According to federal law in the United States, the sale and possession of marijuana is illegal under the Controlled Substances Act. States, though, under pressure from citizens and influential medical organizations have begun to adopt legislation that approves the use of medical cannabis for therapeutic purposes. The official position of the United States government remains that marijuana is a harmful and illegal substance, but the state-level trend of legalizing medical cannabis has triggered a change in how the federal government allocates its resources to enforce drug policy.

In February of 2013, the New England Journal of Medicine (NEJM) posted on its interactive “Decisions Online” tool the question of whether, from a medical perspective, medical cannabis should be considered for therapeutic applications. Two physicians who hold opposing views on the controversial topic offered their positions. Members were then invited to participate in the discussion through a comment section. Jonathan N. Adler, M.D., and James A. Colbert, M.D. who summarized the poll comments, expressed surprise at the results. According to the two doctors, despite the fact that the majority of responding physicians originated from countries where marijuana was illegal for medicinal use, 76 percent voiced support for including medical cannabis as an option for treatment. This poll indicates that the United States is not the only country where legality and medical considerations of medical cannabis use are in conflict.

Technically, states that have adopted medical marijuana legislation are in violation of the United States Controlled Substances Act. Patients who take advantage of the availability of medical marijuana were also in violation of federal law. This creates a situation where even if patients use medical marijuana in a manner consistent with state law, they can be in violation of federal law. Fortunately for patients who use medical marijuana to treat their chronic or terminal illnesses, the federal government is occupied with priorities other than bird-dogging rogue states whose citizens vote for the legalization of medical cannabis.

In 2009, the Department of Justice (DOJ) issued a memorandum to all the state attorneys general, explaining the change in federal drug policy that was triggered by the adoption of state-level medical cannabis legislation. The memo reiterated that Congress had determined that marijuana is a dangerous drug and that the market for cannabis provided for large-scale, illegal drug operations. With the memo, the federal government provided a cheat sheet to states on how to avoid federal involvement in their marijuana affairs. The Feds said they would avoid entanglement in state policy as long as states could ensure that they had controls in place to prevent pot from falling into the hands of minors and money from falling into the hands of drug cartels.

The DOJ set up some additional criteria. It warned states to make sure that the product would neither find its way into neighboring states whose laws did not support legalized cannabis, nor become a pretext for trafficking of other illegal drugs or activities. In an effort to prevent the violence that often accompanies unauthorized growth of cannabis, Washington told states not to allow firearms to become involved with cultivation efforts. The federal government also expressed the requirement that states crack down on cannabis-related DUI laws and not allow citizens to grow or use medical cannabis on federal lands.

Now, however, medical cannabis laws are not the only laws that the Department of Justice needs to address. With national state-level momentum hurtling toward the decriminalization and legalization of recreational marijuana use, the feds have had to update their guidance suggestions.

In August 2013, the Department of Justice did just that. The updated version of the memorandum to the states reads like a letter that a reluctant parent, heading out-of-town on a business trip might write to the oldest of her children who will be chaperoning the house in her absence. The parent realizes there will be a party and appeals to the teenager to adopt a strong and effective regulatory and enforcement system in her absence. Really, the parent does not want return home from the trip to get involved in potential problems.

It goes like that with the federal government. The 2013 memorandum reminds states of the federal priorities as listed above. It tells states that in order to avoid federal involvement, they need to develop strong and effective regulatory and enforcement systems. If states can control the growth, distribution, and rules for possession of marijuana in a manner that supports the federal priorities then the DOJ says it will assume states do not need to have federal oversight.

The latest federal memorandum that explains the change in drug policy to states that are legalizing both medical cannabis and recreational marijuana relaxes the criteria on the scope of cultivation facilities. When grow farms were providing very limited amounts of medical cannabis to an equally limited population, it was reasonable to put size limits on grow operations. The Department of Justice told the states that they are now free to determine a reasonable size of farms to meet the supply that the states are expected to control. The Department of Justice reiterated that states have the responsibility of monitoring those operations to ensure that the product would neither find its way to minors nor help to fund illegal drug organizations. The memo does end with the government reminding states that the new hands-off drug policy can be revoked at any time without provocation by the Department of Justice.

By Kaley Perkins

Sources:

Department of Justice

New England Journal of Medicine

NORML – Supporting Medical Organizations

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