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Conant v. McCaffrey

A federal class-action lawsuit
on behalf of physicians who recommend
and seriously ill patients who need
medical marijuana

Class Action Complaint for
Declaratory and Injunctive Relief

LOWELL FINLEY (State Bar #104414)
GRAHAM A. BOYD (State Bar #167727)
JONATHAN WEISSGLASS (State Bar #185008)
ALTSHULER, BERZON, NUSSBAUM,
BERZON & RUBIN
177 Post Street, Suite 300
San Francisco, California 94108
Telephone: (415) 421-7151
DANIEL N. ABRAHAMSON (State Bar #158668)
The Lindesmith Center
110 McAllister Street, Suite 350
San Francisco, California 94102
Telephone: (415) 554-1900
ANN BRICK (State Bar #65296)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA, INC.
1663 Mission Street, Suite 460
San Francisco, California 94103
Telephone: (415) 621-2493
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
DR. MARCUS CONANT, DR. DONALD NORTHFELT, DR. ARNOLD LEFF, DR. DEBU TRIPATHY,
DR. NEIL FLYNN, DR. STEPHEN FOLLANSBEE, DR. ROBERT SCOTT, III, DR. STEPHEN O’BRIEN,
DR. MILTON ESTES, JO DALY, KEITH VINES, JUDITH CUSHNER, VALERIE CORRAL, on behalf of
themselves and all others similarly situated; BAY AREA PHYSICIANS FOR HUMAN RIGHTS; and
BEING ALIVE: PEOPLE WITH AIDS/HIV ACTION COALITION, INC.,
Plaintiffs,
v.
BARRY R. McCAFFREY, as Director, United States Office of National Drug Control Policy; THOMAS A.


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CONSTANTINE, as Administrator, United States Drug Enforcement Administration; JANET RENO, as
Attorney General of the United States; and DONNA SHALALA, as Secretary of Health and Human Services,
Defendants.

Contents

I. INTRODUCTION
II. PARTIES
III. JURISDICTION AND VENUE
IV. FACTUAL BACKGROUND
V. CLAIM FOR RELIEF
VI. IRREPARABLE HARM
VII. PRAYER FOR RELIEF

Plaintiffs Dr. Marcus Conant; Dr. Donald Northfelt, Dr. Arnold Leff, Dr. Debu Tripathy, Dr. Neil Flynn, Dr.
Stephen Follansbee, Dr. Robert Scott, III, Dr. Stephen O’Brien, Dr. Milton Estes, Jo Daly, Keith Vines, Judith
Cushner, and Valerie Corral bring this class action on their own behalf and on behalf of a class of similarly
situated physicians and patients; and plaintiffs Bay Area Physicians for Human Rights, and Being Alive:
People with HIV/AIDS Action Coalition, Inc. bring this action on their own behalf and on behalf of their
members. Plaintiffs, on information and belief, hereby allege:

I. INTRODUCTION
1. This class action seeks a declaration that physicians and patients have the right, protected by
the First Amendment to the U.S. Constitution, to communicate in the context of a bona fide
physician-patient relationship, without government interference or threats of punishment, about
the potential benefits and risks of the medical use of marijuana. Physician and physician
organization plaintiffs in this action further seek appropriate injunctive relief protecting them
from criminal prosecution, revocation of federal prescription drug licenses, or any other
punishment or retaliation resulting from their discussions with or recommendation to patients in
the context of a bona fide physician-patient relationship regarding the potential benefits or risks
of the medical use of marijuana.
2. For at least two decades, hundreds of physicians in California have recommended use of
marijuana, often as a medicine of last resort, to seriously ill patients suffering from debilitating
conditions including cancer, AIDS and glaucoma. Although patients have long faced state
criminal liability if they obtained marijuana, even for medical purposes, it had never been
suggested that a physician’s discussion of marijuana as a medical option was illegal or otherwise
sanctionable. All of this changed on November 5, 1996, when California voters approved
Proposition 215 — the Compassionate Use Act of 1996. For the first time, it is legal under state
law for a seriously ill patient to possess and cultivate marijuana for medical purposes if a
physician has recommended, either orally or in writing, that the use of medical marijuana is
medically appropriate. Also for the first time, federal officials, including defendants named
herein, have declared illegal (or at least administratively sanctionable) the longstanding practice
of physicians discussing the risks and benefits of medical use of marijuana with their patients.
3. Defendants’ threats against physicians are having their intended effect. Throughout California,
numerous physicians have censored the range of medical advice they offer to their patients,
refusing to provide guidance concerning the risks or benefits from medical marijuana even when


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it is the only medicine that a physician believes will be effective. By effectively gagging
physicians, defendants have intruded into the physician-patient relationship, an area traditionally
protected from government interference. Defendants have also undermined patient confidence in
physicians, jeopardizing the ability of patients to complete arduous medical treatments like
chemotherapy. The harms caused by physicians withholding medically appropriate information
and recommendations concerning marijuana will continue so long as defendants persist in
threatening serious sanctions against the physicians for such activity.
II. PARTIES
PLAINTIFFS
4. Plaintiff Marcus Conant is a physician who has practiced medicine for 33 years in San
Francisco. Dr. Conant is the Medical Director of the Conant Medical Group, the largest private
AIDS practice in the United States. He is a Professor at the University of California Medical
Center in San Francisco and is the author or co-author of over 70 publications on treatment of
AIDS. He is responsible for dozens of presentations, book chapters, news articles, and lectures
on the same subject. Dr. Conant received his medical degree from Duke University in 1961.
After his residency, Dr. Conant specialized in dermatology, a practice area that led him to
identify the first cluster of patients with Kaposi’s sarcoma, a now well-recognized symptom of
AIDS. In 1981, he founded a Kaposi’s sarcoma clinic, one of the nation’s first specialized AIDS
practices. Currently, he and his colleagues provide primary care for over 5,000 HIV infected
patients, including approximately 2,000 patients with active AIDS. In his AIDS practice, Dr.
Conant prescribes aggressive treatments combining several different drugs — a so-called cocktail
— that are recently emerging as the first effective treatment for AIDS. However, these drugs often
cause severe nausea and vomiting, a situation made all the worse when the patient is suffering
from AIDS wasting syndrome, which causes a steady, uncontrolled weight loss. For many
patients, traditional anti-nausea drugs and appetite stimulants are effective. He prescribes
Marinol — a synthetic version of one of the primary chemicals in marijuana — for many of his
patients. However, for a some medical marijuana proves to be the best, if not the only viable,
treatment option. Dr. Conant currently treats at least 100 patients for whom he believes
marijuana is a medically appropriate form of treatment for nausea and loss of appetite in AIDS
patients. Dr. Conant is aware of defendants’ threats against physicians who provide information
to patients regarding the potential risks or benefits of the medical use of marijuana. Due to fear
caused by these threats, Dr. Conant feels compelled and coerced into censoring his conversations
with patients, curtailing severely the information he feels able to provide to patients regarding the
risks and benefits of medical marijuana. He directs his staff likewise to curtail their discussions
with patients. Dr. Conant does tell his patients that the active ingredient in Marinol is THC, a
chemical also found in marijuana, but he states even this minimal information with extreme
reluctance and fear due to defendants’ threats. If defendants persist in their threats against
physicians, Dr. Conant may instruct his staff to cease discussing marijuana with patients
altogether.
5. Plaintiff Donald Northfelt is a physician who has practiced medicine for ten years. After
working for eight years in a specialized AIDS practice in San Francisco, he moved to Palm
Springs, California, where he has practiced for the past two years. He is an Assistant Clinical
Professor of Medicine at the University of California, San Diego and previously held the same
title at the University of California, San Francisco. Dr. Northfelt received his medical degree
from the University of Minnesota in 1985, after which he completed an internship and residency
at UCLA in 1988. He received specialist training in hematology and oncology at the University
of California, San Francisco from 1988 through 1991. He is a frequent lecturer on specialized


