Fighting "Cheech & Chong" medicine

Did the White House drug office go too far in trying to stop the spread of medical marijuana initiatives?

Published July 27, 2000 7:01PM (EDT)

When voters in California and Arizona passed ballot measures legalizing medicinal marijuana in November 1996, White House drug czar Gen. Barry R. McCaffrey mobilized his troops to combat the spread of what he had previously called "Cheech & Chong" medicine.

McCaffrey quickly proposed that doctors who "recommend or prescribe" marijuana be stripped of their DEA registration -- that is, their ability to write prescriptions for controlled substances -- and be excluded from treating Medicare and Medicaid patients. But a group of California doctors and patient advocacy groups sued to enjoin those restrictions, and a federal judge agreed.

Now that same lawsuit provides evidence of a more ambitious, but less well-known, effort by McCaffrey's Office of National Drug Control Policy to stop the spread of state initiatives legalizing medical marijuana -- an effort that, among other achievements, helped inspire the ONDCP's controversial taxpayer-funded, anti-drug media crusade.

The cooperation of the ONDCP and its key ally, the Partnership for a Drug-Free America, in the fight against medical marijuana is a little known chapter in the annals of the nation's ongoing drug war. In the last few years, drug warriors have attempted to slow the spread of medicinal marijuana initiatives, and, with varying success, block their implementation in states that passed them -- even as data about the therapeutic uses of cannabinoids, the chemicals that appear in marijuana, to treat nausea and pain is increasingly well documented. In fact, for nearly 20 years, the federal government sought to curb medical marijuana research, and McCaffrey has been among the most zealous bureaucrats on that front.

But the documents uncovered by the California lawsuit reveal the extent of McCaffrey's role in spearheading the political fight against medical marijuana -- and in turn, the role played by the pot initiatives in strengthening the drug warriors' determination to mount a paid media campaign, at least in part to keep similar initiatives from passing in other states.

Within days of the California and Arizona pot initiatives' passage, for instance, McCaffrey convened a high-level meeting of some 40 government and private sector drug warriors to plan a response to the medical marijuana threat. At least one participant knew at the time that the meeting -- convened by federal officials to counter the will of state voters -- would be controversial if word of it ever became public.

"The other side would be salivating if they could hear [the] prospect of [the] Feds going against the will of the people," commented Robert Wood Johnson Foundation vice president Dr. Paul S. Jellinek, according to notes of the meeting taken at the time and uncovered by the California doctors' lawsuit.

Daniel Porterfield, who is currently vice president of communications for Georgetown University, attended the meeting as a deputy assistant secretary in charge of coordinating various anti-drug efforts within Health and Human Services. He told Salon, "The reason for the meeting was to organize the effort for the other 48 states."

One outcome of the meeting was a determination to step up the media war against drugs, which helped lead to ONDCP's paid media campaign. Salon revealed earlier this year that television networks, TV producers and some magazine publishers inserted anti-drug messages into television shows and nonfiction magazine articles in order to fulfill ONDCP's requirement that it get ads on a two-for-one, half-priced basis -- or that programming or editorial content satisfy this stipulation.

The White House drug office stumbled back into the headlines a few weeks ago, when McCaffrey told members of the House subcommittee on Criminal Justice, Drug Policy and Human Resources that his office plans to expand its media campaign to influence the content of movies, not just television and magazines. Elaborating on the plan and referring to potential financial credits for films with anti-drug motifs, ONDCP spokesman Bob Weiner told the Los Angeles Times, "But if the movies choose to do that, they can submit it to our contractors after the movie is completed for review for credit."

Meanwhile, ONDCP critics question whether the federal agency or the tax-exempt PDFA should have been seeking to influence state elections at all. "The use of government resources to politic on controversial issues is clearly against ethics, as well as the law stating that federal employees can not take public positions for or against legislation under consideration," insists Thomas H. Haines, head of the Partnership for Responsible Drug Information, a persistent McCaffrey critic.

