Texas Physicians Should Know: the Difference Between Prescribing and Recommending Medical Cannabis

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As enlightenment thinker John Locke said, “The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” This rings particularly true for medical marijuana policy reform, as more and more states, including Texas, decide to provide citizens with the freedom to choose marijuana as a potential treatment option.

Cannabis has shown promising abilities to provide relief for a number of medical conditions. And despite numerous state-level reforms taking hold across the country, the federal government still classifies cannabis as a Schedule I drug with “no currently accepted medical use.” As such, doctors hoping to assist patients with cannabinoid therapy in states where medical cannabis is legal must walk a fine line between state and federal law.

To avoid running afoul of federal prescribing rules, many states with medical cannabis legislation have enacted legislative language that avoids the term “prescribe,” in favor of the distinct terms “recommend” or “certify.” However, things are a bit different in Texas as the Lone Star State finds its own path towards implementing its medical marijuana law.

Within the adoption of the Texas Compassionate Use Act, signed into law in 2015, Texas has taken a unique approach in allowing physicians to “prescribe” cannabis that is rich in CBD and low in THC for patients diagnosed with intractable epilepsy. The program requires physicians to register with the state and provides protections for doctors who choose to participate in the program.

The language of Texas’ medical cannabis legislation has created some angst among groups like Texans for Responsible Marijuana Policy and the Marijuana Policy Project, who maintain that the act of “prescribing” medical cannabis violates federal prescription laws and poses an increased risk for doctors than the act of “recommending” medical cannabis does.

Despite concerns, Texas’ medical cannabis law does provide concrete protections for physicians who prescribe medical cannabis to qualifying patients. It does this through its distinct definition of the word “prescription.” The Compassionate Use Act defines a cannabis prescription simply as an “entry in the Compassionate-Use Registry.” So physicians operating within this definition are acting in accordance with both state and federal prescribing laws.

While physicians’ ability to prescribe medical cannabis has not been upheld in the courts as their ability to recommend medical cannabis has been, doctors practicing in a state with a medical marijuana law who scrupulously follow the letter and spirit of the law stand an extremely low chance of facing federal criminal charges.

The federal government has not demonstrated any interest in prosecuting physicians who follow state marijuana laws, and the Justice Department has issued several memoranda explaining that prosecuting state-legal medical marijuana-related activities in not an efficient use of federal resources.

In 2013, the U.S. Department of Justice advised American attorneys not to pursue actions against physicians acting in accordance with state marijuana laws, and federal cannabis enforcement has since focused its efforts more specifically on endeavors like preventing illicit distribution of marijuana to minors, preventing diversion from legal to non-legal states, and preventing illegal cannabis sales and trafficking.

Qualified Texas physicians who prescribe low-THC cannabis to patients in compliance with state law can rest assured they do not fall under that umbrella of federal interest.