WASHINGTON, October 13, 2012 – Government hypocrisy abounds when it comes to cigarettes and medical marijuana. One being legal, while the latter is federally illegal.

Smoking cigarettes, most of us will agree, is not a healthy thing to do, however our government has failed to stand up to big tobacco and make it illegal. There is nothing positive about cigarettes. They kill, both directly and passively.

Smoking marijuana, when done for medical purposes, is arguably desirable for the alleviation of pain, particularly in the terminally ill, nausea in those receiving cancer treatment, arthritis, anorexia treatment, Alzheimer, alcoholism, diabetes, stress and there may be a link in assisting autism and brain tumors.

With all these benefits waiting to be exploited, our federal officials are fighting hard to keep us healthy by waging war on cigarette labels, instead of seeking federal legislation that would allow the research into and exploitation of cannabis for medical use.

All this as the though the Food and Drug Administration approves drugs that come with a library list of side effects that could be avoided if medical marijuana was legal.

The Food and Drug Administration has spent time and money designing warnings for cigarette packages that would scare the monsters and demons found in any of the worst horror films. Showing you graphic color images of a man exhaling smoke through a tracheotomy hole in his throat, images of dead and diseased smokers, and smoke surrounding an infant receiving a mother’s kiss are a few examples of the government’s anti-smoking efforts.

Instead of making it illegal, they show us scary pictures accompanied by familiar warnings like smoking causes cancer and can harm fetuses; and the telephone number of the stop-smoking hotline 1-800-QUIT-NOW.

The FDA mandated that tobacco companies put these images on every pack of cigarettes. The size of the warnings would cover fully half of both the front and back of the pack.

As you might imagine, this mandate did not sit well in tobacco land or with the tobacco lobbyists. The tobacco companies filed suit, and they won the decision saying that the requirement to place these mandatory warnings and images was blocked, thus allowing the purveyors of disease, smoke, filth and killing agents to continue to be sold to you without scaring your pants off if you were to look at the packaging.

As you might imagine further, our determined government spent more money, appealed the lower court’s ruling. A 3-judge panel of the U.S. Court of Appeals in August upheld the lower court’s ruling by a 2-1 vote. Part of the panel’s decision was as follows:

“…the case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest – in this case, by making every single pack of cigarettes in the country a mini-billboard for the government’s anti-smoking message…”

The panel also indicated “…the FDA has not provided a shred of evidence showing that the warnings will directly advance its interest in reducing the number of Americans who smoke…”

Despite the highly improbable chance that the 3-judge panel’s decision will be overturned, the government is appealing the decision and has asked the full court to rehear the case.

They really want to protect us. And spend lots of money doing it.

The government’s argument is that the text of the new warnings are “indisputably accurate” and that the format and graphics were designed to the demand of the vast majority of users who become addicted to smoking before age 18.

The government is also raising First Amendment free speech arguments, arguing that there is no requirement that it show how one part of its public health campaign directly reduces smoking.

By way of brief history, warming labels were first seen on cigarette packs in this country in 1965, and those we see now have a small box with text, remaining this way since the mid-1980’s.

A law passed in 2009 required tobacco manufacturers to feature color images of the negative effects of smoking, which, for the first time, gave the government the authority to regulate tobacco.

Americans smoking has dropped dramatically since 1970, from nearly 40% to about 20%. Since 2004, however, the rate has plateaued, with about 46 million adults still puffing away.

For me, outside of the clear common sense of not smoking, the government’s agenda, really, is out of line. I would, if I could, pass a law totally banning smoking cigarettes. Nonetheless, I do not believe the government’s current effort is morally or legally correct. At the risk of sounding like I support smoking or the tobacco industry, I think enough is enough.

Again, if the government is not going to ban smoking, let’s stop spending federal funds, let the tobacco folks have their packages and spare them, and us, the truly gruesome images. That seems a reasonable solution as the current warnings required continue to spread the do not smoke message, and the tobacco folks can continue to profit by killing those who choose to smoke.

Continuing the conversation of federal intervention into what people may choose to smoke, in 2008, President Obama said the federal government would not prosecute medical marijuana dispensaries in those states that had legalized the drug for medical use under state law.

Attorney General Eric Holder is on record supporting Obama’s statement.

David W. Ogden, a Deputy Attorney General, issued a key memorandum on October 29, 2008, confirming “that the Federal Government has no interest and will not prosecute in those states, including California, where the state has legalized such activity” the distribution of medical marijuana.

All that said, possessing and selling marijuana continues to be a federal crime even if the federal government turns a blind eye to its controlled distribution in states that have passed laws allowing the sale for medical purposes.

This is a dilemma, for sure, particularly if you want to open a dispensary in one of those states. Thus consider the situation of Aaron Sandusky and five others, who ran medical marijuana cooperatives in Upland, Colton, and Moreno Valley California.

These entrepreneurs were arrested and indicted on charged with federal drug-trafficking, conspiracy to manufacture, and possession with intent to distribute. If convicted, they could be sentenced from 10 years to life in prison.

Their businesses are now closed, by the way.

In 1996, California voters approved Proposition 215, allowing the usage and sale of medical marijuana. Sandusky, relying on our President’s position, relying on our Attorney General’s confirmation, and relying on the Deputy Attorney General’s October, 2008 memorandum, moved forward with his businesses in 2009.

Sandusky, facing prison, after beign convicted of two counts of violating federal marijuana laws Friday, which could send him to prision for 10 years to life when he is sentenced on Jan. 7 in U.S. District Court, became a student of marijuana prosecutions saying:

G3 Holistic owner and Rancho Cucamonga resident Aaron Sandusky, 41.

“I’ve gone over a lot of trials that have gone before the federal court – and considering all of them have been found guilty and all of those that I’ve seen have been denied to use medical marijuana defense – it’s a bit nerve wracking”.

A special counsel for the U.S. Attorney’s Office indicates that it is not the policy of the Department of Justice to comment on pending litigation.

Unbelievable. Outrageous. Can’t use the medical marijuana defense? This is our government at work, trying to keep us safe, healthy and legal?

There is no argument about the beneficial medicinal affects of marijuana. There is no rational basis for the federal government to intervene in Sandusky’s case, or others like his. This is outrageous.

I’ve never smoked marijuana. I imagine that if I had relentless, excruciating pain and that the only thing that could relieve it was pot, I’d probably become a user.

To stay legal I might even move to one of the 17 states, or Washington, D.C., that allows me to consume it for medical purposes. If my state allows me to buy and consume it then, why would I suspect that my supplier (assuming all state requirements for selling it were met) is doing something illegal?

Sandusky’s attorney says that Sandusky relied on the feds and their statements of non-prosecution in state where dispensing medical marijuana is legal. I guess public statements and memos are not enough.

From here, it seems, enterprising individuals wishing to open medical marijuana facilities should obtain a letter from the local Federal Attorney General’s office specifically stating that permission is granted and that prosecution will not occur.

Do you think any AG will write such a letter? I hope Sandusky’s attorney is able to successfully appeal this conviction.

Sorry Charlie, the government’s bent on things we smoke is not a good tasting tuna.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

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