by William G. Roark, Esq.
August 18, 2016

When Governor Wolf signed the Medical Marijuana Act on April 17, 2016, the news coverage was justifiably extensive. However, in the years to come, when we look back at the infancy of this industry, perhaps an oppressively hot week in August 2016 will be remembered as one of the major turning points for medical marijuana in Pennsylvania.

What happened? Well, two things to be precise:

First, on August 12, the Drug Enforcement Agency (“DEA”) published its “Denial of Petition to Initiate Proceedings to Reschedule Marijuana.” At first blush, this decision would significantly hinder the medical marijuana industry’s growth.  The DEA was asked to move marijuana from the list of schedule 1 substances (highly addictive, no medicinal value) to any other schedule of the Controlled Substances Act.  The DEA denied that request, and thus the stated position of the federal government continues to be that marijuana lacks any medicinal value.

However, the DEA’s decision is not all bad news. The reason the DEA denied the request is, in part, because there is a lack of verifiable medical research supporting a rescheduling of marijuana. The only way to fix that, of course, is to enable more research into marijuana and its medical uses.  In a shift from its previous position, the DEA, along with the Department of Health and Human Services (“HHS”), now appears ready to enable that research to proceed.  According to HHS, “more research is needed into marijuana’s effects, including potential medical uses for marijuana and its derivatives.” The published decision also indicates that HHS is willing to work with the DEA to facilitate the growing interest in researching medical marijuana. In other words: the DEA decided that medical marijuana cannot be rescheduled until more research is conducted, but that the time has come to conduct the necessary research.

So what does this mean for Pennsylvania?  Our Commonwealth was one of the first states in this country to anticipate the potential benefits of researching medical marijuana on a large scale. Written into the Pennsylvania Medical Marijuana Act are provisions that encourage hospitals and medical schools to research serious medical conditions and marijuana’s use in treating those conditions. Previously, those entities were reluctant to conduct such research because the federal government made it a near impossibility to do so. Now, however, with indications from the DEA and HHS that research is needed in this field, hospitals and medical schools should reconsider their positions. Doing so would thrust Pennsylvania into the forefront of the national medical marijuana discussion.

Second, and not to be over looked, is a decision from the 9th Circuit Court of Appeals on Tuesday, August 16, 2016.  The decision, United States v. McIntosh, was a consolidated appeal of ten cases in which the United States Department of Justice was prosecuting alleged violations of the controlled substances act related to medical marijuana. The defendants all sought to dismiss the charges on the grounds that, according to the federal government’s most recent budgets, the Department of Justice was and is prohibited from spending funds to prosecute the medical marijuana industry in states where it is legal.

The Ninth Circuit Court of Appeals agreed with the Defendants. The Court concluded that the congressional budget “prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” Although not automatically binding on the Courts governing Pennsylvania, this recent opinion most certainly marks a shift in the federal government’s prosecution of individuals lawfully complying with state medical marijuana laws.

With information, including safe-harbor letters, surveys, and draft regulations,  coming from the Pennsylvania Department of Health on a regular basis, there is no doubt the medical marijuana industry has come to Pennsylvania. Now, with the most recent news from across the country – it would appear that this long strange trip was timed perfectly.