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Midwest’s Cross-Border MMJ Proposal Is ‘Absolute Lunacy,’ Poses Nationwide Threat

May 16, 2017
Iowa House Speaker Linda Upmeyer, shown here in 2016, is one of the architects of a cross-border medical cannabis deal that experts say risks provoking a response from federal officials. (Charlie Neibergall/AP)
An unusual proposal aimed at speeding access to medical marijuana for some Midwestern patients could ultimately land them in jail—and pose an existential threat to the medical programs in 29 states.

Those dire warnings come from Brookings Institution senior fellow John Hudak, one of America’s leading cannabis policy analysts. Hudak and others are watching the cross-border plan emerging from Iowa and Minnesota with a wary eye, and he told Leafly he’s dismayed to see lawmakers in both states, from both parties, pushing forward with the plan.

The proposed two-state deal, hammered out by Iowa House Speaker Linda Upmeyer and Minnesota House Speaker Kurt Daudt, would allow Iowa residents to obtain cannabis oils and pills through Minnesota’s existing medical cannabis market. That would directly violate the terms of the US Department of Justice’s Cole memo, which forbids interstate transport of cannabis products.

“It’s something that should not just be alarming in Minnesota and Iowa,” Hudak said of the proposed plan. “This should alarm every state that’s relying on this very fragile framework that’s keeping medical marijuana together.”

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Iowa AG Tells Agency to Halt Portion of Medical Marijuana Law

Iowa Gov. Terry Branstad signed the first half of the two-state plan, Iowa House File 542, into law this past Friday. A provision of the Iowa bill specifically references Minnesota as a potential source of medicine and directs Iowa regulators to contract with Minnesota’s two licensed cannabis manufacturers—which have reportedly suffered a combined $11 million in losses over two years in sales.

“I just want to be sure if we have a tough time finding a grower, we have another source available.”
Iowa House Speaker Linda Upmeyer

While it might seem like a common-sense solution—supply in one state, demand in another next door—the plan would involve transporting cannabis across state lines. And currently that’s a big no-no in the eyes of the feds.

“The marijuana industry, it exists insofar as the federal government is letting states do their own thing within those states,” Hudak said. “Interstate commerce is explicitly a federal power. There is no gray area.”

If Minnesota cannabis were to cross state lines—with the intentional blessing and encouragement of state officials, no less—it would no longer be a local concern.

“What they are proposing is illegal under federal law,” Hudak said of lawmakers in the two states. “It is illegal and enforceable under the Cole memo, and, frankly, it is something that would be difficult for a state to justify under the Rohrabacher–Blumenauer amendment.”

Attorney General Jeff Sessions has already said he’s reviewing the Cole memo, an Obama-era Justice Department guidance document that directs federal prosecutors not to interfere with state-legal cannabis programs. That and the Rohrabacher–Blumenauer amendment, a congressional spending provision that bars the DOJ from targeting state-legal medical marijuana, are the two chief protections allowing medical marijuana to exist in legal states.

Medical Marijuana Hash oil pills.

The proposal would allow Iowa patients to obtain cannabis oils and pills from Minnesota’s medical marijuana producers.

In other words, the deal risks violating the very framework upon which state cannabis programs are built.

“This is a very dangerous proposal for the marijuana industry nationwide,” Hudak said.

It also comes at a dangerous time. Both Attorney General Jeff Sessions and the White House have indicated plans to step up enforcement against state-legal cannabis, and states such as California, Washington, Colorado, and Oregon have already introduced bills intended to guard state markets from federal interference.

“I cannot see the federal government looking favorably on this sort of thing,” said Jonathan Adler, a Case Western Reserve University law professor who directs the school’s center for business law and regulation. “AG Sessions has shown himself to be quite hostile to state experimentation or flexibility in this area.”

Related

Minnesota Medical Cannabis Providers Run $11M in Red

Medical cannabis advocates already are growing increasingly wary of the Trump administration. Last week, Sessions spooked many in the industry when he issued a sentencing memo directing federal prosecutors to pursue the harshest possible penalties against drug defendants. And President Trump, in signing the federal spending bill containing the Rohrabacher–Blumenauer amendment, issued a statement suggesting he sees the provision as a challenge to his authority to enforce federal law.