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AIDS care and is the author or co-author of over 35 peer-reviewed publications, 16 book
chapters, and 18 other publications on the treatment of AIDS. Dr. Northfelt’s current practice
focuses on care for AIDS patients and, in particular, AIDS patients suffering from cancer.
Currently, he provides treatment for approximately 200 cancer patients and 300 AIDS patients.
For his cancer patients, Dr. Northfelt frequently prescribes chemotherapy, a treatment that
generally provokes distressing nausea and vomiting. While many patients respond to
conventional anti-nausea drugs like Compazine or Reglan for nausea, Dr. Northfelt finds that
these drugs are not effective for some patients. If unable to control the nausea, Dr. Northfelt fears
that patients will discontinue chemotherapy, risking a quick progression of the cancer. As a
treatment of last resort, Dr. Northfelt finds that medical marijuana is an appropriate, even
necessary, form of treatment to control nausea and make chemotherapy bearable. In his AIDS
practice, Dr. Northfelt prescribes aggressive treatments combining several different drugs — a
so-called cocktail — that are recently emerging as the first effective treatment for AIDS.
However, these drugs often cause severe nausea and vomiting, a situation made all the worse
when the patient is suffering from AIDS wasting syndrome, which causes a steady, uncontrolled
weight loss. For many patients, traditional anti-nausea drugs and appetite stimulants like Megace
and Marinol are effective, but for a few medical marijuana proves to be the only viable treatment
option. Dr. Northfelt currently treats at least twelve patients for whom he believes marijuana is a
medically appropriate form of treatment for nausea and vomiting caused by chemotherapy or for
nausea and loss of appetite in AIDS patients. Dr. Northfelt is aware of defendants’ threats against
physicians who provide information to patients regarding the potential risks or benefits of the
medical use of marijuana. Due to fear caused by these threats, Dr. Northfelt feels compelled and
coerced to censor his conversations with patients, withholding information, recommendations or
advice regarding use of medical marijuana, even when he deems this information to be crucial to
the patient’s care and well-being. Dr. Northfelt will continue to censor his patient
communications so long as defendants threaten the loss of his prescription drug license, his
Medicare and Medicaid participation, and his freedom from criminal prosecution.
6. Plaintiff Arnold Leff is a physician who has practiced medicine for 11 years in Santa Cruz,
California. Dr. Leff received a B.S. from the University of Cincinnati in 1963 and graduated from
the University of Cincinnati Medical School in 1967. He did his internship and fellowship in
internal medicine at the University of Cincinnati Medical Center Hospitals during 1967-69. Dr.
Leff has held a number of positions in the fields of drug control policy and public health,
including Deputy Associate Director for the White House Drug Abuse Office under President
Richard Nixon from 1971-72 and Director of Health Services for Contra Costa County,
California from 1979-83. He also served as a clinical professor at the University of Cincinnati
College of Medicine from 1971-79 and at the University of California from 1979-84. Dr. Leff is
a family practitioner who principally practices in the areas of geriatrics and AIDS. He has been
an AIDS specialist since 1985, and currently treats approximately 110 patients for AIDS in a
practice that includes approximately 4,000 patients overall. For many of these patients, Dr. Leff
prescribes Marinol, a synthetic version of a primary active ingredient of marijuana (THC), to
combat nausea and to stimulate appetite. In some cases, however, he finds that Marinol is
inappropriate because patients cannot tolerate or effectively absorb it. Dr. Leff currently treats at
least 20 patients for whom he believes marijuana is medically appropriate in responding to
treatment-induced nausea or for appetite stimulation. In some cases, he believes medical
marijuana is the only effective medicine. Dr. Leff is aware of defendants’ threats against
physicians who provide information to patients regarding the potential risks or benefits of the
medical use of marijuana. Due to fear caused by these threats, Dr. Leff feels compelled and
coerced to withhold information, recommendations or advice to patients regarding use of medical
marijuana, and therefore has withheld such information, recommendations and advice. During


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the weeks following defendants’ threats against physicians, three patients have asked Dr. Leff
whether medical marijuana would be an appropriate treatment, but Dr. Leff refused to discuss or
recommend medical marijuana for these patients because of fear of sanction by defendants.
7. Plaintiff Debu Tripathy is a physician specializing in breast cancer at the University of
California at San Francisco Mount Zion Breast Care Center. Dr. Tripathy received his B.S. from
the Massachusetts Institute of Technology. He graduated from Duke Medical School in 1985 and
completed his internship and residency in internal medicine at Duke in 1988. In 1991, Dr.
Tripathy completed a fellowship in hematology and oncology at the University of California at
San Francisco. From 1991-93, he was a Clinical Instructor in Medicine and since 1993 he has
been an Assistant Clinical Professor of Medicine at the University of California at San Francisco.
Dr. Tripathy is an oncologist and a member of the American Society of Clinical Oncology. He
has performed a number of research studies and published many articles on breast cancer. Dr.
Tripathy exclusively treats breast cancer patients and has approximately 1,000 active patients. He
currently prescribes chemotherapy, a treatment often causing significant nausea, to approximately
100 patients. For many of these patients, conventional anti-nausea medications are effective, but
for at least 20 patients whom he currently treats, Dr. Tripathy believes medical marijuana is a
medically appropriate and preferable form of treatment. In many of these cases it is the only
viable form of treatment for the nausea caused by chemotherapy. Dr. Tripathy is aware of
defendants’ threats against physicians who provide information to patients regarding the potential
risks or benefits of the medical use of marijuana. Due to fear caused by these threats, Dr.
Tripathy feels compelled and coerced to withhold information, recommendations and advice to
patients regarding use of medical marijuana, and therefore has withheld such information,
recommendations and advice.
8. Plaintiff Neil Flynn is a Professor of Clinical Medicine in the Division of Infectious Diseases
of the Department of Internal Medicine at the University of California at Davis School of
Medicine, and attending physician in the University Medical Center’s Aids and Related Disorders
Clinic. Dr. Flynn received his B.A. from the University of California at Los Angeles in 1970. He
graduated from the Ohio State University Medical School in 1973 and did his internship and
residency in internal medicine at Loma Linda University Hospital from 1973-76. He then
completed a fellowship in infectious diseases at the University of California at Davis from
1976-78. He is certified in Internal Medicine and in Infectious Diseases by the American Board
of Internal Medicine. Dr. Flynn is the author of numerous publications about infectious diseases
and has received hundreds of thousands of dollars in grants and awards for his research on HIV
and AIDS since establishing the Clinic in 1983. He participates in the care of approximately
1,500 AIDS patients, and is the primary physician for 200 AIDS patients. For many AIDS
patients, Dr. Flynn prescribes Compazine, Marinol, or Reglan for nausea. Sometimes, however,
these drugs fail to control nausea. Further, Compazine and Reglan make approximately 25 to 33
percent of patients experience stiffness in their movements. In order to stimulate appetite in
patients suffering from AIDS wasting, Dr. Flynn prescribes Megace or Marinol. In some cases,
however, these drugs are ineffective. Dr. Flynn believes that medical marijuana is medically
appropriate as a drug of last resort for a small number of patients for whom prescription drugs are
ineffective. Dr. Flynn is aware of defendants’ threats against physicians who provide information
to patients regarding the potential risks or benefits of the medical use of marijuana. Due to fear
caused by these threats, Dr. Flynn feels compelled and coerced to withhold information,
recommendations or advice to patients regarding use of medical marijuana and, therefore, has
withheld such information, recommendations and advice. Only with great fear and reluctance
does Dr. Flynn engage in even limited communications regarding medical marijuana.
9. Plaintiff Stephen Follansbee is a physician who has practiced medicine for 20 years in San


