In lieu of an abstract, here is a brief excerpt of the content:

  • Smokescreen
  • Jessica Berg (bio)

On April 20, 2006, the Food and Drug Administration stated, in an "Inter-Agency Advisory regarding Claims That Smoked Marijuana Is a Medicine," that it does "not support the use of smoked marijuana for medical purposes." Spokespeople from the Marijuana Policy Project immediately accused the FDA of ignoring the science to make a political "antidrug" statement. Drawing a comparison to the over-the-counter emergency contraception situation, in which the FDA ignored the almost unanimous recommendation of its own scientific advisory panel, is easy. However, this interpretation may not be entirely correct.

The FDA advisory may be less a political statement in support of the Bush administration than a comment on federal power-more specifically, on the FDA's role in controlling access to drugs. At least a quarter of the advisory is spent asserting the agency's drug approval authority, including the caution that seeking "to bypass the FDA drug approval process would not serve the interests of public health because [it] might expose patients to unsafe and ineffective drug products."

The battle over legalizing marijuana for medical purposes is, at base, a battle of federalism-in other words, about the balance of power between states and the federal government. In June 2005 the U.S. Supreme Court determined by a six to three vote that individuals who grow and use marijuana could be prosecuted under the federal Controlled Substances Act (CSA), even if state law allowed them to do so. The case, Gonzales v. Raich, involved two women who sued to block federal enforcement of the CSA in California, which makes medical marijuana use legal under certain circumstances. Widely viewed as a triumph for federal authority, the decision did not invalidate any state laws. However, it created a catch-22 for patients who can legally get prescriptions but still may be subject to federal drug raids and even criminal prosecution. The Court's dissenters-a strange threesome of O'Connor, Rehnquist, and Thomas-chastised the majority for infringing on states' rights. And while the decision favored federal control over drug policy, twelve states have nevertheless legalized medical marijuana as of today: Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington.

On top of this battle between states and the federal government is the battle over access to medical treatments. This battle is currently fought not just between the FDA and Congress, but among individual patients, the government, the drug companies, and physicians. One recent Supreme Court case determined that the attorney general lacks the authority to challenge Oregon's assisted suicide statute under the CSA (Gonzales v. Oregon). Another case directly challenged the FDA's authority to limit access to experimental drugs that have completed phase I clinical trials (Abigail Alliance v. Eschenbach). At the same time, in the backlash from the Vioxx debacle and questions about pediatric antidepressant use, many claim the FDA's drug approval system lacks appropriate safeguards-in fact, some even suggest that a new oversight authority be created outside the FDA. Ironically, these claims appear concurrently with increased demands that the FDA allow greater access (and speedier approval) for new drugs-cancer treatments, AIDS therapies, and even medical marijuana.

All of this adds up to an agency under attack. Although the advisory could certainly be interpreted as another instance of the FDA putting politics before science, it is just as easily read as an attempt by the FDA to maintain its historical control over drugs and devices.

What does this mean for medical marijuana? Perhaps nothing. It does not change the current restrictive federal policy; nor does it change the possibility that at some point in the future, marijuana will be approved for medical purposes. Clear away the smoke from the advisory and you find that behind the battle over medical marijuana is the underlying power struggle pervading many of our health care discussions, from abortion to health care access to physician-assisted suicide. It's a battle over states' rights and federal authority. Politics is just the window dressing.

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Jessica Berg

Jessica Berg is a professor of law and bioethics at Case Western Reserve University's Schools of Law and...


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Archived 2012
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