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Legal Research on MN's Controlled Substance Act

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Kurtis W. H.
KurtisWHanna
Minneapolis, MN
If anyone wants to learn about how to use the administrative process to legalize medical marijuana in the state of Minnesota, you should start by reading this email. We should use all branches of government, like Carl Olsen advises. If you have any questions about any of it, let me know. I've found all of this information while in my closet playing around on the internet. I'm currently planning on filing a new petition. The last petition, which is included here, was denied. If they deny my next one, I'm paying the 500 bucks to have a judge review the decision.

-kurt
"14.05 Subd. 5.Review and repeal of rules.

By December 1 of each year, an agency must submit to the governor, the Legislative Coordinating Commission, the policy and funding committees and divisions with jurisdiction over the agency, and the revisor of statutes, a list of any rules or portions of rules that are obsolete, unnecessary, or duplicative of other state or federal statutes or rules. The list must also include an explanation of why the rule or portion of the rule is obsolete, unnecessary, or duplicative of other state or federal statutes or rules. By December 1, the agency must either report a timetable for repeal of the rule or portion of the rule, or must develop a bill for submission to the appropriate policy committee to repeal the obsolete, unnecessary, or duplicative rule. Such a bill must include proposed authorization to use the expedited procedures of section 14.389 to repeal or amend the obsolete, unnecessary, or duplicative rule. A report submitted under this subdivision must be signed by the person in the agency who is responsible for identifying and initiating repeal of obsolete rules. The report also must identify the status of any rules identified in the prior year's report as obsolete, unnecessary, or duplicative. If none of an agency's rules are obsolete, unnecessary, or duplicative, an agency's December 1 report must state that conclusion."


My petition to the Board of Pharmacy....


Kurt Hanna, June 23, 2010





BOARD OF PHARMACY EXAMINERS



--------------------------------------­----------------------------------------­-------------------

Petition by Kurt Hanna )

for the rescheduling of marijuana ) PETITION FOR

pursuant to Minnesota Code 152.02 ) RULE MAKING

and Minnesota Rules 6800.4210 ) OR ACTION



--------------------------------------­----------------------------------------­----------------------



Minnesota Board of Pharmacy

2829 University Avenue, S.E., Suite 530

Minneapolis, MN 55414-3251





Both state and federal law require that marijuana be transferred from schedule 1 to a lower schedule of Minnesota's version of the Uniform Controlled Substances Act, Minnesota Code Chapter 152.

Marijuana is incorrectly classified, Minnesota Code § 152.02 (2)(3), because it no longer fits the criteria for inclusion in Schedule I as set forth in Minnesota Code § 152.02 (7)(1):

Has no currently accepted medical use in the United States; or lack of accepted safety for use under medical supervision.

GROUNDS FOR RESCHEDULING

Fourteen states accept the safety of marijuana for medical use, Alaska Statutes § 17.37 (2007), California Health & Safety Code § 11362.5 (2006), Colorado Constitution Article XVIII, Section 14 (2006), Hawaii Revised Statutes § 329-121 (2006), 22 Maine Revised Statutes § 2383-B (2005), Mich. Comp. Law §§ 333.26421 - 333.26430 (2008), Montana Code Annotated § 50-46-101 (2006), Nevada Constitution Article 4 § 38 (2006) - Nevada Revised Statutes Annotated § 453A.010 (2006), New Mexico Statutes Annotated § 30-31C-1 (2007), Oregon Revised Statutes § 475.300 (2006), Rhode Island General Laws § 21-28.6-1 (2006), 18 Vermont Statutes Annotated § 4471 (2006), Revised Code Washington (ARCW) § 69.51A.005 (2006). Governor Jon Corzine signed the New Jersey Compassionate Use Medical Marijuana Act into law on January 18, 2010, but it has yet to go into effect. All of these states allow medical marijuana use, possession, and cultivation.

Federal drug law, 21 U.S.C. § 903, gives the states the authority to determine accepted medical use. See, Gonzales v. Oregon, 546 U.S. 243, 269-270 (2006):

The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States "'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'" Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985)).



"The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it." Gonzales v. Oregon, 546 U.S. at 275.

The Minnesota Board of Pharmacy Examiners has an affirmative obligation to recommend changes in the schedules. Minnesota Code § 152.02(8).

The 8 factors to be considered by the Minnesota Board of Pharmacy Examiners, Minnesota Code 152.02 (8), were considered In The Matter of Marijuana Rescheduling, DEA Docket No. 86-22, September 6, 1988 (attached as Exhibit #1), which resulted in a finding that, "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man." Id. at pages 58-59.

Because no state accepted marijuana's medical use in 1988, the DEA Administrator was able to reject the conclusion of the Administrative Law Judge in DEA Docket No. 86-22 that marijuana must be transferred from schedule 1 to schedule 2 of the federal controlled substances act. Because marijuana now has currently accepted medical use in 14 states, because federal law defines accepted medical use to be whatever the states say it is, and because the DEA's own Administrative Law Judge has already determined that marijuana is safe for use under medical supervision, the Minnesota definition for a schedule I controlled substance, Minnesota Code § 152.02(2)(3), no longer applies to marijuana and state law must be amended to reflect these changes.

__________________________

Kurt Hanna

Minneapolis, MN 55404

515-208-4788

Dated this 23rd day of June, 2010.

The board of Pharmacy's response...

Minnesota Board of Pharmacy

An Equal Opportunity Employer

2829 University Ave. SE., #530· Minneapolis, MN 55414-3251 • Telephone: (651) 201-2825 • FAX: (651) 201-2837

MN RELAY SERVICE FOR HEARING/SPEECH IMPAIRED ONLY:



Metro and Non-Metro; 800-627-3529

E-Mail Address:Pharmacy.Board@state.mn.us

Web Site: www.phcybrd.state.mn.us



Via first class and certified mail



July 22, 2010



Dear Mr. Hanna,



On June 24, 2010, the Board of Pharmacy received your Petition for Rule-making or Action in which you asked the Board to move marijuana from the state's schedule I for controlled substances to a lower schedule. Pursuant to Minnesota Statutes §14.09, the Board must "make a specific and detailed reply in writing as to its planned disposition of the request and the reasons for its planned disposition of the request" within 60 days of receiving a petition such as yours. This letter is the Board's reply to your petition.