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Francisco, California. He is the Chief of Staff for Davies Medical Center, an Associate Clinical
Professor of Medicine at the University of California School of Medicine and the Assistant
Director of the Bay Area Community Consortium, the leading group of medical professionals
treating AIDS in and around San Francisco. Dr. Follansbee received an M.A. from Harvard
University in 1972 and graduated from the University of Colorado School of Medicine in 1977.
He completed his residency and fellowship at the University of California in 1982. Dr.
Follansbee specializes in the treatment of infectious diseases, with a particular focus on treating
complications of AIDS, and is the author or co-author of 40 publications on the subject. He
currently consults on or serves as the primary physician for over 500 patients, many of whom
suffer severe nausea, vomiting or weight loss. Dr. Follansbee finds that Marinol — a synthetic
version of a main chemical component of marijuana — is an effective treatment for some of these
patients, and so has prescribed Marinol for 14 patients during the past 6 months. He finds,
however, that some patients are unable to tolerate or effectively absorb Marinol. For those
patients, he believes medical marijuana can be an appropriate form of treatment. For any patient
with an infectious disease, Dr. Follansbee believes it medically necessary to have a full and open
discussion about any marijuana use, so that he can ensure that, if the patient does use marijuana
for any purpose, the patient does so in a manner that minimizes the risk of infection or other
medical complications. Dr. Follansbee is aware of defendants’ threats to prosecute criminally,
revoke the prescription licenses of, or otherwise sanction physicians who provide information to
patients regarding the potential risks or benefits of the medical use of marijuana. Due to fear
caused by these threats, Dr. Follansbee has curtailed information, recommendations and advice to
patients regarding use of medical marijuana and feels he may need to stop discussing marijuana
at all. Only with significant fear and reluctance does Dr. Follansbee engage in even limited
communications regarding medical marijuana.
10. Plaintiff Robert Scott, III, is a physician who has practiced medicine for 19 years in Oakland,
California. Dr. Scott received a B.S. from Parsons College in 1963 and an M.S. and M.Ed. from
the University of Illinois at Urbana in 1965 and 1968 respectively. He graduated from the
University of California at San Francisco Medical School in 1974. Dr. Scott completed an
internship in medicine at Emory University in 1975 and a residency in internal medicine at
Stanford University in 1977. Dr. Scott practices internal medicine and has over 2,000 patients.
Approximately 350 of these patients are infected with HIV. For many of these patients, Dr. Scott
prescribes drugs for nausea, anorexia, or pain. In some cases, however, prescription drugs are
inappropriate because patients cannot tolerate them or the drugs are ineffective. Dr. Scott
currently treats at least 75 patients for whom he believes medical marijuana is a medically
appropriate form of treatment for nausea, anorexia, or pain. For some patients, he believes
medical marijuana is the only effective medicine. Dr. Scott is aware of defendants’ threats against
physicians who provide information to patients regarding the potential risks or benefits of the
medical use of marijuana. Due to fear caused by these threats, Dr. Scott has curtailed
information, recommendations and advice to patients regarding use of medical marijuana. Only
with great fear and reluctance does Dr. Scott engage in even limited communications regarding
medical marijuana.
11. Plaintiff Stephen O’Brien is a physician practicing medicine at the East Bay AIDS Center in
Berkeley, California. Dr. O’Brien received his B.A. and B.S. from the University of Washington
in 1986. He graduated from the University of Washington Medical School in 1990 and
completed a residency in internal medicine at the University of California at San Francisco in
1993. Dr. O’Brien was employed at the University of California at San Francisco as a clinical
instructor in medicine from 1993-94 and an assistant clinical professor of medicine from
1994-95. From 1993-95 he was co-director for HIV managed care at the University of California
at San Francisco. Dr. O’Brien is a general practitioner who, with one or two exceptions, treats


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only AIDS patients. Dr. O’Brien specializes in advanced AIDS treatment. He has approximately
200 patients, about 70 percent of whom have a T- Cell count below 100. For many of these
patients with advanced AIDS, Dr. O’Brien prescribes Compazine, Marinol, or Reglan for nausea;
Megace or Marinol to stimulate appetite; and prescription pain medication for severe pain. In
some cases, however, these drugs are ineffective. Dr. O’Brien estimates that medical marijuana is
a medically appropriate, and often preferable, form of treatment for 25 percent of his patients for
nausea, as an appetite stimulant to combat wasting syndrome, and for adjunctive pain control.
For some of these patients, he believes medical marijuana is the only effective medicine. Dr.
O’Brien is aware of defendants’ threats against physicians who provide information to patients
regarding the potential risks or benefits of the medical use of marijuana. Due to fear caused by
these threats, Dr. O’Brien feels compelled and coerced to withhold information,
recommendations or advice to patients regarding use of medical marijuana, and therefore has
withheld such information, recommendations and advice. Only with significant fear and
reluctance does Dr. O’Brien engage in even limited communications regarding medical
marijuana.
12. Plaintiff Milton Estes has been a physician in Mill Valley, California for 22 years, is Medical
Director and Senior Physician for the Forensic AIDS Project of the City and County of San
Francisco, and is an Associate Clinical Professor at the University of California at San Francisco.
Dr. Estes received his A.B from the University of Chicago in 1964 and graduated from the
University of Chicago Pritzger School of Medicine in 1968. He did his post graduate training at
St. Lukes Hospital in San Francisco. Dr. Estes is in private family practice and is the largest
private provider of HIV care in Marin County. He has served and continues to serve on numerous
boards and committees, and is an active lecturer on AIDS issues. Dr. Estes has approximately
1,500 patients, of whom about 150 are infected with HIV. A number of his HIV patients
experience severe nausea related to the medications they are taking as well as loss of appetite and
resulting problems maintaining adequate nutrition. In order to combat nausea and weight loss,
Dr. Estes has prescribed Marinol and other prescription drugs. For some patients, however, such
drugs are too slow in acting and do not afford effective relief. Where conventional approaches
fail or a patient poorly tolerates oral medication, Dr. Estes believes medical marijuana can often
be an appropriate form of treatment. Dr. Estes is aware of defendants’ threats against physicians
who provide information to patients regarding the potential risks or benefits of the medical use of
marijuana. Due to fear caused by these threats, Dr. Estes feels compelled and coerced to withhold
information, recommendations or advice to patients regarding use of medical marijuana, and
therefore has chosen to avoid completely any communication regarding marijuana with his
patients, even when he believes it medically appropriate to discuss the subject.
13. Plaintiff Bay Area Physicians for Human Rights (“BAPHR”) is a California non-profit
corporation with over 150 physician members who reside and work in the San Francisco Bay
Area. Founded in July 1977, BAPHR is the oldest existing association of lesbian and gay
physicians in the nation. The organization has as its primary purpose the promotion of health and
wellness in the gay and lesbian community, with a particular focus on the prevention, treatment
and cure of HIV and AIDS. The members of BAPHR are collectively responsible for treating the
majority of AIDS patients in the Bay Area. BAPHR and its members have a longstanding and
direct interest in the ability of its member physicians to provide complete and accurate medical
information to their patients, without fear of reprisal from governmental authorities. Some
physician members of BAPHR treat patients for whom they believe medical marijuana is a
medically appropriate form of treatment, especially for AIDS related complications including
AIDS wasting syndrome. Physician members of BAPHR are aware of defendants’ threats against
physicians who provide information to patients regarding the potential risks or benefits of the
medical use of marijuana. Due to fear caused by these threats, physician members of BAPHR


