Interstate Structure to Oversee and Regulate Medical Marijuana

There is a need for an interstate structure to provide coordination and regulatory oversight of medical marijuana (cannabis) use in the 23 states that have approved its use by either referendum or legislation.  Five jurisdictions — Colorado, Washington, Oregon, Alaska and the District of Columbia — have now also authorized the recreational use of cannabis.  In these locales and in the states that have only authorized medical use, there will be a common need to decriminalize any legitimate use of cannabis, keep cannabis out of the hands of minors and establish Environmental Protection Agency  (EPA) tolerances for the safe use of pesticides on cannabis crops.

FDA is not well-suited to regulate medical cannabis, because the fundamental questions of safety and efficacy, which are the usual subjects of FDA review, have been preempted by political decisions made through either referendum or legislation in each of the 23 states.  The number of authorizing states is likely only to rise in the future.  Cannabis does not fit neatly into any of FDA’s present programs.  It is a drug, often delivered as a food or, like tobacco, as an inhalant.  Moreover, if FDA felt obliged to evaluate the safety or efficacy of presently accepted uses of medical cannabis, it would (in all likelihood) create multi-hundred million dollar entry barriers, which would exclude the small entrepreneurs, who have pioneered in this area, and tilt participation towards the large pharmaceutical firms, which have been able to afford and obtain existing FDA approvals.

The most pressing need for federal action affecting cannabis is relief from the Controlled Substances Act (CSA), where it is criminalized in Category I as being without any redeeming medical use and being more dangerous and addictive than heroin or cocaine.  The CSA is administered by the Drug Enforcement Administration, an agency of the United States (U.S.)  Department of Justice (DOJ).  Temporary relief from the CSA was provided by Section 538 of the 2015 omnibus Appropriations bill, which bars the DOJ from spending appropriated funds to enforce the CSA against states authorizing medical cannabis use.  However, that is only a partial and temporary solution.  As long as individual transactions in connection with medical cannabis are criminalized by federal law, it will be difficult for federal employees, such as physicians in Veterans Administration hospitals, to prescribe or recommend its use, and it will also be difficult for growers of cannabis and/or processors of cannabis-containing medical products to obtain bank financing.  With the present widespread use of medical cannabis, multistate recordkeeping regarding the safety and results of present uses may provide a better base for future use than any other practice or course of conduct.

Another pressing need for federal action is the need for EPA pesticide tolerances for safe growth of the agricultural product.  At the present time, there is no authorization for, or record of, the pesticides that are being used by cannabis growers.

The best structure to address the medical use issues is probably an interstate compact, as allowed by Article I, Section 10 of the Constitution.  An interstate compact must be specifically authorized by Congress, but the Congressional authorization would be for coordination among the states, rather than for detailed regulation by one or more federal agencies.  There are a number of existing interstate compacts, which can provide procedural models, even though they deal with totally unrelated subjects, such as motor vehicle licensing and the use of water from the Colorado River.  A compact to deal with medical cannabis should be authorized by Congress, and the members of the compact should be only states where medical cannabis has been authorized by either referendum or legislation.  There would be an understanding that each of these states would be represented by its chief medical officer (or his or her delegate).  The compact, as an entity, should be authorized to present technical questions and/or requests for federal action to federal agencies, including the DOJ, FDA and the EPA.

The compact should be charged with responsibility to recommend and work towards more uniform state statutes and regulations.  An issues that would need to be addressed in working towards uniformity is the strength of various sources of medical cannabis, such as different varieties of the plant and different processed forms in which it may be marketed as a medicinal inhalant or included in foods, candies or tablets intended for medical use.  Other issues include keeping medical products out of recreational use channels and providing for the interstate shipment of medical products where appropriate.  Finally, an interstate structure needs to provide a centralized database where state officials can keep records of the results of various uses and of any unintended side effects.

Although there are apparently some therapeutic products incorporating cannabis derivatives, for example highly refined cannabis oils, which are presently going through the FDA drug approval process, these substances are apparently the exception and should not be the rule.  The compact should be authorized to work with a sponsor who wishes to seek FDA approval.

The member states of an interstate compact should establish effective and coordinated recordkeeping to track the results of medical cannabis treatments.  In addition, state recordkeeping requirements should address unintended side effects of treatment with medical cannabis.

An interstate compact must be authorized by Congress, but there is no reason why that authorization would need to include detailed substantive provisions.  Straightforward legislation should not be caught up in the usual grandstanding which has affected previous cannabis legislation.  Instead, Congress should delegate the coordination and regulation of medical cannabis to state medical officers, whose states specifically authorize medical use. In addition, Congress should make clear that federal medical facilities, for example, veterans hospitals, should be able to follow state statutes in regard to the allowance or disallowance of medical cannabis in the states where these facilities are located, and not be subject to criminal penalties under the CSA.