By Jennifer E. Adams and Barbara B. Ormsby of Deutsch Kerrigan, LLP[1]
Despite the COVID-19 pandemic across America, there is an industry that is growing by leaps and bounds: Cannabis. Yet, under the Controlled Substances Act of 1970, the use and possession of cannabis for any purpose is illegal. And though there is currently no federal legislation legalizing cannabis, there are many states that legalize the use of cannabis in some form. In 1996, California became the first state to legalize medical cannabis, igniting a movement that spread to a majority of states by 2016.
As of August 1, 2020, Louisiana’s amended medical marijuana law will expand access by allowing more doctors to recommend medical marijuana and by making medical marijuana an available treatment to more patients. And, although cannabis remains a schedule I drug, and therefore a controlled substance under the 1970 Act, the bipartisan Rohrbacher-Farr Amendment[2]—which prohibits the Department of Justice (DOJ) from using funds to prevent states from implementing laws authorizing the use, distribution, possession, or cultivation of medical marijuana—was passed into law in 2014 and has been renewed every year since.[3]
Before the recent amendments to Louisiana’s marijuana law, doctors had to be specially licensed by the state to recommend marijuana.[4] In April 2018, only ten doctors were licensed by the state to recommend medical marijuana;[5] by June 2019, that number had increased to only eighty or so doctors statewide.[6] However, starting August 1, 2020, recommendations can reflect the “opinion of any physician licensed by and in good standing with the Louisiana State Board of Medical Examiners.”[7] Physicians will no longer need special approval to recommend medical marijuana to their patients, and patients will be able to obtain medical marijuana recommendations from their regular doctors.
Louisiana’s Therapeutic Marijuana Act allows such physicians to recommend therapeutic marijuana to patients “clinically diagnosed as suffering from a debilitating medical condition.”[8] In its previous iteration, Louisiana’s medical marijuana law limited “debilitating medical conditions” to cancer, HIV, AIDS, cachexia or wasting syndrome, seizure disorders, epilepsy, spasticity, Crohn’s disease, muscular dystrophy, and multiple sclerosis.[9]
Beginning on August 1, this list will include several new conditions including neurodegenerative diseases and conditions, chronic pain, as well as “[a]ny condition for which a patient is receiving hospice care or palliative care.[10] Additionally, doctors will be able to prescribe therapeutic marijuana to patients suffering from “any condition . . . that [the] physician, in his medical opinion, considers debilitating to an individual patient,” so long as the prescribing physician is “qualified through his medical education and training to treat” that condition[11] and the physician and patient “share a bona fide doctor-patient relationship.”[12] Representative Larry Bagley (R-Stonewall) called this a big win “to help people in pain that [previously] had no other choice but opioids.”[13] The new law affords doctors greater flexibility in determining when therapeutic marijuana is the appropriate choice of treatment for their patients.[14] Also, physicians may recommend any form of marijuana except for smokable “raw or crude” cannabis (though the vaporization of marijuana via a metered-dose inhaler[15] is permitted).[16]
Because marijuana is still illegal under federal law and classified as a Schedule I drug under the Controlled Substances Act (CSA), doctors who prescribe marijuana risk violating federal law, and potentially, the revocation of their Drug Enforcement Agency (DEA) Licenses.[17] Thus, the practice of “recommending” medical marijuana has become the industry standard after a federal district court decision—upheld by the Ninth Circuit Court of Appeals and denied certiorari by the U.S. Supreme Court—permitted doctors’ “recommendation” of the use of cannabis for medical purposes when state law allows them to do so.[18]
If you are not an expert in this field, it is crucial to consult with local counsel in each state, because the laws can vary widely. In our series, we will explore how the law affects physicians, investors, property owners and commercial retailers.
August 2020
[1] Julie Schwartzwald, 2021 JD Candidate at Tulane University, and a 2020 summer law clerk with Deutsch Kerrigan, LLP, assisted with the research and writing of this article.
[2] The Amendment was a rider to an Appropriations Act. See Consolidated Appropriations Act 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014); see also Consolidated Appropriates Act 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015).