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feel compelled and coerced to withhold information, recommendations or approval for patients
regarding use of medical marijuana, and therefore have withheld such information,
recommendations and approval.
14. Plaintiff Jo Daly is a 50 year old woman currently battling her second occurrence of cancer.
Plaintiff Daly is a resident of San Francisco, California, where she was police commissioner
from 1980-86. In 1988, plaintiff Daly was diagnosed with cancer of the colon, which spread to
her ovaries and lymph nodes. In 1995, she was diagnosed with lung cancer for which she has
received three rounds of aggressive chemotherapy, was hospitalized for three months, and was
prescribed 27 different medications. During chemotherapy, plaintiff Daly experienced severe
nausea and vomiting. In order to combat these side effects, she tried a number of prescription
drugs, including Marinol — a synthetic version of a main chemical component of marijuana.
However, her constant and persistent vomiting left her unable to keep medication in her stomach
long enough to ingest it. As her situation continued to deteriorate and she came near to losing
hope completely, she was given marijuana by a friend. She found that by inhaling about three
puffs of marijuana when she felt nausea coming on, she could defeat her nausea, regain her
appetite, and sleep through the night. Plaintiff Daly is certain that she would not have survived
her third round of chemotherapy without the use of medical marijuana. It enabled her to reduce
drastically her use of more powerful and often debilitating prescription drugs. Plaintiff Daly
places great importance in her ability to discuss medical marijuana with her physicians, since she
wants to ensure that the marijuana will not interfere with other treatments or otherwise cause
risks outweighing its benefits. Prior to defendants’ threats against physicians, plaintiff Daly
discussed her medical marijuana use with each of her physicians, including eight oncologists, and
none expressed disapproval. Indeed, plaintiff Daly’s primary oncologist expressly approved her
use of medical marijuana. Plaintiff Daly is aware of defendants’ threats against physicians who
provide information to patients regarding the potential risks or benefits of the medical use of
marijuana. Because of defendants’ threats, plaintiff Daly fears that her physicians will censor the
range of medical advice provided to her and interfere with her ability to receive full and accurate
medical advice. She believes, as well, that defendants’ threats put her physicians in jeopardy if
she discusses medical marijuana, and so has limited her communications to her physicians. The
curtailment of communication — both from her physicians to her and from her to her physicians
— has stripped her of the security and confidence she needs to undergo and survive the extremely
difficult treatment required for her cancer.
15. Plaintiff Keith Vines is a 46 year old AIDS patient. He has served as an Assistant District
Attorney in San Francisco since 1985, including two years working as a felony prosecutor in a
federally funded Drug Strike Force where he secured a conviction in what was then the county’s
second largest drug seizure. Prior to working in the District Attorney’s office, he worked for three
years in private practice and for six years as a prosecutor in the United States Air Force as a
Judge Advocate with the rank of captain. Plaintiff Vines tested positive for HIV in the mid
1980’s and by 1990 his health began to deteriorate. In 1993 he was diagnosed with AIDS wasting
syndrome, a condition characterized by severe, progressive weight loss and breakdown of muscle
tissue. Plaintiff Vines lost 45 pounds before being placed on an experimental growth hormone to
help regain much needed muscle mass. For the past three years, he has suffered from a chronic
and acute loss of appetite, a condition that, if not addressed, can result in malnourishment and
thwart the efficacy of the hormone treatment and the antiviral medications he is prescribed. To
stimulate his appetite, his physician prescribed Marinol, a synthetic version of one of marijuana’s
main active components. However, Plaintiff Vines found Marinol to be only marginally effective
and highly erratic in its effects. He strongly objected to the drowsiness and “buzz” caused by
Marinol. Two of plaintiff Vines’ physicians suggested he use medical marijuana, and he found
that a few puffs were sufficient to stimulate his appetite, while avoiding feeling the “buzz”


