis-related offenses.

Federal Law

Congress made cannabis use illegal when it enacted the Controlled Substances Act in 1970 (U.S.C. § 811). Under federal law, cannabis is currently classified in statute as a Schedule I drug, along with drugs such as heroin, LSD and peyote.

The Controlled Substances Act holds that it is illegal for anyone to knowingly or intentionally possess a Schedule I substance because substances classified under this schedule are deemed to have high potential for abuse, no currently accepted medical use in treatment, and a lack of accepted safety for use of the drug under medical supervision. Therefore, the intended use of cannabis, whether medical or recreational, is irrelevant under the Controlled Substances Act.

On June 6, 2005, the United States Supreme Court ruled that the federal Controlled Substances Act is valid even as applied to intrastate, noncommercial cultivation, possession and use of cannabis for personal medical use on the advice of a physician.

The Court’s ruling maintains the existing federal prohibition against possession, cultivation, and distribution of cannabis.

Federal law establishes a clear prohibition against knowingly or intentionally distributing, dispensing, or possessing cannabis (U.S.C. § 841-44). A person who aids and abets another in violating federal law, (U.S.C. § 2), or engages in a conspiracy to purchase, cultivate, or possess cannabis, (U.S.C. § 846), can be punished to the same extent as the individual who actually commits the crime.

The penalty for a first-time violation of these provisions in the case of less than 50 kilograms of cannabis is imprisonment for a term of up to five years, a fine of up to $250,000, or both. The penalty for a violation committed after a prior drug conviction is imprisonment for a term of up to ten years, a fine of $500,000, or both (U.S.C. § 841(b)(1)(D)).

If a physician were to aid and abet or conspire in a violation of federal law, the federal government might revoke the physician’s Drug Enforcement Agency (DEA) registration through an administrative procedure.

A felony conviction of a physician relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance results in mandatory exclusion from the Medicare and Medi-Cal programs (42 U.S.C. § 1320a-7(a)(4)).

State Law

On November 5, 1996, the people of California approved Proposition 215, which decriminalized the cultivation and use of cannabis by seriously ill individuals upon obtaining a physician’s recommendation (Health & Safety Code § 11362.5).

Proposition 215 was enacted to “ensure that seriously ill Californians have the right to obtain and use marijuana” and to “ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction” (Health & Safety Code § 11362.5(b)(1)(A)-(B)).

In order to further clarify Proposition 215, the Medical Marijuana Program Act (MMP) was enacted on January 1, 2004 (Health & Safety Code §§ 11362.7-11362.83).

The MMP enacted an identification card program to achieve greater consistency in the application and enforcement of the original initiative. The MMP also clarified that a primary caregiver may be paid a “reasonable compensation” for services provided to a qualified patient “to enable that person to use marijuana” and that patients and primary caregivers may “cooperatively” and “collectively” cultivate.

The MMP requires the California Department of Public Health to maintain a program for the voluntary registration of qualified medical cannabis patients and their primary caregivers through a statewide identification card system. The voluntary registration program is administered through a patient’s county of residence, where the eligible patient submits an application and provides medical records containing written documentation by the attending physician stating that the patient has been diagnosed with a qualifying medical condition and that the physician recommends the use of cannabis for medical purposes.

Further decriminalization was enacted on September 30, 2010 when Health & Safety Code § 11357 was signed into law. Effective January 1, 2011, this statute makes possession of less than one ounce of cannabis a civil infraction rather than a criminal misdemeanor as it had previously been categorized.

Medicinal Efficacy

The California Medical Association Council on Scientific and Clinical Affairs (CSA) has opined that the literature on this subject is inadequate, cannabis dosage is not well standardized, and cannabis side effects may not be tolerated.

Dosage is not currently well-standardized and limited medical benefits have been established with the available research. Currently, California law only allows patients with a physician recommendation for medical cannabis to cultivate or use the substance.

Risks of Cannabis Use

The literature identifies several personal health risks, both short and long-term, associated with cannabis use.

According to the National Institute on Drug Abuse (NIDA), cannabis use can result in distorted perceptions, impaired coordination, difficulty thinking and problem solving, and problems with learning and memory.

These effects can last for days or weeks and may result in long-term personal health problems such as addiction, anxiety, depression, psychosis, respiratory problems, and heart attack.

Data from a national [disease] study indicates that about nine percent of adult cannabis users become addicted and that this risk is substantially increased among individuals who begin using before age eighteen.

Further evidence suggests that cannabis can adversely affect adolescents who initiate use early and young adults who become regular users because adolescents and young adults have a much greater vulnerability to the toxic effects of cannabis on the brain.

These conditions also have second-hand effects by posing health risks to those members of the public around the user.

In tests using driving simulation, impairment varies in a dose-related fashion, and symptoms are more pronounced with highly automatic driving functions than with more complex tasks that require conscious control.

Public health risks correlated with adolescent cannabis include poorer educational outcomes and occupational attainment.

Under the current prohibition of cannabis, public health is also affected by increased rates of crime surrounding cannabis cultivation, sale and use. The California Legislative Analyst’s Office estimates that the incarceration and parole supervision of cannabis offenders costs the state tens of millions of dollars annually.

Source: excerpted from the California Medical Association Cannabis and the Regulatory Void, October 14, 2011

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