Californian vs. Federal Marijuana Laws, and Healthcare

By Oleg Nekrassovski

The present paper contrasts California’s Medical Marijuana Regulation and Safety Act

with marijuana enforcement provisions of the federal Controlled Substances Act; while

taking a look at the possible current and future effects of the two legislations on

healthcare in California, in particular, and the United States, in general.

Major Provisions of Each Legislation

California’s Medical Marijuana Regulation and Safety Act:

California’s Medical Marijuana Regulation and Safety Act was enacted on Sept. 11,

2015 and went into effect on January 1, 2016. It created a comprehensive state

licensing system for the commercial cultivation, manufacturing, testing, distribution, and

retail sale of medical marijuana (California NORML, 2015). However, the State of

California does not believe that it will set up the necessary regulations, information

systems, and agencies, to actually begin issuing licenses, until January 2018. Until

then, local governments are free to prepare for state licensing by adopting new

ordinances to license or permit local businesses (California NORML, 2015).

Marijuana enforcement under the Controlled Substances Act:

The Controlled Substances Act is a federal legislation which was first enacted in 1970,

and since then, has been amended multiple times (U.S. Department of Justice, Drug

Enforcement Administration, Office of Diversion Control, n.d.). And in 2009 and 2011,

the U.S. Department of Justice issued guidance to federal prosecutors regarding

marijuana enforcement under the Controlled Substances Act (Cole, 2013). This

guidance was aimed at helping to further the objectives, of the U.S. Department of

Justice, concerned with marijuana; in light of the fact that several states have earlier

enacted laws relating to the use of marijuana for medical purposes (Cole, 2013). In

addition, this guidance has been recently updated, owing to the fact that multiple states

have made ballot initiatives aimed at legalizing, under state law, the possession of small

quantities of marijuana, together with establishing mechanisms for the regulation of the

production, processing and sale of marijuana (Cole, 2013).

The updated guidance, for federal prosecutors, applies to all federal enforcement

activity, including criminal investigations, prosecutions, and civil enforcement, regarding

marijuana in all states (Cole, 2013). It notes that the Congress has decided that

"marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is

a serious crime that provides a significant source of revenue to large-scale criminal

enterprises, gangs, and cartels” (Cole, 2013, p. 1). It also notes that the primary

objectives, of the U.S. Department of Justice, regarding marijuana enforcement are:

Preventing marijuana from being distributed to minors (Cole, 2013).

Preventing criminal enterprises, gangs, and cartels from being financed by any

revenue from the sale of marijuana (Cole, 2013).

Preventing marijuana, from states where, under state law, it is legal in some

form, from being diverted to other states (Cole, 2013).

“Preventing state-authorized marijuana activity from being used as a cover or

pretext for the trafficking of other illegal drugs or other illegal activity” (Cole, 2013,

p. 1).

Preventing the cultivation and distribution of marijuana from being accompanied

by violence and the use of firearms (Cole, 2013).

Preventing the use of marijuana from leading to drugged driving and other

adverse public health consequences (Cole, 2013).

Preventing marijuana from being grown on public lands (Cole, 2013).

Preventing the possession or use of marijuana on federal property (Cole, 2013.)

Finally, the updated guidance specifically elaborates on marijuana enforcement, by

federal prosecutors, in states whose laws authorize the cultivation and distribution of

marijuana for medical use. In particular, it advises federal prosecutors to avoid focusing

their marijuana enforcement efforts on seriously ill individuals or their individual

caregivers; while encouraging them to focus on large-scale, for-profit, commercial

marijuana enterprises, instead (Cole, 2013).

Effects of Each Legislation on the Quality of Patient Care

Background:

In oncology, marijuana or its derivatives may prove to be useful as antitumor agents, as

well as in the treatment of refractory cancer pain, and anticipatory and refractory

chemotherapy-induced nausea and vomiting (Wilkie, Sakr, & Rizack, 2016). However,

most of the data that suggests these possibilities comes from studies that are outdated,

were conducted on animals, or involved small clinical trials (Wilkie, Sakr, & Rizack,

2016).