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caused by Marinol. Plaintiff Vines continues to use medical marijuana no more than a couple of
times per week before dinner to enable him to eat. Plaintiff Vines is aware of defendants’ threats
against physicians, and he fears that these threats will cause his physician to censor the medical
advice provided to him. He feels that the success of his continued treatment depends in large part
on a trusting and confident relationship with his physician, but that defendants’ intrusion into that
relationship will cause him to lose confidence in his physician and so jeopardize his medical
treatment.
16. Plaintiff Judith Cushner is a 51 year old breast cancer survivor who has been in remission for
three years. She is at risk of either the recurrence of the initial cancer or the growth of a second
cancer (a risk that increased as a result of her earlier therapies). She is therefore gravely
concerned about her ability to receive full and adequate medical advice about her condition now
and in the future. Plaintiff Cushner is a resident of San Francisco, California, where she has been
the director of a preschool for 15 years. She is an active member of her synagogue and a mother
of two children. Plaintiff Cushner was diagnosed with an aggressive cell growth and underwent a
lumpectomy and lymph node removal. She then received eight months of chemotherapy and
eight weeks of radiation therapy followed by several years of hormone therapy. The
chemotherapy caused plaintiff Cushner to suffer severe nausea. To offset the side effects of
chemotherapy, including nausea, doctors prescribed Compasine. That drug, however, made
plaintiff Cushner feel worse. Her oncologist also prescribed Marinol, but it did not relieve
plaintiff Cushner’s nausea and made her groggy. She also had difficulty swallowing the Marinol
capsules because of mouth sores also caused by chemotherapy. Unable to obtain relief from her
severely debilitating nausea, plaintiff Cushner considered abandoning chemotherapy. However, a
nurse gave her marijuana, and plaintiff Cushner’s nausea diminished almost immediately with no
side effects. Plaintiff Cushner inhaled a few puffs of marijuana several times per week for the
remainder of her chemotherapy, and then stopped using marijuana. Plaintiff Cushner informed
her oncologist, radiation oncologist, and surgeon that she was using medical marijuana, and they
all supported her marijuana use. The trust she established with her oncologist was critical in
plaintiff Cushner’s ability to complete chemotherapy. She encountered a woman in a cancer
patients’ support group who stopped her chemotherapy because of nausea and other side effects
that could not be contained with prescription drugs and died as a result. Plaintiff Cushner is
aware of defendants’ threats against physicians who provide information to patients regarding the
potential risks or benefits of the medical use of marijuana. She believes that defendants’ threats
against physicians who recommend medical marijuana will seriously interfere with her ability to
build and maintain the kind of bond with her physicians that previously saved her life. Plaintiff
Cushner has no doubt that defendants’ threats will lead to more deaths of other cancer patients,
and she fears for her own well-being if she is unable to communicate freely and openly with her
physician in the event her cancer recurs. Plaintiff Cushner believes that, if she faces a recurrence
of cancer, information, recommendations, and advice about the risks and benefits of medical
marijuana will be necessary for her effective treatment.
17. Plaintiff Valerie Corral is a 44 year old woman who has experienced severe and protracted
seizures. Plaintiff Corral is a resident of Santa Cruz, California. In 1973 plaintiff Corral suffered
severe head injuries in a car accident. The head trauma caused grand mal seizures, sometimes as
many as five times per day. To prevent these seizures, plaintiff Corral was given anti-epileptic
drugs, including Mysoline (primadone), Dilantin (phenytoin), and Phenobarbital. For pain she
was prescribed Percodan and Valium, upon which she became physically dependent. For two
years under this treatment regimen, plaintiff Corral lived in a drug-induced stupor. She took more
and more drugs in a futile attempt to control the spasms, but the seizures became more frequent.
After losing hope about treatment with anti-epileptic drugs, and aware that marijuana had been
shown to control seizures in rats, plaintiff Corral began using medical marijuana. She soon found


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that she could control her seizures completely with medical marijuana alone. Whenever she feels
the premonition of a seizure, she inhales a puff of marijuana. Whereas she previously took up to
15 pills a day yet could barely function, plaintiff Corral now uses only a modest amount of
medical marijuana and experiences none of the debilitating side effects of prescription drugs. For
many years, plaintiff Corral’s physicians have approved her use of medical marijuana. She is
aware of defendants’ threats against physicians who provide information to patients regarding the
potential risks or benefits of the medical use of marijuana. Plaintiff Corral fears that these threats
will deter physicians from providing information, recommendations or advice she needs.
18. Plaintiff Being Alive: People with HIV/AIDS Action Coalition, Inc., is a California
non-profit group with over 2,000 members who reside in and around Los Angeles County,
California. Plaintiff Being Alive is comprised of individuals who have tested positive for HIV or
who are living with HIV/AIDS. Among other services, the organization sponsors regular medical
updates, publishes three newsletters, and organizes peer-led support groups. Members of plaintiff
Being Alive include patients being treated for AIDS, many of whom desire information from
their treating physicians regarding the potential risks and benefits of using medical marijuana in
the treatment of their specific illnesses and the alleviation of their symptoms. Patient members of
Being Alive equally wish to be able to speak freely to their physicians about marijuana use, so
that the physicians will be fully informed about patients’ medical conditions. These patients
depend on free and open communications with their physicians in order to receive effective
treatment, yet due to defendants’ threats against physicians who discuss medical marijuana, these
patients have suffered a curtailment of the flow of information between them and their
physicians.
DEFENDANTS
19. Defendant Barry R. McCaffrey is sued in his official capacity as Director of the U.S. Office
of National Drug Control Policy.
20. Defendant Thomas A. Constantine is sued in his official capacity as the Administrator of the
U.S. Drug Enforcement Administration.
21. Defendant Janet Reno is sued in her official capacity as Attorney General of the United
States.
22. Defendant Donna Shalala is sued in her official capacity as Secretary of Health and Human
Services.
CLASS ALLEGATIONS
23. Plaintiffs bring this action on behalf of themselves and all other persons similarly situated
pursuant to F.R.C.P. Rule 23(a) and (b)(2). The class, as proposed by plaintiffs, consists of:
(a) All physicians present and future who are licensed by and practicing medicine in
California and who, using their best medical judgment in the context of a bona fide
physician-patient relationship, have discussed, recommended or approved the
medical use of marijuana for their patients, or but for defendants’ threats of
punishment, would discuss, recommend or approve or consider discussing,
recommending or approving the medical use of marijuana for their patients; and
(b) All patients in California who seek to communicate with their physicians or
receive the recommendation or approval of their physician, in the context of a bona


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fide physician-patient relationship, regarding the medical use of marijuana.
24. The requirements of Rule 23(a) and (b)(2) are met in that the class is so numerous that
joinder of all members is impracticable; there are questions of law and fact common to the class
(including whether defendants’ threats violate the First Amendment as applied to plaintiffs); the
claims of the representative parties are typical of the claims of the class; the representative parties
will fairly and adequately represent the interests of the class because they are represented by
counsel with extensive experience in class action litigation and constitutional litigation, including
claims under the First Amendment; and the parties opposing the class have acted on grounds
generally applicable to the class, thereby making appropriate final injunctive and corresponding
declaratory relief with respect to the class as a whole.
III. JURISDICTION AND VENUE
25. This court has jurisdiction over all causes of action herein pursuant to 28 U.S.C. §§1331 and
1361.
26. Venue is proper in this court under 28 U.S.C. §1391(e).
IV. FACTUAL BACKGROUND
A. Medical Use of Marijuana
27. The recommendation of medical marijuana for certain patients is within the mainstream of
medical practice in communities throughout the United States. Thousands of physicians have
recommended the use of medical marijuana to their patients based on those physicians’ belief and
experience that marijuana is clinically effective in treating specific medical conditions. For
example, when more than 2,000 oncologists were randomly surveyed in 1990, forty-four percent
reported recommending the use of marijuana to control nausea or lack of appetite to at least one
cancer patient undergoing chemotherapy. Doblin, et al., “Marijuana as Antiemetic Medicine: A
Survey of Oncologists’ Experiences and Attitudes,” Journal of Clinical Oncology, vol. 9, no. 7
(July 1991). In response to defendants’ recent threats to act against physicians who recommend
the medical use of marijuana, on December 30, 1996, the editorial board of the New York Times
acknowledged what most physicians have known for quite some time: “it is difficult to dismiss
the testimony from many seriously ill patients and their doctors that marijuana can ease pain,
reduce the nausea associated with cancer chemotherapy, stimulate the appetites of AIDS patients
who are wasting away, and lower the pressure within the eyes of glaucoma victims.”
28. The federal government officially recognizes the medical efficacy of a primary chemical
component of marijuana. One of the chief active components of marijuana is the chemical
compound tetrahydrocannabinol, also known as THC. In 1985, the Food and Drug
Administration approved synthetic THC for use in the treatment of emesis (vomiting), thereby
authorizing physicians to legally prescribe this substance. In approving THC, FDA
acknowledged that evaluation of the risks and benefits of the THC pill was premised on the
medical risks and benefits of marijuana: “The risks to the public health from illicit use of THC
are likely to be similar to marihuana. . . . The effects of pure THC are essentially similar to those
of cannabis containing THC in equivalent amounts.” 47 Fed. Reg. 10082-83. In 1991, FDA
expanded the approved uses of THC to include treatment of weight loss in patients with AIDS.
Again, the government’s approval was based on widespread reports of medical benefits derived
from marijuana. In 1989, the most recent year for which data is available, physicians prescribed
nearly 100,000 doses of THC under the brand name Marinol. For many patients, however, THC


