STANDARDIZED MARIJUANA BACKGROUND FOR BRIEFS

(Matt Pappas, Rev. 112015)

l. BACKGROUND A. Use of marijuana as a medicine.

Marijuana was first used as a medicine in China nearly 5000 years ago. Recommended for malaria, constipation, rheumatic pains, and as a surgical analgesic I ,

subsequent records show it was later used throughout Asia, the Middle East, Southem

Africa and South America. In the 19th century, marijuana became a mainstream medicine in England? An Irish scientist and physician, William O'Shaughnessy,

observed its use as an analgesic, anticonvulsant, antispasmodic and antiemetic.

Following toxicity experiments on dogs and goats, O'Shaughnessy began providing

marijuana to patients and was impressed with its anticonvulsant and analgesic properties? After O'Shaughnessy's observations were published in 1842, medicinal use of marijuana expanded rapidly.

B. Objection by the American Medical Association in 1937 to the first Federal law passed to prohibit cannabis

In the 1930s, Harry J. Anslinger, the head of the Federal Bureau of Narcotics

("FBN"), sought to prohibit cannabis use.4 Between 1935 and 1937, Anslinger advocated for passage of the Uniform State Narcotic Act and Marihuana Tax ACI. Dr. William C. Woodward, testifying on behalf of the American Medical AssociationS ("AMA"), told Congress that, "The American Medical Association knows of no evidence that marijuana

I The Pharmacohistory of Cannabis Sativa, Mechoulam, R. (1986). In Cannabinoids as Therapeutic Agents (ed. R. Mechoulam), pp. 1-19. Boca Raton, FL: CRC Press.

2 Therapeutic Aspects of Cannabis and Cannabinoids, Robson, P. (2001). The British Journal of Psychiatry, Vol. 178, pp. 107-115. GB: Royal College of Psychiatrists.

3 Therapeutic Aspects of Cannabis and Cannabinoids, supra.

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is a dangerous drug" and warned that a prohibition "loses sight of the fact that future

investigation may show that there are substantial medical uses for Cannabis." Although

the marijuana tax proposal was opposed by the AMA, it was eventually enacted by Congress on August 2, 1937 (P.L. 75-238, 75 th Cong., 50 Stat. 551, repealed 1971).

C. Congress ignores the 1972 National Commission on Marihuana and Drug Abuse Commission report

In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and

Control Act ("CDAPCA") (P.L. 91-513, 91 st Cong., 84 Stat. 1236, Oct. 27,1970) including Title 2 of that law, the federal Controlled Substances Act ("CSA") (21 U.S.c. 801, et seq.). Part "F" of the CDAPCA established the National Commission on Marihuana and Drug Abuse chaired by Raymond P. Shafer, the former governor of

Pennsylvania. In its first report to Congress recommending full decriminalization of

simple marijuana possession, the Commission reported, "The actual and potential harm of use of [marijuana] is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.,,6

Congress largely ignored the Commission's report after Gov. Shafer was told by

President Nixon, "You're enough of a pro to know that for you to come out with

something that would run counter to what the Congress feels and what the country feels,

and what we're plmming to do, would make your commission just look bad as hell.,,7 Years later, in 1988, the federal Drug Enforcement Administration's ("DEA") Chief Administrative Law Judge, Francis Young, ruled that, "Marijuana, in its natural form, is one of the safest therapeutically active substances known ... It would be unreasonable,

4 The Murderers, the Story of the Narcotic Gangs, Anslinger, H., U. S. Commissioner of Narcotics, and Oursler, W. (1961), pp. 541-554.

5 Statement of Dr. William C. Woodward, Hearing before the Committee on Ways and Means, U.S. House of Representatives, May 4, 1937.

6 Debunking Glenn Beck, Rogers, K., ABC-CLIO, (2011), p. 122. 7 World War-D: The Case Against Prohibitionism, Dhywood, Jeffrey, Columbia Conununications,

(2011), p. 4.

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arbitrary and capricious for the DEA to continue to stand between those sufferers and the

benefits of this substance ... ,,8

The Marihuana Tax Act and CSA effectively proscribed medical use of marijuana in the United States until California voters approved Prop. 215, the state's Compassionate

Use Act ("CUA"), in 1996. In the years since California implemented its CUA, at least twenty-three (23) additional states and the District of Columbia have enacted medical marijuana laws with legislation pending in additional states.9

D. The Compassionate Use Act and Medical Mariiuana Program Act

The 1996 voter-passed Compassionate Use Act is a plain-language law that

decriminalizes medical marijuana use, possession, and cultivation for patients in medical need with doctor recommendations. At the time it was enacted, the law did not include

specific provisions for distribution to patients but rather included the general "right to obtain" for all seriously ill Californians with doctor recommendations. It did, however,

ask that a distribution system be setup under its general provisions and so, in 2003, the

