Update: Quest to get PTSD on Colorado medical marijuana list continues in court

Colorado residents seeking the use of medical marijuana to treat the symptoms of post-traumatic stress disorder are taking their case to the state Court of Appeals.

Last fall, four military veterans and one sexual assault survivor filed a complaint against the Colorado Board of Health, which had ruled against adding PTSD as a qualifying condition under the state’s medical marijuana program.

In May, Denver District Court Judge R. Michael Mullins affirmed the Board of Health’s decision, ruling that the members acted within the code of the state constitution and within the means of the state statutes. Just because the executive director of the Colorado Department of Public Health and Environment and the majority of the Medical Marijuana Scientific Advisory Council favorably viewed the addition of PTSD as a qualifying condition, didn’t preclude the board from denying the petition based on lack of sufficient evidence, Mullins wrote in the court order.

C. Adam Foster, a Hoban & Feola senior attorney representing the PTSD medical marijuana proponents, filed a notice of appeal on June 28.

“Colorado is really an outlier at this point,” Foster told The Cannabist. “I’m not aware of any other states that have rejected a petition the way that Colorado has.”

Including Illinois, which recently was ordered by a judge to add PTSD as a qualifying condition, a total of 17 U.S. states, Washington, D.C., and Guam allow for medical marijuana to be recommended for PTSD, according to data from the Marijuana Policy Project. That number could grow depending on how ballot initiatives fare in other states this fall.

Foster argues that when Colorado voters approved medical marijuana in 2000, the resulting constitutional amendment included mechanisms to add more qualifying conditions.

The Colorado Board of Health has not added any new conditions for the medical marijuana program since its inception, said Mark Salley, a spokesman for the Colorado Department of Public Health and Environment. Citing state regulations, Salley said the board moved to deny petitions for conditions such as Tourette syndrome, and most recently PTSD, mainly due to a lack of “peer-reviewed published studies of randomized controlled trials or well-designed observational studies showing efficacy in humans.”

The U.S. Drug Enforcement Administration recently OK’d a Colorado-funded placebo-controlled trial that studies the effect of cannabis on PTSD patients. Results are not anticipated for a couple of years.

“Under the current state of the law, (the Colorado Board of Health), in effect, set an unattainable standard,” Foster said.

Foster expects to file an opening brief with the court in the coming weeks. The board would have five weeks to file an answer brief and Foster would have another 21 days to reply, he said.

Depending on whether oral arguments are requested, a decision from the appeals court could come three to six months later, he said.