Similarly, according to the National Institute of Drug Abuse (n.d.), marijuana contains

two chemicals of potential medical value: THC and CBD. THC may prove to be effective

in decreasing pain, inflammation, and muscle control problems. While CBD, which, by

itself, doesn’t affect the mind or behavior, may prove to be useful in “reducing pain and

inflammation, controlling epileptic seizures, and possibly even treating mental illness

and addictions” (National Institute of Drug Abuse, n.d.).

California’s Medical Marijuana Regulation and Safety Act:

As has already been shown, California’s Medical Marijuana Regulation and Safety Act

clearly seeks to increase the availability of marijuana and its derivatives, for medical

purposes (California NORML, 2015). However, since, at present, there is no conclusive

evidence regarding the efficacy of marijuana or its derivatives in the treatment or

alleviation of any medical conditions (Wilkie, Sakr, & Rizack, 2016; National Institute of

Drug Abuse, n.d.); it is unclear what, if any, effects this law already has or will have on

the quality of patient care in California.

Marijuana enforcement under the Controlled Substances Act:

As has already been shown, the primary objectives, of the U.S. Department of Justice,

regarding marijuana enforcement under the Controlled Substances Act, don’t have

anything to do directly with the actual or potential uses of marijuana for patient care

(Cole, 2013). Therefore, there is little, if any, reason to believe that these enforcement

guidelines have or will have any effect on the quality of patient care anywhere in the

United States.

Effects of Each Legislation on the Effectiveness of Health Care Organizations

California’s Medical Marijuana Regulation and Safety Act:

This legislation is already turning California’s marijuana industry, from a small-scale,

underground industry, into a legitimate, highly profitable, big business; a process which

is only expected to accelerate (Lovett, 2016). Hence, any Californian healthcare

organizations with financial stakes in the marijuana industry, are likely already becoming

better financed, and can be expected to become even more so, in the future. And it is

clear that better financed healthcare organizations are less likely to experience

budgetary stress. While budgetary stress often has grave consequences for the

effectiveness of healthcare organizations. For example, Mukamel, Zwanziger, &

Bamezai’s (2002) study, of Californian hospitals that were undergoing budgetary stress,

found that the hospitals under study responded to budgetary stress by cutting back on

clinical services; leading to an increase in mortality of their patients.

Marijuana enforcement under the Controlled Substances Act:

As has already been shown, the primary objectives, of the U.S. Department of Justice,

regarding marijuana enforcement under the Controlled Substances Act, don’t have

anything to do directly with the actual or potential uses of marijuana for patient care

(Cole, 2013). However, the Controlled Substances Act makes it clear that aiding or

abetting someone to unlawfully dispense, distribute, or possess marijuana, or conspiring

with someone to do the same, is a punishable offense (California Medical Association,

2011).

Given that physicians, in many states, are authorized to recommend marijuana to their

patients (National Conference of State Legislatures, 2016), they are well positioned to

aid, abet, or conspire with someone to unlawfully dispense, distribute, or possess

marijuana. While federal sanctions of physicians who commit such acts may seriously

compromise the effectiveness of healthcare organizations that employ them.

In particular, federal sanctions of physicians, who violate marijuana enforcement

provisions of the Controlled Substances Act, include:

Imprisonment (often extending for years), or a fine (often in the hundreds of

thousands of dollars), or both (California Medical Association, 2011).

Revocation of the physician’s registration with the Drug Enforcement

Administration (California Medical Association, 2011).

Mandatory exclusion from participation in Medicare and similar state-level

reimbursement programs (California Medical Association, 2011).

Hence, physicians, who violate marijuana enforcement provisions of the Controlled

Substances Act, may seriously undermine the effectiveness of healthcare organizations

that employ them by becoming unavailable for medical practice (due to imprisonment or

ineligibility to prescribe medications), and/or by putting their organizations at risk of

becoming excluded from Medicare and similar state-level programs (for those

organizations that participate in them).

