Update The Fight for Medical Marijuana

by Paul Armentano

The Wheels Of Reform Grind Exceeding Slow And Rough.

A year has passed since California and Arizona voters approved the use of
marijuana as medicine, a year of continuing legal maneuvering at both the
federal and state levels. Here is a brief summary of what has happened.

November 1996

11/05/96: Voters in Arizona and California overwhelmingly approve
initiatives endorsing the legal use of marijuana under a doctor's
supervision. Proposition 215 in California exempts patients using marijuana
medicinally from state criminal charges and also authorizes the cultivation
of marijuana for medicinal purposes. Proposition 200 in Arizona states that
physicians may prescribe marijuana to seriously ill patients.

11/06/96: Arizona Governor Fife Symington (R) threatens to veto Proposition
200. Symington claims that he has the authority to veto successful ballot
initiatives which pass with a simple majority of voters, but without a
majority of all voters. John MacDonald, government affairs director for the
Arizona Attorney General's office says that a veto by the governor would
violate the state's constitution.

11/09/96: The Office of National Drug Control Policy (ONDCP) issues a press
release reaffirming the Administration's opposition to passage of the
medical marijuana initiatives. "Federal law is unchanged by the passage of
these initiatives. . . . The decision to bring appropriate criminal or
administrative enforcement action will be . . . decided on a case by case
basis."

11/14/96: Drug Czar Barry McCaffrey holds a closed door meeting with
California law enforcement officials to discuss the federal response to the
passage of Proposition 215. Attendance is restricted to those who oppose
the legal use of medical marijuana.

December 1996

12/02/96: Senator Orrin Hatch (RUtah) calls a special hearing of the
Senate Judiciary Committee to denounce the passage the California and
Arizona initiatives. Thomas Constantine, Administrator of the Drug
Enforcement Administration, testifies that the federal government could
"take both administrative and criminal actions against doctors who violate
the terms of their DEA drug registrations to prescribe controlled
substances." Hatch lambastes the propositions as the work of "pothead
doctors . . . [who] want to legalize drugs."

12/09/96: Symington grudgingly signs Proposition 200 into law, but vows not
to implement many of its provisions.

12/12/96: McCaffrey and Department of Transportation Secretary Federico
Pena hold a joint press conference to announce that medical marijuana users
in California and Arizona will not be granted an exemption from federal
drug testing laws. A press statement announces: "The law is clear. If you
are a safetysensitive . . . worker and you're caught using drugs, these
propositions don't mean a thing. You're out of a job."

12/30/96: The Clinton administration announces its plan to institute
criminal prosecution of physicians who prescribe or recommend marijuana in
California and Arizona, and to deprive them of their right to write
prescriptions of any kind. The plan further recommends that such physicians
be excluded from the Medicaid and Medicare programs. The federal plan also
authorizes the DEA to "adopt" (take over) prosecution of cases resulting
from seizures of marijuana and other Schedule I controlled substances made
by state and local law enforcement officials in cases where state and local
prosecutors cannot prosecute because of state laws.

January 1997

1/08/97: Citing the passage of Proposition 215, California Superior Court
Judge David A. Garcia lifts a fivemonth injunction on the San Francisco
Cannabis Buyers' Club, a 10,000member organization that distributes
marijuana to seriously ill patients. Garcia rules that the club may engage
in the notforprofit cultivation and sale of marijuana for documented
medical purposes. "The people of California have spoken," Garcia declares.
"I don't think [the California Attorney General] or I are going to say that
the people of California were ineffectual."

1/09/97: Responding to public opposition over the Clinton administration's
proposal to arrest physicians who recommend or prescribe marijuana, the
ONDCP commits nearly one million dollars to fund a comprehensive review by
the National Academy of Sciences' (NAS) Institute of Medicine of the
existing scientific literature regarding marijuana's medical potential.
Many criticize the proposal as a "stalling tactic" and emphasizes that the
move fails to authorize any research. The NAS conducted a similar review in
1982 and concluded: "Cannabis and its derivatives have shown promise in the
treatment of a variety of disorders."

1/14/97: A group of California physicians and patients file a class action
suit in federal court in San Francisco seeking an injunction to prevent
federal officials from taking any punitive action against physicians who
recommend the medical use of marijuana to their patients in compliance with
state law.

1/21/97: Senator Lauch Faircloth (RN.C.) introduces legislation in
Congress (S. 40) to sanction severely physicians who prescribe or recommend
the medical use of marijuana. That same day, Senator Orrin Hatch includes
similar provisions in a Republicanbacked anticrime bill (S. 3).

