Medical Cannabis: From Legal to Illegal to (Sometimes) Legal Again

By Heather Boerner
November 1, 2016

The patchwork of medical marijuana laws that vary from state to state leads to confusion and controversy for many physicians.

When Jason Silversteen, DO, a neurologist at Christiana Care Health System in Delaware, sits down with a multiple sclerosis patient to check how a traditional pain medication, like opioids or anti-inflammatories, is working, the answers are dismal: “I haven’t noticed a difference” or, “Oh that? I stopped taking it after a week because of one side effect or other.”


Heather Boerner

But since 2011, the response has been different.  “Almost unanimously, people say, ‘Oh my gosh, it’s so helpful,’ or ‘I can sleep through the night now because my pain isn’t waking me up,’” said Silversteen, who directs the hospital’s MS center. “Or they say, ‘Right after I started using it, I had a significant reduction in pain. I’m more productive and functional in my daily life.’”

“It” is marijuana, a drug that’s legally been available since 2011 to Delaware residents with Alzheimer’s disease, ALS, cancer, HIV and AIDS, intractable epilepsy, nausea, seizures, post-traumatic stress disorder, cachexia, and, of course, muscle spasms and chronic pain, both of which are common for MS patients.

In the last several years, states have increasingly legalized the use of the plant, whether that use is strictly confined to people with specific conditions, as it is in Delaware, or if it’s available for people with any medical condition, as it is in California, to states where it’s legal for recreational use, such as Washington or Colorado. As more states begin to decriminalize it, though, the drug remains illegal federally, placing physicians in a complex position.

“The barrier for the endorsement of medical marijuana by physicians and to obtaining it as patients is simply that a lot of physicians are still not educated on it,” said Silversteen. “They think it’s getting high. They think they’ll be held legally liable if they endorse it.”

None of that is true, at least in his state, he said. Here’s where the law, regulations — and physicians — stand today.

Four Thousand Years of Use 

People have been using marijuana — usually the flower of the cannabis plant — since 2700 BC, said Staci Gruber, PhD. As the director of the Marijuana Investigations for Neuroscientific Discovery (MIND) consortium at McLean Hospital in Boston and an associate professor of psychiatry at Harvard Medical School, she has been looking at the effects of pot on the mind — sometimes literally, using magnetic resonance imaging — for years.

“We act as if this ‘green rush’ is new,” she said. “It’s not.” What’s more recent than the use of marijuana for medical purposes is the regulation of it. In pre-20th century America, people could buy cannabis-containing concoctions at their local pharmacies.

But in the early 1900s, the tide began to change. First, Congress passed the Pure Food and Drug Act of 1906, which required manufacturers to list cannabis on the labels of over-the-counter medications. Then, the immigration of Mexicans to the U.S., prompted by the Mexican Revolution in 1910 — many of whom smoked marijuana recreationally — spurred fear, resulting in marijuana bans in 29 of the country’s 48 states by 1931.

The Federal Bureau of Narcotics was born the year before, in 1930, followed by the Marijuana Tax Act of 1937, which effectively banned possession of the drug.

And the laws just kept getting stricter. Under 1956’s Nar­cotics Control Act, a conviction of possession of marijuana carried with it a mandatory sentence. Although those mandatory sentences were repealed, at least for small amounts, by the Comprehensive Drug Abuse Prevention and Control Act of 1970 and a presidential commission even recommended in 1972 that marijuana be decriminalized, the mandatory sen­tences were back by 1986 with the Anti-Drug Abuse Act.

That also is the year when possession of 100 cannabis plants became equivalent to possession of 100 grams of heroin.

The Medical Marijuana Movement

As laws were getting stricter, though, another movement began: the medical marijuana and marijuana legalization movements. In 1970, the National Organization for the Reform of Marijuana Laws (NORML) was formed. But it wasn’t until 1996, when California voters passed Proposition 215, a state initiative that made marijuana legal for medicinal purposes.

Then, said Karen O’Keefe, director of state policy for the Marijuana Policy Project, a handful of other states followed suit, with voter initiatives of their own. MPP is a legal advocacy group sponsored by the emerging cannabis industry. Their slogan is “We Change Laws!”

It took years, she said, for medical marijuana laws to start coming from legislatures themselves. And when they did, they often inserted regulations that limited the ability of people to use the whole plant, opting, instead for laws that isolated out cannabidiol (CBD), the non-psychoactive chemical in cannabis, and often limits how much of the psychoactive chemical tetrahydrocannabinol (THC) products can contain.

Today, 25 states have medical marijuana laws that specify specific health conditions for which physicians can   endorse — not prescribe — the use of cannabis in its whole-plant form. Another 17 states have more restrictive laws, which only permit the use of specific cannabis preparations, such as liquids, and that are high in CBD and low in THC.