There are some strong factors which may compel a physician to aid, abet, or conspire

with someone to unlawfully dispense, distribute, or possess marijuana. In particular,

marijuana is a popular, highly demanded, recreational drug, on which many people are

dependent (Office of National Drug Control Policy, 2010). In addition, some states are

known to have legal, “lucrative clinics with salaried physicians who specialize in

providing medical cannabis recommendations, potentially for undocumented medical

conditions” (California Medical Association, 2011, p. 4).

Effects of Each Legislation on Sustainability of Healthcare Organizations

Background:

Following Moizer and Tracey (2010), organizational sustainability will be defined here as

consisting of two mutually-dependent categories: financial sustainability and stakeholder

sustainability. Financial sustainability involves the organization's ability to generate

sufficient revenue through their business/commercial activities and/or receive

sufficient funds/donations, so as to continue organizational operations. As a

result, stakeholder sustainability involves the organization's ability to maintain

legitimacy/support among its "profit-relevant" stakeholders (such as investors and

customers) or its "social value-relevant" stakeholders (such as donors and funding

agencies).

California’s Medical Marijuana Regulation and Safety Act:

As already explained, thanks to this legislation, any Californian healthcare organizations

with financial stakes in the marijuana industry, are likely already becoming better

financed, and can be expected to become even more so, in the future. And it is clear

that better financed healthcare organizations are more likely to have better financial and

stakeholder sustainability.

Marijuana enforcement under the Controlled Substances Act:

As has already been shown, in those states where physicians are authorized to

recommend marijuana to their patients; they are automatically well positioned to violate

marijuana enforcement provisions of the Controlled Substances Act.

It has also already been shown that those physicians, who get federally sanctioned for

violating marijuana enforcement provisions of the Controlled Substances Act, will:

Experience the stigma of federal prosecution, which may also attach to the

healthcare organizations that employ them.

Become unavailable for medical practice (due to imprisonment or ineligibility to

prescribe medications).

Put their organizations at risk of becoming excluded from Medicare and similar

state-level programs (for those organizations that participate in them).

Hence, it is clear that physicians, who violate marijuana enforcement provisions of the

Controlled Substances Act, may seriously undermine both the financial and the

stakeholder sustainability of the organizations that employ them.

Ethical Issues that Could Arise Through Compliance with Each Legislation

Background:

It appears that an overwhelming majority of secular discussions, in the United States, of

ethical issues inherent in legalization and usage of marijuana, focus on the possible

health benefits versus health risks of marijuana usage (see, e.g., Clark, Capuzzi, & Fick,

2011; ProCon.org, n.d.) and, to a lesser extent, on its alleged ability to lead to excessive

numbers of prison sentences and consumption of other drugs (see, e.g., Sorkin, 2015),

and to environmental degradation (see, e.g., Thomson, 2013).

So, embarrassingly enough, apparently, only American writers with a clear religious

agenda, bother to address, the ethics of legalization and usage of marijuana, from the

perspective of moral philosophy. For example, both Brugger (2013) and pastor Bob

Enyart (2012) argue that the usage of marijuana, especially recreationally, is morally

wrong; simply because it leads to intoxication, which causes the user to lose full control

of their mental and moral faculties; thus, making them a danger to themselves and

others. However, even such writers heavily focus their treatises, on this subject, on the

possible risks and benefits, of marijuana usage, to individual health.

California’s Medical Marijuana Regulation and Safety Act:

As already explained, thanks to this legislation, any Californian healthcare organizations

with financial stakes in the marijuana industry, are likely already becoming better

financed, and can be expected to become even more so, in the future. However,

investing in the marijuana industry or receiving funds/donations from it may be viewed

as unethical by those who see the marijuana industry as an unethical industry.

Marijuana enforcement under the Controlled Substances Act:

The First Amendment to the Constitution of the United States grants physicians the right

to recommend consumption of marijuana, to their patients, as a form of medical

treatment (California Medical Association, 2011). Thus, allowing those physicians, who

feel that marijuana may be beneficial to the health of a particular patient, to recommend

marijuana to that patient.

