Cannabis Laws and Research at Colorado Institutions of Higher Education by Frank Robison and Elvira Strehle-Henson
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EDUCATION LAW Cannabis Laws and Research at Colorado Institutions of Higher Education by Frank Robison and Elvira Strehle-Henson Almost 3,000 years ago Hippocrates purportedly stated, "There are in fact two things, science and opinion; the former begets knowledge, the latter ignorance." Cannabis's polemic presence in society is incontrovertible simultaneously, it has therapeutic and medical merits, is less harmful than tobacco and alcohol, is harmfol and addictive and a gateway drug, and is an industrialpanacea. This article discusses how thefoderallegal scheme to regulate controlled substances has affected scientific research with and on cannabis. he "green rush" has been on since 1996, when California There is a resulting void in fact-based scientific data and informa decriminalized marijuana for medical purposes. Today, 23 tion about the cannabis plant and what it and its constituent com T states and the District of Columbia, Guam, and Puerto pounds actually do to the human body. Whether cannabis is less or Rico have passed or enacted laws that allow Cannabis sativa L more hannful or beneficial than other controlled substances or legal (cannabis)1 to be used for medical purposes, giving new meaning to substances, such as alcohol and tobacco, is one of many scientific Justice Brandeis's dissent that a "courageous State may, ifits citizens questions about cannabis to which collectively few answers exist. choose, serve as a laboratory; and try novel social and economic According to a 2013 Gallup poll, almost 60% of U.S. citizens experiments without risk to the rest of the country."2 think marijuana should be legal. 6 Approximately 20 million people Several states have legalized and regulated the cultivation, sale, in the United States age 12 and over (about 7.5% of the people sur distribution, or possession of cannabis for medical and recreational veyed) are current users of marijuana-that is, they use marijuana purposes, but these activities continue to be violations of various at least once in any given month. federal laws and may be prosecuted by federal authorities.3 In spite Last year, President Obarna remarked, "I smoked pot as a kid, of the federal specter of continued prosecution, over the past six and I view it as a bad habit and a vice, not very different from the years, the federal government has overtly adjusted its enforcement cigarettes that I smoked as a young person up through a big chunk priorities in states that have legalized or decriminalized marijuana, of my adult life. I don't think it is more dangerous than alcohol. "1 essentially fueling the green rush.4 Others, including many parents of sick children who have moved During this time, the federal government has not altered or to Colorado since the state legalized medical marijuana, might dis addressed the corresponding regulatory paradigm for conducting agree with the President's characterization of marijuana as a vice. research. As a result, at the state level, the cannabis money tree is in They use it as an alternative or supplement to FDA-approved med full bloom, but research at federally funded institutions remains icines to treat serious illnesses, such as Dravet and Lennox·Gastaut stunted. syndromes, which are severe forms ofepilepsy. Hemp, industrial hemp, recreational marijuana, and medical mar Insufficient data exists to establish how marijuana is affecting ijuana are a variety of strains of cannabis (cannabis nomenclature people who consume it. The Colorado Department of Public and its respective use in this article are addressed in note one). Health and Environment (CDPHE) states that it has been unable Except for the cultivation and research ofindustrial hemp by insti to establish empirically appropriate dosing of medical marijuana.8 tutions of higher education and state departments ofagriculture in In part, because of the lack of data, a significant interest and states that allow hemp production, federal law treats cannabis demand for low trans-a9-tetrahydrocannabinol (THC)/high equally. The Controlled Substance Act (CSA) broadly prohibits and cannabidiol (CBD) cannabis strains exists. THC has psychoactive criminalizes the cultivation, possession, importation, and distribu properties, while CBD does not. tion of marijuana, providing for a limited exception for federally This interest is illustrated by the thousands of parents seeking approved research.s cannabis products to treat children with chronic or life-threatening About the Authors Frank Robison serves as Assistant University Counsel in the University of Colorado Boulder's Office of University Counsel-(303) 492-7461, [email protected]. Elvira Strehle-Henson serves as Managing