The U.S. Department of Veterans Affairs really wants the military veterans it is charged with serving to know that it isn’t going to do anything to help them access medical marijuana.
While longstanding VA policy has been to disallow government physicians from helping veterans qualify for state medical cannabis programs, a new update to the department’s website sends the message even more clearly — even though it misstates what the law actually is.
“Veterans should know that federal law classifies marijuana – including all derivative products – as a Schedule One controlled substance. This makes it illegal in the eyes of the federal government,” the department’s VA and Medical Marijuana webpage was updated to read this week. “The U.S. Department of Veterans Affairs is required to follow all federal laws including those regarding marijuana. As long as the Food and Drug Administration classifies marijuana as Schedule One VA health care providers may not recommend it or assist Veterans to obtain it.”
That’s not true, at least inasmuch as there is no overarching federal law that prevents V.A. from allowing its doctors to recommend medical cannabis, even though the drug is still considered illegal under federal law.
A leading Congressional champion of veterans’ medical cannabis access told Marijuana Moment that he’s concerned about the new VA website edit.
“This new language is very disturbing, but sadly, comes to no surprise. For years, the VA has been throwing up serious barriers to veterans’ safe access to cannabis,” Congressman Earl Blumenauer (D-OR) said in an emailed statement. “Yet, it’s had no problem prescribing them highly addictive opioids that have killed thousands. It makes no sense. Our veterans deserve better. They deserve equal treatment from the VA doctors who know them best.”
“VA clinicians may not recommend medical marijuana,” the newly update page says. The older version more correctly, though somewhat misleadingly, said, “VA clinicians may not prescribe medical marijuana.” [Italicized emphasis added.]
The distinction between recommendation and prescription is an important one. No physician in the U.S. — government or private — can prescribe marijuana, because prescription is a federally-regulated process and cannabis currently falls under the Controlled Substances Act’s restrictive Schedule I. That category is supposed to be reserved for drugs with a high potential for abuse and no medical value.
That’s why the 29 states with medical cannabis access allow doctors to simply recommend the drug, circumventing the prescription process.
Even with marijuana’s Schedule I status, there is nothing in federal law that prevents V.A. from allowing its doctors to fill out medical cannabis recommendation forms in states where it is legal.
The only thing standing in the way is V.A.’s own internal policy, something that Veterans Affairs Secretary David Shulkin can change at any time.
VA SECRETARY MISSTATES FEDERAL LAW
Shulkin has on a number of occasions indicated that he does see medical potential for marijuana but has consistently falsely claimed that Congressional action is needed before he can do anything to increase veterans’ access. And he has often used the term “prescribe” — intentionally or not — as something of a distraction from the real issue of recommendations. But the new VA website update addresses recommendations, albeit incorrectly.
During a White House briefing earlier this year, Shulkin said that state medical cannabis laws may be providing “some evidence that this is beginning to be helpful, and we’re interested in looking at that and learning from that.” But he added that “until time the federal law changes, we are not able to be able to prescribe medical marijuana for conditions that may be helpful.”
In a separate interview, he said, “From the federal government point of view, right now we are prohibited by law from doing research on it or prescribing it… We are not going to be out there doing that research or prescribing these different medicinal preparations unless the law is changed.”
In another interview, he said that it is “not within our legal scope to study that in formal research programs or to prescribe medical marijuana, even in states where it’s legal.” He added, “if a law change at the federal level is appropriate, that could happen.”
Shulkin, who previously served in the Obama administration as V.A.’s undersecretary of health, wrote in a letter last year that he “wholeheartedly agree[s] that VA should do all it can to foster open communication between Veterans and their VA providers, including discussion about participation in state marijuana programs.” He went so far as to say that he “recognize[s] that the disparity between Federal and state laws regarding the use of marijuana creates considerable uncertainty for patients, providers, and Federal, state, and local law enforcement personnel.”
Under a current internal V.A. administrative directive, the department’s policy is “to prohibit VA providers from completing forms seeking recommendations or opinions regarding a Veteran’s participation in a State marijuana program.” The directive technically expired on January 31, 2016, but remains in force in practice until a new one is instituted to replace it.
In July, Shulkin announced that a new directive is in the final stages of internal review. While he didn’t reveal what it will say, he wrote in a letter to a U.S. House member that it would “maintain the same policy” as the earlier directive.
A bipartisan group of members of the House and Senate has tried over the years to pass legislation forcing the VA’s hand on medical cannabis, but has been consistently blocked by Congressional leadership.