Even one of the amendment’s architects, Rep. Dana Rohrabacher (R-Calif.), who describes himself as “a very strong supporter” of Trump, has concerns. Rohrabacher recently told the Washington Post that it appears members of the administration are working to “reposition” Trump on the issue of medical cannabis. “I think there are a lot of people running around trying to paint the president into a corner on this,” Rohrabacher told the Post, adding that he is eager to talk to Trump about it directly.

The circumstances have many convinced that now is not the time to get creative.

“The idea that the Sessions Justice Department would allow this is absolute lunacy. And because of that, this is a truly terrible idea,” Hudak said. “The last thing the marijuana industry wants is to rock the boat in a way that would irritate Jeff Sessions.”

Related

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Hudak said he’s surprised that Minnesota and Iowa even considered the proposal. “I would think that the attorneys general in those states would be seriously advising those states and their governors against this.”

“States run the risk of undoing what has been arduous work by lobbyists and advocates.”
John Hudak, Brookings Institution

When voters in Colorado and Washington passed the country’s first laws legalizing cannabis for adult use, governors from both states sought Department of Justice guidance before implementing laws, Hudak noted. In Iowa and Minnesota, however, it’s unclear whether the legislators advancing the cross-border deal are aware of the full ramifications of their proposed pact—or even if they’re cognizant of the rules of the Cole memo and the role it plays in maintaining an uneasy state-federal détente.

“I just want to be sure if we have a tough time finding a grower, we have another source available,” Iowa House Speaker Upmeyer, a Republican, told the Associated Press last week. “It all just fits together.”

While some medical cannabis states recognize patients from other states, none has endorsed the idea of bringing cannabis across state lines. Other, less formal arrangements have raised doubts even among legalization advocates.

In Georgia, for example, state Rep. Allen Peake receives a monthly package of low-THC medical cannabis products from Colorado, which he distributes through an underground patient network. While patients in Georgia are permitted to have low-THC cannabis, they can’t legally purchase, cultivate, or import it.

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Georgia Lawmaker Deals Cannabis Oil in Shadows of the Law

A conservative Christian, Peake told the Associated Press that he’s motivated by Biblical principles but is also well aware of the legal risks. He takes steps that he hopes will avoid felony drug trafficking charges, he said, such as giving the cannabis oil away for free and making indirect payments himself to a Colorado nonprofit that supports medical research.

“Quite frankly, I don’t know how the product gets here,” he told the Associated Press.

Hudak at Brookings isn’t having it, especially under the current administration.

“This is being too cute by half, and it’s not how you conduct public policy,” he said. “A prosecutor would have a field day with this.”

When state actors thumb their noses at the delicate interplay between state and federal law, Hudak warned, it’s not just law enforcement they should worry about. One of the only true protections against state medical marijuana systems is the Rohrabacher–Blumenauer amendment, which bars the Department of Justice from interfering with individuals who comply with state medical marijuana laws. The provision, which must be added periodically to federal spending bills, requires the support of Congress—and it’s up for renewal in September.

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Congress Pushes to Renew Rohrabacher-Farr Patient Protections

If members of Congress feel states are taking advantage of the situation, they could be moved to pull their support the next time Rohrabacher–Blumenauer needs to be renewed.

“If you start irritating individual members who feel that this goes too far,” Hudak said, “states run the risk of undoing what has been arduous work by lobbyists and advocates to get this passed.”

While it might feel to some in legal-cannabis states that the battle over legalization is already won, experts warned against taking the feds’ permissive stance for granted.

“Were marijuana treated like alcohol, this sort of arrangement would be perfectly fine,” Adler, the law professor, said of the Minneosta–Iowa plan. “Unfortunately, that’s not the regime we have.”

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Ben Adlin

Ben Adlin is a senior editor at Leafly who specializes in politics and the law. Follow him on Twitter: @badlin

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  • Ted

    Just is just crazy. They could grow their own weed.

