Doctor-Patient Relationships And Medical Marijuana: Where Are We Now?

• Published date: 29 December 2022
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Cannabis & Hemp, Food and Drugs Law
• Law Firm: McDermott Will & Emery
• Author: Mr Brian Malkin

On December 2, 2022, President Joseph Biden signed the Medical Marijuana and Cannabidiol Research Expansion Act (Cannabis Research Act), which provides a mechanism for industry and academia to access and research cannabis, including marijuana and other cannabis-derived products without violating the Controlled Substances Act (CSA). The Cannabis Research Act creates a pathway for researchers to register with the US Department of Justice to legally conduct scientific research on such products subject to certain requirements. The act also creates a system to allow drug manufacturers to legally produce products approved by the US Food and Drug Administration (FDA) that contain cannabidiol (CBD) or marijuana for commercial sale. Of particular significance for healthcare providers, the Cannabis Research Act also includes a doctor-patient relationship provision that permits state-licensed physicians to discuss the "currently known potential harms and benefits of marijuana and its derivatives, including cannabidiol, which may be derived from marijuana or other cannabis products such as hemp, as a treatment."

The full provision is provided below:

• SEC. 301. DOCTOR-PATIENT RELATIONSHIP.
  It shall not be a violation of the Controlled Substances Act (21 U.S.C. 801 et seq.) for a State-licensed physician to discuss'(1) the currently known potential harms and benefits of marijuana derivatives, including cannabidiol, as a treatment with the legal guardian of the patient of the physician if the patient is a child; or (2) the currently known potential harms and benefits of marijuana and marijuana derivatives, including cannabidiol, as a treatment with the patient or the legal guardian of the patient of the physician if the patient is a legal adult.

However, because cannabis and in particular marijuana has been a Schedule I drug under the CSA for more than 50 years, which means by definition that it has no medical uses and a high risk of abuse, there is little information about potential medical uses of marijuana and its derivatives available for physicians to provide to their patients. Notwithstanding its Schedule I status, marijuana has remained in wide use for recreational and largely self-diagnosed medical purposes and is now legal in 39 states for one or both purposes. To date, marijuana research has been narrowly limited by the US Drug Enforcement Administration (DEA) and National Institute on Drug Abuse (NIDA). In addition, FDA has failed to issue regulations...