[3] See Removing Marijuana from the Schedule of Controlled Substances, Drug Policy Alliance (Jan. 2019), available at https://www.drugpolicy.org/sites/default/files/marijuana-scheduling_january_2019_0.pdf.
[4] La. R.S. § 40:1046(A)(3) (emphasis added) (“For the purposes of this Part, ‘recommend’ or ‘recommended’ means an order from a physician licensed by and in good standing with the Louisiana State Board of Medical Examiners and authorized by the board to recommend medical marijuana that is patient-specific and disease-specific in accordance with Paragraph (2) of this Subsection.”).
[5] Sam Karlin, As Medical Marijuana Program Moves Forward, Louisiana Doctors ‘Gun Shy’ About Recommending Drug, The Advocate (April 29, 2018); https://theadvocate.com/baton_rouge/news/business/article_6dd9885c-4a3b-11e8-97fe-97f4bbad8cbc.html.
[6] Sam Karlin, When and How Can I Get It? Answering Your Questions as Medical Marijuana Hits Shelves in Louisiana, The Advocate (Aug. 5, 2019); http://www.theadvocate.com/baton_rouge/news/politics/article_438cee98-676f-11e9-aa00-cb02c96d1ea4html.
[7] 2020 La. Acts 286, amending and re-enacting La. R.S. § 40:1046(A)(3).
[8] 2020 La. Acts 286, amending and re-enacting La. R.S. § 40:1046(A)(1).
[9] La. R.S. § 40:1046(A)(2)(a) (2019).
[10] 2020 La. Acts 286, amending and re-enacting La. R.S. § 40:1046(A)(2)(a) to include Alzheimer’s disease, amyotrophic lateral sclerosis, Huntington’s disease, Lewy body dementia, motor neuron disease, Parkinson’s disease, spinal muscular atrophy, traumatic brain injury, a doctor-diagnosed concussion, and chronic pain associated with fibromyalgia or sickle cell disease.
[11] 2020 La. Acts 286, amending and re-enacting La. R.S. § 40:1046(A)(2)(a).
[12] 2020 La. Acts 286, amending and re-enacting La. R.S. § 40:1046(A)(4).
[13] Kyle Jaeger, Louisiana Lawmakers Send Medical Marijuana Expansion and Cannabis Banking Bills to Governor’s Desk, Marijuana Moment (June 1, 2020), available at https://www.marijuanamoment.net/louisiana-lawmakers-send-medical-marijuana-expansion-and-cannabis-banking-bills-to-governors-desk/.
[14] DeSlatte, supra note 15.
[15] The statute defines a “metered-dose inhaler” as “a device that delivers a specific amount of medication to the lungs, in the form of a short burst of medicine that is usually self-administered by the patient via inhalation.” La. R.S. § 40:1046(A)(1).
[16] La. R.S. § 40:1046(A)(1).
[17] Joseph Gregorio, Physicians, Medical Marijuana, and the Law, AMA Journal of Ethics (Sept. 2014), available at https://journalofethics.ama-assn.org/article/physicians-medica-marijuana-and-law/2014-09.
[18] Conant v. McCaffrey, 172 F.R.D. 681, 685 (N.D. Cal. 1997) (issuing “a preliminary injunction limiting the government’s ability to prosecute physicians, revoke their prescription licenses, or bar their participation in Medicare and Medicaid because they recommend medical use of marijuana,” but acknowledging “that this injunction does not provide physicians with the level of certainty for which they had hoped; however, it would violate the constitutional separation of powers to limit prosecutorial discretion in the way plaintiffs request”); see also Conant v. McCaffrey, No. C 97-00139 WHA, 2000 U.S. Dist. LEXIS 13024, at *48 (“The government is permanently enjoined from (i) revoking a class-member physician’s DEA registration merely because the doctor recommends medical marijuana to a patient based on sincere medical judgment and (ii) from initiating any investigation solely on that ground. This injunction applies whether or not the physician anticipates that the recommendation will, in turn, be used by the patient to obtain marijuana in violation of federal city.”); affirmed by Conant v. Walters, 309 F.3d 629, 635-36 (9th Cir. 2002) (“A doctor’s anticipation of patient conduct . . . does not translate into aiding and abetting, or conspiracy.”); cert. denied Oct. 14, 2003.