This is a journal article published in The Annals of Pharmacotherapy.
The article is a review of the current state and federal laws and how they
contradict each other regarding medical marijuana's legality.

The Legal Status of Medical Marijuana
by Matthew J. Seamon, PharmD

Abstract

Objective: To review the legal status of medical marijuana in the US.

Data Sources: Relevant publications were located using LexisNexis
(1982-October 2006), WestLaw (1996-October 2006), BNA Health Law Reporter
(1996-October 2006), MEDLINE (1996-October 2006), EMBASE (1980-October 2006), International Pharmaceutical Abstracts (1970-October 2006), and an Internet search
targeting government sites using the key words medical marijuana.

Study Selection And Data Extraction: Federal and state medical marijuana laws were
examined. Relevant cannabinoid-based drug products were reviewed. Federal and State
Supreme Court and Appeal level cases involving medical marijuana were evaluated.

Data Synthesis: Marijuana is regulated as a Schedule I controlled substance
and its use is prohibited under federal law. Dronabinol and nabilone are synthetic cannabinoids approved by the Food and Drug Administration and Sativex is
a cannabis-based extract being evaluated in Phase III trials. The federal
government sponsors a single patient compassionate use Investigational
New Drug Application  program providing medical marijuana for a small number
of patients. Eleven states permit marijuana use for medical purposes and one
state provides a defense of medical necessity. Employers do not have to provide workplace accommodations for employees using medical marijuana and can
terminate them at will. Healthcare providers have First Amendment constitutional protections that allow them to discuss marijuana with patients.

Conclusions: Until the Supreme Court rules directly on the constitutionality
of state medical marijuana laws, a conflict remains. Marijuana use remains illegal
under federal law and states assume their medical marijuana laws to be constitutional.

Background

Marijuana is a crude drug obtained from the Cannabis sativa plant.^[1] Marijuana
consists of approximately 460 active components, with more than 60 having
the 21-carbon structure typical of cannabinoids.^[2] Marijuana is one of the
oldest and most notorious drugs in history and has been increasingly advocated
for a myriad of therapeutic uses.^[1] As drug therapy, marijuana is used mainly for
severe nausea, vomiting, and wasting; spasticity secondary to neurologic diseases
such as multiple sclerosis; seizures; chronic pain; and glaucoma.^[2]

Marijuana use is regulated by federal and state law. The interplay between these
laws is best understood through an evaluation of our legal system. The US
operates under a system of government called federalism, in which power is
divided by a central authority (ie, federal government) and constituent political
units (ie, states and local municipalities).^[3,4] Each component of the government recognizes the power and limits of the other, while jointly engaging in certain governmental functions. State and local laws coexist
within a federal network of legislation whereby federal law preempts conflicting
state laws and the more restrictive law is typically enforced.^[3] There is a state
and federal court system, dealing primarily with state and federal matters,
respectively. Conflicts of law are subject to judicial review, and the court of
last resort is the United States Supreme Court. Federal, state, and local
governments each maintain law enforcement services within their jurisdiction.
States are not required to investigate violations of federal law, such as the
Controlled Substances Act (CSA). Federal agents do not typically interfere in
state criminal activities such as marijuana possession.^[5]

Literature Review

The Federal Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, was established as part of a comprehensive
scheme by the government to regulate scheduled drugs.^[6,7] Marijuana, in its
natural form, is regulated as a Schedule I controlled substance under the CSA.^[7]
This most restrictive category is reserved for drugs with a "high potential for
abuse," "no currently accepted medical use in treatment in the United States,"
and "a lack of accepted safety for use." Under federal law, marijuana use is
illegal.^[7] Furthermore, clinical testing of marijuana is limited under the CSA, and
there are a number of rigorous registration requirements.^[7-9]

Two drugs are approved by the Food and Drug Administration for use in the US
that contain, in part, similar active constituents, and another cannabinoid product
is in Phase III clinical testing. Dronabinol is the synthetic version of delta-9-tetrahydrocannabinol (THC), the main psychoactive substance found in the
Cannabis plant.^[1,10] Dronabinol, a Schedule III controlled substance marketed
by Solvay Pharmaceuticals, is indicated for anorexia in patients with HIV and in
those with nausea
and vomiting associated with cancer chemotherapy.^[10] Nabilone is a synthetic cannabinoid not found in botanical marijuana, although it is similar to THC.^[11]
Nabilone is indicated for the treatment of chemotherapy-induced emesis. It is a
Schedule II controlled substance marketed by Valeant Pharmaceuticals. Use of
dronabinol or nabilone dispensed under a valid prescription is lawful. Sativex is a
cannabis-based extract containing THC and cannabidiol that is in pivotal Phase III
clinical testing.^[12,13] Sativex is formulated as an oromucosal (buccal) spray and is approved in Canada as an adjunctive treatment for the symptomatic relief of
neuropathic pain that occurs with multiple sclerosis.^[12]

The federal government maintains a single patient compassionate use
Investigational New Drug Application program, allowing a number of seriously ill
patients to receive marijuana for medical purposes.^[14,15] This program was
developed in 1978 as a result of an anomalous judicial decision.^[14] Currently,
7 patients remain in the program, although its registry has been closed since
1992, when a large number of AIDS patients applied for enrollment.^[15] The
marijuana is grown at the University of Mississippi under the supervision of the
National Institute on Drug Abuse.

Eleven states have approved the use of marijuana for medical purposes and
another state provides a defense of medical necessity. The states that have
approved marijuana for medical use include Alaska, California, Colorado, Hawaii,
Maine, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington.
Maryland law allows a partial defense of medical necessity for patients who require
the use of marijuana.

