Federal Legality of States Medical Cannabis Laws

Executive Branch: Attorney General

The federal government has made a policy decision to respect states’ medical marijuana laws. The “Ogden Memo” issued on Oct 19, 2009 by the Attorney General states that Federal priority will not be given for pursuing medical patients in accordance with their state laws.  “For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.” See the full memo here. http://www.justice.gov/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states

Congress

In December 2014, Congress passed the Hinchey-Rohrabacher medical marijuana amendment, legislation that prevents the Department of Justice from spending money to prevent the implementation of state medical marijuana laws. The Amendment states: “None of the funds made available in this Act to the Department of Justice may be used, with respect to the States…to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”  See full text here: https://www.congress.gov/amendment/113th-congress/house-amendment/748

The Constitution

The doctrine of “dual sovereignty” permits both the states and federal government to adopt criminal laws, and each sovereign may enforce those laws within a given state. States are free to pass medical marijuana laws that exempt certain people from criminal liability under state law, and state employees do not break federal law by licensing and regulating activities that are legal under state law. The “structure and limitations of federalism…allow the States “ ‘great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.’” Gonzales v. Oregon, 546 U.S. 243,270 (2006). States are free to exercise their regulatory, licensing, and zoning powers to establish the limits of legal conduct under state law. No state employee has ever been arrested or threatened with arrest for licensing or regulating a medical marijuana dispensary.

States can regulate health care according to the 10th Amendment. The 10th Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

FDA

Plants and foods that exist in nature are not typically regulated by the FDA in their natural form.  The FDA also does not approve medical foods. Unlike new drugs, dietary supplements are not reviewed and approved by FDA based on their safety and effectiveness. Drugs that would be prescribed by a physician, however, require FDA Approval. Isolated extracts of the cannabis plant prescribed as medicine must pursue FDA approval, but not necessarily the plant itself.  FDA is part of Health and Human Services (HHS), which owns several patents on cannabinoids for health benefits.  The FDA is not a deciding body for any plant that already exists in its natural form in nature.    

* These statements were prepared with assistance from the ACLU of Iowa.