Vol



Vol. I, Issue 1, Winter 2004 | |

|Statement of Purpose: | |

|Ballot Measure 67, the Oregon Medical |COURT ORDERS HALT TO DEA RAIDS |

|Marijuana Act, was approved by Oregon | |

|voters in 1998, making Oregon one of four| |

|states to adopt such a law that year. | |

|Since that time the program has operated | |

|with relative success, but many legal | |

|issues remain ambiguous and contested. | |

|The OMMLR was created to address the | |

|legal issues faced by patients, | |

|caregivers, doctors, public officials and| |

|attorneys, in effectively implementing | |

|Oregon’s Medical Marijuana Program | |

| | |

|The OMMLR is produced by students at the | |

|University of Oregon School of Law. | |

|OMMLR is not associated with or sponsored| |

|by the UO Law School, nor is the Law | |

|School in any way involved in its | |

|production. | |

| | |

|Disclaimer: The Oregon Medical Marijuana | |

|Law Reporter is not engaged in rendering | |

|legal or other professional advice, and | |

|assumes no responsibility for the | |

|statements and opinions advanced by any | |

|of its writers or contributors. The | |

|information herein is subject to change | |

|without notice and is not intended to be,| |

|nor should it be considered, a substitute| |

|for individualized legal advice rendered | |

|by a competent attorney. If legal advice| |

|or other expert assistance is required, | |

|the services of a competent attorney or | |

|other professional should be obtained. | |

| | |

| |On Dec. 16, 2003, the 9th Circuit Court of Appeals ruled that a temporary injunction should be granted against|

| |DEA raids on medical marijuana patients. The 9th Circuit based their decision on a finding that the |

| |“intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes” likely |

| |exceeds the Constitutional reach of the commerce clause. The decision reversed a District Court ruling |

| |earlier this year which denied the requested injunction on the grounds that plaintiffs, Angel McClary-Raich |

| |and Diane Monson, were unlikely to succeed on their claim that the Controlled Substances Act is |

| |unconstitutional as applied to medical marijuana patients. |

| | |

| |The preliminary injunction will be in effect, protecting all patients in 9th Circuit medical marijuana states |

| |(Alaska, Arizona, California, Hawaii, Nevada, Oregon, Washington), until a final ruling is made by the |

| |District Court in the case of Raich v. Ashcroft. A ruling in favor of appellants Raich and Monson will mean |

| |that the DEA can no longer interfere in the non-commercial intrastate use of medical marijuana. A ruling in |

| |favor of the DEA will lift the present injunction and allow further prosecution of state medical marijuana |

| |patients by the federal government. |

| | |

| |Though the injunction currently stands the federal government may choose to appeal the Dec. 16th decision to |

| |the Supreme Court, or request a hearing by the 9th Circuit en banc (An en banc hearing means that eleven of |

| |the 9th Circuits fifteen judges will hear the case rather than the normal panel of three). |

| |Table of Contents | |

| | |[pic] |

| |Welcome...………….2 |William H. Knight Law School |

| | | |

| |Book Review……......2 | |

| | | |

| |Doctors’ Speech Protected.……………3| |

| | | |

| |SB 420………………6 | |

| | | |

| |Recipes……………...7 | |

| | | |

| |Smoke w/o Fire……..8 | |

| | | |

| |News Briefs…………9 | |

| | | |

| |State Overview……...10 | |

Book Review: “Prescription Pot”

By George McMahon & Christopher Largen

Prescription Pot, is a two hundred page book that explores the experiences of George McMahon, an advocate and federal medical marijuana patient. McMahon is one of seven patients allowed to use medical marijuana under the federal Investigational New Drug Program (IND), which was started in 1976 and eventually closed to new applicants in 1992 under the first Bush Administration.

The book is a patch work of stories past and present that come together nicely to give a brief insight into the life and struggles of a medical marijuana patient. While the book is unrefined and at times loosely strung together, McMahon’s voice shines through with personality and wit. The stories he has to tell are occasionally comedic, often surprising, but always engaging. Of particular interest were the stories of McMahon’s encounter with law enforcement officers as a federal patient. Several of these stories were surprisingly positive, while others remind the reader of the predicament faced by an individual in McMahon’s position, whose need for and use of marijuana, though sanctioned by the government, is still considered immoral and criminal by society.