After consulting with the Minnesota Office of the Attorney General, Board staff

presented your petition to the Board at its July 14, 2010 meeting. The Board voted to deny your petition and to decline to engage in the rule-making process for the purpose of moving marijuana from Schedule I to a lower schedule. The Board's reasons for this disposition of your request are as follows.



In your petition you claim that both "state and federal law require that marijuana

be transferred from Schedule I to a lower schedule of Minnesota's version of the Uniform Controlled Substances Act, Minnesota Code Chapter 152". In regards to State statutes, this statement is simply not correct. Minnesota Statutes §152.02, subd. 8 states the following (emphasis added):



"Subd. 8. Add, delete, or reschedule substances. The state Board of Pharmacy

may, by rule, add substances to or delete or reschedule substances listed in this section".



Staff has confirmed with the Office of the Attorney General that, in regards to the addition, deletion or rescheduling of substances, this subdivision is permissive. The Board is not required to engage in the rule-making process for the purpose of adding, deleting or rescheduling controlled substances. Nor does this subdivision create an affirmative obligation on the part of the Board to make any recommendations to the Legislature concerning the scheduling of controlled substances.



Your statement is also not correct in regards to federal statutes. There is no

federal statute that would require a state agency to move marijuana or any other schedule I controlled substance to a lower state schedule. To the contrary, attempts at the federal level to decriminalize the use of marijuana or to allow for its medical use have failed.



If the Board were to engage in the rule-making process for the purpose of moving marijuana from Schedule I to Schedule II, it would have to follow the rule-making procedures laid out in statutes, rules and policy. Rule-making in Minnesota is a long process that can be costly in terms of both money and time - particularly if the rules are significantly controversial. There are three separate steps in the process that require review by the Governor's Office.



With the above facts in mind, the Board denied your petition for the following

reasons:



• As mentioned above, the Board is not required by Minnesota Statutes §152.02, subd. 8 to reschedule controlled substances;



• Although staff has not confirmed it with the Governor's Office, there is no reason to believe that a rule moving marijuana from Schedule I to Schedule II would be allowed to move forward;



• Such a rule would undoubtedly be controversial and would require the

expenditure of significant resources - in terms of both money and time - that the

Board currently does not have at its disposal;



• Every time that the Legislature has wanted to loosen restrictions on the use of

marijuana, it has done so itself - it has never directed the Board to specifically

address the use of marijuana;



• Even if the Board actually succeeded in promulgating a rule moving marijuana

from schedule I to a lower schedule - without such rule being vetoed - the

criminal restrictions concerning the use of marijuana would remain in Minnesota Statutes Chapter 152. This would potentially create a conflict between those sections of Chapter 152 that make it a crime to sell and possess marijuana and Sections 152.11 and 152.12 which, respectively, allow for the dispensing and prescribing of drugs in schedules II through V.



• In a similar manner, the federal laws that criminalize the use of marijuana would also remain in effect. You cite the U.S. Supreme Court case Gonzales v. Oregon, which actually dealt with that state's assisted-suicide law. The more pertinent case is Gonzales v. Raich, the holding of.which was that Congress may ban the use of marijuana even where states approve its use for medicinal purposes.


These reasons, particularly those discussed in the last three bullet points, suggest that the proper venue for resolving this controversy is the Legislature or even Congress - not the Board of Pharmacy.



Sincerely.

Cody Wiberg, Pharm D, MS, RPh

Executive Director

cc: Geoffrey Karls, Assistant Attorney General


******************************



http://iowamedicalmar...­ <--- Carl Olsen's similar fight with the Iowa Board of Pharmacy

http://iowamedicalmar...­ <--- Carl's original petition to the Iowa Board

http://iowamedicalmar...­ <--- Carl's memorandum of law in support of his petition (maybe I should have sent this too, but I didn't.)

http://iowamedicalmar...­ <--- Board of Pharmacy's 1st response

http://iowamedicalmar...­ <--- Petition for Judicial Review of Agency Action

http://iowamedicalmar...­ <--- Ruling on Petition for Judicial Review



http://www.phcybrd.st...­ Minnesota Board of Pharmacy website

MN BOP Mission Statement:

The Minnesota Board of Pharmacy exists to protect the public from adulterated, misbranded, and illicit drugs, and from unethical or unprofessional conduct on the part of pharmacists or other licensees, and to provide a reasonable assurance of professional competency in the practice of pharmacy by enforcing the Pharmacy Practice Act M.S. 151, State Controlled Substances Act M.S. 152 and various other statutes. The Board strives to fulfill its mission through a combination of regulatory activity, and technical consultation and support for pharmacy practices through the issuance of advisories on pharmacy practice issues, and through education of pharmacy practitioners.


The Board

The Board of Pharmacy consists of seven Board members, appointed by the Governor; five Board members must be pharmacists, and two members must be public members. The Board regulates pharmacists, pharmacies, pharmacy technicians, controlled substance researchers, drug wholesalers and drug manufactures. The Board approves licenses or registrations for these individuals or businesses, and also decides when to impose disciplinary action.


Board Staff
The staff of the Board of Pharmacy are employees of the State of Minnesota who handle the day to day operations of the Board. Approximately five people are employed to gather licensing and complaint information for the Board's review, and to handle administrative functions. Five Board Surveyors, all of whom are pharmacists, are employed to inspect all licensees located in the state and to investigate complaints.

http://www.phcybrd.st...­

State laws regulating the practice of pharmacy in Minnesota fall into two categories, statutes and rules.

