Can Medical Marijuana Help Your Practice Thrive?

Leigh Page


January 15, 2019

In This Article

Historically Perplexing State Versus Federal Policy

Since 1970, it had been illegal to prescribe and dispense marijuana and even hemp, a product that is used to make rope and clothing in other countries. The Controlled Substances Act made cannabis a Schedule 1 drug, which is reserved for such substances as heroin and LSD that have no accepted medical use and a high potential for abuse.

When states began to set up medical cannabis programs in the late 1990s, federal drug authorities made noises about busting cannabis doctors and dispensaries, but they have not done so. This stance was formalized in 2013, when the Justice Department under then-President Barack Obama stated that US attorneys would not pursue actions against physicians recommending medical cannabis in states where it is legal.[12]

In January 2018, Attorney General Jeff Sessions caused a brief scare when he directed US attorneys to enforce all federal laws on marijuana. But directly afterward, several US attorneys released statements saying they had no interest in prosecuting use of cannabis that complies with state laws,[13] and later Sessions left office.

Even so, the US Drug Enforcement Administration (DEA) still denotes cannabis as a Schedule 1 drug. In 2016, the acting head of the DEA wrote that marijuana "has no currently accepted medical use in treatment in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse."[14]

State Programs' Unconventional Rules

State cannabis programs arose spontaneously without much support or input from physicians. Both the American Medical Association[15] and the American Academy of Family Physicians[16] still oppose the state programs, on the grounds that they do not promote quality medicine.

The original state programs didn't even have input from state legislators, who had reservations about launching programs that would violate federal law. It took a populist uprising to get the first programs approved, through the use of ballot measures.

Voters in California enacted the first state program in 1996. By 2000, seven states had followed, with all but one of them through ballot measures. In the aftermath of these historic votes, states had to design programs that were under threat of federal prosecution.

The states came up with some peculiar mechanisms. Because prescribing medical cannabis would violate federal law, physicians "recommend" cannabis—or, in some latecomer states, they merely "certify" that the patient has a condition that permits the use of cannabis.

Physicians then send their approvals to the state, which gives the patient a permission slip to buy cannabis at a state-approved dispensary. This process recognizes the 2002 federal appeals court decision Conant v. Walters, which held that although doctors can recommend cannabis to patients, they cannot "aid and abet" them in obtaining it.[17]

Lawyers are still pondering what exactly "aid and abet" means. The bottom line is that states don't require physicians to prescribe dosages; strains of cannabis; or types of products, such as liquids, lotions, or vaporized cannabis, because that might get doctors too involved in helping patients obtain cannabis.

But as a result, doctors only advise patients on what kind of cannabis to use, how much to take, or what form to take it in. (Many state programs specifically prohibit cannabis for smoking, because of possible damage to the lungs.)


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