Prescription Pot is only one of two books that share the experiences of federal IND patients, and in that sense is a unique and rare look into the experience this program has held and offered the handful of patients who have participated. The appendices of the book also include the recent study on the long term effects of marijuana use on four of the IND patients, which is reason enough to own this book.

This book is a good starting place for people unfamiliar with the subject of medical marijuana, and provides an additional perspective on this controversial issue that everyone (even those familiar with the issue) can benefit and learn from. Recommended.

On October 14, 2003, the United States Supreme Court denied certiorari in Walters v. Conant.[?] This left in force the Ninth Circuit’s Conant v. Walters[?] decision affirming a doctor’s First Amendment right to recommend marijuana as a method of treatment to a patient. The court affirmed the district court order permanently enjoining the government from:

(i) revoking any physician class member’s DEA registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law.[?]

While Conant is not as dramatic a victory for medical marijuana advocates as the recent Ninth Circuit decision in Raich v. Ashcroft,[?] a physician’s advice is a necessary component of any medical marijuana program.[?] It is also important to remember that the Supreme Court’s denial of cert. is not an endorsement of the Ninth Circuit’s Conant holding. However, given the Supreme Court’s recent history of strong protection of First Amendment rights,[?] it would not be wild speculation to suggest that it would have affirmed this case.

In 1996, California voters adopted Proposition 215, creating the Compassionate Use Act of 1996, which allows seriously ill patients to use marijuana as a treatment,[?] if recommended by a physician. A patient, or a patient’s primary caregiver,[?] who cultivates or possesses marijuana in compliance with the Act is exempt from certain other state controlled substance statutes that criminalize marijuana possession. The Conant plaintiffs were patients who used marijuana for its medicinal purposes and physicians who were challenging the federal government’s multi-agency policy of revoking a physician’s license to prescribe controlled substances if the physician recommended marijuana as treatment pursuant to California or Arizona’s medical marijuana laws.[?] The United States District Court for the Northern District of California entered a preliminary injunction in 1997, and a permanent injunction in 2000, prohibiting federal agents from revoking a physician’s federal license to prescribe controlled substances, based solely on the physician’s recommendation that a patient use marijuana as treatment for an illness.

All three judges on the Ninth Circuit Conant panel supported the outcome on the basis that the federal policy violated the physicians’ and patients’ First Amendment rights of freedom of speech. Judge Kozinski, concurring, offered two additions to the majority opinion: 1) a discussion of the current state of medical marijuana research and expert opinion, and 2) an alternate basis for the decision, namely that the federal government is prohibited from commanding a state to administer or enforce a federal regulatory program.

In affirming the district court, the Ninth circuit’s Conant majority also affirmed the scope of the district court’s injunction, which prohibits federal agents from prosecuting doctors unless they “in good faith believe that they have probable cause to charge under the federal aiding and abetting and/or conspiracy statutes.”[?] The Ninth circuit found that the government’s policy “strike[s] at the core First Amendment interests of doctors and patients,” namely, a physician’s need to “speak frankly and openly to patients” and the patient’s interest in trusting the doctor so as to fully disclose all the information a physician needs to know when diagnosing and treating a patient.[?]

The court rejected the government’s argument that the policy was similar to the federal government’s abortion “gag rule” prohibiting doctors who receive federal government assistance from counseling patients about abortion services. This gag rule was found to be constitutionally permissible because of its connection to federal funding.[?] Here, the government was clearly attempting to sanction a doctor for giving medical advice based on the content of the doctor’s recommendation, which was not tied in any way to federal funding. As a content-based restriction, the court found that the policy did not meet the “narrow specificity” required to withstand strict scrutiny to pass muster under the First Amendment.[?] The only standard that the government could articulate for whether the policy was violated, was based on the patient’s perception of the doctor’s “recommendation,” which the court found would impermissibly chill speech between the doctor and patient, for fear of government sanction.[?] The court’s First Amendment rationale for its decision is well-reasoned and supported by case law. This fact, along with the presence of some “respectable” interested groups involved in this case (state governments, doctors, and seriously ill patients), may have weighed in the minds of the Justices when deciding not to take this case.