1/22/97: The Massachusetts Department of Health issues regulations to
create an affirmative medical defense for patients who use marijuana for a
legitimate medical need. The Department also begins developing a blueprint
for a staterun medical marijuana research project. Governor William Weld
endorses the action and states that he has "no problem" with the use of
marijuana as a therapeutic agent.

1/30/97: Dr. Jerome Kassirer, editor of The New England Journal of
Medicine, opines that the federal policy that prohibits physicians from
prescribing marijuana to seriously ill patients is "misguided,
heavyhanded, and inhumane." He argues that the federal government should
immediately reschedule marijuana to allow for its legal use by prescription.

February 1997

2/14/97: DEA agents question California family practitioner Dr. Robert
Mastroianni regarding evidence that he recommended marijuana to three
seriously ill patients. The agents warn Mastroianni that he is under formal
investigation.

2/20/97: A panel of prominent physicians call for clinical trials to
examine marijuana's therapeutic potential in the treatment of AIDS,
spasticity disorders, glaucoma, and chronic pain, and the side effects of
cancer chemotherapy at the close of a twoday conference organized by the
National Institutes of Health (NIH). Panelists announce that a full report
recommending a course of action will be released in four weeks.

2/23/97: Four California medical groups the San Francisco Medical
Society, the California Academy of Physicians, the Gay and Lesbian Medical
Association, and the Marin Medical Society join the federal medical
marijuana lawsuit filed on January 14.

March 1997

3/06/97: A group of physicians, health organizations, and patients file a
federal lawsuit in U.S. District Court for the District of Columbia
challenging the federal government's refusal to allow physicians to
prescribe marijuana in states that permit them to do so. The lawsuit cites
state laws in Connecticut, Virginia, and Arizona permitting physicians to
prescribe marijuana for patients suffering from serious illnesses.
Plaintiffs seek a declaratory judgment that the federal policy prohibiting
physicians from recommending or prescribing marijuana in accordance with
state law violates the First, Ninth, and Tenth Amendments and the Commerce
Clause of the U.S. Constitution.

3/18/97: New guidelines issued by the American Medical Association (AMA)
and its California affiliate (CMA) support a physician's right to discuss
freely the use of marijuana as a therapeutic agent with his or her patient.

April 1997

4/03/97: Representative Gerald Solomon (RN.Y.) introduces a companion bill
to Senator Faircloth's S. 40 in the House of Representatives. The bill is
titled the "Medical Marijuana Prevention Act of 1997."

4/15/97: The Arizona Legislature guts medical marijuana provisions included
in Proposition 200 by approving a law mandating that state licensed
physicians may only prescribe marijuana after it has been approved by the
federal Food and Drug Administration (FDA). Backers of Proposition 200
announce that they will file a referendum to block the Legislature's action.

4/21/97: Federal agents raid Flower Therapy, a medical marijuana buyers'
club in San Francisco. Officials confiscate 331 marijuana plants, but leave
dried marijuana that was marked for "medicinal purposes." No federal
charges are filed and the club reopens the following day.

4/24/97: San Jose becomes the first city in the United States to pass
zoning laws regulating cannabis buyers' clubs.

4/30/97: U.S. District Court Judge Fern Smith rules that federal officials
may not sanction California doctors who recommend marijuana to their
patients in compliance with state law. Plaintiffs' attorney Graham Boyd
hails the ruling as a "tremendous victory."

May 1997

5/01/97: Dr. Donald Abrams of the University of California at San Francisco
submits a research proposal to NIH to study the shortterm effects of
smoked marijuana on individuals suffering from AIDS.

5/22/97: The California Medical Association (CMA) publicly endorses state
legislation introduced by Sen. John Vasconcellos (DSanta Clara) to
establish a medical marijuana research program at a major California
university.

5/27/97: A group of researchers from The Montana Clinic in Missoula submit
a research proposal to the NIH regarding the use of marijuana in acute
migraine treatment.

June 1997

6/01/97: The Florida Medical Association, one of the largest state medical
associations in the nation, passes resolution #97 61 urging state and
federal governments to allow legal access to marijuana for medical purposes.

6/03/97: Representative Barney Frank (DMass.) introduces H.R. 1782 in
Congress to provide for the medicinal use of marijuana in the states. The
legislation eliminates the federal restrictions which currently interfere
with an individual state's decision to permit the medical use of marijuana,
and mandates the federal government to provide marijuana for medical
research purposes to all FDA approved scientific protocols.

