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Physicians should not recommend or authorize specific quantities when discussing the medical use of marijuana with Washington patients or preparing documentation pursuant to RCW 69.51A.010(5)(a) because the specification of amounts might bring the documentation dangerously close to a prescription. 21 C.F.R. 1300.01(b)(35) defines "prescription" as "an order for medication which is dispensed to or for an ultimate user." 21 C.F.R. 1306.05 provides that prescriptions "shall be dated as of, and signed on, the day when issued and shall bear the full name and address of the patient, the drug name, strength, dosage form, quantity prescribed, directions for use and the name, address and registration number of the practitioner" (emphasis supplied).
On December 30, 1996, Barry R. McCaffrey, former Director of the Office of National Drug Control Policy ("ONDCP") released "The Administration's Response to the Passage of California Proposition 215 and Arizona Proposition 200." This document was the product of an interagency working group that included the ONDCP; the Drug Enforcement Administration ("DEA"); the Department of Justice ("DOJ"); the Department of Health and Human Services ("HHS"); the Nuclear Regulatory Commission; and the Departments of Treasury, Defense, Transportation, and Education. See, Conant v. Walters, 309 F.3d 629, 632 n.1 (9th Cir. 2002). The Administration's Response stated that a physician's "action of recommending or prescribing Schedule I controlled substances is not consistent with the 'public interest' (as that phrase is used in the federal Controlled Substances Act)" and that such action would lead to a revocation of the physician's registration to prescribe controlled substances. Id. at 632. Two months after McCaffrey released the Administration's Response, DOJ and HHS (Janet Reno and Donna Shalala) sent a letter to national, state, and local physician associations cautioning that physicians who "intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law . . . risk revocation of their DEA prescription authority." Id. at 632-33.
If a physician loses the ability to prescribe controlled substances, he or she cannot, as a practical matter, continue to practice medicine.
While the Conant plaintiffs took on McCaffrey and succeeded in protecting physicians' First Amendment right to discuss the medical benefits of marijuana with patients, and even to recommend its use, they did not argue that the First Amendment allowed physicians to prescribe marijuana, and the Conant decision offers no protection to a physician who is deemed to have done so:
On appeal, the government first argues that the "recommendation" . . . is analogous to a "prescription" of a controlled substance, which federal law clearly bars. . . . If, in making the recommendation, the physician intends for the patient to use it as the means for obtaining marijuana, as a prescription is used as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law.
309 F.3d at 635 (emphasis supplied). Obviously, under current federal law, a patient cannot take medical marijuana documentation to a pharmacy and use it to obtain marijuana in the fashion he or she would use a prescription to obtain another controlled substance. In this sense, a physician's documentation could never be equated to a prescription. However, the prior and current federal administrations' obvious antipathy toward states' medical marijuana laws, and physicians who discuss the medical use of marijuana with their patients, counsels caution: physicians should not take needless risks by adding terms to patient documentation that are not required by the Washington State Medical Use of Marijuana Act, and that might be used by the DEA to threaten a physician's license to prescribe.
Alison Chinn Holcomb, Director
Marijuana Education Project
ACLU of Washington Foundation
705 2nd Avenue, 3rd Fl.
Seattle, WA 98104
206.624.2184 x. 294
www.aclu-wa.org
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