Bob Orleck: Marijuana debate needs legal way to get clinical information

Editor’s note: This commentary is by Bob Orleck, who is a retired pharmacist and lawyer. He served as an assistant attorney general under Vermont Attorney General Jerome Diamond.

If there was ever a subject where neither side of the issue seemed capable of hearing what the other side was saying, it is over the legalization of marijuana. Instead of relying on old clichés that will never convincingly carry the day, like “the war on drugs is a failure,” “prohibition doesn’t work,” alcohol is worse than pot,” the proponents of marijuana legalization would be better served if there was new and solid information based upon reliable clinical studies to support their position that marijuana is not bad for humans. Working together, those that propose to legalize marijuana for recreational use and those who oppose it for many reasons, could bring to the fore the need to change how the federal government views marijuana and, as a result, allow proper clinical studies to be done that will decide the issue of safety and efficacy for medical and recreational use, once and for all.

Here are some of the arguments proponents of legalized marijuana use, some cliché, some wishful thinking and some facts: Prohibition just does not work! It didn’t work for alcohol and it won’t work for marijuana. Marijuana is safer than alcohol or cigarettes. People who oppose legalization have bought into the lie of “reefer madness” that it causes. People want it legalized. Enforcement has unnecessary large costs and takes police away from more important enforcement jobs. There are many medicinal applications of marijuana. Teen use has not increased under legalization. Commercialization of marijuana can bring in large amounts of revenue that can be used for education, prevention of use programs and more and will create thousands of jobs. Legalization might get rid of the black market. Vermonters want it legalized and government has no business telling people what they can and can’t put into their bodies. The war on drugs is a big failure. It is a matter of personal freedom. This should not be a federal issue but should be left to the states to decide. If the drug is legalized it will be of a standardized quality and thus safer than street drugs.

Now here are some of the arguments anti-marijuana people use: That use damages developing brains and increased availability will increase children and youth use. Marijuana worsens mental health diseases. Increased use will increase the incidence of drugged driving and lead to more mayhem and deaths on the highways. If Vermont approves commercialization, it will not reduce the black market since street dealers can sell it with little overhead and without having to add the tax revenue that is to be generated in the stores. The costs to society in lost productivity and the need for more services to deal with the abuses is unacceptable. It is a gateway drug. The revenue to be gained is illusory and will be short lived. Drug use is already epidemic in Vermont and this only worsens the problem. Drug use rips at the fabric of our society. Legalization will create work-related use problems. Legalization will create more drug users and will send the message to our youth that drug use is acceptable. Parents’ personal drug stash will be more readily available to their children. Workplace problems with legalization will be unique and immense. Marijuana smoke is even worse than cigarettes and more people will be affected by secondhand smoke. Finally, marijuana is a violation of federal law and will remain that way until and if the federal administration changes that. The Obama administration did not attempt to enforce the law against users and looked the other way when it came to the action of states like Colorado, but there is a good possibility that the federal position will be changing under the Trump administration.

Depending on where you stand, both sides bring up pretty good arguments that, if true, should be the ones that carry the day. My background in pharmacy and knowledge of drugs causes me to see more factual basis in those arguing against legalization but if the approach I am advocating is followed, I and others, I am sure, would be open to the studies that would flow from it and if they support the pro-marijuana position, so be it. It is better to come from a point of scientific fact than to be driven by emotion and desire that it be a certain way. In the highly charged atmosphere where this is discussed, however, it is hard to find that truth, especially where there is a lack of needed controlled studies. The reason that such studies are not available is that researchers cannot legally possess marijuana in order to do proper clinical studies. Marijuana is a Schedule I drug, has, according to the law, no legitimate use and is illegal to possess by anyone.

Vermont legislators could be very forward thinkers by passing a resolution asking the federal government to consider rescheduling marijuana to a Schedule II classification.


As things stand now, we are pretty much left with waiting and watching for data from the test tube states of Colorado, Washington and others that have some degree of legalization for recreational use and that will never provide adequate, trustworthy information. There are many states that have legalized its use for certain medical reasons and that has been done without the aid of proper studies done in controlled settings. This lack of clinical information is the basis for my suggestion in dealing with the matter as a whole so reasonable people on both sides can agree to or at least understand it.

My thoughts on this came together when I heard President Trump’s press secretary, Sean Spicer, reflect that there is a big difference between medical marijuana and recreational marijuana. In some ways, that opinion might be valid, but what it said to me is that the whole issue seems to be coming down to one person’s or another’s opinion more so than if based on verifiable facts or the law. Marijuana simply is a mind-altering drug and in order to determine if it is safe and effective for medical use and is safe for recreational use, there has to be more than just opinion.

