Medical marijuana movement forges ahead

March 15, 2010

While the government deems that marijuana has a "high potential for abuse" and "has no currently accepted medical use," some states have undertaken initiatives to pass legislation permitting its use for pain control and for control of nausea and vomiting by cancer patients.

Some states have undertaken initiatives to pass legislation that provides for the use of marijuana in limited cases where medically indicated. State pharmacy boards may or may not have regulatory authority. However, marijuana remains illegal under the Controlled Substances Act of 1970 (CSA) as well as under DEA regulations. Supply and use of marijuana has traditionally been subject to raids and prosecution by the federal government, despite state laws allowing for its use.

When President Obama campaigned, he made it clear that he supports the use of medical marijuana in patient care. As president, he has implemented this policy, and the federal government has expressed tolerance for the use of medical marijuana despite the current language in the CSA and DEA regulations. To that end, President Obama reversed a Bush administration policy of indiscriminate marijuana enforcement and ended federal raids on users and suppliers of medical marijuana in those states where use is legal when users and suppliers are in compliance with their respective state laws.

Notwithstanding, the federal government reserves its right to enforce against users and suppliers who are resorting to state medical marijuana laws and regulations as a subterfuge to orchestrate illegal activity. The memorandum provides a list of characteristics that would signal federal interest in activity that might indicate drug trafficking. The list is not intended to be exhaustive, but includes: (i) unlawful possession or use of firearms, (ii) violence, (iii) sales of marijuana to minors, (iv) financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money-laundering activity and/or financial gains or excessive amounts of marijuana inconsistent with purported compliance with state or local law, (v) illegal possession or sale of other controlled substances, or (vi) ties to other criminal enterprises.

Currently, 14 states in the union provide laws for the medical use of marijuana. New Jersey most recently enacted such legislation, effective January 1, 2010. Other states include Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. An additional 12 states have pending legislation, and the trend indicates that the number is likely to grow.

The executive branch of the federal government has signaled its intent to change policy focus concerning how it will prosecute marijuana users and suppliers. Nevertheless, an entity seeking to do legitimate business in this area must comply with all state laws and regulations to avoid prosecution for any alleged wrong-doing. States that do not have a robust framework of laws and regulations for medical marijuana require additional due diligence prior to investment and operations, and may be a higher risk opportunity. In summary, tight controls on operations supported by proper policy and procedure compliance regimens, among other things, come highly recommended.

NED MILENKOVICH is a member at McDonald Hopkins LLC and chairs its Drug and Pharmacy Practice group. He is also a member of the Illinois State Board of Pharmacy. Ned can be reached at 312-642-1480 or nmilenkovich@mcdonaldhopkins.com
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