Statutes are laws which have been enacted by a vote of the legislature. Any modifications made to a statute also requires the approval of the legislature. The Minnesota Board of Pharmacy has the responsibility for implementing and regulating Chapter 151 and Chapter 152 of the Minnesota Statutes. (order form for Pharmacy Laws)

Rules, on the other hand, are written by the Board of Pharmacy. Rules are required to be supported by a statute. Rules typically are less general and more specific to a particular situation. All Minnesota pharmacy rules are found in Chapter 6800. (order form for chapter 6800)

In addition to Minnesota statutes and rules federal regulations affect the practice of pharmacy with respect to controlled substances. These regulations can be found in Title 21 - Food and Drugs, Part 1300 to END of the Code of Federal Regulations. Part 1300 to END, includes Chapter II - Drug Enforcement Administration, Department of Justice and Chapter III - Office of National Drug Control Policy. The Consumer Product Safety Commission administers the Poison Prevention Packaging Act of 1970.

Guidelines are a statement setting standards and intended to advise how something should be done.

https://www.revisor.m...­

https://www.revisor.m...­
6800.4300 DISPENSING SCHEDULE II CONTROLLED SUBSTANCES FOR PATIENTS IN LONG-TERM CARE FACILITIES AND TERMINALLY ILL PATIENTS.
Subpart 1.
Authorization.

Prescriptions for schedule II controlled substances written for patients in long-term care facilities and terminally ill patients may be dispensed in partial quantities, including individual dosage units.
Subp. 2.
Records.

For each partial dispensing, the dispensing pharmacist shall record on the back of the prescription, or on another appropriate record uniformly maintained and readily retrievable, the date of the partial dispensing, the quantity dispensed, the remaining quantity authorized to be dispensed, and the identification of the dispensing pharmacist. The pharmacist must record on the prescription whether the patient is "terminally ill" or an "LTCF patient."
Subp. 3.
Quantity dispensed.

The total quantity of schedule II controlled substances dispensed in all partial dispensings must not exceed the total quantity prescribed.
Subp. 4.
Validity of prescription.

Schedule II prescriptions for patients in a long-term care facility and terminally ill patients shall be valid for a period not to exceed 60 days from the issue date unless terminated sooner by the discontinuance of medication.
Subp. 5.
Computerization of information.

Information pertaining to current schedule II prescriptions for patients in a long-term care facility and terminally ill patients may be maintained in a computerized record keeping system if the system has the capability to permit:
A.

output by display or printout of the original prescription number; date of issue; identification of prescribing individual practitioner; identification of patient; identification of long-term care facility; identification of medication authorized, including dosage form, strength, and quantity; listing of partial dispensings that have been dispensed under each prescription; and the information required in subpart 2;
B.

immediate or real time updating of the prescription record each time a partial dispensing of the prescription is conducted; and
C.

retrieval of partially dispensed schedule II prescription information, the same as required by federal law for schedule III and IV prescription refill information.

https://www.revisor.m...­
14.001 STATEMENT OF PURPOSE.

The purposes of the Administrative Procedure Act are:

(1) to provide oversight of powers and duties delegated to administrative agencies;

(2) to increase public accountability of administrative agencies;

(3) to ensure a uniform minimum procedure;

(4) to increase public access to governmental information;

(5) to increase public participation in the formulation of administrative rules;

(6) to increase the fairness of agencies in their conduct of contested case proceedings; and

(7) to simplify the process of judicial review of agency action as well as increase its ease and availability.

In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical, and effective government administration. The chapter is not meant to alter the substantive rights of any person or agency. Its impact is limited to procedural rights with the expectation that better substantive results will be achieved in the everyday conduct of state government by improving the process by which those results are attained.
https://www.revisor.m...­

14.05 Subd. 5.Review and repeal of rules.

By December 1 of each year, an agency must submit to the governor, the Legislative Coordinating Commission, the policy and funding committees and divisions with jurisdiction over the agency, and the revisor of statutes, a list of any rules or portions of rules that are obsolete, unnecessary, or duplicative of other state or federal statutes or rules. The list must also include an explanation of why the rule or portion of the rule is obsolete, unnecessary, or duplicative of other state or federal statutes or rules. By December 1, the agency must either report a timetable for repeal of the rule or portion of the rule, or must develop a bill for submission to the appropriate policy committee to repeal the obsolete, unnecessary, or duplicative rule. Such a bill must include proposed authorization to use the expedited procedures of section 14.389 to repeal or amend the obsolete, unnecessary, or duplicative rule. A report submitted under this subdivision must be signed by the person in the agency who is responsible for identifying and initiating repeal of obsolete rules. The report also must identify the status of any rules identified in the prior year's report as obsolete, unnecessary, or duplicative. If none of an agency's rules are obsolete, unnecessary, or duplicative, an agency's December 1 report must state that conclusion.
(We could also ask the Board to admit that marijuana being in Schedule I is an obsolete law and that they need to send notice to the state legislature of this fact. This could be a separate petition.)
14.05 Subd. 6.Veto of adopted rules.

The governor may veto all or a severable portion of a rule of an agency as defined in section 14.02, subdivisions 2 and 4, by submitting notice of the veto to the State Register within 14 days of receiving a copy of the rule from the secretary of state under section 14.16, subdivision 3, 14.26, subdivision 3, or 14.386 or the agency under section 14.389, subdivision 3, or section 14.3895. The veto is effective when the veto notice is submitted to the State Register. This authority applies only to the extent that the agency itself would have authority, through rulemaking, to take such action. If the governor vetoes a rule or portion of a rule under this section, the governor shall notify the chairs of the legislative committees having jurisdiction over the agency whose rule was vetoed.

(This highlighted part may be a way to fight a governor's veto. We could say that he doesn't have the authority to veto the agency's updating of the law. The Board does not have the authority to keep marijuana in Schedule I. They MUST annually review the placement of substances in the CSA!)


https://www.revisor.m...­
14.09 PETITION FOR ADOPTION OF RULE.

Any person may petition an agency requesting the adoption, amendment, or repeal of any rule. The petition shall be specific as to what action is requested and the need for the action. Upon receiving a petition an agency shall have 60 days in which to make a specific and detailed reply in writing as to its planned disposition of the request and the reasons for its planned disposition of the request. If the agency states its intention to hold a public hearing on the subject of the request, it shall proceed according to sections 14.05 to 14.28. The chief administrative law judge shall prescribe by rule the form for all petitions under this section and may prescribe further procedures for their submission, consideration, and disposition.


https://www.revisor.m...­

14.63 APPLICATION.

Any person aggrieved by a final decision in a contested case is entitled to judicial review of the decision under the provisions of sections 14.63 to 14.68, but nothing in sections 14.63 to 14.68 shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo provided by law. A petition for a writ of certiorari by an aggrieved person for judicial review under sections 14.63 to 14.68 must be filed with the Court of Appeals and served on the agency not more than 30 days after the party receives the final decision and order of the agency. Sections 572.08 to 572.30 govern judicial review of arbitration awards entered under section 14.57.

https://www.revisor.m...­
14.64 PETITION; SERVICE.