There is a lot of anecdotal information medically, but states are making decisions on what conditions are helped by use without having any real proof of the fact. It is being driven by emotion and wishful thinking. And when it comes to the federal law, possession is illegal and there are no exceptions to that for medical or recreational use. So we have a choice to go down an illegal road or do something to change our direction.

There is a reasonable approach our state lawmakers could take that could help to resolve this matter in the best interests of all involved. First of all, we must stop what we are doing and pass no further legalization laws until the matter of federal action is resolved. This is consistent with the stated position of our new state Attorney General TJ Donovan who believes we need to take a wait and see until the feds make it clear how they are going to act. Vermont is not that far into this legalization process and will not have too much egg on its face if U.S. Attorney General Jeffrey Sessions is true to his beliefs, words and understanding that he is there to enforce the marijuana law that was passed by Congress. It seems also that he has the power to change the classification of marijuana if he chooses to do so. Taking the legal and deliberate responsible approach of making the case for a change of classification is more likely to be successful than thumbing our noses at his authority. This is akin to getting more bees with honey than vinegar.

Vermont legislators could be very forward thinkers by passing a resolution asking the federal government to consider rescheduling marijuana to a Schedule II classification. If that idea would catch hold and the Trump administration or the Congress would do that, then marijuana could be possessed legally by researchers to do clinical studies and even could be prescribed legally by state medical marijuana clinics for legitimate medical uses.

In summary, we need to take the path that will bring advocates from both sides together to get the information that would trump emotions and fact poor conclusions. Taking the step of making marijuana a Schedule II drug, makes it legal for the proper people to possess and to do scientific studies of its uses and effects and to prescribe it when appropriate. This way the real risk/benefits will be known and then our state Legislature can take action in a legal and logical way to do what is best for the citizens it serves. They would be acting legally then instead of illegally as they are now. This is a sound and logical way that provides a path for working together to accomplish a consensus that involves treating marijuana like any other drug being evaluated for medical use. If the studies reveal that the drug is safe for recreational use through these studies, then that avenue could also be pursued in due course.

To proceed without knowledge when there is real potential harm is irresponsible and it doesn’t have to be that way. The path to answers is available to us. We need to stop arguing, think about what we need to do in order to prove our point and work together to get real, fact-based answers in a legal way.

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  • David Bell

    “Marijuana is safer than alcohol or cigarettes.”

    This is the crux of the prohibition debate.

    Based on this alone, it is hypocritical to support continued prohibition unless you also support prohibition of both alcohol and cigarettes.

  • Brian Kelly

    Marijuana consumers deserve and demand equal rights and protections under our laws that are currently afforded to the drinkers of far more dangerous and deadly, yet perfectly legal, widely accepted, endlessly advertised and even glorified as an All American pastime, booze.

    Plain and simple!

    Legalize Marijuana Nationwide!

  • Edward Letourneau

    Finally a pot discussion with useful thought in it! The writer is correct. If Vermont really wants to lead the nation in something useful, ask for permission to conduct controlled studies.

  • Michael Olcott

    “..rescheduling marijuana to a Schedule II classification….” THANK YOU! this point alone would be a huge step. and here is where we are going to disagree ,lol. we have had Decrim. for a year now and as far as i know there is little data that has been collected by LE as to any sort of increase in this being a DUI issue. the legislature has spent a substantial amount of time taking testimony so its been an issue of some importance. untill this step is taken though at the federal level and the data collected/processed shouldnt we as a society err on the side of freedom of choice and simply remove our laws where relevant to simple possession and growing your own? Let this be a Federal issue and just remove the state from the issue except where DUI enforcement and related data is concerned. i think most on ‘My-Side’ would be ok with that compromise.Enough States do this and it will force the Feds to address the issue in time the way the Founders intended things to,state by state as society changes through the ages.

    • Bob Orleck

      Michael Olcott: Just because Vermont passes a bill will not allow legal studies that can shed light on whether legalization is good or bad for people.. Vermont’s supposed legalization is illegal for recreational use or medical use. That is why we should take a wait and see as T.J. Donovan, our Attorney General suggests. As long as marijuana is a Schedule I drug it has no valid medical use. Valid study of the drug is severely limited to whatever the DEA allows. I came to the conclusions I did because of knowledge in the area as a pharmacist. For the state to base legalization on opinion and feelings that run high when it comes to pot, is not a good way. We must do it in a legal way. Only the federal government can allow this and the DEA has to be convinced it is the right way to go. Just before I posted this reply to you I researched a rejected reclassification as recent as Aug 2016 reported in the Federal Register. It seems they relied on the lack of well controlled studies on risk/benefits and strong opposition by the medical community. It is a bit of a catch 22. There is no real science on this because it is illegal to possess and no real science can be developed by law-abiding researchers because they can’t possess. This is an area we can work together to change and the legislature can play a key role. Hope that helps!