Judge Kozinski’s concurrence offers some valuable additions to the case law relating to medical marijuana. First, he discusses recent medical literature and government studies regarding the benefits of marijuana for certain types of medical conditions. He notes that (at the time of the opinion), nine states had approved medical marijuana laws, and that both the Canadian and British governments have found that marijuana has appropriate medical uses. Employing this evidence, he notes that the federal policy not only infringes on the doctors’ and patients’ free speech rights, but that it also infringes on a state’s (California in this instance) interest in legalizing marijuana for medicinal purposes.[?] This interest is well illustrated in the Appendix of the case, which consists of case stories of patients from the (very limited) federal government medical marijuana program. Elvy Musikka’s story is as compelling as any:

[She] was diagnosed with glaucoma in 1975 at the age of 36. She tried conventional medications to treat her condition, but could not tolerate them. Reluctantly, in 1976, she decided to try herbal cannabis at the advice of her physician. The cannabis provided her immediate relief, substantially lowering her intraocular pressure as no other medication had, with few side effects. . . . Fearful of the legal consequences of smoking cannabis, Ms. Musikka underwent several risky surgeries in an attempt to correct her condition, but they were unsuccessful and left her blind in one eye. In 1988, Ms. Musikka was arrested in Florida and charged with cannabis possession. She challenged her conviction in the Florida Supreme Court, where she prevailed, becoming the first person in that state to establish a medical necessity defense for cannabis. Shortly thereafter, the federal government enrolled Ms. Musikka in its medical cannabis program and has provided her with one and one-half pounds of herbal cannabis on a quarterly basis ever since. Ms. Musikka and her physician believe that if she were deprived of cannabis she would go blind.[?]

Judge Kozinski invokes federalism to argue that the federal government’s stifling of the state’s interest amounts to commandeering the State’s officers to administer or enforce a federal regulatory program.[?] Kozinski argues that the federal policy is nothing more than an attempt to repeal a state law. If doctors cannot recommend marijuana to patients who need it, no patient can fulfill the requirements of the law. This theory, as it is based on federalism and “states’ rights,” may have some appeal to the conservatives on the Supreme Court. However, despite a recent resurgence in the application of the doctrine of federalism, the Supreme Court has not been shy about applying preemption when there is a conflict between federal and state law.[?] In this case, when there is no affirmative state action demanded by the government policy, it is unlikely the Supreme Court would have applied the “commandeering” doctrine.

At this point in the conflict between state medical marijuana laws and federal government resistance to them, United States v. Oakland Cannabis Buyers’ Coop.,[?] clearly allows the federal government to prohibit the delivery of marijuana, and prosecute those engaging in such activity. With the Supreme Court’s denial of cert. in Conant doctors, at least for now, are still free to recommend marijuana to patients who need it, as a necessary step to comply with state law for using marijuana for medical treatment. The next big court battle will likely be over the holding in Raich v. Ashcroft; that Congress exceeded its Commerce clause power and the Controlled Substances Act is unconstitutional as applied to a patient (or a patient’s care-giver) who grows marijuana for personal medicinal use, in compliance with a state law. If the Supreme Court accepts cert. in Raich, it will likely test the court’s conservative members’ commitment to the principles of federalism, versus their probable personal (and political) antipathy towards marijuana use. For the sake of patients who truly need marijuana as medicine, let us hope that the Court majority does not act in the politically expedient manner it has demonstrated in the past.[?]

Andrew J. Lopata is a recent graduate of the University of Oregon School of Law and is currently clerking for the Honorable Judge Charles D. Carlson of the Circuit Court for Oregon, County of Lane. The views expressed in this article are his alone and do not reflect those of his employer. Nothing in this work should be construed as legal advice. This work is licensed under the “Attribution 1.0” Creative Commons license, which can be found at: .

While the movement for Medical Marijuana scored some major victories in 2003, including the Supreme Courts refusal to hear Conant v. Walters and the 9th Circuit’s decision in Raich v. Ashcroft, the movement continues to suffer from major divisions among supporters with conflicting political goals. Nowhere is this division more apparent than in the varied response among medical marijuana supporters to the passage of SB 420 in California.

