Cannabis Laws and Research at Colorado Institutions of Higher Education
| Publication year | 2015 |
| Pages | 73 |
| Citation | Vol. 44 No. 10 Pg. 73 |
Special Issue: Education Law
Cannabis Laws and Research at Colorado Institutions of Higher Education
By Frank Robison, Elvira Strehle-Henson.
About the Authors
Frank Robison serves as Assistant University Counsel in the University of Colorado Boulder's Office of University Counsel—(303) 492-7481, frank.robison@cu.edu. Elvira Strehle-Henson serves as Managing Senior Associate University Counsel in the University of Colorado Boulder's Office of University Counsel—(303) 492-7481, Elvira.Henson@cu.edu. 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 University. The authors thank the following people for their valuable time and input: Rick Doblin, Moni Fleshner, Ken Gershman, Kent Hutchison, Nolan Kane, Tia Luber, Duane Sinning, and Daniel Vergara.
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 harmful and addictive and a gateway drug, and is an industrial panacea. This article discusses how the federal legal scheme to regulate controlled substances has affected scientific research with and on cannabis.
The "green rush" has been on since 1996, when California decriminalized marijuana for medical purposes. Today, 23 states and the District of Columbia, Guam, and Puerto Rico have passed or enacted laws that allow Cannabis sativa L (cannabis)[1] to be used for medical purposes, giving new meaning to Justice Brandeis's dissent that a "courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."[2]
Several states have legalized and regulated the cultivation, sale, distribution, or possession of cannabis for medical and recreational purposes, but these activities continue to be violations of various federal laws and may be prosecuted by federal authorities.[3] In spite of the federal specter of continued prosecution, over the past six years, the federal government has overtly adjusted its enforcement priorities in states that have legalized or decriminalized marijuana, essentially fueling the green rush.[4]
During this time, the federal government has not altered or addressed the corresponding regulatory paradigm for conducting research. As a result, at the state level, the cannabis money tree is in full bloom, but research at federally funded institutions remains stunted.
Hemp, industrial hemp, recreational marijuana, and medical marijuana are a variety of strains of cannabis (cannabis nomenclature and its respective use in this article are addressed in note one). Except for the cultivation and research of industrial hemp by institutions of higher education and state departments of agriculture in states that allow hemp production, federal law treats cannabis equally. The Controlled Substance Act (CSA) broadly prohibits and criminalizes the cultivation, possession, importation, and distribution of marijuana, providing for a limited exception for federally approved research.[5]
There is a resulting void in fact-based scientific data and information about the cannabis plant and what it and its constituent compounds actually do to the human body. Whether cannabis is less or more harmful or beneficial than other controlled substances or legal substances, such as alcohol and tobacco, is one of many scientific questions about cannabis to which collectively few answers exist.
According to a 2013 Gallup poll, almost 60% of U.S. citizens think marijuana should be legal.[6] Approximately 20 million people in the United States age 12 and over (about 7.5% of the people surveyed) are current users of marijuana—that is, they use marijuana at least once in any given month.
Last year, President Obama remarked, "I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don't think it is more dangerous than alcohol."[7] Others, including many parents of sick children who have moved to Colorado since the state legalized medical marijuana, might disagree with the President's characterization of marijuana as a vice. They use it as an alternative or supplement to FDA-approved medicines to treat serious illnesses, such as Dravet and Lennox-Gastaut syndromes, which are severe forms of epilepsy.
Insufficient data exists to establish how marijuana is affecting people who consume it. The Colorado Department of Public Health and Environment (CDPHE) states that it has been unable to establish empirically appropriate dosing of medical marijuana.[8] In part, because of the lack of data, a significant interest and demand for low trans-?9-tetrahydrocannabinol (THC)/high cannabidiol (CBD) cannabis strains exists. THC has psychoactive properties, while CBD does not.
This interest is illustrated by the thousands of parents seeking cannabis products to treat children with chronic or life-threatening illnesses ranging from seizure disorders to cancer. Organizations such as Realm of Caring Foundation Inc. and Stanley Brothers Social Enterprises LLC provide cannabis-based medical services or products that—some assert—have successfully treated such illnesses.[9] Furthermore, although federal agencies recognize the need to facilitate research—the Food and Drug Administration (FDA) and National Institute of Drug Abuse (NIDA) acknowledge that cannabis may contain compounds that are viable for treating epilepsy, nervous system disorders, and other illnesses—the federal legal scheme continues to stymie research.[10]
Congress has attempted to modify the current paradigm on a number of occasions.[11] Most recently, on May 13, 2015, U.S. senators Cory Gardner and Michael Bennett and several other senators introduced Senate Bill (S) 1333, the Therapeutic Hemp Medical Access Act. This Act would amend the CSA to exclude CBD and other low THC/high CBD strains of cannabis from the CSA's definition of marijuana. This exemption would encompass strains that contain less than .3% of THC but contain high concentrations of CBD that, at least based on observational data between physicians and patients, may be medically beneficial. While regulatory hurdles would still exist, such as an FDA Investigational New Drug (IND) application, exempting CBD and low THC/high CBD strains from being classified as Schedule I drugs under the CSA would facilitate the clinical trials (trials in which a researcheer administers marijuana to human subjects) necessary to approve or disprove the anecdotal evidence.
This article discusses the existing legal landscape for marijuana research and the concomitant lack of federal guidance and action despite the growing number of states that have legalized marijuana for medical or recreational purposes. It also explains the conflicting state and federal regulatory frameworks that presently exist and the resulting vacuum in U.S. research.
Cannabis Research:
Historical Roots to Current Landscape
In spite of recognized industrial and medical uses for cannabis, at the turn of the 20th century anti-marijuana sentiments took hold in the United States.[12] Cannabis entered a period where society rejected its recreational, medical, and industrial uses and research stagnated. Later, the United States became a party to several international treaties restricting marijuana use, and Congress ultimately passed the CSA in 1970.[13]
While the CSA recognizes that many controlled substances "have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people, "[14] it is also "a closed regulatory scheme."[15] The federal government classifies marijuana in the most restrictive of five controlled substance categories.16It is in same category as heroin, ecstasy, and LSD because of the determination that marijuana has a high potential for abuse and no accepted medical utility, and that there is a lack of accepted safety standards for marijuana use under medical supervision.[17] Notably, opium, cocaine, and methamphetamine fall into a less restrictive category than marijuana.[18]
Under federal law, cultivation, sales, distribution, use, or possession of marijuana for research purposes requires registration with the Drug Enforcement Agency (DEA), the primary federal agency charged with enforcing the CSA.[19]
As a party to the Single Convention on Narcotic Drugs, the United States is required to create "a government agency, " which is NIDA, to control the distribution and growth of marijuana.[20] Although the Single Convention does not limit the number of sources for which marijuana can be grown, since 1968, NIDA has awarded the sole contract to the University of Mississippi. To date, attempts to obtain approval for more than one approved source for marijuana have been unfruitful and deemed unnecessary by the DEA.[21]
In addition, NIDA mandates procurement of research marijuana from the University of Mississippi, which has limited varieties and quantities.[22]
Across the United States, approximately 1.5 million residents have received recommendations from medical doctors to use marijuana as part of a treatment plan.[23] In Colorado, medical marijuana has been legal for over fifteen years. In January 2014, Colorado became the first state in the nation to regulate the cultivation, distribution, and sale of recreational marijuana. This was followed closely by Washington and later by Alaska, Oregon, Rhode Island, and Washington DC.[24]
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