  • John E Pierce

    Orleck’s commentary is the only opinion that makes common sense to me.

  • John Benjamin

    Bob, your argument regarding the paucity of data regarding safety and efficacy is biased. A simple search in most research databases will reveal several peer reviewed research studies done around the world on specific populations from teens to elderly, all stages of pregnancy and post partum, it’s actually fairly exhaustive. Certainly enough to do a retrospective study of safety in the general population.
    Marijuana is not without harms! But it is safe for recreational use in moderation. Prohibition is harmful to society by creating a crime out of behavior that is not criminal. Prohibition creates networks of criminals by its very nature.
    Legalization of cannabis in all forms will open the door for increased safety. Commercial interests will capitalize on the creation of safe modalities of use, and the elimination of pesticide laden products from both domestic as well as imported sources of cannabis. It is clear from the CBD studies on pediatric seizure patients that we need to open this door.
    I’m still a bit unclear about what the anti-legalization group’s beef on safety is! There is no specific medical protocol for treatment of a cannabis overdose, because so few occur and aside from providing for an anxiety reducing environment and possibly some benzodiazepines, people just get better on their own after a few hours.
    Thank you for your thoughts

  • John Davis

    MJ is a lot more safe than Opium based products,don!t you think?

  • Hilton Dier, III

    It might ease the concerns of Mr. Orleck and others to start with the groundbreaking study commissioned in 1972 by Richard Nixon: (Which he angrily threw in the trash)

    Then read a number of studies on medical efficacy:

    And a few dozen more studies from UC San Diego:

    And about a hundred more studies:

    And a recent study on lethal dosage showing marijuana to be 114 times less dangerous than alcohol:

    Which reinforces another study done a decade ago:

    And there is reasonable evidence that legalizing medical marijuana reduces opioid overdoses by around 25%:

    The science has been done. Let’s legalize it, reduce opioid deaths, treat disease, and stop jailing people for a relatively harmless personal activity.

    • Bob Orleck

      First of all, if I was trying to convince anyone I would not use WebMD to do that. It may be a fun place for people to do 10 question quizzes on diseases, or what you should feed your dog, etc., but is definitely not a source for accessing well-defined medical research work. I would like to know your qualifications to evaluate studies and what you did to verify the multiple studies that seem at a glance seem to be uncontrolled with no standardized product and poor quality of available data. The latest from the DEA tells what we need to know. “Marijuana has no currently accepted medical use in treatment in the United States. Based on the established five-part test for making such determination, marijuana has no “currently accepted medical use” because: As detailed in the HHS evaluation, the drug’s chemistry is not known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available.” It easy to find support for anything on the internet but don’t believe it all. The science has not been properly done and what we will do without it will hurt many more than it will help.

  • Dave Silberman

    Mr. Orleck claims to want to “wait and see” the results of studies and data on things like teen use rates, drugged driving impact, black market impact, second-hand smoke impact, etc., but does not appear to have bothered to look for them, because a plethora of such studies exist, despite the restrictions (not a total ban) of CSA Schedule 1 status.

    Indeed, I’ve previously written on these pages about relevant, peer-reviewed studies from reputable institutions such as Johns Hopkins, University of Pennsylvania, Arizona State, Columbia University, University of Georgia, Washington U. in St. Louis; about reports from government agencies including Colorado’s Dept of Health, the National Institute on Drug Abuse, the Substance Abuse and Mental Health Services Administration; about extensive state and federal datasets showing exactly what’s going on in Colorado, Washington, Oregon and elsewhere. There is ample evidence out there; you just need to look at it.

    To say you want to “wait and see”, but to refuse to look at the evidence, is not to display curiosity, but to stall. What Mr. Orleck appears to really want to do is simply to “wait”.

    • Bob Orleck

      Institutional name-dropping will not carry the day for your argument .DEA reality is that “There is no evidence that there is a consensus among qualified experts that marijuana is safe and effective for use in treating a specific, recognized disorder,” and in 2016 they concluded that “At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy.”

