When I arrived at Highline College to sit in on a meeting of the Washington State Pharmacy Quality Assurance Commission (PQAC) last Friday, I was fairly certain the puke-yellow puffy Ed Hardy jacket I’d spotted on the bus on the way there would be the most interesting thing I’d see all day. Instead I was treated to a riveting theoretical discussion of the ramifications of changing the scheduling of marijuana in the Controlled Substances Act (CSA). This could be huge news.
Even though marijuana is legal in Washington State, the state-level Controlled Substances Act still classifies it as a schedule I drug, meaning it’s considered to have a high potential for abuse and no redeeming medical value. Its status also determines punishment for marijuana-related crimes. (It’s also a schedule I drug at the federal level.) When Governor Jay Inslee signed the Cannabis Patient Protection Act (SB 5052) into law, folding the medical marijuana market into the recreational one, he vetoed the part of the legislation that would have removed medical marijuana from schedule I. Rescheduling medical marijuana could potentially mean that pot could end up on the shelves of your local pharmacy.
Potentially. The problem is that no one quite knows how rescheduling or descheduling at the state level would affect our current laws and their standing with the federal government.
So Inslee requested that the Washington State Department of Health (DOH) reconsider the idea for descheduling and bring him a draft resolution for the next legislative session. The PQAC is the state’s authority on drug scheduling, so Chris Baumgartner, the DOH’s drug systems director in the Department of Health Professions and Facilities, went to the commission to request an official recommendation on medical marijuana to take back to the governor.
The DOH came up with three possible options. Prior to the commission’s Friday meeting, in November, the DOH held a public hearing asking for stakeholder input, from which they culled a fourth policy option to add to the three they’d already come up with. They were as follows:
1) Make no change to medical marijuana’s scheduling.
2) Reschedule medical marijuana. Make it a “legend” drug and reschedule it to schedule II, III, IV, or V. Regulate it through the pharmacy/medical system.
3) Make no change to marijuana’s scheduling except to specifically exempt marijuana purchased, grown, or sold through the state’s existing systems (i.e., I-502, SB 5052, etc.).
4) Remove medical marijuana from scheduling entirely.
In his veto, Inslee said rescheduling or descheduling medical marijuana was “a laudable idea” and that he appreciated “the intent to reduce the stigma of medical marijuana.” But, as I learned by listening to the PQAC discuss the issue, removing pot from state drug scheduling outright wouldn’t necessarily further the aims of marijuana advocates. You see, when we legalized pot with I-502, we didn’t change its status, we simply allowed for its legalization by making conditional exceptions to the CSA. The violation that I-502 and SB 5052 provide an exception to is “possession of a controlled substance.” If pot is no longer a controlled substance, that class C felony that these bills threaten you with for operating outside of their strictures no longer applies.
As wonderful as it would be to remove the threat of criminal penalty from the legal weed game in our state, the reality is that you are already subject to federal penalties if you grow, distribute, or possess marijuana. Thankfully, those federal penalties are currently not enforced thanks to the Cole memo, the Department of Justice’s policy statement that gives states the go ahead on legalization so long as they have a well-regulated system. Part of that well-regulated system is strict enforcement for people who operate outside of it. Which means that for the whole pot experiment to work, we’re currently dependent on pot’s status as a schedule I drug here in Washington State.
If we were to go with option four (removing marijuana from scheduling entirely), “it would allow any person to possess or grow any amount at any time and sell it to anyone,” noted Baumgartner, adding that all the stuff we like from I-502—the consumer safety measures, the tax revenue, and all that jazz—would be gone. He also reiterated that we would be in violation of the Cole memo—that delicate foundation upon which our legalization experiment rests.
However, the governor wouldn’t have asked for a resolution from the DOH if he thought that leaving things as-is was a long-term solution. As Baumgartner noted, “it would mean that pot is still listed as having no medicinal value, which seems to counteract the current bills.”
Of the other, non-system-jeopardizing options available, option three (making no change to scheduling but creating an exemption) was the clear frontrunner. If option one was the “do nothing” option, three was basically the “do nothing much” option. All it would do would be to clean up the way we currently regulate pot within the CSA. It would simply take pot off scheduling in any regulated context where the rules are being followed.
Although option two (rescheduling marijuana) would represent a huge step forward for marijuana’s legitimacy as a medicine, it was something of a Pandora’s box. If pot were rescheduled to any of the other scheduling categories, “it would be a problem for the recreational market,” said Joyce Roper, the state’s senior assistant attorney general, who was sitting with the commission. “You would basically be saying marijuana is now medicine and has no recreational use.”
It could also put pharmacies in jeopardy with the DEA, as all pharmacies have to register their scheduled drugs with the feds. Roper did note that there have been two precedent-setting court cases in California saying that states are allowed to choose what to consider medicine and the federal government has to respect that, but the idea of becoming a test case didn’t seem appealing to the commission. Neither did the idea of uprooting an existing state law. Dan Rubin, the commission’s vice chair, said, “For me, going contrary to the state law is an overwhelming reason not to do [option] two. The only option that has legs to me is option three. The book is closed on that, that is the state law, and I’m really not willing to entertain something broader than the state law.”
Option three was, indeed, the first to be put forth as a motion. But then things got interesting—Commissioner Tim Lynch came out of left field with this: “That would be my proposal—that we honor the recreational use, because the citizens have spoken. But if it’s a medication, we regulate like a medication. So that’s option five.” Though option three was the most palatable option, Lynch pointed out that doing nothing to legitimize medical marijuana would be “kicking the can down the road.”
He said, “Inaction concerns me in the sense that it doesn’t really provide patients with an option when they do get admitted and are subject to the care that they need. Some of these patients have a compelling reason to be on it and we may say no because we’re concerned about our DEA license,” he said, concluding, “To me, inaction is not an option. We’re saying this is medication and it’s valid for use, or we’re not.”
Lynch’s franken-option—to leave recreational marijuana as a schedule I drug but to deschedule medical marijuana, creating a distinction between the two—passed with nine of the commission’s 15 votes. Why is this so interesting? Because if legislation based on the PQAC’s recommendation passes, it would essentially upend SB 5052 and put marijuana on pharmacy shelves—and not ones with green cross sandwich boards out front.
So does this mean you’ll be buying your high-CBD JUJU Joints at Bartell’s after the next legislative session? Probably not. The recommendation, while a weighty one, is still a recommendation. The DOH will compile all the recommendations that they have and present it to the governor for a new bill in the next legislative session. This recommendation also runs counter to current thinking at the state level. Both Kristi Weeks, the author of the DOH’s new medical marijuana rules, and Brian Smith, the Washington State Liquor and Cannabis Board’s communications director, have told me that “marijuana is marijuana,” and its classification really depends on the intent of the user.
Inslee also specifically cautioned against making a distinction between medical and recreational marijuana in his veto memo, saying, “rescheduling just medicinal marijuana—not the entire cannabis plant and derivatives—may cause serious problems such as having the unintended effect of limiting the types of marijuana that are considered medicine.” Lynch obviously doesn’t agree with that stance. During discussion of his proposal, he said, “I don’t see the distinction between medical marijuana other than politics. If it is a medication, we treat it like every other medication out there.” The problem is, of course, that weed is both a medicinal and a recreational drug, often at the same time. Making a distinction between the uses is difficult, but his proposal would certainly force us to try it.
Whether or not the PQAC’s recommendation has a snowball’s chance in hell of becoming legislation, it’s still a major milestone for pot. While people have been extolling its virtues as medicine for decades, they have been doing so largely from outside of the medical establishment. Now, we’re starting to hear those voices from within it.