Proceedings for review under sections 14.63 to 14.68 shall be instituted by serving a petition for a writ of certiorari personally or by certified mail upon the agency and by promptly filing the proof of service in the Office of the Clerk of the Appellate Courts and the matter shall proceed in the manner provided by the Rules of Civil Appellate Procedure.[text and link can be found below]

If a request for reconsideration is made within ten days after the decision and order of the agency, the 30-day period provided in section 14.63 shall not begin to run until service of the order finally disposing of the application for reconsideration. Nothing herein shall be construed as requiring that an application for reconsideration be filed with and disposed of by the agency as a prerequisite to the institution of a review proceeding under sections 14.63 to 14.68.

Copies of the writ shall be served, personally or by certified mail, upon all parties to the proceeding before the agency in the proceeding in which the order sought to be reviewed was made. For the purpose of service, the agency upon request shall certify to the petitioner the names and addresses of all parties as disclosed by its records. The agency's certification shall be conclusive. The agency and all parties to the proceeding before it shall have the right to participate in the proceedings for review. A copy of the petition shall be provided to the attorney general at the time of service of the parties.
https://www.revisor.m...­
14.69 SCOPE OF JUDICIAL REVIEW.

In a judicial review under sections 14.63 to 14.68, the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) unsupported by substantial evidence in view of the entire record as submitted; or

(f) arbitrary or capricious.


http://mncourts.gov/r...­

103.01 Manner of Making Appeal



Subdivision 1. Notice of Appeal and Filings. An appeal shall be made by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period. The notice shall contain:



(a) a statement specifying the judgment or order from which the appeal is taken; and

(b) the names, addresses, and telephone numbers of opposing counsel, indicating the parties they represent.



The notice shall be accompanied by:



(c) proof of service on the adverse party or parties; and

(d) proof of filing with the administrator of the trial court in which the judgment or order appealed from is entered or filed.



The appellant shall simultaneously file the following with the clerk of the appellate courts:



(1) two copies of the notice of appeal,

(2) a certified copy of the judgment or order from which the appeal is taken,

(3) two copies of the statement of the case required by Rule 133.03, and

(4) a filing fee of $500.



The appellant shall file the following simultaneously with the trial court administrator:



(1) a copy of the notice of appeal, and

(2) the cost bond required by Rule 107, or written waiver of it.


https://www.revisor.m...­
152.02 SCHEDULES OF CONTROLLED SUBSTANCES; ADMINISTRATION OF CHAPTER.
Subdivision 1.Five schedules.

There are established five schedules of controlled substances, to be known as Schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section by whatever official name, common or usual name, chemical name, or trade name designated.
Subd. 2.Schedule I.

The following items are listed in Schedule I:

(1) Any of the following substances, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation: Acetylmethadol; Allylprodine; Alphacetylmethadol; Alphameprodine; Alphamethadol; Benzethidine; Betacetylmethadol; Betameprodine; Betamethadol; Betaprodine; Clonitazene; Dextromoramide; Dextrorphan; Diampromide; Diethyliambutene; Dimenoxadol; Dimepheptanol; Dimethyliambutene; Dioxaphetyl butyrate; Dipipanone; Ethylmethylthiambutene; Etonitazene; Etoxeridine; Furethidine; Hydroxypethidine; Ketobemidone; Levomoramide; Levophenacylmorphan; Morpheridine; Noracymethadol; Norlevorphanol; Normethadone; Norpipanone; Phenadoxone; Phenampromide; Phenomorphan; Phenoperidine; Piritramide; Proheptazine; Properidine; Racemoramide; Trimeperidine.

(2) Any of the following opium derivatives, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation: Acetorphine; Acetyldihydrocodeine; Acetylcodone; Benzylmorphine; Codeine methylbromide; Codeine-N-Oxide; Cyprenorphine; Desomorphine; Dihydromorphine; Etorphine; Heroin; Hydromorphinol; Methyldesorphine; Methylhydromorphine; Morphine methylbromide; Morphine methylsulfonate; Morphine-N-Oxide; Myrophine; Nicocodeine; Nicomorphine; Normorphine; Pholcodine; Thebacon.

(3) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation: 3,4-methylenedioxy amphetamine; 3,4-methylenedioxymethamphetamine; 4-bromo-2,5-dimethoxyamphetamine; 2,5-dimethoxyamphetamine; 4-methoxyamphetamine; 5-methoxy-3, 4-methylenedioxy amphetamine; Bufotenine; Diethyltryptamine; Dimethyltryptamine; 3,4,5-trimethoxy amphetamine; 4-methyl-2, 5-dimethoxyamphetamine; Ibogaine; Lysergic acid diethylamide; marijuana; Mescaline; N-ethyl-3-piperidyl benzilate; N-methyl-3-piperidyl benzilate; Psilocybin; Psilocyn; Tetrahydrocannabinols; 1-(1-(2-thienyl) cyclohexyl) piperidine; n-ethyl-1-phenyl-cyclohexylamine; 1-(1-phenylcyclohexyl) pyrrolidine.

(4) Peyote, providing the listing of peyote as a controlled substance in schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the American Indian Church, and members of the American Indian Church are exempt from registration. Any person who manufactures peyote for or distributes peyote to the American Indian Church, however, is required to obtain federal registration annually and to comply with all other requirements of law.

(5) Unless specifically excepted or unless listed in another schedule, any material compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

Mecloqualone;

Flunitrazepam.

(6) Unless specifically excepted or unless listed in another schedule, any material compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

Cathinone;

Methcathinone.
Subd. 3.Schedule II.