The split response to this bill appears to arise out of conflicting political goals among medical marijuana supporters; mainly those who want a functional medical marijuana law, and those who want outright legalization. Advocates of legalization have long been a central source of support for patients, and have used their influence to further their goals through the medical marijuana movement. While the support of legalization advocates has been remarkable in advancing patient rights, their goals threaten detrimental setbacks to patients when combined with the issue of medical marijuana.

Medical marijuana has long been accused of being a front for the legalization of marijuana. The patients who benefit from marijuana realize the power of this attack and many want nothing to do with efforts to legalize marijuana, especially if it will jeopardize their access to effective medicine. It is this conflict, between patients who want a legitimate and functional medical marijuana law and advocates who see patients as a sympathetic conduit to achieving outright legalization of marijuana, which lies at the heart of the controversy over SB 420.

While SB 420 is not a perfect bill by any means, it is a step to practically advance patient protections, and is also likely to further legitimize the medical use of marijuana nation-wide. The bill aims to protect patients in two ways. First, by establishing a voluntary state registry, patients have the opportunity to obtain a state recognized card certifying their legal use of marijuana. Patients who are questioned or under investigation by law enforcement will easily be able to assuage law enforcement concerns about illegal activity. In some counties of California local law enforcement has made it a policy to arrest all marijuana users and let the courts decide who and who isn’t a legitimate patient. This policy has been adopted because many patients don’t have any documentation of their status; all they need to become legal is an oral recommendation from a physician, making it impossible for law enforcement to verify the individual’s status in a timely manner. Where such policies aren’t in place, the legitimacy of medical marijuana suffers because recreational users can claim their marijuana is for medicinal use without repercussion.

Secondly, the law will assist patients by creating statewide guidelines as to plant and possession limits. Currently the counties set their own guidelines as to what amount of plants and raw marijuana is acceptable. Some counties are very liberal with their plant limits, yet some have created unworkable limits. SB 420 addresses this problem by creating a minimum legal amount that must be recognized state-wide, and by allowing individual counties to deviate upwards as they see fit.

Those who wish to see legalization take a very libertarian stance espouse opposition to all government involvement in medical marijuana, such as a state-wide registry program, as established by SB 420. They argue that any government compilation of patient names will be used by law enforcement to arrest and prosecute patients. In support of their argument they look to DEA raids that have occurred on co-ops in California where documents containing patient information have been confiscated.

These five states also lack the major loop-holes that allow recreational users to benefit from their laws. Mainly, these states require documentation of the individual’s medical condition and issue registration cards that allow law enforcement to quickly verify an individual’s status. This eliminates the risk of recreational users free-loading on a law that was intended for the benefit of seriously ill people, a risk that is addressed by SB 420.

Each of these states also has limits on the amount of marijuana that can legally be possessed and grown. Admittedly, these limits are exceedingly restrictive for a vast number of the patients that could benefit from these laws. The limits created by SB 420 are much more practical, allowing patients to grow 6 mature and 12 immature plants at any given time. The plant limits, in states that have had them, have served to legitimize the medical marijuana laws, assuring the public and government officials that medical marijuana is not being used as a ruse for the legalization of marijuana. The federal government never received such assurances from California prior to SB 420, and surely federal investigations that have uncovered patients growing over 100 plants for their own “medical” use have raised practical suspicions about the legitimacy of medical marijuana.

While legalization of marijuana and medical marijuana are both legitimate political goals, they remain separate issues and benefit different groups of people. No doubt there are many people that support both issues, including patients, but many people who would otherwise support the medical use of marijuana for patients in need are not willing to support legalization of marijuana. SB 420 rightly separates the issues of legalization from medical marijuana, and will further legitimize patients who benefit from its use. This bill should be supported by all activists, and legalization advocates who feel it is a setback should consider bringing a separate legalization initiative that does not compromise a patient’s access to medical marijuana.

One of the on-going arguments against the use of medical marijuana is the effect that smoking has on health. The DEA continues to argue that medical marijuana exists, and that it is called Marinol. What the DEA doesn’t understand is that the different methods of delivery alter the therapeutic value of the drug, and that marijuana contains other beneficial compounds besides THC, the main component of Marinol.