6/16/97: Nevada state prosecutors drop felony marijuana possession charges
against a California cancer patient after the district attorney concedes
that the marijuana was purchased in San Francisco and was for medicinal
purposes only. Legal analysts claim that this is the first interstate
proceeding involving medical marijuana imported from California.

July 1997

7/02/97: The British Medical Association (BMA) overwhelmingly calls for the
legalization of marijuana for medical use at a conference in Scotland.

7/03/97: Drug reform activists in Washington state submit more than 242,000
signatures to the Secretary of State to place the "Drug Medicalization and
Prevention Act of 1997" on the November 1997 ballot. Initiative 685 would
allow physicians to "recommend" the use of marijuana or any other Schedule
I drug to a seriously ill patient. The initiative also calls for
substantive criminal justice reforms.

7/17/97: Medical marijuana proponents in Arizona turn in twice the
necessary number of signatures to resurrect a Proposition 200 provision
allowing doctors to prescribe marijuana to seriously ill patients.

August 1997

8/07/97: In The New England Journal of Medicine , Dr. George Annas of the
Boston University School of Medicine demands that seriously ill patients be
given immediate legal access to medical marijuana. Annas writes: "Research
should go on, and while it does, marijuana should be available to all
patients who need it to help them undergo treatment for lifethreatening
illnesses."

8/08/97: After an almost five month delay, the NIH releases a promised
report on the therapeutic potential of marijuana. The NIH report concludes
that marijuana "looks promising enough [in the treatment of certain serious
illnesses] to recommend that there be new controlled studies done," and
urges the federal government to play an active role in facilitating
clinical evaluations of medical marijuana. White House spokesman Mike
McCurry tells the Associated Press that the administration continues to
oppose the use of marijuana to treat sick people despite the NIH findings.

September 1997

9/12/97: The California Legislature fails to act on legislation introduced
by Sen. John Vascocellos to establish a Medical Marijuana Research Center
at a campus of the University of California. Backers of the research
proposal included the American Cancer Society, Attorney General Dan
Lungren, the California Narcotics Officers Association, the California
Medical Association, and the California District Attorney's Office.

9/16/97: Federal officials provide a $170,000 grant to Washington state
antidrug coordinators to fund a full, statewide antimarijuana effort.
Proponents of Initiative 685 immediately file a complaint with the Public
Disclosure Commission and state Ethics Board alleging that the federal
funds are being used illegally to campaign against the "Drug Medicalization
and Prevention Act of 1997." Federal and state laws prohibit tax dollars
from being used to fund a political campaign.

9/18/97: NIDA officially announces on September 18 that Dr. Donald Abrams
of UCSan Francisco will receive his full grant request of $978,000 for a
study of the use of smoked marijuana, oral dronabinol, and a placebo, in
HIVpositive patients. The aim of the revised protocol is to determine
whether marijuana has serious shortterm side effects on the health of
HIVpositive patients. Only if the findings of this initial study
scheduled to take nearly 18 months to complete are negative, would
Abrams then be permitted to research safety and efficacy of the chronic use
of marijuana for HIVassociated anorexia and weight loss.

October 1997

10/01/97: Witnesses on both sides of the medical marijuana issue testify
before Congress at a hearing before the House Judiciary Committee,
Subcommittee on Crime. Proponents liken marijuana's medical utility and
safety to drugs such as penicillin and urged the federal government to
support legislative efforts to allow physicians to prescribe the drug,
while opponents urge federal officials to take a more vocal stance opposing
pending state marijuana initiatives. Republican antidrug zealot Bob Barr
(RGa.) vocally attacks libertarian witness Roger Pilon of the Cato
Institute and calls spectators "walking testimonials to drug use."

10/08/97: Federal law enforcement officials raid a Cannabis Buyers' Club in
Sacramento. For the first time since the passage of Proposition 215,
federal arrests are issued against a California CBC.

November 1997

11/01/97: Americans for Medical Rights (AMR), the Californiabased group
that spearheaded the successful passage of Proposition 215 in California,
announces that it will coordinate medical marijuana initiatives for 1998 in
Colorado and Maine. Colorado's reform effort seeks to amend the state's
constitution to allow anyone holding a stateissued identification card to
legally possess up to an ounce of marijuana for medical use with a
physician's recommendation. Cultivation limits are set at six plants, with
no more than three plants producing usable marijuana at any one time. A
similar proposal filed in Maine would limit the use of marijuana to
patients suffering from AIDS, glaucoma, multiple sclerosis, or undergoing
cancer chemotherapy. As in Colorado, the proposal allows patients to grow
up to six marijuana plants.

11/02/97: The NIH rejects a research proposal to study the use of marijuana
in acute migraine treatment.

