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Rescheduling Petition 3/16/11

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BOARD OF PHARMACY EXAMINERS

 

Petition by Kurtis Hanna and             )          

Edwin Engelmann For the Removal   )                       PETITION IN SUPPORT

Of Marijuana From Schedule I           )                       OF RULE MAKING

Of Minnesota’s Controlled                 )                       OR ACTION

Substance Act                                    )

 

Minnesota Board of Pharmacy

2829 University Avenue SE, Suite 530

Minneapolis, MN 55414-3251

 

PETITION

            Both state and federal law require that marijuana be removed from Schedule I of the Controlled Substances Act (“CSA”), see Minn. Stat. Chapter 152 (Minnesota’s CSA, Minn. Stat. Sec. 152.02, Subd. 8 (removal or reclassification of listed substance); see also Title 21, U.S.C. Controlled Substances Act, Chapter 13 et seq.  Petitioners Kurtis Hanna and Edwin Engelmann (each a “Petitioner” and collectively “Petitioners”) submit this Petition seeking the Minnesota Board of Pharmacy (the “Board”) to change the list of substances contained presently in Minnesota’s CSA by removing marijuana from that list .  This Petition is supported by Petitioners’ Memorandum in Support of Petition for Rule Making or Action, and the Affidavit of Kurtis Hanna with accompanying Exhibits, all submitted herewith. 

            The Board is vested with a legal duty to annually investigate and evaluate whether a substance currently listed under Schedule I of the Minnesota’s CSA should be deleted from that list because it no longer meets the criteria for being so listed.  Minn. Stat. Sec. 152.02, Subd. 8 (the Board “shall annually . . . conduct a review of the placement of controlled substances in the various schedules”). 

The Board can and should remove marijuana from Schedule I because it no longer satisfies two of the mandatory criteria for inclusion in that Schedule.  Marijuana no longer satisfies the requirement that it:

1) has no currently accepted medical use in the United States; or

2) lacks accepted safety for use under medical supervision. 

Minn.Stat. Sec. 152.02(7)(1).  Each of these criteria must be satisfied for marijuana to remain in Schedule I.  The uncontroverted public record evidence set forth herein demonstrates that they do not, and must be removed from Schedule I.

            At least 15 States within the U.S. and the District of Columbia accept the safety of marijuana for medical use.[1]  The public record of these various state laws and regulations demonstrates that it can no longer be said that marijuana lacks accepted medical use in the United States or that such medical use lacks accepted safety for use conditions and practices (as set forth in various state regulatory schemes).

            The Federal drug law, the Controlled Substances Act, 21 U.S.C. Sec. 903, gives the states, and not the federal government, the authority to determine accepted medical use within the state.  See Gonzales v. Oregon, 546 U.S. 243, 269-70 (2006):

            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 allows 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.”  Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240 (1996) (citations omitted).           

            The United States Supreme Court ruled that the federal government, despite its arguments, could not establish any authority to regulate the practice of medicine within the various states except to regulate the prescription writing powers of pharmacy professionals.  546 U.S. at 275.  The Court held that the text and the structure of the federal CSA failed to show any Congressional intent to shift power of regulating the State practice of medicine away from the States themselves.

            The eight factors to be considered by the Minnesota Board of Pharmacy Examiners under Minn. Stat. Sec. 152.02(8) (removal or reclassification of substance from Minnesota’s CSA) were considered in In Re Matter of Marijuana Rescheduling, DEA Docket NO. 86-22, September 6, 1988 (attached as Exhibit 1 to the Affidavit of Kurtis Hanna) which resulted in a finding that “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”  Id. at 58-59.

            Because no state had accepted marijuana’s medical use in 1988, the DEA Administrator was able to reject the conclusion of the Administrative Law Judge in DEA Docket NO. 86-22 that marijuana must be transferred from Schedule I to Schedule II of the federal CSA.  Because marijuana now has currently accepted and safe medical use in 15 states and the District of Columbia, because federal law defines accepted medical use to be whatever the state regulators define it as, and because the DEA’s own Administrative Law Judge has already determined that marijuana is safe for use under medical supervision, the Minnesota definition for a Schedule I controlled substance (pursuant to Minn. Stat. Sec. 152.02(2)(3)) no longer applies to marijuana and Minnesota’s CSA must be amended to reflect these changes. 

 

 

                                                Respectfully submitted this 16th day of March, 2011

                                                _________________________

                                                Kurtis Wayne Hanna

                                                1935 S. Fremont Avenue – Apt. 5

                                                Minneapolis, MN 55403

 

_________________________

                                                Edwin Herman Engelmann

                                                62657 430th Street

                                                Franklin, MN 55333-1069



[1] Alaska(Medical Uses of Marijuana for Persons Suffering from Debilitating Medical Conditions Act, Alaska Statutes Sec.17.37.010-17.37.080 (2005); Arizona (Drug Medicalization, Prevention and Control Act, Arizona Revised Statutes Sec. 13-3412 (A)(8) – 13-3412.01 (2010)); California (Compassionate Use Act, Cal. Health & Safety Code Sec. 11362.5 (2005)); Colorado (Const. Col. Art. XVIII, Sec. 14, CSRA Sec. 18-18-406.3 (1996)); Hawaii (Medical Use of Marijuana Act, Hawaii Revised Statutes Sec. 329-121-128 (2000)); Maine (Maine Medical Marijuana Act, 22 Maine Revised Statutes Annotated Sec. 2383-B(5) (1999)); Michigan (Michigan Medical Marijuana Act, Michigan Compiled Laws Sec. 33.26421-333.26430 (2008)); Montana (Montana Medical Marihuana Act, Michigan Code Annotated Sec. 50-46-101 to 50-46-210 (2005)); Nevada (Medical Use of Marijuana Act, Nevada Revised Statutes Sec. 453A.010 -- 453A.810 (2000)); New Jersey (Compassionate Use Medical Marijuana Act, N.J. Statutes Annotated Sec. 24:61-1-Pub. L. (2010); New Mexico (Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. Sec. 26-2B-1-26-2B-7 (2007); Oregon (Medical Marijuana Act, O.R.S. Sec. 475.300 – 475.346 (1998)); Rhode Island (Edward G. Hawkins and Thomas C. Slater Medical Marijuana Act, 2005 R.I. Pub. Laws Ch. 05-442; Vermont (Marijuana Use by Persons with Severe Illness Act, 18 VSA Sec. 4472-4474d (2005)); Washington (Medical Use of Marijuana Act, RCWA Sec. 69.51A.005—69.51A.092 (1999)); District of Columbia (Legalization of Marijuana for Medical Treatment Initiative Amendment Act of 2010, D.C. Bill 18-622).

Comments  

 
+1 # Scott 2011-03-22 12:29
Kudos and much appreciation to Kurt and Ed! We'll be eagerly awaiting the results of this petition.
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+1 # Aj Janssen 2011-04-14 02:15
Never a better thing to do for this plant
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0 # Anonymous Member 2011-04-26 14:34
The Minnesota Board of Pharmacy has replied to this petition.
see here:
facebook.com/.../...

It seems the board is completely unwilling to do anything about this issue, but i guess we'll see on may 11th.
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0 # kurt hanna2 2011-05-10 17:56
Dear anonymous member,

The Board has not replied to the petition. The response that you linked to was written by Cody Wiberg. He is not on the Board, he just works for the Board as a staff member.

-kurt
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