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in capsule form is not an adequate substitute for marijuana. Some patients suffering from nausea
are unable to take a THC pill orally. The single, large dose delivered by a THC pill is
overwhelming, causing dysphoria (a sense of mental confusion and uneasiness) in some patients.
Many chemotherapy patients develop mouth sores such that swallowing a pill can be extremely
painful. For some cancer and AIDS patients, nausea is so severe that swallowing any pill, even
for the express treatment of the nausea itself, is difficult, if not impossible. Finally, THC pills
cost tens of thousands of dollars annually, making their cost prohibitive to some patients.
29. Scientific studies, as well as the practice and observations of numerous physicians over many
years, confirm the medical efficacy of marijuana in treating a range of symptoms associated with
specific illnesses:
(a) Cancer: About one-half of all cancer patients treated with anticancer drugs suffer
from profound nausea and vomiting. Nausea and vomiting threaten the effectiveness
of chemotherapy and endanger the patient’s well- being. Retching, which may last
for hours or even several days after treatment, can literally tear the esophagus and
fracture ribs. Vomiting results in fluid loss. Apprehensive of chemotherapy’s side
effects, many cancer patients eat almost nothing because they cannot stand the sight
or smell of food. With each successive treatment, these patients lose weight and
strength. Their complaints may cause doctors to lower the dose, thereby jeopardizing
the effectiveness of the therapy. For many patients the side effects of chemotherapy
seem worse than the cancer itself and may lead them to discontinue treatment
altogether, not only to eliminate the physical discomfort but also to regain some
control over their lives — even when discontinued treatment will lead to death.
Among cancer patients who experience severe nausea and vomiting, 30 percent to 40
percent report that the commonly used antiemetics do not work. This same patient
group have found smoked marijuana to be effective in the prevention of nausea and
vomiting – often more effective than FDA-approved pharmaceutical medications.
Stephen Jay Gould, Alexander Professor of Geology at Harvard University and
renowned essayist on biological evolution is among the first survivors of a
previously incurable cancer, abdominal mesothelioma. When Professor Gould
started intravenous chemotherapy:
Absolutely nothing in the available arsenal of antiemetics worked at all.
I was miserable and came to dread the frequent treatments with an
almost perverse intensity. . . . I had heard that marihuana often worked
well against nausea. I was reluctant to try it because I have never
smoked any substance habitually (and didn’t even know how to inhale).
Moreover, I had tried marihuana twice [in the sixties]. . . and had hated
it. . . . Marihuana worked like a charm. . . . [T]he sheer bliss of not
experiencing nausea – and not having to fear it for all the days
intervening between treatments – was the greatest boost I received in all
my year of treatment.
(b) AIDS/HIV: Over 300,000 Americans have died of AIDS; an estimated one
million are infected with the human immunodeficiency virus, at least 500,000 of
whom are already severely ill. Despite hopeful signs that newly developed drugs are
increasingly effective at combating the virus, these drug therapies often have
debilitating effects that can undermine the efficacy of the medication; prevent the
patient’s compliance with the strict regimen of medication required by the new drug
protocols; and erode a patient’s desire or willingness to continue treatment in light of


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increased pain and discomfort, regardless of the possible long-term benefits.
Common symptoms of HIV- related conditions and frequent side effects of standard
AIDS therapies include severe nausea, vomiting, loss of appetite, chronic diarrhea,
joint pain, dizziness, and fatigue. AIDS wasting syndrome, a deadly byproduct of the
disease, describes the progressive loss of weight and muscle mass caused by this
constellation of symptoms and side effects. Thousands of AIDS patients nationwide
smoke marijuana to alleviate these symptoms and side effects, often with
considerable success. Marijuana, because it stimulates appetite, helps counteract
wasting, and thereby allows AIDS patients to gain weight and remain properly
nourished, prolonging their lives. Marijuana also has been found effective in
alleviating diarrhea and fatigue, which can be both cause and effect of numerous
AIDS-related conditions.
(c) Glaucoma: Glaucoma is the second leading cause of blindness in the United
States. Glaucoma occurs when fluid pressure within the eyeball increases, eventually
damaging the optic nerve. Various medications are used to treat glaucoma including
beta-blockers, epinephrine-like eye drops, miotics, and carbonic anhydrase
inhibitors. However, a large percentage of glaucoma patients cannot tolerate the side
effects of these drugs. Beta- blockers may cause depression, aggravate asthma, slow
the heart rate, and increase the risk of heart failure. Epinephrine-like compounds can
aggravate hypertension and heart disease. Miotics can cause blurred vision, impaired
night vision and cataracts. Carbonic anhydrase inhibitors may cause nausea,
diarrhea, headaches, depression and fatigue, kidney stones, and on rare occasions, a
fatal blood disorder. Open angle glaucoma, from which about one million
Americans suffer, is treatable with marijuana with no indications of deleterious
effects. The administration of marijuana results in a dose-related, clinically
significant drop in intraocular pressure that lasts several hours. Thus, marijuana can
retard the progressive loss of sight, even when conventional medication fails and
surgery is too dangerous.
(d) Epilepsy: Epilepsy is a disorder of cerebral function in which cerebral neurons
spontaneously discharge in an abnormal, excessive, and uncontrolled way. The
resulting seizures typically occur as convulsions or lapses of consciousness, often
coupled with or followed by varying degrees of sensory, motor, and psychomotor
dysfunction. Epilepsy is treated primarily with anticonvulsant drugs, such as
phenytoin (Dilantin), primidone (Mysoline) and phenobarbital, which help about 75
percent of the time but are less effective in controlling focal seizures and temporal
lobe epilepsy. These anticonvulsant drugs also have potentially serious side effects,
including bone softening, anemia, swelling of the gums, nausea, vomiting, dizziness,
gastro-intestinal distress, and emotional disturbances. Overdoses or idiosyncratic
reactions to these drugs may cause nystagmus (uncontrolled movements of the
eyeball), loss of motor coordination, coma, and even death. The anticonvulsant
properties of marijuana have been known since ancient times but have been the
subject of few modern medical studies. Nonetheless, the medical community and
epilepsy sufferers are increasingly recognizing the usefulness of marijuana in
treatment of epilepsy.
(e) Multiple Sclerosis: Multiple sclerosis is a disorder in which patches of myelin,
the protective covering of nerve fibers, in the brain and spinal cord are destroyed and
the normal functioning of the nerve fibers is interrupted. Symptoms usually appear
in early adulthood, then come and go unpredictably for years. An attack may last


