COLUMBIA, S.C. (April 4, 2022) – A bill introduced in the South Carolina House would expand the state’s “Right to Try” law to allow patients who contract a contagious disease to try a wide range of treatments including cannabis.

Rep. Melissa Oremus (R) and a large coalition of Republicans introduced House Bill 4567 (H4567) on January 11. The legislation would allow a person who contracts an infection, illness, or other health condition caused by a declared epidemic or pandemic disease eligible to try investigational drugs that have not been approved by the FDA.

The Health and Environmental Affairs Subcommittee of the House Medical, Military, Public and Municipal Affairs Committee held a hearing and amended the bill to include medicinal marijuana as a treatment option, despite federal cannabis prohibition.

The Federal Food, Drug, and Cosmetic Act prohibits general access to experimental drugs. However, under the expanded access provision of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb, patients with serious or immediately life-threatening diseases may access experimental drugs after receiving express FDA approval. H4567 creates a process to bypass the FDA expanded access program and allows patients to obtain experimental drugs from manufacturers without first obtaining FDA approval.

During the coronavirus pandemic, the FDA effectively blocked the use of some treatments for coronavirus, including ivermectin and chloroquine. The passage of H4858 would open the door for doctors to prescribe such treatments in South Carolina.

H4858 builds on the South Carolina Right to Try law passed in 2016.

The Federal Food, Drug, and Cosmetic Act prohibits general access to experimental drugs and treatments. However, under the expanded access provision of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb, patients with serious or immediately life-threatening diseases may access experimental drugs after receiving express FDA approval. RIght to Try allows terminally ill patients to bypass the expanded access provision and obtain experimental drugs from manufacturers without first obtaining FDA approval.

Congress passed a federal Right to Try law in 2018 after 40 states enacted laws allowing terminally ill patients to effectively bypass the FDA and try experimental treatments without federal permission.

EFFECT ON FEDERAL MARIJUANA PROHIBITION

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

The passage of HB4858 would remove a small layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New YorkNew MexicoVirginia and Connecticut legalized marijuana through legislative action.

With 37 states allowing cannabis for medical use, and 18 legalizing for adult recreational use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

The lesson here is pretty straightforward. As Tenth Amendment Center Executive Director Michael Boldin noted, “When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.”

WHAT’S NEXT

The House Medical, Military, Public and Municipal Affairs Committee. must hold a vote and pass HB4567 by a majority before it can move forward in the legislative proces.

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