    • bullish_11

      Both states could do that, Minn already does, and Iowa needs the medicine now, they don’t want to wait for the dispensaries to get up and going, they want the stuff now, so for Both states to make Money, which is the key point here, they are going to work together to have Minn send what Iowa needs and or have Iowa patients get it at Minn dispensaries. Its all about the Money, both states need it and are willing to do this deal to get the extra Tax revenue…

      • Starmaykr

        But all they need to do is pass a simple “Reciprocity” clause to there MMJ statutes. If Iowa needs the medicine and Minn needs the money, this is the simple solution.

    • GBAUTO

      I wish it was that easy…
      I do supply my own meds for treatment of chronic pain from a motorcycle/deer collision that left me with multiple fractures and the loss of my rt. leg. The state of Georgia prohibits ANY MD from prescribing pain meds if cannabinoids are detected in urine…
      Now I have to chose between using a extract that works VERY well as an adjunct to opiates(allowed me to cut my dosage of narcotics to 1/3 the amount needed by themself) or GET back on the pain med merry-go-round. Absolute Insanity abounds in Georgia lawmakers…

  • bullish_11

    What some of these Politicians forget is that We, the People, are the ones that elected them, to do our bidding, as it is, and We can Tell them in One big voice to Stop the Crap, And re-schedule Marijuana/Cannabis as we Know all the Lies spread over the years were just that. And Now we wan’t this Plant to no longer be treated this way and should be classified the same as Alcohol…! YES We the People can do this, but again, that is a Pipe dream, we can’t elect a decent president, how are we going to demand that Our Politicians do what we want…?

    • Excuse me

      Good luck with the rescheduling. One big voice does not put money in politician’s re-election coffers, as Big Pharma does. One big voice fails to change the criminal behavior at the FDA. Obama, an-at-least-once-upon-a-time-user, failed to push rescheduling…

    • Juan Martinez

      You are delusional. He who pays congressmen the most money (the other green stuff) gets legislation that protects their interest.

    • Michael Price

      Yes, but we must know who is in and who’s just acting to be in.

  • 360dunk

    We, as a nation, somehow managed to let 13 million people sneak across our borders yet we’re concerned about a harmless plant crossing state lines? Wake the heII up, politicians! Are you folks insane?

    • A. Poster

      Well, the feds do have say in things regarding interstate commerce. But if you can afford to deal in illegal aliens for employees it’s okay. See, those “job creators” have the full happy say of lawmakers, particularly the conservative ones.

    • Chuck Elkins

      Yes they are insane. Everyday they prove their insanity beyond belief. As they say, you want something FUBAR. Let the government help.
      I think of what this great country has come to from politicians. A country I am embarrassed to be part of. They are ludicrist bamboozeling fanatics over everything. The marijuana plant has so many benefits it will put major corporations out of business as they have done to so many mom and pop shops. Oh damn, we can’t have that. Were would free enterprise be then. LMAO. All the bottom feeding government cares about is control, lying to us, and keeping us in fear daily. Fuck them! I’ll grow or buy again as needed. They make billions when illegal. Legal and the American public profit- CANT HAVE THAT, RIGHT GOVERNMENT. NOT RIGHT FOR US TO PROSPER. There is always a way to triumph over the tyrannical control of unwanted and unfair practices. Two can play this game.
      We the people, just have to be better at it. I literally hate how our nation’s political agenda has taken course to take our freedoms and rights..
      It’s we the people alright.
      WE THE PEOPLE. THAT SUFFER AT THE HAND OF POLITICAL TERRORISTS( councilmen all the way to the president ) IN OUR OWN COUNTRY BY OUR OWN PEOPLE. Absolutely ridiculous. And they would rather illegal immigrants, heroin, meth, and guns ( fast and furious ATF fuckup )cross state and nation boundaries unchecked. Hell thats the American Government way. Their way and that’s that.
      I’m 62 and this year have decided to never vote again. And will follow all laws to the spirit of that law, if I agree. If I don’t agree. I’ll take my chances. Fuck Big Brother
      AKA united states government. Don’t even deserve capital letters. A whole bunch of you deserve capitol punishment. We won’t see that. Nope. Political idiots are protected like a disappearing species or plant. One thing for sure. We will never have a shortage of these idiots. Cheers

    • ashes52

      Not only that, I find that intoxicated people are completely worse to deal with or handle. Have you drove home a drunk person and then drove home a person high on cannabis? It’s night and day. Also Cannabis is way better and easier on the body than alcohol by ten fold. I would much rather see a bunch of people on cannabis than one person completely trashed. But yet alcohol is completely fine if you are over 21 and not driving. I do not understand the logic.

