A number of state legislative sessions recently adjourned leaving several new cannabis bills awaiting governors’ signatures. Two states in particular—Louisiana and Texas—made moves towards legalizing cannabis. Their bills have a lot in common. They are highly restrictive, CBD only, and allow access for a very limited number of conditions. Most importantly, they suffer from the same fatal flaw—they require doctors issue “prescriptions” for medical cannabis.
Why is this important? The difference between a prescription and a certification or recommendation may seem to be mere semantics. After all, they function in basically the same way—in both instances the doctor’s signature serves as a barrier between the patient and his or her medicine. Setting aside whether this should even be the case for cannabis, however, there is an important distinction between prescribing and certifying medical cannabis that seems to have escaped these legislators’ attention. In the end, this may spell big trouble for their new medical cannabis programs.
The prescription-certification distinction stems from the landmark Ninth Circuit case Conant v. Walters. In this case, groups of California doctors and patients filed a class action lawsuit against the federal government, which was threatening to revoke doctors’ DEA controlled substances licenses for having recommend cannabis to their patients. The court held, among other things, that a physician’s recommendation to use medical cannabis can constitute protected First Amendment speech and it blocked the DEA from revoking these doctors’ controlled substances licenses solely because they were recommending cannabis. The Federal government could, however, revoke doctors’ DEA licenses if they actually sold the patient cannabis or broke other federal laws.
So why is this such a big deal for Texas and Louisiana? Because getting doctors to issue prescriptions, instead of recommendations or certifications, will be infinitely more difficult.
States like Illinois are having a hard enough time getting doctors to write patient certifications. Many Illinois doctors are reluctant even to recommend cannabis for fear that if they do so the federal government will revoke their DEA controlled substances licenses, which for many would cripple their practices. Requiring prescriptions for cannabis actually increases the chance physicians will encounter federal interference because they cannot legally prescribe any Schedule I drug. This gives the federal government potential regulatory leverage against doctors and legitimizes their fears that the DEA could come knocking at their doors.
Ideally, state cannabis laws should strive to insulate, not expose, market participants from federal interference risk, and this is especially the case in states where the “reefer madness” mentality still runs strong. Though Conant applies in only the Ninth Circuit (in this circuit, 10 of its 11 states have legalized cannabis in some form), there is no benefit in deviating from its guidance. In other words, it makes sense for both the state laws and the doctors to talk of “recommending” cannabis not “prescribing” it. The legal lines is in some way reflected in all state cannabis laws passed in the 13 years since Conat was decided. Until now.
A number of cannabis legalization groups raised concerns with Texas and Louisiana lawmakers regarding “prescribing” cannabis, but they fell on deaf ears. These aren’t as much drafting errors as they are policy judgment—lawmakers had the chance to avoid this complication but chose not to do so, whether out of negligence, ignorance, political expedience, or some combination of the three. In the end, this oversight will frustrate patient access to medicine and undermine these bills’ ostensible purposes. We commend these states for passing these laws, but they need to be fixed to have any chance of getting off the ground.