American Civil Liberties Union president Nadine Strossen believes the meeting convened by McCaffrey, which according to an attendance record included no medical-use proponents, raises "at the very least a moral and political question. It raises First Amendment-type concerns about the nature of a free society, and what an open debate should be in a democratic society."

McCaffrey declined to comment for this story, but Weiner told Salon: "Consistently throughout this process, Gen. McCaffrey has been aware of the [political] restrictions, and has honored them." Weiner wouldn't comment directly on the November 1996 ONDCP meeting. But when asked about whether the paid media campaign had the potential to create a national political climate inimical to the passage of medical marijuana initiatives, he responded, "If it has a peripheral effect, so be it."

Steve Dnistrian, executive vice president of PDFA, also denied that the National Youth Anti-Drug Media Campaign was designed to combat medical marijuana legalization. "The NYADMC is focused on teens, pre-teens and parents. No ads or other pieces of communication have anything to do with medical marijuana," he said in an e-mail. Dnistrian told Salon that discussions about the paid media campaign began long before concerns about medical marijuana initiatives "were even on the radar."

But even some of those invited to McCaffrey's November 1996 meeting now say that there were concerns about the political nature of the discussions, and questions about whether the campaign's organizers should be seeking to sway public opinion against medical marijuana initiatives.

It was Nov. 14, 1996, just nine days after the passage of medical marijuana initiatives in California and Arizona, that McCaffrey convened the first meeting at ONDCP's Washington office. The attendees included then DEA administrator Thomas A. Constantine and three other DEA officials; seven ONDCP staffers; and representatives of the FBI as well as the U.S. Departments of Justice, Treasury, Education and Health and Human Services. Also present were White House domestic policy adviser Leanne Shimabukuro and public liaison Christa Robinson, plus eight senior executives from private groups supportive of the drug war, including the president of the Partnership for a Drug-Free America.

With overwhelming public support, the medical marijuana votes represented a rebuke to the anti-drug mandate of McCaffrey's office. The initiative passed in California by 56 percent and in Arizona by an astounding 65 percent. In 1998, District of Columbia voters approved their initiative by 69 percent, though no one knew of the landslide for a year because Congress delayed counting the vote.

According to two separate versions of meeting minutes obtained by Salon, as well as interviews with several participants, these government officials and senior executives intended to ensure that neither voters nor legislators in the other 48 states would pass similar medical use legislation.

The two sets of contemporaneous notes surfaced as part of the discovery process in the federal lawsuit Conant vs. McCaffrey, currently under adjudication in the U.S. District Court for the Northern District of California. The lawsuit was filed in response to Gen. McCaffrey's formal policy statement -- issued Dec. 30, 1996, at a press conference attended by Attorney General Janet Reno, Health and Human Services Secretary Donna Shalala and a DEA official -- in which he threatened to revoke the federal prescription-writing privileges of doctors who recommended or prescribed medical marijuana to their patients, bar them from treating Medicare and Medicaid patients and criminally prosecute them. The plaintiffs were granted a preliminary injunction; the next court date is Aug. 3.

Attorneys for the plaintiffs provided Salon with copies of documents the federal government has made available to them as required by the court in the case's discovery process. Currently a senior trial attorney at the Justice Department, Wayne Raabe was a staff attorney for ONDCP in November 1996. He confirmed his attendance at the meeting, and that he authored one set of the notes, but declined to comment further.

Some participants in the ONDCP meeting believed that the medical marijuana effort veiled a broader movement that sought gradual full-scale legalization of the Schedule 1 controlled substance. According to the notes, James E. Copple, then president and CEO of the Community Anti-Drug Coalition of America, told his colleagues, "Need to frame the issue properly -- expose this as legalizers using terminally ill as props." Maricopa County District Attorney Richard Romley, who led the Arizona delegation, stated that, "Even though California and Arizona are different prop[osition]s, the strategy of proponents is the same. It will expand throughout the nation if we all don't react."