Let me focus however on the differences between taking medical marijuana orally and taking it through some mechanism of inhalation. First and foremost, one of the strongest therapeutic values of marijuana is its use as an anti-nausea agent. Patients who have nausea problems, and who cannot hold food down, also cannot hold down medications. Oral medications are rendered ineffective by the continuous purging of a patients stomach from nausea. To treat this condition requires a form of administration where an anti-nausea drug can become effective, allowing patients to hold down food and medicine, before it is rejected by the body. By inhaling the medicine, as is done with medical marijuana, the medicine becomes effective instantly and cannot be rejected by the body during the hour it takes to be processed orally because it does not have to pass through the patient’s stomach.

There is another reason why some form of inhalation of marijuana is needed for patients and that is because marijuana acts differently when ingested orally. Orally taken THC or marijuana preparations last two to three times longer, and require more of the drug to have an effect.[?] While inhaling marijuana delivers THC directly to the blood stream it must first pass through the liver when taken orally. When passing through the liver THC is broken down into several metabolites, one of which is 11-hydroxy-THC, a more psycho-actively potent form of THC.[?] While this same metabolite is also produced when marijuana is inhaled, the amount of marijuana needed to be ingested by inhalation is far less than when taken orally, and is generally not produced in psychoactive levels.[?] Many patients report that the psychoactive effects of Marinol are too intense to offer them any comfort or relief from their symptoms. This is also one reason for its limited popularity among doctors.[?]

Fortunately, studies are being conducted with a different form of inhalation which significantly diminishes the amount of toxins delivered into the lungs. In preliminary studies conducted by Chemic Labs, vaporization of marijuana was shown to produce an inhalable vapor high in THC and cannabinoid content while producing no noticeable level of a wide range of toxins that are usually found in marijuana smoke.[?] The vaporizer used in this particular study was a volcano vaporizer, which is available at (vapormed.de). There are many other companies producing vaporizers which are likely of similar quality.

OMMLR is interested in hearing about patients experiences with vaporizers and also with Marinol versus smoked marijuana. Please submit your experiences as an article or letter to OMMLR@

Colorado Confrontation

On January 7th, eight Colorado law enforcement officers and a DEA agent were charged with contempt of court for refusing to return 2 ounces of marijuana to a state registered patient. On Jan. 24th, federal prosecutors filed a motion to remove the case to Federal Court. The Federal Court must apply state law, which recognizes the use of medical marijuana by qualified patients, when deciding whether or not to uphold the charge of contempt.

Hemp Foods Stay on Shelf

On Feb. 6th, the 9th Circuit Court of Appeals struck down a DEA administrative ruling that made hemp foods illegal. The court found in HIA v. DEA that the administrative rule was in direct contradiction to the Controlled Substances Act of 1970 which specifically exempts hemp seed and hemp seed oil from the definition of marijuana and the jurisdiction of the DEA. The ruling concludes a 2 ½ year court battle between the DEA and the Hemp Food Industry which severely setback the hemp food market. Hemp food is known for its extraordinary nutritional value due to high levels of protein and essential fatty acids, including omega-3 and omega-6. Recipes for cooking with hemp are available in “The Hemp Cookbook,” by Oregon resident Todd Dalotto, and in “The Galaxy Hemp Cookbook,” by Denis Cicero.

Probationer Allowed to Smoke in Oregon

On Feb. 3rd, in a case argued by attorney Brian Michaels, the Oregon Court of Appeals allowed a motion to stay enforcement of a probationary condition requiring a patient to turn in his medical marijuana card for the duration of probation, and forgo using medicine for the same period. The court found that the condition was likely to cause “irreparable harm” and that the appellant was likely to succeed on his appeal of criminal charges.

Employment Problems for Patients

Medical Marijuana patient John Thomas was fired from his job at Freightliner last year after failing to pass a drug test. Thomas’ union filed a grievance against Freightliner for their treatment of Thomas, which led the parties to agree to arbitrate the matter. On Aug. 8 of last year, the arbitrator Carlton Snow decided in Thomas favor and called for his reinstatement as well as back pay for lost work time. Freightliner has refused to follow the arbiter’s decision and instead is seeking to have it blocked in Federal Court.

