Categories
Constitution Marijuana Politics Truth

America’s Ramshackle Marijuana Laws

by Rep. Julio Gonzalez, M.D., J.D.

I was speaking to a legislator this week readying himself for his vote on Florida’s medical marijuana legislation when he posed an interesting question: How can we defend voting in favor of any medical marijuana legislation if in so doing we are essentially passing a state law that is prohibited by federal law?  

It’s a great question! Not only because it cites a potential and obvious quandary, but also because it speaks of matters of preemption and federal supremacy.  

Article I, Clause 2 of the United States Constitution reads that the Constitution and laws of the United States “shall be the supreme Law of the Land,” and clear as it may appear, it took a Civil War and hundreds of thousands of American deaths to settle this question. But although the question has been settled conceptually, controversies still arise about the extent of that doctrine and the limitations of its scope.

Enter the medical marijuana debate.

 

Clearly unconstitutional, but…

The Controlled Substances Act (CSA), first passed in 1970, is very clear in Congress’s intent to cover the field of regulating mood-altering drugs such as marijuana.

Citing the lack of any medically accepted use, its high risk of abuse, and its lack of accepted safety for use under medical supervision, the Food and Drug Administration classified marijuana as a Schedule I drug. As such, the use, possession, or manufacture of marijuana is a federal criminal offense, except when used as part of a federally supported research project. There is no exception in federal statutes for any medical use of marijuana.

It would appear, then, that federal law is completely clear on its prohibition of medical marijuana. 

So, how is it possible that a state can pass a law, or even a constitutional amendment legalizing marijuana, for any purpose?  

The short answer, of course, is that a state may not do so. The closest case to directly address this matter was decided by the Supreme Court of Colorado in 2015; Coats v. Dish Network, LLC.  In it, the Colorado Supreme Court summarized the concept of federal supremacy and said that an activity deemed lawful under state law, but unlawful under federal law, cannot be construed to be a lawful activity.

In other words, just because the state says medical marijuana is legal does not make it legal because such a declaration is superseded, and preempted, by federal law.

This being the case, it should be easy to argue that any state law, whether it is mandated by the state’s constitution or passed by a state legislature is unconstitutional because it would be offensive to the Supremacy Clause.

 

Maybe not unconstitutional

But here’s the rub.

In 2014, Congress passed the Consolidated and Further Continuing Appropriations Act prohibiting the use of any funds appropriated to the Department of Justice (DOJ) to keep a state from implementing laws relating to the use, possession, distribution or cultivation of medical marijuana. As a result, the federal government, specifically the DOJ, cannot interfere with a state sanctioned medical marijuana program.

So, is medical marijuana legal in a state that has implemented such a program? Odd as it may sound, the best answer I can give you is that it is not legal, but Congress has decided not to do anything about it — for now, or maybe forever.  

Is it Constitutional under the Supremacy Clause? This question has not yet been decided, and it is ultimately up to the courts to make the call, but I will give you my opinion. In order for a law to be offensive to the Supremacy Clause, Congress must act in a manner that makes clear its intent to preempt all conflicting laws. Although the Controlled Substance Act qualifies as such a law, the injection by Congress of the medical marijuana provision in the Consolidated and Further Continuing Appropriations Act gave the states the autonomy they need to regulate medical marijuana.

As a result, if asked, I believe the courts will rule that state laws relating to medical marijuana are not unconstitutional despite the prohibition in the Controlled Substances Act.

Clear as mud!

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.

 

 

 

Categories
Marijuana Medicine Politics Truth

The Illusion of Marijuana As Medicine

by Rep. Julio Gonzalez, M.D., J.D.

Since speaking of the fantastical nature of medical marijuana, I have been bombarded with commentaries and concerns regarding the legal status of the plant in Florida. Sadly, most of the comments have been hateful, demeaning, and designed only to intimidate.

But hidden amongst the hate speech are some communications that honestly raise questions of a medical role for marijuana and report favorable experiences with its use.

So here’s the bottom line: As a physician, I completely acknowledge the pain and suffering of those afflicted with chronic and debilitating diseases and of the sometimes tragic shortcomings of our pharmacopeia, but the data supporting marijuana as a bona fide medicinal tool is simply lacking… and may always be.

Any honest discussion regarding medical marijuana must begin with the full acknowledgment of the secondary interests motivating it. Many pro-medical-marijuana advocates eagerly cite alleged conspiratorial efforts by pharmaceuticals to stifle its use, but they fail to acknowledge the millions of dollars pumped into the campaign for its legalization by the growing marijuana industry, and the even greater amounts of money some stand to gain from favorable policy decisions.

So, let’s be honest and admit that there are pecuniary interests on both sides of the issue striving to skew the conversation in their favor.

 

Asking the tough questions

With this admission in mind, I begin with one simple question: If marijuana is truly a medicine, then what about its pharmacology makes it so different as to allow it to bypass the scrutiny applied to all others medications? What is medically so different about marijuana that states can implement laws with insufficient study for the sole purpose of bypassing the FDA, and constitutional amendments are passed to allow for its use as a medicine?

The answer, of course, is nothing, which adds to the contention that something much bigger than the use of the plant as a medication — perhaps the quest to legalize its recreational use — is the true driver of the medical marijuana debate. If that be the case, then ransacking the nation’s health care system for the mere promotion of a recreational drug is dishonest, reckless, and dangerous.