California continues to be the only state where people can get a whole-plant medical marijuana endorsement for any condition.

“A lot of legislatures don’t want people to be able to get pot if they might be faking, and there’s a lot of awareness of how easy it is to get a recommendation in California,” O’Keefe said. “For that reason, we have a whole lot of legitimately sick people being left behind.”

CBD, THC and More

There is some evidence that marijuana is effective in treating some conditions. Gruber herself has studied marijuana’s impact on symptoms of bipolar dis­ order and borderline personality disorder. But as the director of MIND, she also is leading an observational study of marijuana's effect on a number of conditions: pain, anxiety, PTSD, fibromyalgia, among others. The average age of her patients is 49, and most have never used marijuana before beginning the study. In fact, recreational marijuana use excludes patients from participating in the study.

“How would we disentangle the effects of medicinal use of marijuana from recreational use?” she said.

She takes baseline measurements of symptoms and func­tioning and then reassesses them every three, six, nine and 12 months, to check their performance, functioning and symp­tomology.

So far, the study has shown something surprising: In the research she did before beginning to look at the medical use of cannabis, she investigated executive functioning, performance, impulsivity and affect for those who began smoking pot early versus those who started it later in life, after the prefrontal cortex, the part of their brains responsible for decision-making, was fully formed.

In those studies, she found that those who began smoking pot before the prefrontal cortex was fully formed had worse executive functioning and performance than those who started later in life.

“You’d guess it would be the same in medical marijuana patients,” she said. “But that’s not what we see.”

In fact, she said, people who use marijuana for a medicinal purpose have the opposite result. Not only have researchers found improvements in symptoms like pain and intractable seizures, but they’ve also found that when the pain and sei­zures are alleviated, patients sleep better and think better. In short, she said, “If you feel better, you do better.”

Not only that, but use of marijuana, particularly for pain, seems to have an impact on a separate but related health problem: opioid addiction and overdose. In states with legal medical marijuana, doctors write fewer prescriptions for opioid painkillers.

But researchers are far from totally unlocking the medicinal potential of pot. Marijuana, she said, “is one of the most complex plants on the planet.” Some species, she said, tend to yield strains that are energizing and cause euphoria — potentially useful in treating the symptom of fatigue in MS or lupus, for instance, or even depression.


Other strains create a relaxing effect, which is good for things such as muscle spasticity or anxiety. In her work with bipolar patients, she said she has been surprised to find people treating their shifts to manic or depressive states with the ap­propriate strains of marijuana.

Varying levels of CBD and THC, as well as essential oils in cannabis, influence effectiveness. Silversteen said that he has found that strains high in CBD and with very little THC work best on pain, for instance.

And while she knows that some people view prescriptions for cannabis for affective disorders as a way to legitimize recreational pot use, it’s her experience that “people with af­fective disorders are legitimate medical marijuana users, also.”

This is where additional research comes in.

“We all want evidence-based medicine,” she said. “We’re getting there — very, very slowly.”

State-Federal Conflicts 

For now, physicians and re­ searchers are in a complicated position.

Marijuana continues to be federally illegal. Recently, the U.S. Drug Enforcement Agency issued a statement reaffirming that marijuana is considered a Schedule 1 controlled substance — right up there with heroin and cocaine. And while a bill has been introduced in Congress to legalize cannabis, MPP’s O’Keefe said she doesn’t expect it to go anywhere soon.

For now, changes to marijuana laws fall to the states. Three states will consider medical marijuana ballot initiatives this month, and the Louisiana and Texas legislatures are both ex­pected to consider new marijuana laws next year.

“I wouldn’t be surprised if we had five more states next year,” she said.

What that means, though, is that patients who are legally permitted to use marijuana in their home states will continue to be forbidden to travel with it, and will have to be certified in other states if they visit there because there is no reciprocal agreement among states. And they will continue to worry that they will be fired for their use of the drug.

It also means that researchers like Gruber can’t begin MIND’s second study because she’s not legally allowed to use marijuana grown by California-registered growers.

And it means that Silversteen still feels a big part of his job is to educate his fellow physicians about his state’s marijuana law, and how they can navigate legally within it.

“I don’t feel uncomfortable [endorsing marijuana for my patients] at all, because I’m protected by Delaware law,” he said. And while he would like to see more research on mari­juana’s mechanism of action and adverse effects, he said he also feels really comfortable with marijuana’s safety profile — at least as far as his 300 MS patients go.

“I’d much rather endorse medical cannabis than prescribe oxycodone,” he said.

Heather Boerner is a freelance medical and health care writer based in San Francisco, California.

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