11/04/97: Initiative 685, the "Drug Medicalization and Prevention Act of
1997" receives only 40 percent support from Washington state voters. The
defeat comes as a disappointment to reformers, but medical marijuana
proponents say that public support for medical marijuana remains strong.
"The defeat of I685 was not a defeat for medical marijuana," NORML
Director R. Keith Stroup, Esq., says, citing exit poll results indicating
46 percent of those opposed to the initiative would support a measure
dealing only with medical marijuana. "It further supports our belief that a
majority of Americans favor focused legislation allowing a patient to use
marijuana medicinally under a physician's supervision."

The Outlook

It is apparent that the federal government is not about to relent in its
opposition to the use of marijuana as a medicine. Threats by Washington to
severely sanction doctors in California who recommended marijuana to a
patient ceased only after a federal court ruling. No federal agency has yet
to begin clinical trials involving the effectiveness of medical marijuana.
As approved by the National Institute of Health (NIH), the muchanticipated
protocol submitted by Dr. Donald Abrams will only determine the safety or
toxicity profile of cannabinoids in persons with HIV. It will not evaluate
marijuana's medical potential in alleviating the weight loss associated
with the AIDS. NIH flatly rejected a proposal submitted by researchers from
The Montana Clinic in Missoula to study the use of marijuana in acute
migraine treatment, and hasn't acceded to a Massachusetts Board of Health
request to provide government grown marijuana to state certified patients.

Increased public scrutiny may finally encourage the NIH to approve a
limited number of medical marijuana research studies, but there is no
indication that the federal government will stop arresting and jailing
current medical marijuana users while these studies take place. Recent
statements by the White House indicate that medical marijuana users will
still be punished to the fullest extent of federal law regardless of
whether medical marijuana research is scheduled to take place.

For the second session in a row, Congressman Barney Frank introduced
legislation to make marijuana legally available as a medicine. Frank's bill
emphasizes Congressional sentiment in favor of states' rights and seizes on
momentum created by the Arizona and California initiatives.

On October 1, Congress allowed testimony from medical marijuana proponents
for the first time since the passage of last year's initiatives. Not
surprisingly, proponents found little support among Congressional
Republicans and were outnumbered twotoone by witnesses opposed to the
medical use of marijuana. Even so, National Organization for the Reform of
Marijuana Laws (NORML) Executive Director R. Keith Stroup called the
hearing a positive step toward reform. "The good news for the medical
marijuana movement is that McCaffrey and other federal officials no longer
claim that there is no currently available medical marijuana research or
refer to our position as 'Cheech and Chong medicine,'" Stroup said. "Now
they have fallen back to the position that physicians and scientists should
decide this issue, a position NORML also favors. This change represents a
step in the right direction, and we are accustomed to making progress in
small increments when the final goal is changing decadesold ideologies on
Capitol Hill."

Legislation in Congress punishing physicians who recommend or prescribe
marijuana under the authority of state law emerged as a backlash to the
successful California and Arizona initiatives, but much of the language
included in these bills appears too extreme for most members of Congress.
In addition, U.S. District Judge Fern Smith's ruling makes clear that the
First Amendment protects physicianpatient communications and that the
government has no authority to determine the content of physicians' speech.
Therefore, it is unlikely that Congress will support either the Faircloth
or Hatch provisions. A more likely tactic Congressional opponents may
pursue would be to encourage state representatives to introduce legislation
repealing several active state laws endorsing marijuana's medical use. In
1997, Ohio lawmakers repealed a seldomused medical marijuana defense law.
But legislators in Virginia refused to annul an 18yearold law allowing
doctors to prescribe marijuana to patients suffering from glaucoma or
undergoing cancer chemotherapy.

Today, federal officials from the Drug Czar's office seem to be taking a
decidedly lower profile in their opposition to pending state marijuana
initiatives than they did last year. Barry McCaffrey only voiced minor
opposition to the "Drug Medicalization and Prevention Act of 1997" in
Washington state and potential initiatives in Florida, the District of
Columbia, Arkansas and elsewhere. Overall, federal opposition has appeared
disorganized. However, there is evidence that federal funds may have been
used to help fund an antimedical marijuana campaign in Washington.

Recently, McCaffrey told reporters that his office would limit involvement
campaigning against future initiatives. "I'm not in charge of America,"
McCaffrey told Reuters News Service on October 1 in response to
Congressional criticism that he has not been vocal enough in his
denunciation of state medical marijuana initiatives. "I'll provide
information for the debate. . . . I'll inform [the public] of federal law.
[But] I'm not America's nanny. The American people are perfectly capable .
. . of making up their own minds." Statements like these suggest that
federal drug policy wonks will stop interfering with state initiatives. But
Congress seems determined to continue to pressure the ONDCP into the arena.

