Interesting news blowing out of tiny Tumalo, Oregon last week, where the Oregon Board of Pharmacy placed a pharmacy and its pharmacist under a rare, emergency suspension. The cause? Board findings that the pharmacy manufactured marijuana products and dispensed controlled substances to patients without prescriptions, among other things.

The Oregon Board of Pharmacy has had a noteworthy relationship with marijuana over the years. As recently as 2010, under direction from the Oregon legislature, the Board reclassified marijuana from a Schedule I substance (as per the Federal Controlled Substances Act), to a Schedule II substance.

Schedule I substances are considered the most dangerous class of drugs with a “high potential” for abuse, and “potentially severe psychological and/or physical dependence.” Because Schedule I drugs are so menacing, they are never available for prescription. Schedule II drugs, conversely, may be prescribed if they have FDA approval. When the Oregon Board of Pharmacy reclassified marijuana to Schedule II, however, the Board also clarified that “marijuana or products containing any amount of marijuana will not be available by prescription in Oregon unless they have been approved by the FDA.” Hence, the Tumalo pharmacy shutdown.

So, will Oregon medical marijuana dispensaries have to worry about pharmacy competition anytime soon? Probably not. Ever since California voters passed Proposition 215 in 1996, most state laws have been careful to frame medical marijuana as accessible only to patients who had received oral or written “recommendation” (and not a prescription) from a doctor.[1] The Oregon Medical Marijuana Act is no different. See Cannabis Prescriptions vs. Certifications: The Wording Matters.

The Tumalo pharmacy is a peculiar case study, because the pharmacy there took things further than unlawfully dispensing marijuana. The pharmacy was actually manufacturing marijuana products, presumably without a grower card or other license. Still, it is unlikely that other, conventional, Oregon pharmacies will be foolish enough to handle marijuana in any manner—including for patients with doctor referrals—until the drug is reclassified under the federal CSA. Thus, licensed Oregon dispensaries are secure in the medical space and they can and should ignore this case, despite rumors swirling here in Oregon to the contrary.

[1] Supreme Court precedent in the abortion context had established the proposition that doctors could not be banned from discussing or recommending particular health care options. Therefore, a doctor who might lose her DEA license for prescribing marijuana could “recommend” it with impunity.

– Vince Slioskwi, for the Canna Law Blog

Attorney with Harris Moure