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This chapter may be unlike the other chapters in this book because of the distinctive uncertainties prevailing at the intersection of medicine and the law surrounding cannabis in the United States. Other chapters in this book discuss issues concerning oncology and law with the benefit of an extensive historical system of laws, regulations, and precedential case law. The legal issues involving medical malpractice standards or insurance controversies may vary from state to state, but in most such states, there is a significant practical history and body of law from which to distill reliable guidance and recommendations. However, the pertinent history of cannabis law and cannabis’s application in oncology are developing at an almost daily pace and within a complicated context, which the Massachusetts Supreme Court recently pithily characterized as “a hazy thicket”:
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[T]he current legal landscape of medical marijuana law may, at best, be described as a hazy thicket. Marijuana is illegal at the Federal level and has been deemed under Federal law to have no medicinal purposes, but Massachusetts, as well as the majority of States, have legalized medical marijuana and created regulatory schemes for its administration and usage. Complicating and confusing matters further, Congress has placed budgetary restrictions on the ability of the United States Department of Justice to prosecute individuals for marijuana usage in compliance with a State medical marijuana scheme, and the Department of Justice has issued, revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving in place no clear guidance.1
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This haze is thickened by the fact that the majority of all medicinal cannabis programs in the United States have come into existence in the last eight years—a very short period of time for controversies to have arisen and been resolved into legal precedent. From the perspective of an individual practitioner considering medicinal cannabis’s application to oncology, the ongoing reform of cannabis law and the remarkable expansion of regulated medicinal cannabis programs simply have not yet generated much case law from which practitioner-focused counsel can be derived.
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As of this writing, cannabis (or, in the official language of US federal law, “marihuana” and “tetrahydrocannabinols, except for tetrahydrocannabinols in hemp”) remains listed on Schedule I of the Controlled Substances Act (CSA), such that cannabis remains federally illegal in all instances.2 By an unusual sort of reverse definition, because of its Schedule I status, cannabis is functionally deemed by the federal government to “have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”3 But this assertion is directly contravened both by the laws of at least 34 states and by the existence (since 1976) of the federal Compassionate Investigational New Drug program, through which a small number of qualified patients have obtained medical cannabis directly from the US government.
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CASE LAW # 1
In Gonzales v Raich...