Conflict between State, Federal Marijuana Laws Puts Prescribers at Risk

Over the past few years there has been increasing interest and conversation regarding the medicinal use of marijuana.  Currently, 20 states and the District of Columbia approve some form of marijuana use for medicinal (and in the case of Colorado, recreational) purposes.  While the debate regarding use of “illegal” drugs for therapeutic purposes continues, one important issue often overlooked is the potential legal implications for physician prescribers.

This issue came up recently in my practice through one of my colleagues.  She spoke with a physician client who was considering investing in a medical marijuana dispensary outside the state in which he practices.  In researching various state laws and relevant state medical regulations, it became clear that there were a number of issues not only with him making this simple investment, but also prescribing marijuana to his patients.

The laws allowing for the use of medical marijuana in each state make it clear that those growing, dispensing, prescribing, and/or using the drug are not engaging in criminal conduct under the law of that state.  Additionally, most have distinct language protecting physicians from criminal enforcement and liability for prescribing marijuana in accordance with state law and the physician’s medical judgment.  In contrast, federal law (including DEA regulations) clearly provides that growing, dispensing, prescribing, and/or using marijuana is criminal.  Any state law protections do not impact violations of federal law, other than the fact that the states themselves are not in a position to enforce federal law.

Although state marijuana laws clearly conflict with federal law, the Department of Justice (DOJ) has declared it will not make enforcement of such federal laws a priority.  On August 29, 2013, the DOJ sent a memorandum to all U.S. Attorneys recognizing that the use and distribution of marijuana was a violation of the federal Controlled Substance Act (CSA), and that the DOJ had a responsibility to uphold provisions of the CSA.  Despite these attestations, the DOJ indicated that it would not focus its enforcement efforts on the use and dispensing of marijuana in states which have enacted laws allowing for medicinal use. 

For physicians, this means that every time they write a script for a patient to receive marijuana they technically are in violation of federal law, including those regulations governing their federal DEA registration.  While the DOJ memorandum suggests that it will look the other way in these instances, the U.S. Attorneys in each federal judicial district have individual, prosecutorial discretion and are not bound in any way to comply with the DOJ’s principle of non-enforcement.  Essentially, there is nothing preventing a U.S. Attorney from bringing criminal charges against a physician who prescribes marijuana or a patient who uses it.

An additional consideration for physicians is their relevant state medical practice act.  Many of these practice statutes state that illegal or criminal conduct is grounds for disciplinary action.  Under the Illinois Medical Practice Act, for example, a physician can be disciplined for "[v]iolating state or federal laws or regulations relating to controlled substances, legend drugs, or ephedra as defined in the Ephedra Prohibition Act" (emphasis added).  This means Illinois licensed physicians are in violation of state law every time they write a prescription for marijuana or, in the case of our firm’s client, merely own an interest in an out-of-state dispensary. 

So what’s a physician to do?  Currently, medical boards in states allowing medical marijuana don’t appear to be enforcing technical medical practice act violations, and the DOJ has stated it will not promote enforcement of federal law in such states.  For many patients, medical marijuana provides relief from debilitating symptoms and side-effects from chronic illness.  For these reasons, perhaps the benefits to patients outweigh the legal risks today? 

However, as political winds shift and policymakers change, a physician’s choice to prescribe marijuana may become a much less safe bet. For this reason, it’s imperative that physicians be familiar with their own state laws and license requirements, and keep a close eye on the federal position on this issue.  Although there’s no doubt medical marijuana offers benefits to many patients, physicians may one day need to choose between helping patients and keeping their medical license safe.  Hopefully, that day will never come.