Legislature, acting in-part to address the need for distribution expressed by the voters,

established the Medical Marijuana Program Act ("MMP A"). The MMP A decriminalized storage, land use, distribution, and transportation related to medical

marijuana through a collective and cooperative distribution system. Understanding the issue with the general prohibition against marijuana expressed in federal law, the Legislature asked that the state's Attorney General promulgate guidelines related to the

collective and cooperative distribution, transportation, and provision system. The

8 State and Local C;overnment Issues, Jamerson, W., Nova Publishers, (2006), p. 49. 9 As of 1-20 IS-jurisdiction/year: Alaska (Ballot Meas. 8,1998); Arizona (Prop. 203, 2(10); Arkansas

(pending); California (Prop. 215, 1996); Colorado (Ballot Amd. 20, 2000); Connecticut; District of Columbia (Initiative 59; Amd. Act. B 18-622, 20 10); Delaware (SB 17, 2011); Guam (2014); Hawaii (SB 862, 2000); Illinois; Iowa (pending); Maine (Ballot Quest. 2, 1999); Maryland; Massachusetts; Michigan (Prop. 1,2008); Minnesota (pending); Montana (Initiative 148,2004); New Hampshire; Nevada (Ballot Quest. 9, 2000); New Jersey (SB 119, 2(10); New Mexico (SB 523, 20(7); New York (2014); Oregon (Ballot Meas. 67, 1998); Pennsylvania (pending); Rhode Island (SB 0710, 2(06); Texas (pending); Vermont (SB 76, 2004); and Wa. State (Init. 692, 1998); Wisconsin (pending).

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MMP A also included sections related to an identification card program, law enforcement,

and threshold quantity limitations. E. Modern use of mariiuana for medicinal purposes

In March, 2011, the National Cancer Institute's ("NCI") PDQ 10 (Physician Data Query) information system for physicians and health professionals reported that potential benefits of medical marijuana for people with cancer include, "antiemetic effects, appetite stimulation, pain relief, and improved sleep. In the practice of integrative

oncology, the health care provider may recommend medicinal Marijuana not only for symptom management but also for its possible direct antitumor effect,"}} In the late 1990s, the director of the White House Ojjice of National Drug Control Policy ("ONDCP") asked the National Institutes qf Science to review the evidence for the potential benefits and risks associated with the use of medical marijuana. The institute of Medicine ("10M"), a non-governmental, apolitical, non-profit part of the National Institutes, was charged with carrying out the research and study. Completed in March,

1999, the institute's medical marijuana project was coordinated by Janet E. Joy who, along with doctors and scientists who participated in the report, co-authored a book

detailing the marijuana study: "People who use marijuana solely as a medication do so in order to relieve specific symptoms of AIDS, cancer, multiple sclerosis, and other

debilitating conditions. Some do so under the advice or consent of doctors after

conventional treatments have failed to help them ... Surveys of marijuana buyers' clubs indicate that most of their members do, in fact, have serious medical conditions.,,12 In the

10 National Cancer Institute (National Institutes of Health) Website, Mar. 25, 2011, .

II See Physician Data Query (PDQ), Cannabis and Cannabinoids, (URL supra), Mar. 25, 2011. 12 Marijuana as Medicine?: The Science Beyond the Controversy, Mack, A. and Joy, J. (2000). Nat. Inst.

of Science, p. 10. D.C.: Nat. Academies Press.

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approximately 5000 years it has been used medicinally, there is not a single case of death

db d 13 cause y manJuana over ose. F. Cannabis reduces the size of cancerous tumors and is the most effective

treatment for children with severe epiliepsy

Despite consistently voting "no" on Colorado's ballot measures for marijuana, the parents of Charlotte Figi began treating her with cam1abis when she was having 300

grand mal epileptic seizures per week. 14 Cannabis reduced the seizure rate from 300 to

between 2 to 4 seizures per month. Based on its effectiveness for these young patients,

the "Charlotte's Web" strain is the subject of Congressional legislation that passed in the Republican-controlled House of Representatives in 2014.

