Physicians and Cannabis

Oregon Cannabis and PhysiciansOn Saturday, I gave a fun talk at the National University of Natural Medicine’s Medical Cannabis Conference on “Oregon Cannabis Laws and Naturopathic Doctors.” I say it was fun because almost always, we corporate cannabis lawyers wind up speaking in front of other lawyers, accountants or industry entrepreneurs. Health professionals have a different and unique perspective. This talk was also enjoyable because I got to reacquaint myself with the caregiver side of the Oregon Medical Marijuana Program, a program my firm rarely advises on anymore, because, as a business proposition, it is all but dead.

Perhaps the most fun part of the presentation, though, was the incredible number of questions called out in this one-hour talk on “Oregon Cannabis Laws and Naturopathic Doctors.” Here are some of the highlights.

What’s the deal with CBD/hemp right now? This spring, the DEA announced a new Final Rule regarding its classification of “marihuana extracts,” which caused a bunch of Colorado hemp growers to file suit. Even without the questionable DEA action, though, CBD remains firmly entrenched on Schedule I of the federal Controlled Substances Act. (Bills pop up from time to time attempting to change that.) Like medical marijuana, CBD may be legal under many states’ laws, including Oregon’s, but the federal picture is a whole ’nother story. Therefore, physicians should steer clear of advising patients that CBD extracts, topicals, concentrates, etc., are non-controlled substances when extracted from U.S. hemp– even if one can buy some of these products easily online, or in big box grocery stores.

Who can dispense medical cannabis in Oregon? Only an Oregon Health Authority (OHA) registered caregiver or grower, or a licensed OHA or Oregon Liquor Control Commission (OLCC) retail dispensary, can dispense medical cannabis in Oregon. Further, for a patient to acquire cannabis from any of these sources, the patient must first secure an “Attending Physician Statement” explaining that the individual “has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects…”. OAR 845-008-0010(4). The term “Attending Physician” is defined as “a Doctor of Medicine (MD) or Doctor of Osteopathy (DO).” OAR 845-008-0010(3). This means that naturopathic doctors, chiropractors, acupuncturists, etc., cannot facilitate access.

What have courts said about physicians discussing medical marijuana with patients? Mostly good things. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) held that the feds cannot revoke a physician’s DEA license to prescribe controlled substances, or investigate that physician, solely for “recommendation” of the use of medical marijuana. Other cases, like Rust v. Sullivan, 500 U.S. 173 (1991) and Planned Parenthood of S.E. PA. v. Casey, 505 U.S. 833 (1992) observe that regulations on physician speech may “impinge on the doctor-patient relationship” and that doctors have a First Amendment right not to speak, respectively. Because the Oregon Constitution has even broader speech protections than the U.S. Constitution, it seems that physicians in Oregon would be within their rights to discuss medical marijuana treatment of debilitating conditions with their patients.

What about other types of claims? In theory, we could see a patient or a patient’s representative bringing a tort claim against a doctor, if the doctor had recommended cannabis while the patient was prescribed other substances, resulting in a negative reaction. Unfortunately, due to the status of federal law, there is a relative paucity of cannabis research as compared to other controlled substances; but if there were not, it is possible cannabis would be contraindicated for any number of scheduled pharmaceutical drugs. Aside from traditional tort claims, we could also see a doctor get roped into a RICO suit for encouraging the violation of federal laws through providing basic patient services. We are not aware of any case involving physician liability for malpractice or RICO claims to date, but it’s possible.

How many cannabis patients can an Oregon physician have? A total of 450, without significant additional compliance hurdles. Yes, that’s a lot!