Most recently, Republican-controlled House Rules Committee blocked an amendment on the issue from even being considered on the floor this summer. But a rider preventing VA from spending money to enforce its existing internal ban is in the Senate version of 2018 spending legislation, and so the issue will be decided by a conference committee that later merges both chambers’ bills into a single proposal.
Last year, however, both the House and Senate approved different version of the medical cannabis language but the conference committee removed both of them from the final bill.
VETERANS ADVOCATES PUSH FOR CHANGE
The American Legion, which represents more than 2.4 million military veterans, has been pressuring the federal government to evolve on medical cannabis. Most recently, in August, it adopted a resolution calling on VA to let its doctors write medical marijuana recommendations.
“More than half the states in the union have passed medical marijuana laws to date,” the group’s resolution reads. “The American Legion urge the United States government to permit VA medical providers to be able to discuss with veterans the use of marijuana for medical purposes and recommend it in those states where medical marijuana laws exist.”
The Legion and other medical cannabis advocates have also called for rescheduling and pressed VA to stop blocking federally-approved researchers from recruiting veterans for research on medical cannabis.
One such study on marijuana’s effects on PTSD has been prevented from reaching veterans at the Phoenix, Arizona VA hospital.
“This study needs 50 more participants and the Phoenix VA is in the best possible position to assist by simply allowing principle investigators to brief [VA] medical staff on the progress of the study, and by allowing clinicians to reveal the existence of the study to potential participants,” the Legion wrote to Shulkin last month. “Your immediate attention in this important matter is greatly appreciated. We ask for your direct involvement to ensure this critical research is fully enabled.”
MORE VA WEBSITE CHANGES
Other new changes to the V.A. webpage include the removal of bullet points that read, “VA doctors and clinical teams may advise Veterans who use marijuana of the drug’s impact on other aspects of the Veterans’ care such as pain management, PTSD or substance use disorder treatment” and “VA doctors and clinical staff will record marijuana use in the Veterans VA medical record along with its impact on the Veterans treatment plan.”
In their place, the page now says, “VA health care providers will record marijuana use in the Veterans VA medical record in order to have the information available in treatment planning. As with all clinical information, this is part of the confidential medical record and protected under patient privacy and confidentiality laws and regulations.”
An existing point reading, “The use or possession of marijuana is prohibited at all VA medical centers, locations and grounds,” was followed up with a new clarification that says, “When you are on VA grounds it is federal law that is in force, not the laws of the state.”
The department does make it clear that “veteran participation in State medical marijuana program does not affect eligibility for VA care and services.” That longstanding policy means that patients won’t lose access to their government-provided healthcare just because they use medical cannabis.
But, until Shulkin acts to change the internal prohibition or Congress steps in and forces his hand, the VA isn’t going to do anything to help veterans get medical cannabis.
Photo courtesy of U.S. Air Forces Special Operations Command.
Marijuana Legalization Measure Advances One Step In South Dakota
South Dakota’s attorney general filed an official explanation of a proposed ballot measure to legalize marijuana on Friday.
While separate organizations are working to get a medical cannabis-focused initiative on the state’s 2020 ballot, activists behind this measure are hoping to incorporate recreational legalization, medical marijuana reform and hemp into one package.
Adult-use legalization would be accomplished through a constitutional amendment under the initiative, which would separately require the legislature to pass legislation creating rules for medical cannabis and hemp.
South Dakota Attorney General releases explanation on proposed constitutional amendment to legalize, regulate, and tax marijuana; to require passage of laws regarding hemp as well as laws regarding marijuana for medical use. Read it here: https://t.co/k33buSKjIJ pic.twitter.com/pEG0RxbDj9
— SD Attorney General (@SDAttorneyGen) August 16, 2019
“The constitutional amendment legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older. Individuals may possess or distribute one ounce or less of marijuana,” Attorney General Jason Ravnsborg (R) wrote. “Marijuana plants and marijuana produced from those plants may also be possessed under certain conditions.”
The South Dakota Department of Revenue would be responsible for issuing licenses for cannabis cultivators, manufacturers, testing facilities and retailers. Individual jurisdictions would be able to opt out of allowing such facilities in their areas.
“The Department must enact rules to implement and enforce this amendment,” the explanation states. “The amendment requires the Legislature to pass laws regarding medical use of marijuana. The amendment does not legalize hemp; it requires the Legislature to pass laws regulating the cultivation, processing, and sale of hemp.”
The initiative calls for a 15 percent excise tax on marijuana sales. That revenue would be used to fund the Department of Revenue’s implementation and regulation of the legal cannabis system, with remaining tax dollars going toward public education and the state general fund.
Ravnsborg said that judicial clarification of the amendment “may be necessary” and notes that marijuana “remains illegal under Federal law.”