The following items are listed in Schedule II:

(1) Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, including the following: raw opium, opium extracts, opium fluid extracts, powdered opium, granulated opium, tincture of opium, apomorphine, codeine, ethylmorphine, hydrocodone, hydromorphone, metopon, morphine, oxycodone, oxymorphone, thebaine.

(b) Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (a), except that these substances shall not include the isoquinoline alkaloids of opium.

(c) Opium poppy and poppy straw.

(d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine, the salts and isomers of cocaine and ecgonine, and the salts of their isomers.

(e) Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (d), except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.

(2) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters and ethers, unless specifically excepted, or unless listed in another schedule, whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation: Alfentanil; Alphaprodine; Anileridine; Bezitramide; Dihydrocodeine; Dihydromorphinone; Diphenoxylate; Fentanyl; Isomethadone; Levomethorphan; Levorphanol; Metazocine; Methadone; Methadone - Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenylbutane; Moramide - Intermediate, 2-methyl-3-morpholino-1, 1-diphenyl-propane-carboxylic acid; Pethidine; Pethidine - Intermediate - A, 4-cyano-1-methyl-4-phenylpiperidine; Pethidine - Intermediate - B, ethyl-4-phenylpiperidine-4-carboxylate; Pethidine - Intermediate - C, 1-methyl-4-phenylpiperidine-4-carboxylic­ acid; Phenazocine; Piminodine; Racemethorphan; Racemorphan.

(3) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:

(a) Amphetamine, its salts, optical isomers, and salts of its optical isomers;

(b) Methamphetamine, its salts, isomers, and salts of its isomers;

(c) Phenmetrazine and its salts;

(d) Methylphenidate.

(4) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(a) Methaqualone

(b) Amobarbital

(c) Secobarbital

(d) Pentobarbital

(e) Phencyclidine

(f) Phencyclidine immediate precursors:

(i) 1-phenylcyclohexylamine

(ii) 1-piperidinocyclohexanecarbonitrile.
Subd. 4.Schedule III.

The following items are listed in Schedule III:

(1) Any material, compound, mixture, or preparation which contains any quantity of Amphetamine, its salts, optical isomers, and salts of its optical isomers; Phenmetrazine and its salts; Methamphetamine, its salts, isomers, and salts of isomers; Methylphenidate; and which is required by federal law to be labeled with the symbol prescribed by 21 Code of Federal Regulations Section 1302.03 and in effect on February 1, 1976 designating that the drug is listed as a Schedule III controlled substance under federal law.

(2) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:

(a) Any compound, mixture, or preparation containing amobarbital, secobarbital, pentobarbital or any salt thereof and one or more other active medicinal ingredients which are not listed in any schedule.

(b) Any suppository dosage form containing amobarbital, secobarbital, pentobarbital, or any salt of any of these drugs and approved by the food and drug administration for marketing only as a suppository.

(c) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules: Chlorhexadol; Glutethimide; Lysergic acid; Lysergic acid amide; Methyprylon; Sulfondiethylmethane; Sulfonethylmethane; Sulfonmethane.

(d) Gamma hydroxybutyrate, any salt, compound, derivative, or preparation of gamma hydroxybutyrate, including any isomers, esters, and ethers and salts of isomers, esters, and ethers of gamma hydroxybutyrate whenever the existence of such isomers, esters, and salts is possible within the specific chemical designation.

(3) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(a) Benzphetamine

(b) Chlorphentermine

(c) Clortermine

(d) Mazindol

(e) Phendimetrazine.

(4) Nalorphine.

(5) Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:

(a) Not more than 1.80 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium.

(b) Not more than 1.80 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(c) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium.

(d) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(e) Not more than 1.80 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(f) Not more than 300 milligrams of ethylmorphine per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(g) Not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(h) Not more than 50 milligrams of morphine per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(6) Anabolic steroids, which, for purposes of this subdivision, means any drug or hormonal substance, chemically and pharmacologically related to testosterone, other than estrogens, progestins, corticosteroids, and dehydroepiandrosterone, and includes: androstanediol; androstanedione; androstenediol; androstenedione; bolasterone; boldenone; calusterone; chlorotestosterone; chorionic gonadotropin; clostebol; dehydrochloromethyltestosterone; (triangle)1-dihydrotestosterone; 4-dihydrotestosterone; drostanolone; ethylestrenol; fluoxymesterone; formebolone; furazabol; human growth hormones; 13b-ethyl-17a-hydroxygon-4-en-3-one; 4-hydroxytestosterone; 4-hydroxy-19-nortestosterone; mestanolone; mesterolone; methandienone; methandranone; methandriol; methandrostenolone; methenolone; 17a-methyl-3b, 17b-dihydroxy-5a-androstane; 17a-methyl-3a, 17b-dihydroxy-5a-androstane; 17a-methyl-3b, 17b-dihydroxyandrost-4-ene; 17a-methyl-4-hydroxynandrolone; methyldienolone; methyltrienolone; methyltestosterone; mibolerone; 17a-methyl-(triangle)1-dihydrotestosterone;­ nandrolone; nandrolone phenpropionate; norandrostenediol; norandrostenedione; norbolethone; norclostebol; norethandrolone; normethandrolone; oxandrolone; oxymesterone; oxymetholone; stanolone; stanozolol; stenbolone; testolactone; testosterone; testosterone propionate; tetrahydrogestrinone; trenbolone; and any salt, ester, or ether of a drug or substance described in this paragraph. Anabolic steroids are not included if they are: (i) expressly intended for administration through implants to cattle or other nonhuman species; and (ii) approved by the United States Food and Drug Administration for that use.
Subd. 5.Schedule IV.

The following items are listed in Schedule IV: Barbital; Butorphanol; Carisoprodol; Chloral betaine; Chloral hydrate; Chlordiazepoxide; Clonazepam; Clorazepate; Diazepam; Diethylpropion; Ethchlorvynol; Ethinamate; Fenfluramine; Flurazepam; Mebutamate; Methohexital; Meprobamate except when in combination with the following drugs in the following or lower concentrations: conjugated estrogens, 0.4 mg; tridihexethyl chloride, 25mg; pentaerythritol tetranitrate, 20 mg; Methylphenobarbital; Oxazepam; Paraldehyde; Pemoline; Petrichloral; Phenobarbital; and Phentermine.
Subd. 6.Schedule V; restrictions on methamphetamine precursor drugs.