Since November 1996, physicians and medical organizations have increased
their public support for medical marijuana research and, in some cases,
legal access. No doubt, much of this outpouring of support from the medical
community comes as a response to the heavyhanded remarks made by federal
officials. Both federal lawsuits challenging the government's stance
against medical marijuana were spearheaded by physicians and local medical
groups. In addition, calls for research and legal protections for
physicians by the California Medical Association, The New England Journal
of Medicine , and others further legitimize the medical marijuana issue. In
hindsight, it appears that the government's threats to sanction physicians
was a strategic miscalculation. Not only did it inspire public furor, but
more importantly it encouraged medical groups like the AMA who may have
otherwise remained silent on the medical marijuana issue to come forward
in support of its members. In the last year alone, the British Medical
Association, the Florida Medical Association, the American Cancer Society,
AIDS Action Council, the California Academy of Physicians, the San
Francisco Medical Society endorsed medical marijuana use or research. In
California, even unlikely organizations such as the California Narcotics
Officers Association and the California District Attorney's Association
pledged their support to legislation proposed to establish a "medical
marijuana research center" at a campus of the University of California.
Continued support from these prestigious and highprofile groups could
inspire a relaxation of federal policy.

California and Arizona have taken different paths since November 1996.
While some California legislators and law enforcement agencies voiced
opposition to Proposition 215 before the election, most now accept the
decision of the voters and cooperate with proponents in implementing and
interpreting the law. Guidelines to state police officers from the Attorney
General advise law enforcement to "use common sense when applying the
Compassionate Use Act of 1996 and abide by the spirit of the voters' . . .
intention." This discretion in enforcement led police to return marijuana
plants and grow equipment to an AIDS patient after he produced a framed
doctor's statement supporting use of the drug. In another case, the
Sacramento County District Attorney's Office dropped charges against an
AIDS patient who was cited after smoking marijuana in public.

Most judges interpret Proposition 215 broadly. In significant trial court
rulings, judges have declared that Proposition 215 is a valid affirmative
defense for qualified patients, the initiative may be applied
retroactively, cannabis buyers' clubs may qualify as "primary caregivers"
and operate legally under state law; the amount of marijuana allowable per
patient under the initiative depends on the medical facts of the case; and
that transportation of medical marijuana is legal in some instances.
Ongoing legislative developments will keep California on the cutting edge
of the medical marijuana movement and spearhead the growing national debate.

In Arizona, the legislature has refused to implement Proposition 200.
Recently, a referendum submitted by druglaw reform proponents resurrected
a provision allowing doctors to prescribe marijuana pending a public vote
in November 1998. However, because this provision is in direct conflict
with federal law, it is unlikely that Arizona patients will have legal
access to the drug. Proposition 200 may allow patients to make an
affirmative defense of "medical necessity" if they are facing state
marijuana charges.

So far, threats from the federal government to arrest patients who use
marijuana and physicians who recommend it as authorized by California's or
Arizona's new laws have proved hollow. Federal officials did question at
least one physician for allegedly recommending his patients use marijuana
medicinally, but so far have taken no further action. Raids on at least two
aboveground California Buyer's Clubs were executed by federal officials in
the past year. No arrests were made in the first raid, but charges are
pending after the October 8 bust of a Sacramento club. The latter raid and
subsequent arrests of the proprietor and two employees may signify a shift
in federal policy from rhetoric to action but only time will tell. At
this point, it still remains unlikely that federal officials will
intentionally target specific medical marijuana patients or physicians.
Local and state law enforcement will most likely continue to be the primary
enforcers and interpreters of state medical marijuana laws.

State voters and legislatures continue to address the issue of medical
marijuana and move the topic forward. In 1997, ten states introduced laws
endorsing medical marijuana. Medical marijuana proponents anticipate more
endorsements in 1998. Signatures are currently being gathered to place
narrowly focused medical marijuana initiatives on the 1998 ballot in at
least seven states. The passage of future initiatives is crucial to keep
the battle for medical marijuana an issue of national importance. Depending
on the number of successful initiatives in 1998 and 1999, the government
may take a serious look at rescheduling marijuana to Schedule II to legally
allow for its medical use by the year 2000. Until then, states, medical
marijuana activists, and medical organizations will continue to lead the
charge toward additional research and limited legal access.

© Copyright 1997, Liberty Foundation