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from weeks to months, and remission is often incomplete, with gradual deterioration
and eventual severe disability. Common symptoms include tingling, numbness,
impaired vision, difficulty speaking, painful muscle spasms, fatigue, emotional
disturbance, weakness or paralysis, tremors, and ataxia (inability to coordinate
voluntary muscle movements). No effective treatment for MS is known. Moreover,
many patients cannot tolerate the immediate side effects of the standard drugs used
to alleviate the symptoms of this disease. Corticosteroids, especially
adrenocorticotropic hormone (ACTH) and prednisone, provide some relief for the
acute symptoms of MS, but they also produce weight gain and sometimes cause
mental disturbances. The drugs most commonly used to treat muscle spasms are
diazepam (Valium), baclofen and dantrolene. Diazepam, which must be given in
large doses, causes drowsiness and can be addictive. Baclofen and dantrolene are of
marginal medical utility. Baclofen, a sedative, sometimes causes dizziness, weakness
or confusion, and dantrolene is used as a last resort because of potentially lethal liver
damage, among other side effects. Increasing numbers of MS patients, doctors and
researchers find that marijuana helps relieve tremors and loss of muscle
coordination. Its efficacy has also been acknowledged within the legal system as MS
patients have successfully used the defense of medical necessity to defeat marijuana
possession charges in state courts.
(f) Paraplegia and Quadriplegia: Paraplegia is weakness or paralysis of muscles in
the lower body caused by disease or injury in the middle or lower part of the spinal
cord. If the injury is near the neck, the arms as well as the legs are affected and
quadriplegia develops. Paraplegia and quadriplegia are often accompanied by pain
and muscle spasms. Standard treatments are opioids for the pain, and baclofen and
diazepam for the muscle spasms. Opioids are addictive and tolerance develops. The
side effects of baclofen and diazepam are discussed above. Many paraplegics and
quadriplegics find that marijuana not only relieves their pain more safely than
opioids but also effectively suppresses muscle jerks and tremors. A 1982 survey of
forty-three persons with spinal cord injuries indicated that more than half used
marijuana for muscle spasms.
30. At least 55 published studies confirm the experience of practitioners and their patients
regarding the efficacy of medical marijuana. Among the more notable of these studies are the
following:
(a) Vinciguerra et al., “Inhalation Marijuana as an Antiemetic for Cancer
Chemotherapy,” The New York State Journal of Medicine, 525-27 (Oct. 1988). This
study involved 56 patients who had no improvement with standard antiemetics.
When treated with marijuana, 78 percent demonstrated a positive response. No
serious side effects were observed.
(b) Chang, et al., “Delta-9-Tetrahydrocannabinol as an Antiemetic in Cancer Patients
Receiving High Dose Methotrexate,” Annals of Internal Medicine, vol. 91, no. 6,
819-24 (Dec. 1979). This randomized, double- blind, placebo controlled trial of
THC and smoked marijuana found a 72 percent reduction in nausea and vomiting,
with smoked THC (marijuana) proven more reliable than oral THC.
(c) Official state government research programs in New Mexico, Michigan,
Tennessee, New York, Georgia and California concluded that smoked marijuana
was effective in controlling nausea and vomiting in chemotherapy patients. Typical


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of these programs, the California research found consistently higher than 70 percent
of patients found medical marijuana effective, leading the researchers to conclude:
“Marijuana has been shown to be effective for many cancer chemotherapy patients,
safe dosage levels have been established and a dosage regimen which minimizes
undesirable side effects has been devised and tested.”
(d) Hepler, R. and Frank, I., “Marijuana smoking and intraocular pressure,” JAMA,
217, 1932 (1971). This study found that marijuana smoking reduced intraocular
pressure.
B. Passage of The Compassionate Use Act
31. On November 5, 1996, the voters of California passed Proposition 215, the Compassionate
Use Act of 1996, also known as the Medical Marijuana Initiative, adding section 11362.5 to
California’s Health and Safety Code. The law took effect at 12:01 a.m., on Wednesday,
November 6, 1996.
32. By enacting the Compassionate Use Act, the California electorate codified its desire to
“ensure that seriously ill Californians have the right to obtain and use marijuana for . . .
illness[es] for which marijuana provides relief.” Among the persons for whom voters expressly
sought to afford this relief are those suffering from cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, and migraine.
33. As a precondition to deeming that a particular person’s use of marijuana is legitimately
intended for medical purposes, the Compassionate Use Act requires that the patient secure the
recommendation or approval of a physician. Before granting such a recommendation or approval,
the Act envisions that a physician will examine a patient, in the context of a bona fide
physician-patient relationship, to determine whether the individual is “seriously ill” and whether
“the person’s health would benefit from the use of marijuana” such that the physician is able to
recommend or approve marijuana to the patient as a treatment option. Without this clinical
recommendation or approval, patients and their “primary caregivers” are unable to invoke the
Compassionate Use Act’s protections from criminal prosecution or sanction under state law.
34. The Compassionate Use Act specifically protects physicians: “[N]o physician in this state
shall be punished, or denied any right or privilege, for having recommended marijuana to a
patient for medical purposes.” The Act does not conflict with federal law, which classifies
marijuana as a Schedule I substance, thereby prohibiting its prescription by physicians. The Act
permits physicians only to recommend or approve marijuana for seriously ill patients. As the
analysis of the initiative by the Legislative Analyst states: “No prescriptions . . . [are] required by
the measure.”
C. Federal Response
35. Prior to passage of the Compassionate Use Act, federal officials, including defendants, had
never prosecuted, revoked the prescription drug license of, or punished in any way a physician
for recommending the use of medical marijuana to a seriously ill patient in the context of a bona
fide physician-patient relationship. Until the weeks before the November 1996 elections, no
federal official had even threatened any such action. As the election drew near and polls showed
Proposition 215 likely to be approved by the voters, defendant McCaffrey began a pattern of
threats against physicians. On October 28, 1996, defendant McCaffrey stated on national
television that the federal government would prosecute physicians who recommend marijuana for


