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 Iâd spotted on the bus on the way there would be the most interesting thing Iâd 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 itâs considered to have a high potential for abuse and no redeeming medical value. Its status also determines punishment for marijuana-related crimes. (Itâs 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 stateâs authority on drug scheduling, so Chris Baumgartner, the DOHâs 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 commissionâs 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 theyâd already come up with. They were as follows:
1) Make no change to medical marijuanaâs scheduling.
2) Reschedule medical marijuana. Make it a âlegendâ drug and reschedule it to schedule II, III, IV, or V. Regulate it through the pharmacy/medical system.
3) Make no change to marijuanaâs scheduling except to specifically exempt marijuana purchased, grown, or sold through the stateâs 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 âa laudable ideaâ and that he appreciated âthe intent to reduce the stigma of medical marijuana.â But, as I learned by listening to the PQAC discuss the issue, removing pot from state drug scheduling outright wouldnât necessarily further the aims of marijuana advocates. You see, when we legalized pot with I-502, we didnât 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 âpossession of a controlled substance.â 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 Justiceâs 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, weâre currently dependent on potâs status as a schedule I drug here in Washington State.
If we were to go with option four (removing marijuana from scheduling entirely), âit would allow any person to possess or grow any amount at any time and sell it to anyone,â noted Baumgartner, adding that all the stuff we like from I-502âthe consumer safety measures, the tax revenue, and all that jazzâwould be gone. He also reiterated that we would be in violation of the Cole memoâthat delicate foundation upon which our legalization experiment rests.
However, the governor wouldnât have asked for a resolution from the DOH if he thought that leaving things as-is was a long-term solution. As Baumgartner noted, âit would mean that pot is still listed as having no medicinal value, which seems to counteract the current bills.â
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 âdo nothingâ option, three was basically the âdo nothing muchâ 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 marijuanaâs legitimacy as a medicine, it was something of a Pandoraâs box. If pot were rescheduled to any of the other scheduling categories, âit would be a problem for the recreational market,â said Joyce Roper, the stateâs senior assistant attorney general, who was sitting with the commission. âYou would basically be saying marijuana is now medicine and has no recreational use.â
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 didnât seem appealing to the commission. Neither did the idea of uprooting an existing state law. Dan Rubin, the commissionâs vice chair, said, âFor 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 Iâm really not willing to entertain something broader than the state law.â
Option three was, indeed, the first to be put forth as a motion. But then things got interestingâCommissioner Tim Lynch came out of left field with this: âThat would be my proposalâthat we honor the recreational use, because the citizens have spoken. But if itâs a medication, we regulate like a medication. So thatâs option five.â Though option three was the most palatable option, Lynch pointed out that doing nothing to legitimize medical marijuana would be âkicking the can down the road.â
He said, âInaction concerns me in the sense that it doesnât 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 weâre concerned about our DEA license,â he said, concluding, âTo me, inaction is not an option. Weâre saying this is medication and itâs valid for use, or weâre not.â
Lynchâs franken-optionâto leave recreational marijuana as a schedule I drug but to deschedule medical marijuana, creating a distinction between the twoâpassed with nine of the commissionâs 15 votes. Why is this so interesting? Because if legislation based on the PQACâs recommendation passes, it would essentially upend SB 5052 and put marijuana on pharmacy shelvesâand not ones with green cross sandwich boards out front.
So does this mean youâll be buying your high-CBD JUJU Joints at Bartellâs 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 DOHâs new medical marijuana rules, and Brian Smith, the Washington State Liquor and Cannabis Boardâs communications director, have told me that âmarijuana is marijuana,â 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, ârescheduling just medicinal marijuanaânot the entire cannabis plant and derivativesâmay cause serious problems such as having the unintended effect of limiting the types of marijuana that are considered medicine.â Lynch obviously doesnât agree with that stance. During discussion of his proposal, he said, âI donât see the distinction between medical marijuana other than politics. If it is a medication, we treat it like every other medication out there.â 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 PQACâs recommendation has a snowballâs chance in hell of becoming legislation, itâs 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, weâre starting to hear those voices from within it.