Alaska[?] [?]

Passed: 1998

Patient Registry: Yes

Fee: $25

Registered Patients: 205

Participating Doctors: 110

Plant Limits: 3M, 3IM

Possession Limits: 1oz

Arizona[?]

Passed: 1996

Patient Registry: No

Non-Functional

-requires illegal prescription

California[?]

Passed: 1996

Patient Registry: Voluntary

Plant Limits: 6M, 12IM

Possession Limits: 8oz

Colorado[?] [?]

Passed: 2000

Patient Registry: Yes

Fee: $140

Registered Patients: 309

Participating Doctors: 226

Plant Limits: 3M, 3IM

Possession Limits: 2oz

Hawaii[?] [?]

Passed by state legislature: 2000

Patient Registry: Yes

Fee: $25

Registered Patients: 1,039

Participating Doctors: 79

Plant Limits: 3M, 4IM

Possession Limits: 3oz

Maine[?]

Passed: 1999

Patient Registry: No

Plant Limits: 3M, 3IM

Possession Limits: 2.5oz

Maryland[?]

Passed by state legislature: 2003

Patient Registry: No

Only Allows Med. Mj Defense

Max Penalty: $100

Nevada[?] [?]

Passed: 2000

Patient Registry: Yes

Fee:

Registered Patients:

Participating Doctors:

Plant Limits: 3M, 4IM

Possession Limits: 1oz

Oregon[?] [?]

Passed: 1998

Patient Registry: Yes

Fee: $150

Registered Patients: 7,582

Participating Doctors: 1,281

Plant Limits: 3M, 4IM

Possession Limits: 3oz

Washington[?]

Passed: 1998

Patient Registry: No

Plant Limits: 60 day supply

Possession Limits: 60 day sup

[1] ALASKA STAT. § 11.71.090, 17.37.010 (2001).

[2] Telephone Interview with Phillip Mitchell, Alaska Dept. of Health & Social Services (Feb. 18, 2004).

[3]

[4] CAL. HEALTH & SAFETY CODE § 11362.5 (2003).

[5]

[6] E-mail from Debra Tuenge, Col. Dep’t of Pub. Health & Env’t, to Kevin Feeney (Feb. 19, 2004).

[7] HAW. REV. STAT. § 329-121.

[8] Helen Altonn, 1,039 Register for Isle Pot Use, Honolulu Star-Bulletin, Oct. 13, 2003.

[9] ME. REV. STAT. ANN. tit. 22, § 2383-B (2003).

[10] MD. ANN. CODE. § 5-601 (2003).

[11] NEV. REV. STAT. § 453A (2001).

[12]

[13] OR. REV. STAT. § 475.300 (2003).

[14]

[15] WASH. REV. CODE. § 69.51A.010 (2003).

[i] 124 S. Ct. 387 (2003).

[ii] 309 F.3d 629 (9th Cir. 2002).

[iii] Id. at 634.

[iv] The Ninth Circuit held the federal Controlled Substances Act (CSA) unconstitutional, as applied to patients who grow their own marijuana for medicinal use (or have a “care-giver” grow it for them), in compliance with a state medical marijuana law (in this case, California), 2003 WL 22962231 (9th Cir.).

[v] See e.g., Alaska Stat. § 17.37.010(c)(1) (2001) (requiring a written statement “that the physician has concluded that the patient might benefit from the medical use of marijuana”); Me. Rev. Stat. Ann. tit. 22, § 2383-B(5) (2003) (requiring that a physician has “advised” a patient that she might benefit from the medical use of marijuana); Wash. Rev. Code § 69.51A.010(3) (2003) (requiring that a patient “[h]as been advised by that physician that they may benefit from the medical use of marijuana”).

[vi] See e.g. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (striking down the federal law prohibiting so-called “virtual child-pornography”); Thompson v. Western States Medical Ctr., 535 U.S. 357 (2002) (striking down a federal law restricting physicians and pharmacists from advertising certain drugs).

