Carl Olsen v. Iowa Board of Pharmacy ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1381
Filed August 2, 2017
CARL OLSEN,
Plaintiff-Appellant,
vs.
IOWA BOARD OF PHARMACY,
Defendant-Appellee.
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Appeal from the Iowa District Court for Polk County, Bradley McCall,
Judge.
Carl Olsen appeals from the district court’s order on judicial review
affirming the Iowa Board of Pharmacy’s ruling denying his request to recommend
the legislature reclassify marijuana from a Schedule I controlled substance to
another scheduled substance. AFFIRMED.
Carl Olsen, Des Moines, pro se appellant.
Thomas J. Miller, Attorney General, and Meghan L. Gavin (until
withdrawal), and Laura A. Steffensmeier, Assistant Attorneys General, for
appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
In 2014, Carl Olsen filed one of several petitions with the Iowa Board of
Pharmacy, seeking a recommendation to have the legislature reclassify
marijuana from a Schedule I controlled substance to another scheduled
substance. See Iowa Code §§ 124.204 (2014) (Schedule I substances), .206
(Schedule II substances), .208 (Schedule III substances), .210 (Schedule IV
substances), .212 (Schedule V substances); State v. Bonjour, 694 N.W.2d 511,
512 (Iowa 2005) (stating Iowa Code chapter 124 “restricts the use of controlled
substances and divides them into five schedules”). The Board denied the
petition. Olsen sought reconsideration, which the Board also denied.
Olsen petitioned for judicial review. The district court denied the petition,
and this appeal followed.
Chapter 124 gives the Board authority to “administer the regulatory
provisions of this chapter.” Iowa Code § 124.201(1). “Annually, . . . the board
shall recommend to the general assembly any deletions from, or revisions in the
schedules of substances, enumerated in section 124.204, . . . which it deems
necessary or advisable.” Id. (emphasis added). This provision vests the Board
with discretion to interpret the schedules. Accordingly, we will reverse the
Board’s legal interpretation only if it is “irrational, illogical, or wholly unjustifiable.”
Id. § 17A.19(10)(l); Olsen v. Iowa Bd. of Pharmacy, No. 14-2164, 2016 WL
2745845, at *2 (Iowa Ct. App. May 11, 2016).
The criteria for listing substances in Schedule I are as follows:
1. The board shall recommend to the general assembly that
the general assembly place a substance in schedule I if the
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substance is not already included therein and the board finds that
the substance:
a. Has high potential for abuse; and
b. Has no accepted medical use in treatment in the United
States; or lacks accepted safety for use in treatment under medical
supervision.
2. If the board finds that any substance included in schedule
I does not meet these criteria, the board shall recommend that the
general assembly place the substance in a different schedule or
remove the substance from the list of controlled substances, as
appropriate.
Iowa Code § 124.203 (emphasis added). The criteria for listing substances in
Schedule II are as follows:
1. The board shall recommend to the general assembly that
the general assembly place a substance in schedule II if the
substance is not already included therein and the board finds that:
a. The substance has high potential for abuse;
b. The substance has currently accepted medical use in
treatment in the United States, or currently accepted medical use
with severe restrictions; and
c. Abuse of the substance may lead to severe psychic or
physical dependence.
2. If the board finds that any substance included in schedule
II does not meet these criteria, the board shall recommend that the
general assembly place the substance in a different schedule or
remove the substance from the list of controlled substances, as
appropriate.
Id. § 124.205 (emphasis added).
Olsen hones in on “accepted medical use.” In his view, because
marijuana has accepted medical uses in treatment in the United States, it should
not be listed in Schedule I and the Board should have recommended its removal
from that Schedule. His argument, while appealing at first blush, overlooks a
significant portion of the Board’s decision.
The Board began by noting marijuana was listed in Schedule I and
Schedule II. See id. §§ 124.204(4)(m) (“Marijuana, except as otherwise provided
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by rules of the board for medicinal purposes.”), 124.206(7)(a) (“Marijuana when
used for medicinal purposes pursuant to rules of the board.”). The Board
acknowledged, “The dual scheduling [of marijuana under state law] has
understandably led to confusion as to the Board’s authority to promulgate rules
authorizing the legal use of medical marijuana.” But the Board found this dual
scheduling necessary in light of the legislature’s “passage of the Medical
Cannabidiol Act,” which was “an affirmative recognition by the Iowa General
Assembly that there is some medical use for marijuana, as it is defined by Iowa
Code section 124.101(19).” The Board explained that because “[m]any
substances can be derived from marijuana” and “some may have a medical use,
while others may not,” “it would be more accurate to schedule each derivate after
an individualized analysis” and simultaneously amend the definition of marijuana
to exclude “the derivative [with medical use] from the definition of marijuana, in
order to avoid conflict.” Meanwhile, the Board stated “Schedule 1 [was]
inappropriate for cannabidiol” but declined to “make the broader
recommendation” to remove the entire category of marijuana from Schedule I.
The district court characterized the Board’s suggested approach as
“insightful.” We concur in this assessment. We also agree with the district court
that the Board’s interpretation of law was not irrational, illogical, or wholly
unjustified. Accordingly, we affirm the Board’s denial of Olsen’s petition for
agency action.
AFFIRMED.