As summarized in the documents' clipped parlance, Copple also told those gathered at the meeting, "We'll work with Arizona and California to undo it and stop the spread of legalization to other 48 states. Twenty-seven states have the potential." He added, "Need to go state by state. $ to do media." And Orange County Sheriff Brad Gates, long a prominent critic of medical marijuana, is quoted as saying, "Legalizers are going national. We need to get organized quickly to counter the Americans for Compassionate Use" -- a pro-medical-use group.

In addition to Copple's statement regarding media funding, comments from two executives of the private Partnership for a Drug-Free America suggest that the meeting was a major catalyst in replacing the nonprofit advertising and media industry umbrella group's then nearly decade-old, donated-media public service campaign with a taxpayer funded effort.(PDFA is an unpaid consultant in ONDCP's media campaign, and its name appears on all of the campaign's advertising.) As PDFA executive vice-president Mike Townsend stated at the meeting, "National Partnership [PDFA] concerned about what they can do about spending $ to influence legislation."

One attendee who asked not to be identified said, "I recall a general discussion of the media campaign, what should and shouldn't be done."

PDFA president Richard Bonnette laid out the challenge to the group. "We lost Round I -- no coordinated communication strategy. Didn't have media," the notes quote Bonnette telling his colleagues. One participant not clearly identified in the notes asked the gathering, "Who will pay for national sound bites? Campaign will require serious media and serious $."

PDFA's Townsend suggested the group should reach out to "California parents" and, according to the notes, said the effort required "$175 million. Try to get fedl $." In fact, that was the amount backers of the anti-drug media campaign first asked Congress for, according to Rep. John L. Mica, R-Fla., chair of the Criminal Justice, Drug Policy and Human Resources subcommittee of the House Government Reform Committee.

In a memo to his House colleagues, Mica wrote: "In 1996 and 1997, the PDFA approached Congress for assistance. The PDFA worked with Congress to fund the President's budget request ($175 million) to replace the decline in donated media air time." Congress later bumped the first year's appropriation up to $195 million.

Robert Wood Johnson Foundation prescient Dr. Jellinek worried aloud about the political implications of such a campaign. According to the notes, he told the group: "It is a political problem. You need a Federal response, but [it] can't be viewed as outside interference." Reached last week for comment, Jellinek said, "I don't have anything more to say. If you have the quote, you have the quote. Let it stand. Let it speak for itself." Fueled significantly by money derived from shares it holds in pharmaceutical and healthcare giant Johnson & Johnson, Jellinek's foundation contributed $15 million to the PDFA in 1999 alone.

But PDFA's Townsend told Salon, "I never said anything about that." PDFA president Bonnette did not respond to multiple requests for an interview.

During the meeting, attendees viewed television commercials paid for during the elections by proponents of the medical marijuana initiatives. The notes summarize the remarks of Orange County Sheriff Gates as follows: "Money made the diff. on [California's] Prop 215. $2 million spent - advertising campaign - Drug Policy Foundation - Soros $." The last references are to a reform group and billionaire financier George Soros, a major financial backer of medical use initiatives.

A second participant, who requested anonymity, told Salon, "People were talking of Soros money at the meeting. That was a real topic, and that there was limited federal money that could be used. We were trying to counter the California and Arizona initiatives. But at that point there was no money." Eleven months later, a five-year, $2 billion (half public, half private) federal campaign was instituted to shape the views of Americans of all ages regarding illegal drugs.

Asked two weeks ago whether the intent was to limit further state initiatives to approve usage of medical marijuana, another participant who asked not to be identified said, "Yes. They wanted to influence public opinion. There was a lot of talk that this was the tip of the iceberg of a national campaign to legalize marijuana, period."

