Proposed Legislation Seeks to Amend Controlled Substances Act’s Preemption Provision: A Reminder Of States’ Role in Regulating Drugs of Abuse

By John A. Gilbert & Delia A. Stubbs –

Last week, Representative Diana DeGette (D-CO) introduced legislation proposing to amend section 903 of the Controlled Substances Act (“CSA”) to create an exception for state marihuana laws.  Section 903, as currently written, expresses Congress’s intent not to preempt state laws that occupy the same field of regulation as the CSA, unless those laws are in “positive conflict” with the federal law.  21 U.S.C. § 903.  A “positive conflict” is described as one that renders the federal and state law unable to “consistently stand together.”  Id.  H.R. 6606 (the “Respect States’ and Citizens’ Rights Act of 2012”), if passed, would insert language stating that no provision of the CSA “shall be construed as preempting” “any state law that pertains to marihuana.”  H.R. 6606 thus seeks to allow states greater flexibility in passing marihuana laws that are less stringent than the federal law.  (H.R. 6606 would also remove federal preemption of any state law relating to marihuana that prohibits an activity expressly permitted by federal law.)

More importantly, H.R. 6606 serves as a crucial reminder to entities that manufacture, distribute or dispense controlled substances  to look beyond federal law in designing their compliance programs.  Because of the congressional intent expressed in Section 903, principles of federalism do not prohibit states from imposing requirements that are separate or more heightened than those imposed by the CSA. U.S. Const. art VI, Cl. 2; Bldg. & Const. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 113 S. Ct. 1190, 122 L. Ed. 2d 565 (1993) (where Congress has not expressed an intent to occupy the entire field in which federal law exists, state laws that are consistent with the federal law are valid).

Indeed, many states have passed laws that are more stringent than the CSA.  For example, some states schedule drugs not otherwise scheduled by the CSA or place drugs in stricter schedules than the CSA. See DEA, Office of Diversion Control, Drug & Evaluation Section, Tramadol (Feb. 2011) (noting that  several states designate Tramadol as a Schedule IV controlled substance despite being considered only a “drug of abuse” by DEA); N.Y. Pub. Health § 3306, N.Y. COMP. CODES R. & REGS. titl. 10, § 80.67 (scheduling anabolic steroids in Schedule II, although only placed in Schedule IV in the CSA, and restricting prescription quantity to 6 months for certain disorders). Other areas where some states have imposed stricter laws regarding controlled substances include dispensing (e.g., limits on supplies) drug sampling and advertising.   Thus, companies should be sure to review state laws and regulations, in addition to the federal CSA, when designing and implementing their corporate compliance program.