The attorney general issued a similar explanation of a proposed constitutional amendment to legalize medical cannabis earlier this month.
This latest move comes one day after advocacy organization New Approach South Dakota announced that their medical marijuana initiative was certified, enabling them to begin the signature gathering process.
Several other cannabis initiatives are in the process of being certified in the state, according to the attorney general’s website. In order to place constitutional amendments on the ballot, activists must collect 33,921 valid signatures from voters.
South Dakota is one of the last remaining states in the U.S. that has not legalized marijuana for any purposes.
Photo courtesy of Brian Shamblen.
Elizabeth Warren’s Plan For Indian Tribes Includes Marijuana Legalization
Sen. Elizabeth Warren (D-MA) unveiled a plan on Friday that’s aimed at holding the federal government accountable for following through on its obligations to Native American tribes, and that includes ensuring that tribal marijuana programs are protected against federal intervention.
The plan emphasized Warren’s support for a bill she filed earlier this year that “would protect cannabis laws and policies that tribal nations adopted for themselves.”
The 2020 Democratic presidential candidate, who has faced criticism over claims of Native American heritage, pointed to federal reports showing that tribal programs generally have not received adequate funding and said it is imperative that legislation be enacted to “provide resources for housing, education, health care, self-determination, and public safety” for those communities.
To that end, Warren is planning to introduce a bill called the “Honoring Promises to Native Nations Act” alongside Rep. Deb Haaland (D-NM), co-chair of the Congressional Native American Caucus. Before filing, however, the lawmakers are soliciting input on how best to draft the legislation, and are accepting written testimony until September 30.
While the proposed legislation itself doesn’t currently include marijuana-specific provisions, a press release and blog post on the topic address the senator’s sponsorship of the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would allow tribal communities and states to set their own cannabis policies without Justice Department interference.
In order to provide economic opportunities to Native people, that “requires streamlining and removing unnecessary administrative barriers that impede economic growth on Tribal lands, respecting tribal jurisdiction over tribal businesses, and promoting forward-looking efforts to ensure full access to new and emerging economic opportunities.”
“For example, while not every tribe is interested in the economic opportunities associated with changing laws around marijuana, a number of Tribal Nations view cannabis as an important opportunity for economic development,” Warren’s campaign blog post states.
“I support full marijuana legalization, and have also introduced and worked on a bipartisan basis to advance the STATES Act, a proposal that would at a minimum safeguard the ability of states, territories, and Tribal Nations, to make their own marijuana policies,” she wrote.
.@RepDebHaaland & I invite feedback about this proposal & look forward to working closely with tribal nations & citizens, experts, & other stakeholders to advance legislation in Congress that honors the United States’ promises to Native peoples. https://t.co/qc1fkBGb3I
— Elizabeth Warren (@SenWarren) August 16, 2019
A separate press release on Warren’s Senate website also touts her support for the STATES Act, saying she “worked hard to ensure” that it included tribal protections.
“It’s beyond time to make good on America’s responsibilities to Native peoples, and that is why I’m working with Congresswoman Haaland to draft legislation that will ensure the federal government lives up to its obligations and will empower tribal governments to address the needs of their citizens,” Warren said of the overall tribal plan. “We look forward to working closely with tribal nations to advance legislation that honors the United States’ promises to Native peoples.”
In an email blast to her campaign list, Warren included “a set of additional ideas to uphold the federal government’s trust and treaty obligations with Tribal Nations and to empower Native communities,” which includes her marijuana proposal:
“New economic opportunities: We also need to respect tribal jurisdiction over tribal businesses and promote forward-looking efforts to ensure full access to new economic opportunities. For example, a number of Tribal Nations view cannabis as an important economic opportunity. I support full marijuana legalization and have advanced the STATES Act, a proposal that would safeguard the ability of Tribal Nations to make their own marijuana policies.”
There’s increased interest in ensuring that Native populations receive the same benefits and protections as states as it concerns cannabis legislation.
In June, the House passed a spending bill that included a rider stipulating that Native American marijuana programs couldn’t be infringed upon by the Justice Department. And a GOP representative filed a bill in March that would provide similar protections.
FBI Seeks Tips On Marijuana Industry Corruption
The Federal Bureau of Investigation (FBI) is actively seeking tips on public corruption related to the marijuana industry, it announced on Thursday.
“States require licenses to grow and sell the drug—opening the possibility for public officials to become susceptible to bribes in exchange for those licenses,” FBI Public Affairs Specialist Mollie Halpern said on a short podcast the bureau released. “The corruption is more prevalent in western states where the licensing is decentralized—meaning the level of corruption can span from the highest to the lowest level of public officials.”
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)