Senior Associate University Counsel in the University of Colorado Boulde~s Office of Uni versity Counsel-(303) 492-7481, [email protected]. This article is not connected to the authors' duties at the University of Colorado and does not represent the legal opinion or views of the Univer sity. The authors thank the following people for their valuable time and input: Rick Doblin, Moni Flesh ner, Ken Gershman, Kent Hutchison, Nolan Kane, lia Luber, Duane Sinning, and Daniel Vergara. The Colorado Lawyer I October 2015 1 Vol. 44, No. 10 73 CANNABIS LAWS AND RESEARCH AT COLORADO INSTITUTIONS OF HIGHER EDUCATION illnesses ranging from seizure disorders to cancer. Organizations While the CSA recognizes that many controlled substances such as Realm of Caring Foundation Inc. and Stanley Brothers "have a useful and legitimate medical purpose and are necessary to Social Enterprises LLC provide cannabis-based medical services maintain the health and general welfare of the American people,"'4 or products that-some assert-have successfully treated such ill it is also "a dosed regulatory scheme."1S The federal government nesses.9 Furthennore, although federal agencies recognize the need classifies marijuana in the most restrictive of five controlled sub• to facilitate research-the Food and Drug Administration (FDA) stance categories.16 It is in same category as heroin, ecstasy, and and National Institute ofDrug Abuse (NIDA) acknowledge that LSD because of the determination that marijuana has a high cannabis may contain compounds that are viable for treating potential for abuse and no accepted medical utility, and that there is epilepsy, nervous system disorders, and other illnesses-the federal a lack of accep[ed safety standards for marijuana use under med· legal scheme continues to stymie research.1° ical supervision.17 Notably, opium, cocaine, and methamphetamine Congress has attempted to modifY the current paradigm on a fall into a less restrictive category than marijuana. 18 number of occasions.tt Most recently, on May 13, 2015, U.S. sena Under federal law, cultivation, sales, distribution, use, or posses• tors Cory Gardner and Michael Bennett and several other sena sion of marijuana for research purposes requires registration with tors introduced Senate Bill (S) 1333, the Therapeutic Hemp Med the Drug Enforcement Agency (DEA), the primary federal agency ical Access Act. This Act would amend the CSA to exclude CBD charged with enforcing the CSA 19 and other lowTHC/high CBD strains ofcannabis from the CSAS As a party to the Single Convention on Narcotic Drugs, the definition of marijuana. This exemption would encompass strains United States is required to create "a government agency," which is that contain less than .3% ofTHC but contain high concentra NIDA, to control the distribution and growth of marijuana.20 tions of CBD that, at least based on observational data between Although the Single Convention does not limit the number of physicians and patients, may be medically beneficial. While regula sources for which marijuana can be grown, since 1968, NIDA has tory hurdles would still exist, such as an FDA Investigational New awarded the sole contract to the UniversityofMississippi. To date, Drug (IN D) application, exempting CBD and low THC/high attempts to obtain approval for more than one approved source for CBD strains from being classified as Schedule I drugs under the marijuana have been unfruitful and deemed unnecessary by the CSA would facilitate the clinical trials (trials in which a researcheer DEA.lt administers marijuana to human subjects) necessary to approve or In addition, NIDA mandates procurement of research mari disprove the anecdotal evidence. juana from the University of Mississippi, which has limited vari This article discusses the existing legal landscape for marijuana eties and quantities.22 research and the concomitant lack of federal guidance and action Across the United States, approximately 1.5 million residents despite the growing number of states that have legalized marijuana have received recommendations from medical doctors to use mar for medical or recreational purposes. It also explains the conflict ijuana as part of a treatment plan.23 In Colorado, medical mari· ing state and federal regulatory frameworks that presently exist and juana has been legal for over fifteen years. In January 2014, Colo the resulting vacuum in U.S. research. rado became the first state in the nation to regulate the cultivation, distribution, and sale of recreational marijuana. This was followed Cannabis Research: closely by Washington and later by Alaska, Oregon) Rhode Island, Historical Roots to Current Landscape and Washington DC.l 4 Based on current registrations with the CDPHE, Colorado has In spite of recognized industrial and medical uses for cannabis, approximately 115,000