(a) As used in this subdivision, the following terms have the meanings given:

(1) "methamphetamine precursor drug" means any compound, mixture, or preparation intended for human consumption containing ephedrine or pseudoephedrine as its sole active ingredient or as one of its active ingredients; and

(2) "over-the-counter sale" means a retail sale of a drug or product but does not include the sale of a drug or product pursuant to the terms of a valid prescription.
Subd. 7.Board of Pharmacy; regulation of substances.

The Board of Pharmacy is authorized to regulate and define additional substances which contain quantities of a substance possessing abuse potential in accordance with the following criteria:

(1) The Board of Pharmacy shall place a substance in Schedule I if it finds that the substance has: A high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.

(2) The Board of Pharmacy shall place a substance in Schedule II if it finds that the substance has: A high potential for abuse, currently accepted medical use in the United States, or currently accepted medical use with severe restrictions, and that abuse may lead to severe psychological or physical dependence.

(3) The Board of Pharmacy shall place a substance in Schedule III if it finds that the substance has: A potential for abuse less than the substances listed in Schedules I and II, currently accepted medical use in treatment in the United States, and that abuse may lead to moderate or low physical dependence or high psychological dependence.

(4) The Board of Pharmacy shall place a substance in Schedule IV if it finds that the substance has: A low potential for abuse relative to the substances in Schedule III, currently accepted medical use in treatment in the United States, and that abuse may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III.

(5) The Board of Pharmacy shall place a substance in Schedule V if it finds that the substance has: A low potential for abuse relative to the substances listed in Schedule IV, currently accepted medical use in treatment in the United States, and limited physical dependence and/or psychological dependence liability relative to the substances listed in Schedule IV.
Subd. 8.Add, delete, or reschedule substances.

The state Board of Pharmacy may, by rule, add substances to or delete or reschedule substances listed in this section. The state Board of Pharmacy, after consulting with the Advisory Council on Controlled Substances, shall annually, on or before May 1 of each year, conduct a review of the placement of controlled substances in the various schedules.

In making a determination regarding a substance, the Board of Pharmacy shall consider the following: The actual or relative potential for abuse, the scientific evidence of its pharmacological effect, if known, the state of current scientific knowledge regarding the substance, the history and current pattern of abuse, the scope, duration, and significance of abuse, the risk to public health, the potential of the substance to produce psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled under this section. The state Board of Pharmacy may include any nonnarcotic drug authorized by federal law for medicinal use in a schedule only if such drug must, under either federal or state law or rule, be sold only on prescription.
Subd. 12.Coordination of controlled substance regulation with federal law and state statute.

The state Board of Pharmacy shall annually submit a report to the legislature on or before December 1 that specifies what changes the board made to the controlled substance schedules maintained by the board in Minnesota Rules, parts 6800.4210 to 6800.4250, in the preceding 12 months. The report must include specific recommendations for amending the controlled substance schedules contained in subdivisions 2 to 6, so that they conform with the controlled substance schedules maintained by the board in Minnesota Rules, parts 6800.4210 to 6800.4250.
Subd. 13.Implementation study.

Annually, the state Board of Pharmacy shall study the implementation of this chapter in relation to the problems of drug abuse in Minnesota.

https://www.revisor.m...­
152.12 DOCTORS MAY PRESCRIBE.
Subdivision 1.Prescribing, dispensing, administering controlled substances in schedules II through V.

A licensed doctor of medicine, a doctor of osteopathy, duly licensed to practice medicine, a doctor of dental surgery, a doctor of dental medicine, a licensed doctor of podiatry, or a licensed doctor of optometry limited to schedules IV and V, and in the course of professional practice only, may prescribe, administer, and dispense a controlled substance included in Schedules II through V of section 152.02, may cause the same to be administered by a nurse, an intern or an assistant under the direction and supervision of the doctor, and may cause a person who is an appropriately certified and licensed health care professional to prescribe and administer the same within the expressed legal scope of the person's practice as defined in Minnesota Statutes.
Subd. 2.Doctor of veterinary medicine.

A licensed doctor of veterinary medicine, in good faith, and in the course of professional practice only, and not for use by a human being, may prescribe, administer, and dispense a controlled substance included in schedules II through V of section 152.02, and may cause the same to be administered by an assistant under the direction and supervision of the doctor.
Subd. 3.Research project use of controlled substances.

Any qualified person may use controlled substances in the course of a bona fide research project but cannot administer or dispense such drugs to human beings unless such drugs are prescribed, dispensed and administered by a person lawfully authorized to do so. Every person who engages in research involving the use of such substances shall apply annually for registration by the state Board of Pharmacy provided that such registration shall not be required if the person is covered by and has complied with federal laws covering such research projects.
Subd. 4.Sale of controlled substances not prohibited for certain persons and entities.

Nothing in this chapter shall prohibit the sale to, or the possession of, a controlled substance in schedule II, III, IV or V by: Registered drug wholesalers, registered manufacturers, registered pharmacies, or any licensed hospital or other licensed institutions wherein sick and injured persons are cared for or treated, or bona fide hospitals wherein animals are treated; or by licensed pharmacists, licensed doctors of medicine, doctors of osteopathy duly licensed to practice medicine, licensed doctors of dental surgery, licensed doctors of dental medicine, licensed doctors of podiatry, licensed doctors of optometry limited to schedules IV and V, or licensed doctors of veterinary medicine when such practitioners use controlled substances within the course of their professional practice only.

Nothing in this chapter shall prohibit the possession of a controlled substance in schedule II, III, IV or V by an employee or agent of a registered drug wholesaler, registered manufacturer, or registered pharmacy, while acting in the course of employment; by a patient of a licensed doctor of medicine, a doctor of osteopathy duly licensed to practice medicine, a licensed doctor of dental surgery, a licensed doctor of dental medicine, or a licensed doctor of optometry limited to schedules IV and V; or by the owner of an animal for which a controlled substance has been prescribed by a licensed doctor of veterinary medicine, when such controlled substances are dispensed according to law.
Subd. 5.Analytical laboratory not prohibited from providing anonymous analysis service.