  • Daniel Ortega

    I personally think it is a back room ploy by Republicans to dismantle any legal state medical cannabis mandates to protect them. It is a ploy by government officials to give the feds an opportunity to shut down the medical cannabis industry. This is a Trump strategy by his state supporters to find a reason to shut it down or take it over and give it to big pharma to run with kickbacks to his regime. It’s not crazy it’s a Trump strategy!

    • Starmaykr

      Hmmmm….interesting theory Daniel. They are purposely trying to provoke the Feds? A sort f reverse psychology? It actually makes more sense than the idea of this law helping the poor people of Iowa!

      • Daniel Ortega

        Only time will tell to see what move the Federal Government will make of this State challenge to cross border exchange. It is just a theory but a plausible one. The DEA is full of surprises in violating human rights to be delayed my court system. Stay tuned!

        • Michael Price

          I agree Daniel. Stay tuned.

  • Starmaykr

    Of course we can all agree, just as it was said at the closing of this above article: “Were marijuana treated like alcohol, this sort of arrangement would be perfectly fine,”. Those of us currently living in legal “Adult Use” States (I am in Massachusetts), adults will just be able to come in, show adult age ID, buy, then leave….(Just as people living closer to the New Hampshire border,here in Mass, have always crossed into N.H. to buy cheaper liquor). This is already the first challenge to the Federal Law prohibiting the transport of Cannabis products across State lines. As for the “Medical Use” States we already have the growing “Reciprocity” movement to recognize MMJ cards legally issued from other MMJ legal States. Just as we recognize Driver’s Licenses from other States. This is a already existing second challenge to the Federal prohibition. At this particular juncture, in the life of the movement, I simply fail to see the rational to what would be nothing more than a pure provocation of the Feds. Simply pass the same sort of Reciprocity laws that we presently enjoy in almost a dozen other legal states. Problem solved.

  • Dan Whiteside

    The feds seem to forget something…

    “That and the Rohrabacher–Blumenauer amendment, a congressional spending provision that bars the DOJ from targeting state-legal medical marijuana, are the two chief protections allowing medical marijuana to exist in legal states.”

    No, the fact that the people of the states may tire of Washington DC meddling in our business and throw them bodily out of our states…with force, if necessary…they always forget to mention that part…

    Frankly, I’m _very_ tired of their meddling…

  • lovingc

    Newbies need to listen to those already in the business! Interstate transportation of cannabis is a felony to the feds and they will enforce it and give you the harshest penalty available in federal law.

  • John Parks

    If Iowa is so concerned about finding growers in a short amount of time, they could go through their law libraries to find every person they’ve ever convicted of growing cannabis, expunge the convictions, and put those people to work for the state.

    I get that people in this new industry are paranoid of a federal crackdown. AG Sessions is a bit delusional, and dreaming of his glory days from the “Just Say No” era. This new agreement between Minnesota and Iowa is just what is needed. In the way that California kicking it off was a turning point long overdue, this is another turning point. Are the Feds going to put the National Guard on the border between our states to stop this medicine from flowing? We have much bigger issues to deal with. I am looking forward to what comes next. I’ve done time as a POW in this drug war. Let the madness come to a head, or let the Federal government finally back down.

  • Sic Semper Tyrannis Gaming

    Utah does the same for those allowed to have Cbd. Have to get it out of state. WTF

  • RealPatient

    I’ll be happy to trade liquor being outlawed in place of marijuana being legalized. I know that wouldn’t fly, but THAT MAKES MORE SENSE if we are truly talking about medicine. ARGUE THAT!

    • John Parks

      I’m with you.

      Alcohol prohibition didn’t work. Cannabis prohibition isn’t working. Citizens and governments alike seem to forget what liberty means, but if I could pick one, I’d take the healing properties of cannabis over the train wreck of alcohol any day.