Although recreational marijuana failed at the polls in November, there’s still a pathway for more Arkansans to gain access to the state’s legal marijuana products. Some people close to the state medical marijuana industry, however, aren’t sure that pathway will lead anywhere other than a dead end.
The amendment voters approved to legalize medical marijuana in 2016 created a process for adding more qualifying conditions through the Arkansas Department of Health.
The department shot down the only attempt to add a new condition five years ago, though, and an anti-marijuana public health advisory on its website suggests the department doesn’t have a very generous outlook on the medical benefits of cannabis.
The state medical marijuana amendment requires the department to consider new medical conditions that would qualify residents for medical marijuana cards and the department established rules that lay out the process applicants must use for a new condition to be considered. Once the department makes a decision, its rulings can be appealed to Pulaski County Circuit Court, according to the amendment drafted by Little Rock lawyer David Couch.
“When I drafted it, I intended it to be a fairly easy process,” Couch said recently. “If there were some medical conditions that could benefit from using cannabis, the Department of Health should add them. Period.”
That sounds easy enough. So, what’s the problem?
Among the requirements set by the Department of Health is the submission of evidence, such as medical studies, that shows patients with the condition in question would benefit from marijuana.
The department’s requirements ask for “evidence generally accepted by the medical community and other experts that the use of medical marijuana alleviates suffering caused by the debilitating medical disease and/or treatment.”
Marijuana’s federal criminal status has long created many obstacles for researchers, and as a result there aren’t many studies that explore the health benefits of cannabis. It’s difficult to clear the bar set by the Department of Health, according to Robbin Rahman, executive director of Harvest Cannabis dispensary in Conway.
“You’re just not going to be able to meet that burden,” Rahman said. “Even if you meet that burden, the Department of Health is gonna reject it because of the politics.”
The department’s website includes a public health advisory on department letterhead from 2019 that says marijuana is addictive, has only been proven to treat four limited conditions and is associated with psychoses such as schizophrenia. The advisory calls for “heightened awareness” of cannabis products “claiming to benefit health.”
If an application for a new qualifying condition is denied by the department, the medical marijuana amendment says the ruling can be appealed to Pulaski County Circuit Court. The court must make its decision based on whether the Department of Health abused its discretion when making its decision. That’s another “very tall hill to climb,” Rahman said.
“Unless you can point to some sort of abuse of discretion or capriciousness or something to that effect, you’re going to lose,” Rahman said, adding that there’s also the challenge of funding a legal challenge.
Bill Paschall, director of the Arkansas Cannabis Industry Association, echoed Rahman’s belief that the Department of Health’s process is difficult. Given the lay of the land, is it possible there would be any movement to try to add new qualifying conditions?
“The short answer is, ‘I don’t think so,’ ” Paschall said. “The process with the health department is a difficult one. Nothing has successfully gotten through that process.”
The day after the November election, Rahman engaged in a snarky Twitter exchange when Couch said the process of adding qualifying conditions is easy. Rahman strongly disagreed.
“Dude, you literally could not be more ignorant of the way things actually work,” Rahman told Couch. “Go ask the ADH when they plan to consider new conditions. Hint: Day after never.”
Couch told Rahman to “read the amendment — the process is stacked in favor of adding conditions.” Couch offered to petition the Department of Health himself if Rahman or someone brought him a case involving a patient with a condition that could benefit from marijuana.
While Couch might have intended for the process to be easy, it hasn’t played out that way so far.
In 2018, the Department of Health considered an application to add bipolar disorder to the list.
Bipolar disorder is “a mental illness that causes unusual shifts in mood, energy, activity levels, concentration and the ability to carry out day-to-day tasks,” according to the National Institute of Mental Health.
No state expressly lists bipolar disorder as a qualifying condition for medical marijuana, although patients with the disorder would still qualify in some states. The Oklahoma medical marijuana program, for instance, does not have qualifying conditions at all, so it doesn’t list bipolar disorder or anything else for eligibility. Instead, the state requires physicians to determine whether marijuana would benefit a condition a patient is experiencing, just as they would with any other medication.
Missouri’s medical marijuana program also does not expressly allow patients diagnosed with bipolar disorder to qualify, but it does accept patients with debilitating psychiatric disorders diagnosed by a state-licensed physician. Missouri also legalized recreational marijuana in November.
The 2018 application to the Arkansas Department of Health included medical studies and public comments on the impact of marijuana use on patients with bipolar disorder.
Storm Nolan, owner of River Valley Relief Cultivation in Fort Smith, weighed in on the 2018 application as a representative of the Arkansas Cannabis Industry Association. He told the department the medical marijuana amendment set a low bar for approving new qualifying conditions and that a medical study had shown a benefit for bipolar patients. Nolan also said a common treatment for bipolar disorder is lithium and that patients often develop renal failure from that medication, according to Department of Health documents detailing the public comments on the matter.*
Dr. Gary Wheeler, the chief medical officer at the Department of Health at the time, said in a letter to then-Secretary of Health Dr. Nate Smith that one limited study provided by the applicant did show “evidence of benefits.” Wheeler dismissed the rest of the supporting documentation.
“The rest of the articles are unhelpful reviews largely of the basic science of why THC/CBD might work or a series of anecdotal reports,” Wheeler wrote.
Dr. Richard Smith, a professor of psychiatry, medicine and public health at UAMS at the time, also opposed the application.
“The depressive effects of THC cause and prolong depression and THC’s frontal lobe release function impairs the judgment needed to manage a severe disease like bipolar disorder,” Smith wrote.
Nate Smith, the state secretary of health at the time, denied the application.
Nolan said in a recent interview he believes the Department of Health “unconstitutionally denied the application based on its own criteria.” Smith’s decision was not appealed to circuit court because, Nolan says, no one was willing to fund the legal challenge at the time.
As the state transitions to a new gubernatorial administration, Gov.-elect Sarah Sanders could name someone different to run the state health department and manage the qualifying conditions process.
“Obviously, we don’t know at this point who will be the new secretary of health for the state, so that could change,” Paschall said. “But that process is very difficult.”
* This post has been corrected to better reflect Nolan’s public comments regarding treatments for bipolar disorder.