Nothing in this chapter shall prohibit an analytical laboratory from conducting an anonymous analysis service when such laboratory is registered by the Federal Drug Enforcement Administration, nor prohibit the possession of a controlled substance by an employee or agent of such analytical laboratory while acting in the course of employment.



https://www.revisor.m...­
152.13 DUTIES OF STATE BOARD OF PHARMACY.

It shall be the duty of the state board to enforce the provisions of this chapter, and the power and authority of the board, as now defined by the laws of this state, are hereby extended so as to be commensurate with the duties hereby imposed.

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State v. Vail, 274 NW 2d 127 - Minn: Supreme Court 1979

The second issue raised by the defendant is the equal protection challenge to the statutory classification of marijuana as a Schedule I controlled substance. Defendant acknowledges that the equal protection standard applicable in reviewing the Minnesota marijuana laws requires a demonstration that the classification is reasonable, not arbitrary, and bears a rational relationship to a permissible state objective. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). Defendant argued and presented evidence at the hearing of his motion to dismiss and on appeal that the inclusion of marijuana within Schedule I controlled substances was both over-inclusive, since it satisfies none of the statutory criteria,[12] and under-inclusive, since alcohol 135*135 and nicotine are not so classified although they in fact satisfy the statutory criteria.

Minnesota's classification scheme is based on the 1970 Uniform Controlled Substances Act, which listed marijuana in Schedule I because little was known about its longterm effects.

"Congress listed marihuana in Schedule I principally on the recommendation of HEW, which urged `that marijuana be retained within Schedule I at least until the completion of certain studies now underway to' determine the physical and psychological dependency effects of the drug. See H.R. Report, supra, note 3, at 4579, 4629-30. Apparently the potential for abuse and the absence of significant medical value were the determining grounds for placement of marihuana in the first schedule. See 116 Cong.Rec. 797 (daily ed. Jan. 28, 1970) (remarks of Sen. Hruska)." United States v. Kiffer, 477 F.2d 349, 356 (2 Cir. 1973), certiorari denied sub nom., Harmash v. United States, 414 U.S. 831, 94 S.Ct. 165, 38 L.Ed.2d 65 (1973).

The intervening years have produced a growing body of scientific literature on the effects of marijuana on the human physiology and psychology,[13] but marijuana has not been rescheduled by either the state legislature or the state board of pharmacy, acting under its statutory authority. Minn.St. 152.02, subd. 8. In response to growing public and scientific opinion against imposing Schedule I penalties on marijuana users, the legislature has repeatedly amended Minn.St. 152.15 to reduce penalties. L.1971, c. 937, § 17; L.1973, c. 693, §§ 10-13; L.1976, c. 42, §§ 1, 2.

It is apparent, then, that nominal inclusion of marijuana within Schedule I has little impact, since the classification is not a controlling factor in the scheme of punishment. See, People v. Morehouse, 80 Misc.2d 406, 364 N.Y.S.2d 108 (Sup.Ct.1975); United States v. Maiden, 355 F.Supp. 743 (D.Conn.1973). Thus, neither People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971), nor People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), which sustained equal protection challenges to classification of marijuana as a "narcotic drug" for purposes of penalties, are in point.[14]

136*136 In view of the continued debate over possible short- and long-term physical and psychological effects, it cannot fairly be said that continued apprehension and reluctance of the state board of pharmacy to reschedule marijuana is so arbitrary and unreasonable as to render it unconstitutional.[15]

[12] The legislature classified marijuana in Schedule I when the schedule was originally enacted. Laws 1971, c. 937, § 12. It then provided for annual review by the state board of pharmacy:

"The state board of pharmacy may, by regulation, add substances to or delete or reschedule substances listed in this section. The state board of pharmacy, after consulting with the advisory council on controlled substances, shall annually, on or before May 1 of each year, conduct a review of the placement of controlled substances in the various schedules.

"In making a determination regarding a substance, the board of pharmacy shall consider the following: The actual or relative potential for abuse, the scientific evidence of its pharmacological effect, if known, the state of current scientific knowledge regarding the substance, the history and current pattern of abuse, the scope, duration, and significance of abuse, the risk to public health, the potential of the substance to produce psychic or physiological dependence liability, and whether the substance is an immediate precurser of a substance already controlled under this section. The state board of pharmacy may include any non-narcotic drug authorized by federal law for medicinal use in a schedule only if such drug must, under either federal or state law or regulation, be sold only on prescription." Minn.St. 152.02, subd. 8. We find this subdivision controlling, rather than Minn.St. 152.02, subd. 7, cited by defendant. The latter sets out specific criteria for the subsequent inclusion of additional substances in Schedule I:

"(1) The board of pharmacy shall place a substance in Schedule I if it finds that the substance has: A high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.




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State v. King, 257 NW 2d 693 - Minn: Supreme Court 1977 <--- important MN SC case explaining the powers of the MN Board of Pharmacy.



One other point I have is that Gonzales v. Raich was not a case about scheduling. Raich said her use was purely personal (not commercial) and intrastate, rather than interstate commerce. Gonzales v. Oregon was not about commerce. All of the drugs Oregon had authorized for assisted suicide were approved for interstate marketing by the FDA. The question in Oregon was whether federal law defines accepted medical practice. The answer in Oregon was that the states, not the federal government, define it. No one has ever made an argument for misclassification of marijuana based on Gonzales v. Oregon and 14 state laws defining marijuana as medicine. Raich did not make that argument and it was not ruled on in Gonzales v. Raich.