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medical use. Defendant McCaffrey’s comments were reported in major newspapers throughout
California, including the San Diego Union-Tribune, Los Angeles Times and San Francisco
Chronicle.
36. Immediately following passage of the Compassionate Use Act, defendant McCaffrey
reaffirmed the federal government’s intention to prosecute physicians. On November 5, 1996,
defendant McCaffrey stated that the federal government would prosecute doctors who
recommend marijuana. On November 7, 1996, the spokesperson for the Drug Enforcement
Administration “declined to rule out” prosecutions of physicians.
37. In the weeks following the election, defendants and other federal officials formulated a policy
to recommend to President Clinton. Speaking to the press, defendants and other federal officials
working in concert with them stated that they plan to prosecute and strip prescription licenses
from doctors who give recommendations regarding medical marijuana to even seriously ill
people. Defendant Constantine warned members of the press that “we are going to take very, very
serious action against” doctors who recommend medical marijuana. Federal law enforcement
officials under the jurisdiction of defendant Reno threatened to use “surveillance and informers”
to identify physicians recommending marijuana to their patients.
38. On December 30, 1996, defendant McCaffrey issued a statement entitled “The
Administration’s Response to the Passage of California’s Proposition 215 and Arizona’s
Proposition 200″ (hereinafter “Administration Policy”). The Administration Policy represents the
consensus of several federal departments and agencies, including the Office of National Drug
Control Policy, the Drug Enforcement Administration, and the Department of Health and Human
Services. The Administration Policy includes a series of specific threats to physicians:
(a) Threats to revoke physicians’ license to prescribe drugs: In order to prescribe
medication, physicians need to be registered and to obtain a license from the Drug
Enforcement Administration. The Administration policy states that “a practitioner’s
action of recommending or prescribing Schedule I controlled substances is not
consistent with the ‘public interest’ (as that phrase is used in the federal Controlled
Substances Act) and will lead to administrative action by the Drug Enforcement
Administration to revoke the practitioner’s registration.” The revocation of a
physician’s DEA registration would effectively prevent that physician from
practicing medicine.
(b) Threats of criminal prosecution. The Administration Policy states that “DoJ will
continue existing enforcement programs” regarding criminal possession or
conspiracy to possess marijuana. The enforcement criteria include: absence of a bona
fide doctor-patient relationship; a high volume of recommendations of marijuana;
significant profits from such recommendations; providing marijuana to minors;
and/or special circumstances, such as when death or serous bodily injury results
from drugged driving.
(c) Threats to bar Medicare and Medicaid participation. Physicians, including
plaintiff physicians, rely on participation in the federal Medicare and Medicaid
programs for a significant portion of their incomes. The Administration Policy
declares “the authority of the Inspector General for HHS to exclude specified
individuals [who prescribe or recommend Schedule I substances] from participation
in the Medicare and Medicaid programs.”


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(d) Threats to encourage state licensing boards to revoke physicians’ licenses. The
California Division of Licensing governs the issuance and revocation of physician’s
and surgeon’s licenses. Revocation of licenses may follow from adverse federal
action against a physician. The Administration Policy advises that DoJ and HHS
“will send a letter to licensing boards which states unequivocally that the DEA will
seek to revoke the DEA registrations of physicians who recommend or prescribe
Schedule I substances.” This statement implicitly threatens physicians with loss of
state licenses.
39. Widespread press coverage has exposed plaintiff physicians and their class to defendants’
threats to prosecute or otherwise punish physicians for discussing medical marijuana with their
patients. The repetition and circulation of defendants’ threats have caused increased physician
intimidation and the chilling of plaintiffs’ First Amendment speech rights. According to a January
1, 1997 account in The Washington Post entitled “Federal Warning on Medical Marijuana
Leaves Physicians Feeling Intimidated,” federal threats against physicians are “already having a
chilling effect. Doctors are worried about the potential consequences of losing federal licenses to
write prescriptions and being excluded from the Medicare and Medicaid programs or federal
contracts or grants. . . .” As a result of defendants’ threats, the physician-patient relationship is
disrupted and damaged because physicians are afraid to provide their patients with information or
recommendations that the physicians believe are in the best interest of their patients’ medical
well-being. Without complete medical information, patients are unable to provide informed
consent — a fundamental prerequisite to ethical and legally permissible medical practice.
V. CLAIM FOR RELIEF
40. Plaintiffs reallege and incorporate by reference 1 through 39 as if set forth fully herein.
41.The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . .
abridging the freedom of speech . . . .”
42. Defendants’ threats to enforce federal statutes and regulations in a manner that would punish
or penalize physicians seeking to communicate with their patients, using their best medical
judgment in the context of a bona fide physician-patient relationship, regarding the potential risks
and benefits of medical use of marijuana violate the First Amendment as applied to plaintiffs.
VI. IRREPARABLE HARM
43. Plaintiffs, members of plaintiff organizations, and members of the plaintiff class, have
suffered and will continue to suffer irreparable harm due to defendants’ challenged policies and
practices as described throughout this complaint.
44. Plaintiff physicians have a constitutional right to communicate to their patients a full range of
medical information, and, in keeping with well-established norms of professional responsibility
and medical ethics, they have a duty to discuss fully the range of treatment options for their
patients. Defendants’ threats have effectively gagged physicians, forcing them to withhold
recommendations and information which they deem to be valuable or even critical. The law has
long valued and required free and open discussions between physicians and patients: the doctrine
of informed consent presupposes (indeed mandates) fully informed patients, and the doctrine of
physician- patient privilege recognizes the sanctity of communications between a physician and a
patient. Plaintiff physicians’ inability to care for patients adequately; their inability to practice
their chosen profession effectively and in good conscience because defendants’ threats cause


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them to withhold medically appropriate information; the resulting breakdown of the trust that lies
at the core of the therapeutic relationship; and the chilling of their constitutionally protected right
to free speech all amount to irreparable injury.
45. Plaintiff patients face serious and, in some cases, life-threatening illnesses requiring
specialized and competent medical care. Many of these patients are enduring extremely painful
and disabling treatments — medications that produce nausea, vomiting, weight loss, chronic pain,
sensory impairment, exhaustion, and other symptoms that sometimes seem unbearable. To
complete their treatment effectively, plaintiff patients must have the utmost confidence in their
physicians, yet as a result of defendants’ repeated threats to physicians, plaintiff patients know
that their physicians must censor and curtail their medical advice. When faced with extremely
harsh and prolonged treatments like chemotherapy or certain aggressive AIDS treatments, some
patients, unable to have confidence in their physicians, may disregard instructions and
discontinue treatment, resulting in increased suffering, illness or death. Plaintiff patients’ inability
to receive full, uncensored medical advice, and defendants’ interference with patients’ treatment,
and the resulting increased risk of suffering, illness, or death, amount to irreparable harm.
VII. PRAYER FOR RELIEF
WHEREFORE,
Plaintiffs accordingly pray for the following relief:
A. A preliminary and permanent injunction enjoining defendants, their agents,
employees, assigns, and all persons acting in concert or participating with them from
enforcing or threatening to enforce, in criminal, civil, or administrative proceedings,
any federal statute, regulation or other provision of law in a manner that would
punish or penalize physicians for communicating with their patients, using their best
medical judgment in the context of a bona fide physician-patient relationship,
regarding potential risks and benefits of medical use of marijuana, including but not
limited to oral or written statements, recommendations or approvals by a physician
that it is his or her medical opinion, based on his or her current diagnosis of the
patient’s illness, that the potential benefits of medical marijuana in the treatment of
the patient outweigh the potential risks;
B. A declaration pursuant to 28 U.S.C. §§ 2201 and 2202 that defendants’ threats to
enforce federal statutes, regulations or any other provision of law in a manner that
would punish or penalize physicians for communicating with their patients, using
their best medical judgment in the context of a bona fide physician-patient
relationship, regarding potential risks and benefits of medical use of marijuana
violate the First Amendment as applied to plaintiffs;
C. Reasonable attorneys’ fees and costs; and
D. Such other and further relief as this court may deem necessary and proper.
Dated: January 14, 1997.
Respectfully submitted,
LOWELL FINLEY
GRAHAM A. BOYD
http://74.125.95.132/search?q=cache:MbQD_m0fu3AJ:medicalmarijuana.procon.org/sourcefiles/cvm1.pdf+Conant+v+Mccaffrey&cd=3&hl=en&ct=clnk&gl=us&client=firefox-a

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