In general, these laws allow for possession and use of medical marijuana under the recommendation and care of a licensed medical physician. Most states maintain a
formal, confidential registry of its users. Patients typically must have a "serious or "debilitating" illness, although some laws include a catchall requirement such as
"...or any other medical condition." All states permit a designated caregiver, and
there are limitations to the amount of marijuana permitted. The states do not
provide a source of marijuana and patients are required to purchase or cultivate
their own supply. Rhode Island is the only state that recognizes other state
registries through a system of reciprocity.

A review of the applicable case law provides astute insight to the legal issues
surrounding medical marijuana. In Gonzales v. Raich, 2 seriously ill women, Angel
Raich and Diane Monson, using medical marijuana under California law, sued the US Attorney General Alberto Gonzales after Federal Drug Enforcement Administration
(DEA) agents seized and destroyed their marijuana.^[16] The women claimed that
the CSA could not be applied to them because they constituted a subclass of
individuals defined by state law to be beyond the scope of the CSA. The Supreme
Court disagreed. In a 2005 ruling, the Court found the CSA to be a constitutional
exercise of federal legislative power. Unfortunately, this ruling was based on an
esoteric clause of the Constitution and did not address the "real" issue of federal preemption and states' rights to legislate medical marijuana
laws.^[3,5] In fact, immediately following this ruling, a number of state attorneys
general issued statements that emphasized their irreverence to this decision.^[5]

Additional case law further helps elucidate the legal environment surrounding
medical marijuana and suggests that courts are rather intolerant to state medical marijuana laws. For example, in United States v. Oakland Cannabis Buyers'
Cooperative,^[17] the federal government sued a "medical cannabis dispensary"
for growing and distributing marijuana in violation of the CSA. The cooperative
asserted that their patients required the use of medical marijuana and there was
a "medical necessity" exception to the CSA. In a 2001 holding, the Supreme
Court ruled that there is no medical necessity defense for marijuana use under
the CSA because the drug has "no...accepted medical use" and enjoined the
cooperative from further activity. This case is important because it upheld the
illegality of marijuana in the context of a state medical marijuana law and
espoused the efforts of federal police agents enforcing violations of the CSA. Unfortunately, federal arrests account for only 1% of marijuana arrests.^[5]

Another case identifying important limitations to state medical marijuana laws is
Washburn v. Columbia Forest Products.^[18] This case involved an employee,
Robert Washburn, who was terminated from his employment at Columbia Forest Products after testing positive for marijuana. The plaintiff, Washburn, brought suit
against his employer, claiming his termination was unlawful since he had an injury
(ie, disability) and was entitled to workplace accommodations (ie, use of medical marijuana). In 2006, the Oregon Supreme Court ruled that Washburn's injury was
not a disability under state law and that he was not entitled to employment accommodations. The court reasoned that he still had access to conventional
prescription drugs and that his employer had no duty to accommodate his use of marijuana.

Another case addressing workplace accommodations is Ross v. Ragingwire Telecommunications.^[19] The plaintiff, Ross, was terminated from his employment
at Ragingwire Telecommunications for testing positive for marijuana despite using
the drug in compliance with California's Compassionate Use Act and a physician's
recommendation. The California Third District Court of Appeals ruled that an
employer may refuse to employ or may terminate any individual who uses
marijuana, even under the recommendation of a physician. The court reasoned
that marijuana is an illegal drug and the court has no legitimate authority to
compel an employer to make accommodations for its use. This decision has
been appealed to the California Supreme Court, although no ruling has been
made to date. Thus, although a number of states may decriminalize marijuana
for medical use, as long as federal law prohibits its use, individuals will have a
difficult time relying upon the current legal system to protect them.^[20]

Although the above-cited cases maintain the authority of the CSA and the illegality
of medical marijuana, the case of Conant v. Walters suggests a need for further
discussion on the merits of marijuana's use.^[21] In 1996, the federal government
(ie, Department of Justice and Department of Health and Human Services)
established a policy whereby physicians who recommend medical marijuana
would lose their DEA registration to prescribe controlled substances, thus limiting
their practice. Marcus Constant, a physician caring for patients with HIV and lead
plaintiff in this case, sued the Director of the White House Office of National Drug
Control Policy, John Walters, seeking to enjoin enforcement of this policy and
citing a First Amendment right to free speech. The United States Court of Appeals
for the Ninth Circuit ruled that the policy was unenforceable. The court identified
the need for open communication between physician and patient and noted that
being a member of a regulated profession does not result in loss of First
Amendment protections. The court even suggested that professional speech
might be entitled to the strongest First Amendment protections available.^[21] This
ruling indicates that licensed healthcare providers can "recommend" medical
marijuana to patients without risking revocation of a DEA license or federal
investigation.^[19] However, state licensing boards maintain authority to intervene
and impose professional disciplinary action.

Summary

Although the federal courts have ruled on a number of cases involving medical
marijuana, they have not directly addressed the conflict between the CSA and
state medical marijuana laws. Until the Supreme Court rules on the constitutionality
of state medical marijuana laws, the status quo will remain. The federal government classifies marijuana as
a Schedule I controlled substance and outlaws its use. Federal agents, mainly the
DEA, continue to investigate and enforce violations of the CSA. States continue
to work under the assumption that their laws are constitutional and absolve local
law enforcement agents from criminalizing medical marijuana. Meanwhile, patients
and healthcare providers are left with no clear guidance, direction, or logic.

 Ann Pharmacother.  2006;40(12):2211-2215.  ©2006 Harvey Whitney Books Company