In January, 2013, the NCI reported that in a two year study, "[a] dose-related decrease in the incidence of hepatic adenoma tumors and hepatocellular carcinoma

(HCC) was observed ... Decreased incidences of benign tumors (polyps and adenomas) in other organs (mammary gland, uterus, pituitary, testis, and pancreas) were also noted ... In another study, delta-9-THC, delta-8-THC, and cannabinol were found to inhibit the

growth of Lewis lung adenocarcinoma cells in vitro and in vivo. In addition, other

tumors have been shown to be sensitive to cannabinoid-induced growth inhibition.,,15 G. Trying to grow medication when seriously ill

The effectiveness of medical marijuana for a particular illness, disability, or condition depends on the strain used. There are approximately 2,800 strains available

today.16 According to Yahoo! Answers 17, it takes between two (2) and six (6) months to

13 DnlgWarFacts Website, Dec. 2014, "An exhaustive search of the literature finds no deaths induced by marijuana," .

14 Marijuana Stops Child's Severe Seizures, Young, S. CNN, Aug. 2014, .

15 Cannabis and Cannabinoids (PDQ), Health Professional Version, National Cancer Institute at the National Institutes of Health, Jan. 2013, p.6.

16 Budtenders Help Medical Marijuana Patients Choose Strains that Fit Their Needs, Sutter, C. (Mar. 1, 2010). Boulder, CO: Daily Camera.

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cultivate marijuana depending on the "strain." Substantial work is required for patients with cancer, AIDS or in wheelchairs to cultivate marijuana. The cultivation process is subject to various issues including spider mites, mold and often expensive equipment. It would be cruel to require those most in need of medical cannabis to devote their limited

strength and efforts to the often complex and difficult task of cultivation. I8

H. Deciphering the Medical Mariiuana Program Act

When they passed the CUA 19 in 1996, California voters asked the state and federal

governments to "implement a plan to provide for the safe and affordable distribution of

marijuana to all patients in medical need of marijuana." Ca. Health & Safety 11362.5(B)(1)(c). Accordingly, as noted above, the state's Medical Marijuana Program Act ("MMP A") was established in 2004 in-part to address the issue of medication availability for seriously ill and disabled patients who may be unable to cultivate on their

own. The MMP A was also enacted to ensure that patients with cancer, AIDS, mental

illness, serious disabilities, and other recognized medical conditions "who obtain and use

marijuana for medical purposes upon the recommendation of a physician" have access to medication because their respective disabilities make personal cultivation impossible.

(Ca. Health & Safety Code 11362.5(B)(1)(a) and 11362.5 (B)(1)(b).) (emphasis added.) Exceptions from state prohibitions for patients who "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes" are provided through Ca. Health & Safety Code 11362.775, part of the

17 Yahoo! Answers, 9117/2011,.

18 People v. Baniani (2014) 229 Ca1.App.4th 45, 60, 176 Ca1.Rptr.3d 764 ["It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana. Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The MMPA does not anticipate a patient who has received a physician's recommendation must thereafter wait months to lawfully acquire medical marijuana."]

19 Ca. Health & Safety Code 11362.5.

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MMPA.20

I. California's Disabled Persons Act and Unruh Civil Rights Act

Ca. Civil Code 54(c) ("CDPA") and 51(f) ("Unruh") both prohibit state and local laws, including zoning ordinances, that facially or by operation discriminate against

seriously ill or disabled citizens.21 These laws protect people with physical or mental

conditions that limit major life activities.22 Other states, including New York, have deemed medical marijuana patients protected under their disability anti-discrimination laws. (New York, S.B. 4406, 3369(4)(5)(6), enacted 2014.) A discriminatory law is one that imposes more restrictions on patients of methadone clinics, medical clinics,

hospitals, pharmacies or dispensaries thereby adversely impacting a protected class of

people?3 The word "medical" precedes the word "marijuana" and shows the laws in this state were passed for people that, by defmition, must be individuals suffering from

physical or mental conditions that limit major life activities. Like section 54( c), Unmh -through its subsection (f) - not subsection (b) - prohibits municipalities from discriminating against medical marijuana patients. Contrary to a plethora of media reports and public misunderstanding, the only people who can participate in the collective

process are people who are disabled and part of a class protected by state law.

20 Ca. Health & Safety Code 11362.7, et seq. 21 This is because those sections incorporate all of the protections of Title n of the Americans with

Disabilities Act ("ADA") (P.L. 101-336, 101st Cong., 104 Stat. 327, July 26, 1990) - see Munson v. Del Taco (2009) 46 Ca1.4th 661, [all rights protected by the ADA, including Title n, are included in the CDPA and Unruh.]; See also Jankey v. Lee (2012) 55 Cal.4th 1038, 150 Cal. Rptr. 3d 191,290 P.3d 187, [California law is more protective than federal law and applies when different.].

22 Ca. Gov't Code 12926. 23 RHJ Medical Center v. City o.lDubois (3d Cir,201O) 754 F.Supp.2d 723, 726.

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