What You Need To Know About Recommending Medical Marijuana

Do you hesitate to suggest medical marijuana to your patients because of the confusing legal landscape around it? We help you make sense of the conflicting laws.

Medical marijuana inside prescription bottle on top of a prescription pad.

As a healthcare professional, you likely know the current evidence on medical marijuana and its potential health benefits for patients. Nonetheless, you may struggle to make sense of medical marijuana’s dual legal status when federal and state laws don’t align.

Federal Supremacy

To understand the medical marijuana landscape in the United States, consider the constitutional framework. Article VI, Paragraph 2 of the U.S. Constitution is commonly known as the Supremacy Clause. This clause establishes that federal law takes precedence over state laws and state constitutions. In other words, federal law is “supreme.” But while federal law takes priority over conflicting state laws, it does not allow the federal government to veto state laws before they take effect.

Questions about the legality of medical marijuana expose the tensions created by our system of government and the Supremacy Clause. Marijuana is a Schedule I drug under the Controlled Substances Act. In the federal government’s eyes, Schedule I drugs have no currently accepted medical use and a high potential for abuse. Thus, under federal law, it is illegal for physicians in any state to prescribe marijuana. To do so would put the healthcare professional’s Drug Enforcement Agency (DEA) license at risk. 

In contrast, 37 states and the District of Columbia have approved comprehensive, publicly available medical marijuana/cannabis programs. So how is this allowed in light of the Supremacy Clause? 

The answer involves several different government actions and all three branches of government. While the history behind medical marijuana is complicated and lengthy, we provide the highlights below.

How the Federal Government Treats State Medical Marijuana Laws

In 2009, as states began creating a regulatory framework for medical marijuana, the Obama administration sent a memorandum to federal prosecutors encouraging them not to prosecute individuals for medical marijuana if they were following state law. The overarching message was that federal resources should focus on those whose actions didn’t comply with state law.

In 2013, the U.S. Department of Justice (DOJ) released the Cole Memorandum. This memo updated the already existing marijuana enforcement policy. It stated that while the federal government reserves the right to challenge the states at any time, the DOJ would defer their right to challenge the legality of state-based enforcement efforts for medical marijuana. It explains that this policy stemmed from limited government resources and that distribution and sale should be allowed, so long as the state had “legalized marijuana in some form and . . . implemented strong and effective regulatory and enforcement systems to control the cultivation.”

Despite the Trump administration rescinding the Cole Memorandum, its direction and policies remain the norm. Today, various pending cannabis legislation proposals would essentially codify the protections of the Cole Memorandum.

Despite these developments at the executive level, the tension remains in states that have not passed medical marijuana legislation. In these states, a healthcare professional who provided patients with medical marijuana would violate federal law and risk their DEA license.

The Physician’s Role in Legal Medical Marijuana States 

What happens in states where medical marijuana is legal? In these states, physicians can recommend marijuana use to a patient so long as they properly determine that the patient suffers from one of the conditions that the state deems to warrant the use of the drug. The keyword here is “recommend,” as distinct from prescribing marijuana.  

First Amendment Protections

The U.S. Court of Appeals for the Ninth Circuit in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) clarified the difference between recommending and prescribing marijuana. In that case, patients and a group of physicians attempted to block a state law punishing physicians for communicating with their patients about using medical marijuana as a form of treatment. They argued that a ban on discussing and ultimately recommending the drug violated the physician’s freedom of expression protected by the First Amendment. The Court agreed, confirming the lower court’s determination that the state could not revoke a physician’s DEA registration because the doctor recommended the use of medical marijuana. 

This ability to recommend (not prescribe) is the cornerstone behind state medical marijuana laws around the country. When physicians discuss the potential benefits and risks of marijuana with their patients, the First Amendment protects that speech. According to the 9th Circuit, it is a critical part of the provider-patient relationship.

What Is a “Recommendation”?

What constitutes a “recommendation” varies between states. In Illinois, for example, certain healthcare professionals can provide written certifications stating that in their professional opinion, medical marijuana will likely treat or alleviate the patient’s qualifying condition or alleviate the symptoms of that condition. 

Whether your patient has a medical condition that qualifies for medical marijuana use depends on your state’s specific legislation — the standards vary widely. Therefore, it’s crucial to understand your state’s definition of a qualifying medical condition. We recommend becoming familiar with your state law on this specific point.

Remaining Concerns 

Despite its growing popularity, some healthcare professionals still hesitate to recommend medical marijuana because of its dual legal status. For instance, despite efforts toward robust state regulation, dispensing concerns remain. Marijuana cultivation is largely unregulated and lacks consistent standards nationwide. As a result, dosage and contents cannot be guaranteed.

Other healthcare professionals worry about the lack of data on the topic. Marijuana’s status as a Schedule I drug makes it difficult to conduct research and provide clinical testing. The barriers to clinical trials include time-consuming and costly federal application processes. Thus, the data regarding medical marijuana remain thin.

Can I Recommend Medical Marijuana? 

Medical marijuana may potentially lead to positive health outcomes for some patients. However, whether you can recommend it for your patients will depend on your state of licensure, your professional judgment, and whether your patients qualify under state law. 

As we’ve discussed, the legal landscape is complicated, and differences between state regulations create further potential challenges. Therefore, if you have questions about recommending medical marijuana in your state, we recommend you connect with a healthcare attorney with experience addressing these questions.

The healthcare attorneys at Jackson LLP want to help you oversee a successful and compliant practice or business. If you operate in one of the states where we practice, book a free consultation to determine if we fit your needs. 

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

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