I am not telling you I am going to win. I am telling you no one has ever made the argument I am making before and it is not precluded by Gonzales v. Raich. If federal law does not define accepted medical use in treatment in the United States, and Gonzales v. Oregon says the states define it, I don’t see how I can lose. I do admit the courts are unfair, so it’s a toss of the dice. I’m in the game. I’ve tossed the dice. I think we should be doing everything we can, because our cause is just and moral. If a possible solution exists and nobody has tried it, then I’m going to try it. My argument is not just a shot in the dark. It’s based on state sovereignty, a core value in our system of government. You just saw the federal government settle the big ACLU case in Santa Cruz, which was based on the Tenth Amendment anti-commandeering argument. Unfortunately, that case was based on the U.S. Justice Department memo and has no legal precedent. That’s why the government settled the case. It was either that or risk a court ruling against the U.S. Department of Justice on the Tenth Amendment (states’ rights).

These guys all meet at the National Association of Boards of Pharmacy with the Office of National Drug Control Policy, and they get their marching orders there. The argument they have about Gonzales v. Raich comes from that group and it’s the same argument you will hear parroted in any state or from the federal government. Raich was not about scheduling. Raich said the law does not apply to her. Raich should have said the law applies to her and the DEA is not obeying it by removing marijuana from federal Schedule I now that it has accepted medical use in treatment in the United States (California, since that is where Raich was living). It’s not the burden of the federal government to aid in the defense of a criminal defendant. The federal government could easily be relying on the fact California has never said a word about federal scheduling. California should have told DEA to remove marijuana from federal schedule I in 1996. Oregon did not just sit on its hands when the federal government tried to interfere with its assisted suicide law. The Attorney General of Oregon sued the U.S. Department of Justice. Unless a state sues the U.S. Department of Justice for failure to remove marijuana from schedule I now that it has accepted medical use in treatment in the United States, the federal government does not have to insist they do it. The federal government may actually believe that all 14 states think state laws defining accepted medical use don’t mean marijuana actually has accepted medical use. If it did, then why hasn’t a state said anything about federal scheduling? Folks, this is like Jim Crow. You have to understand what is going on. Stand up and speak or forever remain silent.

My petition merely requested the Board to acknowledge marijuana is misclassified because of the law. The law does not give them any discretion to decide anything when the law is clear. The board cannot determine the speed limit on Iowa’s highways. The board should have responded to my petition by saying that it had no authority to reclassify marijuana when it’s automatic under the statute. The board did not acknowledge that the law simply says marijuana cannot be in schedule I if it has accepted medical use in the United States, which would be item (b) under 14.69 Scope of Judicial Review. The board has to reject the petition because marijuana is misclassified as a matter of law. If they do not acknowledge that, then they cannot reject the petition.

So, you see we have appealed the denial and the board has decided to review the classification based on something other than accepted medical use in 14 states. The board has violated the law, because it cannot remove something from schedule I that is statutorily misplaced there. Marijuana has already been removed, automatically, by operation of the law.

- From an email that Carl sent me.




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City of Garden Grove v. Superior Court, 68 Cal. Rptr. 3d 656 - Cal: Court of Appeal, 4th Dist., Div. 3 2007 <-- this case is essential in our response to the MNBOP's claim that Raich is controlling in this issue!!

PREEMPTION

Still, "the supremacy clause of article VI of the United States Constitution grants Congress the power to preempt state law. `[S]tate law that conflicts with federal law is "without effect."' [Citations.]" (In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1265, 63 Cal.Rptr.3d 418, 163 P.3d 106.) The City here invokes the preemption doctrine, but not by asking us to declare the CUA and MMP unconstitutional across the board, nor by challenging the right of Californians to use marijuana for medicinal reasons. Rather, it urges us to find the federal drug laws preempt state law to the extent state law authorizes the return of medical marijuana to qualified users.

The City relies primarily on Gonzales v. Raich, supra, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1, but that case was not decided on preemption grounds. The sole issue presented in Raichwas whether Congress had the constitutional authority under the Commerce Clause to prohibit the manufacture and possession of marijuana, even when the marijuana was produced and consumed locally in accordance with the CUA. (Id. at p. 15, 125 S.Ct. 2195.) Finding the aggregate effect of such local activity could well impact interstate commerce, the court upheld Congress' authority in this regard. (Id. at pp. 16-22, 125 S.Ct. 2195.)

The Raich court was not overly impressed with the fact California had legalized the possession and cultivation of marijuana. Indeed, it noted "[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is `"superior to that of the States to provide for the welfare or necessities of their inhabitants,"' however legitimate or dire those necessities may be. [Citations.] Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause [citation], so too state action cannot circumscribe Congress' plenary commerce power. [Citation.]" (Gonzales v. Raich, supra, 545 U.S. at p. 29, 125 S.Ct. 2195, fn. omitted.)

674This does not mean the CUA is preempted by federal law. The quoted passage simply reflects the realization that, having determined Congress' commerce power extended to local drug activity, it did not matter to the Raich court that Californians had voted to legalize medical marijuana under state law. That fact simply did not weigh into the court's consideration in deciding the scope of Congress' authority under the Commerce Clause.

And understandably so. Doctrinally, the Commerce Clause focuses on Congress' power to enact legislation in the first place. If Congress has a rational basis for concluding the targeted activity has a substantial effect on interstate commerce, it can regulate it. (Gonzales v. Raich, supra, 545 U.S. at p. 22, 125 S.Ct. 2195.) Whether the regulation is welcome or unwelcome in the state in which the activity occurs is of no moment. As the Raich court explained, states can neither limit nor expand the scope of Congress' authority under the Commerce Clause. Consequently, the CUA and the contours of that law were completely irrelevant to the issue presented in Raich. (See Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v. Raich 2005 Sup.Ct. Rev. 1, 34.)

The upshot of Raich is that the federal government and its agencies have the authority to enforce the federal drug laws, even in a state like California that has sanctioned the use of marijuana for medicinal purposes. However, we do not read Raich as extending beyond this particular point, into the realm of preemption. The Raich court merely examined the validity of the CSA under the Commerce Clause; it did not go further and examine the relationship between the CSA and the CUA. (See Note, California Takes a Hit: The Supreme Court Upholds Congressional Authority Over the State-Approved Use of Medicinal Marijuana (2006) 28 U.Ark. Little Rock L.Rev. 545, 580 ["the Court's holding in Raich did not address the preemption of the (CUA)"]; Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police (2006) 91 Iow
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