      Even TJ Donovan, Vermont’s Attorney General, believes it wise to wait and see what the new federal administration is going to do with enforcement and I add with possible changes in classification. A Vermont legislative resolution could help convince the feds of a need for reclassification so legal research can be done. Instead of relying on claims by those who fanaticize what the value is, we will have science and fact to tell us.

      I never want to see such a drug sold in state run stores on the corners of our towns. No sir! Would I like to see people benefit from any proven value of the drug? You bet I would and in order for that to happen we cannot go our illegal way pretending we can legalize this. Use your lawyerly skills to promote reclassification, unless of course you are doubtful about what real research and study will show.

      You don’t want to wait and I do but that really doesn’t matter. What matters is that Vermont should wait until we have the proper information and can act lawfully, not lawlessly.

      • Dave Silberman

        Bob, we have the information. Refusing to look doesn’t make that information go away.

        • Bob Orleck

          Dave, my reading your information will not make it any more worthy of anything and surely won’t change the law that you are encouraging the State of Vermont to violate. Simple as that!

          • Dave Silberman

            Ending state-level parallel penalties for conduct prohibited at the federal level by the CSA does not cause the state to “violate” federal law, period. The state has no obligation whatsoever to make marijuana possession a state-level crime. You’re a lawyer, you know better.

          • Bob Orleck

            Dave: As a lawyer you should be familiar with the Supremacy Clause (Article VI of the Constitution). As a lawyer you should also should know that H.170 is a legalization bill and that does go counter to federal law because the Controlled Substances Act makes possession by anyone illegal with limited exceptions from the DEA. Federal law trumps state law in such matters.)

            You also know full well that this is more than what we see in H.170 but if passed, would be a foot-in-the-door for the Senate to morph it into a broad commercializaiton bill that will have “drug” stores on the street corners of each of little towns. As a result, people will be misled, possess an illegal substance, and it will be because Vermont has poorly served them by putting the desire for tax revenue above the health and welfare of her citizens.

            Vermont has no obligation to make possession a state crime, but it does have a legal obligation not to pass a law that supercedes a federal law. You’re a lawyer, you should know better.

          • Dave Silberman

            That is a downright silly interpretation of the Supremacy Clause. With respect to a bill like H170, the Supremacy Clause would simply hold that Vermont cannot, by state law, override Federal law, meaning that the DEA could continue to enforce Federal prohibition in Vermont, notwithstanding the end of parallel state penalties. The Supremacy Clause does not require states to impose parallel state penalties, and the Supremacy Clause does not prohibit states from lifting parallel state penalties that are already on the books. H.170 does not seek to “supersede” the Controlled Substances Act — it seeks to get Vermont out of the failing business of enforcing marijuana prohibition.

            But I wonder: all of a sudden, you seem to be quite convinced that legalization will result in net societal harm. What happened to your underlying premise that we don’t have enough data to make an informed decision on that question? What happened to “we need more studies?” Typical.

          • Bob Orleck

            Yes it is typical that you are reading just what you want to see. My op-ed words: “My background in pharmacy and knowledge of drugs causes me to see more factual basis in those arguing against legalization…” There is enough data to show harm to developing minds, those having mental illness and that increase in use leads to more mayhem and death on the highways. That is the reason pot should never be made legal for recreational use.

            You just miss the point, Dave. The purpose of well-controlled clinical studies is to prove or disprove the safety and efficacy of a drug for medical use and the studies need to be of a standard that is accepted by qualified experts. That is not the case today because most researchers cannot possess marijuana legally because of federal law. Do you really want this drug to be classified so that this critical work cannot be done? Till then, federal law recognizes no valid medical use for the drug. Why are you opposed to rescheduling the drug so to explore this?

            Finally, legalization by a state of a drug made illegal by a constitutional federal law that applies to the states is just the kind of conflict that runs afoul of the Supremacy Clause. I have not said Vermont has to pass parallel penalties and you know that. We are talking about legalization of a drug that is illegal under federal law.

  • Matt Simon

    The primary argument for legalization isn’t that marijuana “isn’t bad for humans” — it’s that marijuana prohibition causes more harm to society than marijuana itself could ever cause. However, there is no question that cannabis is objectively less harmful than alcohol and tobacco. As Dr. Sanjay Gupta reported a few years ago, there has actually been a tremendous amount of research in the U.S. examining the negative effects of cannabis: “In my quick running of the numbers, I calculated about 6% of the current U.S. marijuana studies investigate the benefits of medical marijuana. The rest are designed to investigate harm. That imbalance paints a highly distorted picture.”