Carl Olsen v. Iowa Board of Pharmacy

• Court: Court of Appeals of Iowa
• Decided: August 2, 2017
• Docket: 16-1381
• Status: Published

Opinion

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. ________________________________________________________________

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. 2

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 3

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 4

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.