[vii] Cal. Health & Safety Code § 11362.5 allows marijuana use for “the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.”

[viii] The Compassionate Use Act allows a primary caregiver to possess and cultivate marijuana for a patient, presumably since it would be difficult or impossible for some patients to cultivate their own marijuana.

[ix] Conant, 309 F.3d 629, 632 (9th Cir. 2002).

[x] Id. at 635.

[xi] Id. at 636.

[xii] Rust v. Sullivan, 500 U.S. 173 (1991).

[xiii] Conant, 309 F.3d at 639.

[xiv] Id.

[xv] Id. at 645.

[xvi] Id. at 648-649.

[xvii] Id. at 645, citing New York v. United States, 505 U.S. 144 (1992) (striking a federal law requiring states, under certain circumstances to take over the administration of and responsibility for privately-owned low-level radioactive waste sites), and Printz v. United States, 521 U.S. 898 (1997) (striking a federal statute requiring local authorities to run back-ground checks on gun purchases).

[xviii] See e.g. Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000).

[xix] 532 U.S.483 (2001).

[xx] For the Court’s most famous example of political expediency, see Bush v. Gore, 531 U.S. 98 (2000).

[xxi] LYNN ZIMMER, PH.D & JOHN P. MORGAN, M.D., MARIJUANA MYTHS MARIJUANA FACTS 19 (Gotham City Printing, Inc. 1997).

[xxii] Id.

[xxiii] Id.

[xxiv] Id. at 20.

[xxv] Dale Gieringer, Vaporizer Research: An Update, MAPS, Spring 2003, at 11.

-----------------------

OREGON

MEDICAL MARIJUANA LAW REPORTER

Welcome!

Welcome to the first issue of OMMLR. The idea for the production of OMMLR sprung from the realization that, while medical marijuana laws have been passed in Oregon and nine other states, few people understand what is protected by the various medical marijuana laws. Many issues have not been addressed by courts anywhere, such as whether a patient tenant is protected from eviction for growing medical marijuana, and whether an employee can be fired for medical use of marijuana. We hope to address the legal developments regarding medical marijuana around the country, but specifically the legal issues that pertain to patients in the state of Oregon. We hope that OMMLR will become an interactive community that will help facilitate relationships between patients, attorneys, doctors, caregivers, and law enforcement. Our main goal however is to track legal developments regarding medical marijuana as they occur, and further understanding of medical marijuana law as it presently exists.

We encourage the submission of questions, letters, and editorials, but of course cannot promise that we will be able to publish or answer everything that is submitted to us. Please send your questions or comments to OMMLR@.

Doctor& Patient Speech Protected

By Andrew J. Lopata

Inner-Conflict in the Medical Marijuana Movement

By Kevin Feeney

As a counter point it is interesting to note that five of the ten states that currently recognize some protections for the medical use of marijuana have required patient registries. None of these five states have had their patient lists used for purposes of arresting or harassing patients by federal or state law enforcement. There has also been relatively little federal activity in these states, which perhaps suggests that there is something unique to California’s law that has set it apart for federal raids and prosecutions.

Medical Marijuana Recipes

While orally ingested marijuana is stronger than inhaled marijuana, increasing the likelihood of patients having an adverse psychological reaction, many patients find relief without discomfort from marijuana when consumed in such a manner. It has the benefit of providing relief for a longer period of time which may be useful in circumstances where patients will not be able to smoke for an extended period of time, for example when a patient is taking an overseas flight, or running errands around town. Oral consumption also avoids the health consequences of smoking. For these reasons OMMLR has decided to include a section where patients may share their recipes with one another. If you have a recipe you would like to share please send it to OMMLR@. The following recipe was borrowed from Jeanne Rose’s classic “Herbs & Things.”[?]

Dates & Figs Hashish

Chop together ½ lb dates, ½ lb figs, and desired amount of hashish. Cook together in top of double boiler, slowly adding ½ cup Benedictine. Cook until soft and tender. Chill. Serve alone or over ice cream.

1 Jeanne Rose, Herbs & Things147 (The Putnam Publishing Group 1972).

Smoke Without Fire

By Kevin Feeney

In The News

State Program Overview

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