On Wednesday — nearly a dozen years after Maine voters passed a referendum to permit the use and sale of medical marijuana — Ted and Jenna Smale opened their pot dispensary in Auburn, a dispensary licensed to serve patients in Androscoggin, Franklin and Oxford counties.

By any measure, the pace of legalizing medical marijuana and licensing dispensaries has been glacial and the support of lawmakers, courts and the law enforcement community has been frosty.

But the reality is that voters passed the law, regulators wrote the rules and the Department of Health and Human Services has licensed a handful of dispensaries to provide marijuana for medicinal use.

Medical marijuana is legal under state law, but not under federal law.

In 2005, the U.S. Supreme Court made that clear in its split ruling that federal authorities can prosecute medical marijuana patients in states — including Maine — that have passed medicinal marijuana statutes, because the authority to regulate drugs lies in Congress, not in individual statehouses.

Federal law permits medical marijuana advertising to be displayed in public buses and trains, and their respective stations, as a matter of free speech.

So, advertising the herb is OK. Prescribing, purchasing and using it is not.

Last week, in response to an inquiry from Sen. Earle McCormick, R-West Gardiner, and Rep. Meredith Strang Burgess, R-Cumberland, regarding amendments to the medical marijuana law now before the Committee on Health and Human Services, U.S. Attorney Thomas E. Delahanty II unequivocally affirmed the federal view.

He wrote, “There is no confusion regarding the United States Department of Justice’s view on such legislative proposals,” and that any use and dispensing of medical marijuana is “illegal under the federal Controlled Substances Act.”

Marijuana can be included in federally authorized research programs, but otherwise any possession or distribution is “a violation of federal law regardless of state laws permitting such activities,” Delahanty wrote.

He couldn’t have been more clear, and the split in state and federal law couldn’t be more confusing for police officers, courts and for licensed dispensary operators like the Smales.

Sixteen states in this country have legalized and regulated medical marijuana since 1996, including Rhode Island and Vermont, and 10 more states have legislation in the works to do the same. In all that time, federal officers have not been overly aggressive in arresting marijuana patients who grow and use the weed, understanding that patients who conform to state statutes are doing so to endure their various diseases, not to violate the law.

There are cases, though, that deserve federal attention, such as the prosecution and conviction of Ricardo Montes and Luke Scarmazzo in California in 2008. In that case, the two medical marijuana providers operated well outside their license issued under California’s Compassionate Use law, turning their nonprofit enterprise into an illegal, million-dollar, for-profit venture.

We understand and appreciate federal officials’ position on drug enforcement, and hope their thus-far compassionate and discretionary treatment of marijuana patients remains steady as Maine’s rigorously regulated dispensaries open.

Half of the states now have medical marijuana laws on the books or threading through the legislative process. That’s pretty convincing public support for chronically suffering and terminally ill patients.

It’s been 40 years since this country ratified the last amendment to the U.S. Constitution, an amendment guaranteeing the right of 18-year-olds to vote.

Given the clear clash between state and federal law on the very specific issue of medical marijuana, and the resulting chaos of that clash, wouldn’t it make sense for Congress and state legislatures to set things right?

jmeyer@sunjournal.com

The opinions expressed in this column reflect the views of the ownership and editorial board.

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