Diane E. Hoffmann, J.D., and Ellen Weber, J.D. , New England Journal of Medicine, Volume 362:1453-1457 April 22, 2010, Number 16
The U.S. legal landscape surrounding “medical marijuana” is complex and rapidly changing. Fourteen states – California, Alaska, Oregon, Washington, Maine, Hawaii, Colorado, Nevada, Vermont, Montana, Rhode Island, New Mexico, Michigan, and most recently, New Jersey – have passed laws eliminating criminal penalties for using marijuana for medical purposes, and at least a dozen others are considering such legislation.1 Medical experts have also taken a fresh look at the evidence regarding the therapeutic use of marijuana,2,3 and the American Medical Association (AMA) recently adopted a resolution urging review of marijuana as a Schedule I controlled substance, noting it would support rescheduling if doing so would facilitate research and development of cannabinoid-based medicine. Criticizing the patchwork of state laws as inadequate to establish clinical standards for marijuana use, the AMA has joined the Institute of Medicine, the American College of Physicians, and patient advocates in calling for changes in federal drug-enforcement policies to establish evidence-based practices in this area.
States have led the medical marijuana movement largely because federal policymakers have consistently rejected petitions to authorize the prescription of marijuana as a Schedule II controlled substance that has both a risk of abuse and accepted medical uses. Restrictive federal law and, until recently, aggressive federal law enforcement have hamstrung research and medical practice involving marijuana. The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug – one with a high potential for abuse and “no currently accepted medical use” – and criminalizes the acts of prescribing, dispensing, and possessing marijuana for any purpose. Although physicians may recommend its use under First Amendment protections of physician-patient communications, as set forth in the 2002 federal appeals court decision Conant v. Walters, they violate federal law if they prescribe or dispense marijuana and may be charged with “aiding and abetting” violation of the federal law if they advise patients about obtaining it. A 2005 Supreme Court decision (Gonzales v. Raich) made clear that regardless of state laws, federal law enforcement has the authority under the CSA to arrest and prosecute physicians who prescribe or dispense marijuana and patients who possess or cultivate it.
Nevertheless, in October 2009, the Department of Justice issued a memorandum to U.S. Attorneys stating that federal resources should not be used to prosecute persons whose actions comply with their states’ laws permitting medical use of marijuana. This change in the Justice Department’s prosecutorial stance paved the way for states to implement new medical-marijuana laws, and states are now attempting to design laws that balance concerns about providing access for patients who can benefit from the drug with concerns about its abuse and diversion. Although the current state laws facilitate access, they do little to advance the development of standards that address the potency, quality, purity, dosing, packaging, and labeling of marijuana.
All the state laws allow patients to use and possess small quantities of marijuana for medical purposes without being subject to state criminal penalties. They also allow a patient’s “caregiver” – an adult who agrees to assist with a patient’s medical use of marijuana – to possess, but not use, marijuana. Most laws protect “qualifying” patients, who are variously defined as those who have received a diagnosis of a debilitating medical condition and have written documentation (or, in one case, an oral recommendation) from their physician indicating that they might or would “benefit from the medical use of marijuana” or that the “potential benefits of medical use of marijuana would likely outweigh the health risks.” Definitions of “debilitating medical condition” vary by state (see Table 1) but typically include HIV-AIDS, cachexia, cancer, glaucoma, epilepsy and other seizure disorders, severe nausea, severe and chronic pain, muscle spasms from multiple sclerosis or Crohn’s disease, and other conditions. All but two states allow additions to this list if approved by the state health department.
