Marijuana Extract May Be Used to Treat Epilepsy in Missouri: What Now?

Marijuana Extract May Be Used to Treat Epilepsy in Missouri: What Now?
By Bradley Craigmyle


I. Introduction
It is 2011, and five-year-old Charlotte Figi suffers from Dravet Syndrome, a form of intractable epilepsy causing Charlotte to have over 300 seizures every week.1 She cannot eat, walk, or talk; Charlotte’s heart has stopped many times, and her parents have signed a do-not-resuscitate order.2 Hospitals claim they can do nothing more for Charlotte.3 However, Charlotte’s parents have not given up just yet.4 They live in Colorado, which previously legalized medical marijuana.5 Believing they have nothing to lose at this point, the Figis turn to a particular marijuana extract for treatment.6 Now, the Figis could access this particular marijuana extract, CBD oil, if they lived in Missouri instead of Colorado.

II. Discussion
Taking all things into account, this law should help Missourians. The legislature passed a narrow law, and only patients with one type of illness, who have been unresponsive to three other treatment options, can access CBD. Because of this law, patients with intractable epilepsy might enjoy relief after numerous failed attempts with other drugs or treatments.

Although doctors’ concerns about liability associated with prescribing CBD might be well founded, medical malpractice lawsuits associated with marijuana are nearly nonexistent.7 Missouri’s CBD law should be no exception. In the case of Charlotte Figi, one doctor suggested putting Charlotte in a medically induced coma.8 This suggests eligible patients (or their guardians) will likely be willing to try any treatment that might work. Even assuming an adverse reaction or failed treatment, these patients are unlikely to sue neurologists because they will voluntarily be trying an option of last resort.9

Further, the federal government will not prosecute Missouri neurologists for violating federal law by prescribing CBD. Under the Obama Administration, the Department of Justice discourages federal prosecution of individuals acting in accordance with state laws.10 In previous memoranda, the Department of Justice distinguished medical use and commercial enterprise of marijuana and advised that commercial enterprises remain an “appropriate target for federal enforcement and prosecution.”12 In 2013, the Department of Justice retreated from this distinction, advising against exclusively considering the “size or commercial nature” of an operation dealing in marijuana when determining whether to prosecute. Further, U.S. Representative Suzan DelBene (D-WA) recently introduced the State Marijuana and Regulatory Tolerance (“SMART”) Enforcement Act.13 SMART would allow the Attorney General to waive the marijuana provisions of the Controlled Substances Act in states that have legalized medical or recreational marijuana use if the states have implemented regulatory schemes sufficient to protect governmental interests.14 It follows naturally that Missouri neurologists recommending CBD to patients with intractable epilepsy will be toward the bottom of U.S. attorneys’ prosecuting lists.

The future will bring the “status quo” for CBD oil legislation. Given the statutes recent implementation, it is difficult to forecast what citizens can expect. Missouri residents will likely see the Missouri Legislature wait for the dust to settle before it takes further action. Licensees have not yet begun growing marijuana in Missouri; therefore, qualifying patients are still waiting to test their first dose of CBD oil.15 If growing and dispensing go well, and the CBD oil demand is high, the legislature might expand the number of licensees that may be growing at once. If there are problems, those will also be addressed legislatively.

III. Conclusion
Citizens throughout the United States continue to debate both recreational and medical marijuana use. Should the federal government legalize all marijuana use? Should states have the authority to implement laws clearly contradicting federal law? What is at stake when states circumvent the FDA and DEA and adopt medical marijuana or CBD oil statutes? Missouri joined the national debate in 2014 by passing HB 2238, which authorizes CBD oil to treat intractable epilepsy.16 One senator attempted to expand the law the next session by allowing those with “serious conditions” to receive CBD oil as treatment.17

In future legislative sessions, we will see efforts to expand marijuana legalization, and Missouri’s CBD oil statute is a natural starting point for this expansion. It is the first Missouri law to legalize any sort of marijuana use not authorized under federal law, passed by a Republican super majority. However, because this law is brand new, and no patient has received CBD, the legislature’s “wait-and-see approach” is a rational one. This law could have shortcomings not known by anyone because it has not yet been executed. It is possible the Missouri Department of Agriculture will need to correct bugs in the growing or administration aspects of the law. The Missouri General Assembly took the safest approach – wait and see what happens with this law before expanding it. This also allows the legislature to gain a better understanding of whether CBD oil helps conditions in addition to epilepsy, as clinicians will have more time to conduct studies testing that theory. At this juncture, the best thing for the Missouri Legislature to do is wait.

Endnotes
1Saundra Young, Marijuana stops child's severe seizures, CNN, http://www.cnn.com/2013/08/07/health/charlotte-child-medical-marijuana/ (last updated Aug. 7, 2013).
2Id.
3Id.
4Id.
5Id.
6Id.
7Mark Crane, Doctors’ Legal Risks With Medical Marijuana, MEDSCAPE BUS. OF MED (June 4, 2015), http://www.medscape.com/viewarticle/845686 (“As noted earlier, we couldn't find a single malpractice case relating to medical marijuana. Legal experts say it's difficult to see how such a lawsuit would be successful, assuming that a patient who asked for a recommendation and received one would even want to sue.”).
8Young, supra note 1.
9Crane, supra note 7 (“As noted earlier, we couldn't find a single malpractice case relating to medical marijuana. Legal experts say it's difficult to see how such a lawsuit would be successful, assuming that a patient who asked for a recommendation and received one would even want to sue.”).
10James Cole, Memorandum for All United States Attorneys, U.S. DEP’T OF JUST. 3 (Aug. 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (“In those circumstances [where states have implemented strong and effective regulatory and enforcement systems], consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.”).
11Id.
12Id.
13John A. Gilbert, Jr. & Larry K. Houck, Cannabis(ness), Patient, or Recreational User be Assured They Will Not be Subject to DOJ Enforcement for Activities in States that have Legalized Marijuana?, FDA LAW BLOG (Nov. 11, 2015), http://www.fdalawblog.net/fda_law_blog_hyman_phelps/2015/11/cannabisness-patient-or-recreational-user-be-assured-they-will-not-be-subject-to-doj-enforcement-for.html.
14Id. (these interests are: “[p]reventing distribution of marijuana to minors; [p]reventing revenue from the sale of marijuana to criminal enterprises, gangs and cartels; [p]reventing diversion of marijuana from states where it is legal under state law in some form to other states; [p]reventing state-authorized marijuana activity from being used as a cover or pretext for trafficking of other illegal drugs or other illegal activity; [p]reventing violence and the use of firearms in the cultivation and distribution of marijuana; [p]reventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; [p]reventing growing marijuana on public lands and the public safety and environment dangers posed by marijuana production on public lands; and [p]reventing marijuana possession or use on federal property”).
15Email from Matthew Panik, Chief of Staff, Senator Eric Schmitt, to author (Oct. 20, 2015, 11:14 CST) (on file with author). 16MO. REV. STAT. § 192.945.1(4) (2015).
17S.B. 386, 98th General Assemb., 1st Reg. Sess. (Mo. 2015).

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