Given that the First Amendment, for now, supersedes the Controlled Substances Act

and any recent rulings on it (California Medical Association, 2011); while marijuana

enforcement provisions of the Controlled Substances Act are purely prohibitive, in their

treatment of marijuana (California Medical Association, 2011); it is unclear what, if any,

ethical issues can arise for healthcare organizations or healthcare professionals from

complying with the marijuana enforcement provisions of the Controlled Substances Act.

References

Brugger, C. (2013). Legalization of marijuana: Some ethical reflections on pot smoking.

Retrieved from http://www.cultureoflife.org/2013/02/20/legalization-marijuana-

some-ethical-reflections-pot-smoking/

California Medical Association. (2011). Physician recommendation of medical cannabis.

Retrieved from http://mbc.ca.gov/Licensees/Prescribing/medical_marijuana_cma-

recommend.pdf

California NORML. (2015). Cal NORML: A summary of the Medical Marijuana

Regulation and Safety Act (MMRSA). Retrieved from

http://www.canorml.org/news/A_SUMMARY_OF_THE_MEDICAL_MARIJUANA_

REGULATION_AND_SAFETY_ACT

Clark, P. A., Capuzzi, K., & Fick, C. (2011). Medical marijuana: Medical necessity

versus political agenda. Medical Science Monitor, 17(12), RA249-RA261.

doi: 10.12659/MSM.882116

Cole, J. M. (2013). Memorandum for all United States attorneys: Subject: Guidance

regarding marijuana enforcement. Washington, D.C.: U.S. Department of Justice,

Office of the Deputy Attorney General. Retrieved from

https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf

Enyart, B. (2012, May 19). Why marijuana should be illegal. The Huffington Post.

Retrieved from http://www.huffingtonpost.com/bob-enyart/why-marijuana-should-

be-i_b_1340311.html

Lovett, I. (2016, April 11). In California, marijuana is smelling more like big business.

The New York Times. Retrieved from http://www.nytimes.com/2016/04/12/us/in-

california-marijuana-is-smelling-more-like-big-business.html?_r=1

Moizer, J., & Tracey, P. (2010). Strategy making in social enterprise: The role of

resource allocation and its effects on organizational sustainability. Systems

Research and Behavioral Science, 27(3), 252-266. doi: 10.1002/sres.1006

Mukamel, D. B., Zwanziger, J., & Bamezai, A. (2002). Hospital competition, resource

allocation and quality of care. BMC Health Services Research, 2(10), 1-9. doi:

10.1186/1472-6963-2-10

National Conference of State Legislatures. (2016). State medical marijuana laws.

Retrieved from http://www.ncsl.org/research/health/state-medical-marijuana-

laws.aspx

National Institute of Drug Abuse. (n.d.). DrugFacts: Is marijuana medicine? Retrieved

July 18, 2016 from https://www.drugabuse.gov/publications/drugfacts/marijuana-

medicine

Office of National Drug Control Policy. (2010). What Americans need to know about

marijuana: Important facts about our nation’s most misunderstood illegal drug.

Retrieved from https://www.ncjrs.gov/ondcppubs/publications/pdf/mj_rev.pdf

ProCon.org. (n.d.). Should the government prohibit physicians from recommending

medical marijuana? Retrieved July 20, 2016 from

http://medicalmarijuana.procon.org/view.answers.php?questionID=000627

Sorkin, A. R. (2015, January 12). Ethical questions of investing in pot. The New York

Times. Retrieved from http://dealbook.nytimes.com/2015/01/12/ethical-questions-

of-investing-in-pot/?_r=0

Thomson, A. (2013). The ethics of legalizing medical marijuana. Retrieved from

http://www.brandeis.edu/ethics/ethicalinquiry/2013/July.html

U.S. Department of Justice, Drug Enforcement Administration, Office of Diversion

Control. (n.d.). Title 21 United States Code (USC) Controlled Substances Act –

Section 801. Retrieved from

http://www.deadiversion.usdoj.gov/21cfr/21usc/801.htm

Wilkie, G., Sakr, B., & Rizack, T. (2016). Medical marijuana use in oncology: A

review. JAMA Oncology, 2(5), 670-675. doi:10.1001/jamaoncol.2016.0155