[Courtesy of Iowans for Medical Marijuana]
FOR IMMEDIATE RELEASE: December 8, 2007
CONTACT: Carl Olsen Iowans for Medical Marijuana (515) 288-5798Dear Governor Richardson,
In your press release dated August 17, 2007, you vowed to fight the federal intimidation efforts, and use every state resource to fully implement the state law making medical marijuana legal for the most seriously ill patients. We think it is inconsistent that New Mexico state law continues to classify marijuana as a schedule I controlled substance, N.M. Stat. Ann. § 30-31-5(A)(2) (2007), with no accepted medical use in treatment in the United States.
Although federal law currently classifies marijuana as a schedule I controlled substance with no accepted medical use in treatment in the United States, the actual determination of whether marijuana has accepted medical use is specifically reserved to the states under the federal Controlled Substances Act of 1970 (CSA) (21 U.S.C. §§ 801 et seq.). This is clear from the recent decision by the United States Supreme Court in Gonzales v. Oregon, 546 U.S. 243 (2006).
Gonzales v. Oregon, 546 U.S. 243, 250 (2006) (referring to 21 U.S.C. § 903):"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together." § 903.
Gonzales v. Oregon, 546 U.S. 243, 269-270 (2006):In deciding whether the CSA can be read as prohibiting physician-assisted suicide, we look to the statute's text and design. 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." (Citations omitted).
United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 492 (2001):The Attorney General can include a drug in schedule I only if the drug "has no currently accepted medical use in treatment in the United States," "has a high potential for abuse," and has "a lack of accepted safety for use . . . under medical supervision." §§ 812(b)(1)(A)-(C). Under the statute, the Attorney General could not put marijuana into schedule I if marijuana had any accepted medical use.
Although New Mexico Senate Bill 523, effective July 1, 2007, now includes marijuana in both schedule I and schedule II of New Mexico's state version of the Uniform Controlled Substances Act, the question that we have for New Mexico is why New Mexico's version of the Uniform Controlled Substances Act continues to list marijuana as a schedule I controlled substance, N.M. Stat. Ann. § 30-31-6 (2007), which has "no accepted medical use in treatment in the United States", N.M. Stat. Ann. § 30-31-5 (2007). Under both New Mexico and federal law, the criteria for placing a substance in schedule I is "no accepted medical use in treatment in the United States".
We fear that this inconsistency is going to cause problems for patients in New Mexico who are attempting to comply with the Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. § 30-31C-1 (2007), as amended by New Mexico Senate Bill 523, effective July 1, 2007.Carl Olsen, George McMahon, Barbara Douglass
Directors of Iowans for Medical Marijuana (http://www.iowamedicalmarijuana.org/)
Members of the Board for Patients Out of Time (http://www.medicalcannabis.com/)
Petitioners in The Federal Marijuana Rescheduling Petition (http://www.drugscience.org/)
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