The Chronic 2013: The Evolution of Popular Culture and the Legal Treatment of Marijuana November 12, 2013 Owen M. Panner Inn of Court 1906 - Pure Food and Drugs Act Requires Labeling of Medicine, Including Cannabis Label for Piso's Cure, a cannabis-based medicine, after the passage of the 1906 Pure Food and Drug Act Source: antiquecannabisbook.com (accessed Dec. 12, 2011) "[O]n 30 June 1906 President Roosevelt signed the Food and Drugs Act, known simply as the Wiley Act... The basis of the law rested on the regulation of product labeling rather than pre-market approval." US Food and Drug Administration (FDA) "FDA History - Part I," FDA website (accessed Dec. 28, 2011) "An Act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes... That for the purposes of this Act an article shall also be deemed to be misbranded... if the package fail to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral hydrate, or acetanilide, or any derivative or preparation of any such substances contained therein." Pure Food and Drug Act (1906) , National Center for Biotechnology Information website, June 30, 1906 Source: http://medicalmarijuana.procon.org/view.timeline.php?timelineID=000026 1911 - Massachusetts Becomes First State to Outlaw Cannabis "Bolstered by Progressive Era faith in big government, the 1910s marked a high tide of prohibitionist sentiment in America. In 1914 and 1916, alcohol prohibition initiatives would make the state ballot. Meanwhile, the legislature was tackling such morals issues as prostitution, racetrack gambling, prizefighting, liquor, and oral sex. Amidst this profusion of vices, Indian hemp [aka cannabis] was but a minor afterthought… states banned cannabis in the 1910s: Massachusetts in 1911; Maine, Wyoming and Indiana in 1913; New York City in 1914; Utah and Vermont in 1915; Colorado and Nevada in 1917. As in California, these laws were passed not due to any widespread use or concern about cannabis, but as regulatory initiatives to discourage future use." Dale Gieringer, PhD "The Forgotten Origins of Cannabis Prohibition in California," Contemporary Drug Problems, Summer 1999 1 230 P.3d 518 Page 23 348 Or. 159, 230 P.3d 518, 159 Lab.Cas. P 60,980, 23 A.D. Cases 1, 60 A.L.R.6th 669 (Cite as: 348 Or. 159, 230 P.3d 518) ity under the Commerce Clause. Gonzales v. Raich, As the majority recognizes, the Controlled Sub- 545 U.S. 1, 5, 125 S.Ct. 2195, 162 L.Ed.2d 1 stances Act does not include an express preemption (2005). In enacting the Oregon Medical Marijuana provision. 348 Or. at 173–75, 230 P.3d at 526–27. Act, which permits the circumscribed use of medic- It contains, instead, “a saving clause” intended to al marijuana, Oregon acted pursuant to its historic “preserve state law.” See Wyeth, 129 S.Ct. at 1196 power to define state criminal law and to protect (so construing nearly identical provision in Federal the health, safety, and welfare of its citizens. Food, Drug, and Cosmetic Act). Thus, the majority Whalen v. Roe, 429 U.S. 589, 603, 603 n. 30, 97 should begin its analysis “with the assumption that S.Ct. 869, 51 L.Ed.2d 64 (1977); Robinson v. Cali- the historic police powers [exercised by the State of fornia, 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d Oregon] were not to be superseded by the Federal 758 (1962). Act * * *.” Id. at 1194–95. In enacting the Controlled Substances Act, The majority does not do so. It instead implies, Congress did not have the power to require Oregon from the federal policy choice that the Controlled to adopt, as state criminal law, the policy choices Substances Act represents, a Congressional intent represented in that federal act. Congress does not to preempt provisions of Oregon law that makes a have the power to commandeer a state's legislative different policy choice. 348 Or. at 184, 230 P.3d at processes by compelling it to enact or enforce fed- 532–33. To understand the majority's error in ap- eral laws. New York v. United States, 505 U.S. 144, plying the “obstacle” prong of the United States Su- 149, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). preme Court's implied preemption analysis, it is im- “[E]ven where Congress has the authority under the portant to understand the purposes and effects of Constitution to pass laws requiring or prohibiting the federal and state laws that are at issue in this certain acts, it lacks the power directly to compel case. the States to require or prohibit those acts.” Id. at 166, 112 S.Ct. 2408. Congress enacted the federal Controlled Sub- stances Act, as the majority explains, to “conquer Because it had authority to enact the Controlled drug abuse” and “control” traffic in controlled sub- Substances Act, Congress did, however, have the stances. 