Pharmacy Law: Legalization of Marijuana Use

Joseph L. Fink III, BSPharm, JD
Published Online: Monday, March 18, 2013
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A trial court rules that the Federal Controlled Substances Act does not preempt the Medical Marijuana Act.

Issue of the Case

When the voters of a state have passed a referendum item known as the Medical Marijuana Act (MMA) and it is codified into state statutes, thereby decriminalizing possession, use, cultivation, and sale of marijuana when applied to medical purposes, what is the interplay of that state-level legal action with the Federal Controlled Substances Act (CSA) of 1970?

Facts of the Case

As part of the November 2010 elections, the voters in a southwestern state passed a proposition included on the ballot to alter state law to eliminate criminal sanctions for possession, use, cultivation, and sale of marijuana when that agent was being used for medicinal purposes.

The state legislative statute as enacted pursuant to the referendum put in place a strict regulatory scheme for dispensaries and cultivation sites. Authority to adopt such regulations was assigned to the state’s Department of Health Services (DHS). Acting under authority of the state statute, the DHS divided the state into 126 separate regions designated “Community Healthcare Analysis Areas” (CHAAs) and specified that each CHAA may have only 1 medical marijuana dispensary.

A further requirement under the regulations was that an entity seeking to become a dispensary or cultivation site must first file an application for a “Registration Certificate” with the DHS. Once the Registration Certificate has been issued, a subsequent requirement is that the entity must then submit an application accompanied by the Registration Certificate to seek approval of the specific site being proposed.

The final condition under the regulations was that the applicant must submit documentation that the proposed site meets all applicable zoning restrictions or requirements. In the case reviewed here the organization seeking approval for operation of a marijuana dispensary was unable to obtain the requisite zoning documentation from the appropriate county officials. The organization seeking approval was informed by the DHS that its application was deficient.

The institutional applicant then turned to the state courts, seeking relief in a number of ways with regard to the DHS and the county officials’ failure to do what needed to be done for the permit to be considered and approved. The state government joined the fray, asking the trial court to rule that portions of the Medical Marijuana Act were inconsistent with and preempted by the Federal Controlled Substances Act of 1970.

The Court’s Ruling

The trial court judge ruled that the Federal Controlled Substances Act of 1970 does not preempt the state’s Medical Marijuana Act.

The Court’s Reasoning

The court began its consideration of the issue by quoting the relevant portion of the federal statute: “Federal law proscribes the ‘manufacture, distribution or possession of marijuana.'” In the high-profile case of Gonzales v Raich, the United States Supreme Court ruled in 2005 that a state-level statute authorizing medicinal use of marijuana does not impede federal prosecutions under the Controlled Substances Act. An earlier Supreme Court case, US v Oakland Cannabis Buyers’ Co-op, had led to the 2001 ruling that there is no medical necessity exception for use of marijuana under the federal statute.

Viewing the issue in the present case as the “flip side” of the 2005 decision, the court stated the question this way: “Does Congressional passage of the CSA preempt the state’s attempt to authorize, under state law only, the local cultivation, sale, and use of medical marijuana? In other words, does the CSA preempt the MMA?”

Reviewing the law of preemption, the court focused on the intent or purpose of Congress. A basic principle is that the state-level police power—the authority to make laws related to the public health, safety, and welfare—is not superseded unless that was the “clear and manifest purpose of Congress.” Following a review of the relevant law, the court concluded that a state’s Medical Marijuana Act is not preempted and therefore is not unconstitutional.

A second argument advanced by county and state officials was that if their employees were to issue the requested documentation needed under the MMA it would place the government officials in the position of committing the federal crime of aiding and abetting the possession and sale of marijuana. The court did not agree. The judge ruled that such refusal to comply with the state statute’s expectation that local officials address the zoning status of the proposed site was unlawful.

The judge gave county officials 10 days to comply with the order that the zoning questions be answered. The county attorney has appealed the trial court decision, asking the state supreme court to hear the case, bypassing the intermediate court of appeals. Stay tuned for further developments.


Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.


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