Then there’s the pesky issue of the science.

First, marijuana is not one substance, but rather a complex of more than 400 biologically active compounds including, terpenoids, flavonoids, and over 70 cannabinoids. The interactions between these substances and their specific benefits are not understood. What’s more, their specific combinations vary between strains of the plant, growth conditions, the manner in which the plant is prepared for consumption, distribution methods, storage times, and storage conditions.

All this may be totally acceptable for a recreational product, but it is the death knell of a prospective medication.

What’s worse, there is very little data supporting the use of marijuana for many of the claimed indications.

 

What thorough marijuana study reveals

Perhaps the most thorough and objective review on this topic appeared in 2015 in the Journal of the American Medical Association.

Researchers studied 23,754 “hits” on their search engines. They arrived at 79 studies reported in 151 papers from all over the world (encompassing 6,462 participants) that the authors found were of sufficiently low bias and high scientific control to be taken seriously as scientific analyses.The researchers then stratified the collective results of the studies into varying levels of data quality to support a recommendation for the use of marijuana and its derivatives in health care. Neither, the cannabinoids nor marijuana, received a rating of high confidence in the treatment of a single symptom or condition!

Conclusion: the science supporting the use of marijuana or cannabinoids as a medicine is simply not there. In fact, only in the treatment of chronic neuropathic, cancer pain, and spasticity was any data found that rose to a level of moderate scientific quality.

Additionally, when marijuana was used for pain control it did not diminish the demand for opioids, thus eviscerating the contention that by allowing for the use of medical marijuana there would be fewer complications related to opioid use and opioid addiction.

Nausea and vomiting, HIV/AIDs, depression, anxiety disorder, psychosis, sleep disorders, and Tourette syndrome received either low quality support or very low quality support. Studies regarding other conditions such as the actual treatment of cancer, glaucoma, seizure disorders, Crohn’s disease, sickle cell disease, psoriasis, and Parkinson’s disease were so poor that they did not even rise to the level of meriting inclusion in the JAMA study.

 

Risks lacking known rewards

On the flip side, the risks of treatment with marijuana are not inconsequential.

First, dosing of smoked marijuana remains unpredictable. And although much of the medical marijuana debate centers on the effects of single exposures, insufficient information exists regarding the effects of repeated exposures. Approximately 10% of people routinely using marijuana become addicted, with a higher incidence amongst adolescents. Tolerance and down-regulation of receptors have been documented with repeated marijuana use. A marijuana withdrawal syndrome has also been recognized, as has an association with psychosis.

Despite the lack of scientific evidence to support the use of medical marijuana, the states have run the gamut on the list of scientifically unsupported treatments they will allow. For example, last year, Florida approved a constitutional amendment listing cancer, epilepsy, glaucoma, HIV/AIDs, PTSD, ALS, Crohn’s disease, Parkinson’s disease, MS, any medical condition similar to those listed above, and terminal conditions as ones for which marijuana may be used. And in Connecticut, the use of marijuana for the treatment of sickle cell disease and psoriasis is also allowed.

 

The endocannabinoid ruse

There are those, particular amongst the more vitriolic advocates, who misguidedly cite the endocannabinoid system as evidence for the benignity of marijuana use, suggesting that we should allow for marijuana’s medicinal use because cannabinoids are already existing inside our bodies. In fact, the existence of such a system should result in further caution against the proliferation of marijuana use.

The human body does produce cannabis-like substances, but they naturally exist in very small quantities, are precisely released, and linger for very brief periods of time. These endocannabinoids affect nerve growth and maturation, and guide intercellular connections during pruning (the process by which nerve cells find and refine their connections).

Exocannabinoids, on the other hand, those that are ingested or inhaled like marijuana, are long lasting, exist in higher quantities, and are relatively indiscriminate in their distribution.

The consequences of taking these substances from an external source are not only unknown, but potentially very disruptive to human development — an even more disturbing consideration since brain development continues until the age of 25 years. Such indiscriminate and physiologically disruptive effects may explain the negative behavioral and emotional changes associated with adolescents who are repeatedly exposed to marijuana.

 

Study and FDA approval needed

Yes, as a legislator, I am aware that in Florida, 71% of the electorate voted for the medical marijuana constitutional amendment. But such an outcome, promoted by monied interests, does not negate the fact that marijuana is not a medicine.

Like any other physiologically acting collection of substances, marijuana is a potentially dangerous, incompletely understood, and improperly controlled combination of chemicals whose benefits have not been found to sufficiently outweigh its risk.

I continue to call for the FDA and the federal government to devote resources to the study of this plant and its effects. With adequate support for well-controlled, scientific research, there may come a day when sufficient, meritorious information will be available to allow the FDA to provide health care providers with reliable prescribing information and for manufactures to create products known to be beneficial to patients.

But until such time, physicians need to shy away from the indiscriminate, and still illegal, use of marijuana in their patients, and states need to be leery of policies enacted in contradiction to federal law.

As for the advocates, if their goal is to legalize marijuana for recreational use, then let’s have that discussion and not use our nation’s health care system as a ruse for the promotion of marijuana’s greater acceptance as a recreational drug.

In the meantime, and despite the accusations, bully tactics, and vitriol, I will continue to evaluate the medical literature regarding marijuana with a scrupulous eye and a mind open to the strengths of both sides of the argument.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of “The Federalist Pages” and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.