348 Or. at 172–73, 230 P.3d at 526. In list- power to expressly preempt state laws that conflict ing marijuana as a Schedule I drug, Congress de- with the Controlled Substances Act. A cornerstone cided that marijuana has no recognized medical of the Supreme Court's Supremacy Clause analysis use. Therefore, “Congress imposed a blanket feder- is that “[i]n all pre-emption cases, and particularly al prohibition” on the use of marijuana. 348 Or. at in those in which Congress has legislated in a field 178, 230 P.3d at 529. As noted, Congress did not which the States have traditionally occupied,” the expressly indicate, however, that states could not Court “start[s] with the assumption that the historic enact their own criminal drug laws or make differ- police powers of the States were not to be super- ent decisions about the appropriate use of seded *192 by the Federal Act unless that was the marijuana. clear and **537 manifest purpose of Congress.” Wyeth v. Levine, ––– U.S. ––––, ––––, 129 S.Ct. Oregon did in fact enact its own criminal drug 1187, 1194–95, 173 L.Ed.2d 51 (2009) (internal el- laws, including the state Uniform Controlled Sub- lipsis and quotation marks omitted). The Court re- stances Act (*193ORS 475.005 to 475.285 and lies on that presumption out of “respect for the ORS 475.840 to 475.980). That act controls and States as independent sovereigns in our federal sys- punishes, as state criminal law, the use of all sub- tem.” Id. at 1195 n. 3 (internal quotation marks stances that the federal government classifies as omitted). Schedule I drugs, including marijuana. ORS 475.840; ORS 475.856 – 475.864. Oregon also en- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 230 P.3d 518 Page 28 348 Or. 159, 230 P.3d 518, 159 Lab.Cas. P 60,980, 23 A.D. Cases 1, 60 A.L.R.6th 669 (Cite as: 348 Or. 159, 230 P.3d 518) for the proposition that a state statute that permits Id. at 103, 109 S.Ct. 1661. conduct that the federal government punishes is preempted. In those cases, the federal statutes did Other Supreme Court cases also illustrate the not punish conduct; they created powers or rights. Court's refusal to imply preemption, under the The Court therefore struck down state statutes that “obstacle” prong of its implied preemption analysis, forbade, impaired or prevented exercise of those where state and federal statutes set contrary stand- powers or rights. Because the Controlled Sub- ards or pursue contrary objectives. In Silkwood v. stances Act does not create a federal power or right Kerr–McGee Corp., 464 U.S. 238, 246, 104 S.Ct. and the Oregon Medical Marijuana Act does not 615, 78 L.Ed.2d 443 (1984), a case that the court in forbid, impair, or prevent the exercise of a federal ARC America cited as authority, the jury had awar- power or right, Barnett and Michigan Canners are ded the plaintiff a judgment of $10 million in punit- inapposite. The more relevant Supreme Court cases ive damages against the defendant, a nuclear power are those that consider the circumstance that exists company. The defendant asserted that a conflict ex- when federal and state laws impose different stand- isted between the state law that permitted the judg- ards of conduct. Those cases stand for the proposi- ment and a federal law regulating nuclear power tion that states may impose standards of conduct plants, with which the defendant had complied. different from those imposed by a federal law Despite an earlier ruling that the Nuclear Regulat- ory Commission had exclusive authority to regulate without creating an obstacle to the federal law. FN5 the safety of nuclear power plants, and even In California v. ARC America Corp., 490 U.S. though the Court accepted that “there is tension 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989), the between the conclusion that safety regulation is the Court considered, under the “obstacle prong” of its exclusive concern of the federal law and the con- “actual conflict” implied preemption analysis, the clusion that a State may nevertheless award dam- conflict between Section 4 of the federal *200 ages based on its own law of liability,” id. at 256, Clayton Act, which authorizes only direct pur- 104 S.Ct. 615, the Court refused to invalidate the chasers to recover monopoly overcharges, and a state law. state statute, which expressly permits recovery by indirect purchasers.