MARIJUANA PROVES TO BE A 'MEDICAL NECESSITY'

REMEMBER the term "medical necessity."

It could neutralize federal and legal resistance to the use of
marijuana as a medicine to treat people suffering from AIDS, anorexia,
chronic pain, cancer and other acute ailments.

If so, much credit must go to the persistence of the Oakland Cannabis
Buyers' Cooperative and the 9th U.S. Circuit Court of Appeals.

That three-judge panel made the phrase part of the legal debate over
marijuana last week by instructing U.S. District Judge Charles Breyer
to consider whether its use might be a "medical necessity" for some
sick and dying people. If that proves to be the case, Proposition 215,
the medical marijuana law Californians approved three years ago, may
finally emerge from a legal quagmire created by federal law's
prohibition on its distribution and use.

Federal prosecutors used that ban to seek an injunction closing the
Oakland cannabis cooperative after Prop. 215 passed. Judge Breyer
granted it, concluding that the cooperative's argument that marijuana
was medically necessary didn't pass legal muster. The cooperative's
executive director, Jeff Jones, appealed the ruling.

Justices Mary Schroeder, Stephen Reinhardt and Barry Silverman
concluded that the cooperative made its case that, "There is a class
of people with serious medical conditions for whom the use of cannabis
is necessary." Shifting the burden of proof, they also concluded that
government officials failed "to identify any interest it may have in
blocking the distribution of cannabis to those with medical needs."

It was a thoughtful, constructive ruling that injects a dose of common
sense and reality into the post-Prop. 215 standoff between California,
several of its municipalities and the federal government.

Medical underpinning for the appeals court's decision was published
earlier this year in the form of a report by the Institute of Medicine
that said marijuana may have value as a pain reliever, nausea
suppressant and appetite stimulant.

The study sponsored by the Office of National Drug Control Policy
supports medical marijuana advocates seeking to get the Food and Drug
Administration to reclassify the drug from Schedule I, which makes it
illegal, to Schedule II, which categorizes it with drugs like morphine
that doctors can prescribe.

While we agree with such reclassification, we also are acutely aware
that it can be a short distance between medical and recreational use.
Medical marijuana must be handled in the same manner as other
prescription drugs. No matter what form it is consumed in -- some
proponents advocate an inhaler -- medical marijuana must be prescribed
by a doctor who does so for legitimate medical reasons and with the
patient's best interest at heart.

Nothing could reverse pro-medical marijuana sentiment quicker than
abuse of reasonable guidelines for its use. One of the Californians
working hardest to reconcile voters' wishes and federal law has been
Attorney General Bill Lockyer. Since taking office early this year, he
has formed a task force to examine how marijuana can be distributed
for medical use without violating federal codes. His predecessor, Dan
Lungren, opposed implementation of Prop. 215 and used federal agents
and prosecutors to prevent it.

Lockyer has taken a hands-off approach while working with attorneys
general in other states with similar laws to seek changes in federal
policy.

Although it is likely to be appealed, the appellate court's
recognition that marijuana is a "medical necessity" closes the chasm
between extreme positions.

Marijuana should withstand further tests of its medical usefulness.
When that happens, the appeals court's phrase "medical necessity"
could be instrumental in getting it accepted legally as a
pharmaceutical product.