But White House deputy press secretary Jake Siewert says, "The switch to the paid media campaign was driven entirely by the decision to move to curtail drug use. In fact, ONDCP is specifically prohibited from using political messages in paid advertising." Confronted with Jellinek's statement about the "Feds going against the will of the people," Siewert said, "I don't understand it." But Siewert did caution that "The ONDCP is prohibited from involving itself in political causes in its advertising." When asked whether the meeting was intended to roll back the California and Arizona initiatives, Siewert stated, "Ask McCaffrey."

A public statement released by McCaffrey on December 30, 1996, refers to the meeting and states that the "coordinated administration strategy" was developed by the group "at the direction of the president."

When McCaffrey was deposed for the California doctors' lawsuit on May 23, 2000, he stated that the November 1996 meeting "was an organizational meeting to sort out what are we going to do about Proposition 215." In response to another deposition question, he replied, "It wasn't an open debate. It was what are we going to do about the proposition."

McCaffrey's role in fighting medical marijuana has been multifaceted. Until 1999, the federal government only permitted research on the health benefits of the drug using limited grants from the National Institutes of Health, which effectively put the lid on such proposals. But last year, the Clinton administration said it would sell limited quantities of government-grown pot to legitimate medical researchers, who could then secure financing from sources other than the NIH. The move came only after a report by the National Academy of Sciences' Institute of Medicine confirmed some healthful benefits of marijuana -- a study McCaffrey tried to downplay.

But researchers seeking to study the medical merits of smoking marijuana still find themselves frozen out. Dr. Ethan B. Russo, a neurologist and clinical assistant professor at the University of Washington School of Medicine, has been trying for years to gain approval to study the effectiveness of smoked marijuana as a treatment for chronic migraines. "After the Institute of Medicine report came out in 1999, they said they would streamline the process. But it hasn't happened; the process is every bit as difficult as before. It's smoke and mirrors." McCaffrey has even threatened legal action against California Attorney General Bill Lockyer if he promoted medical marijuana research on the state level.

Following the ONDCP-convened meeting, PDFA chairman James E. Burke moved to take action on his colleagues' sentiments, including their desire for federal money. Working closely with Rep. Rob Portman, R-Ohio, he began a heavy lobbying campaign in Congress to transform his organization's model of donated ads into the current taxpayer funded program. Portman's former chief of staff, John Bridgeland, told this reporter last year, "Burke came to Portman, came up and wowed a lot of folks on the Hill."

Rep. Jim Kolbe, R-Ariz., chair of the House Appropriations subcommittee which funds the drug office, and the self-styled "chief appropriator" of the ONDCP media campaign, said last year, "We were convinced by the Partnership for a Drug-Free America to spend tax dollars." Finally, testifying before the Senate Appropriations Committee on February 3, 2000, ONDCP campaign media director Alan Levitt stated, "PDFA is a key campaign partner. Mr. Jim Burke, chairman of the Partnership, has been one of the strongest advocates for this public-private media campaign."

For its part, PDFA has said that the public campaign was necessary because privately donated advertising was drying up. But while PDFA's donated advertising declined in the early '90s, it didn't exactly evaporate. According to Competitive Media Reporting, a company that tracks advertising spending, the value of PDFA's anti-drug campaign was larger than the advertising budgets of many of the country's most established brands. With $278 million worth of donated advertising time and space in 1995 and $252 million in 1996 (down from 1991's peak of $367 million), PDFA was the fourth and fifth largest advertised "brand" in the country -- competing alongside companies like AT&T and Burger King for the public's attention.

It should be acknowledged that the media campaign has never directly tackled the issue of medical marijuana in its paid advertising. And yet fully half of the current ONDCP advertising budget for a campaign nominally geared toward curtailing youth drug use is actually directed at adults. According to a statement issued on Jan. 18, in response to a Salon article about its anti-drug script-doctoring relationship with television networks, the "pro bono [sic] match component" of the ad program has "generated over 100 million teen and tween [read: pubescent] impressions and 250 million adult impressions."

ONDCP's priorities would seem to lie at least as much with influencing adults -- who profoundly influence kids' attitudes and behaviors, but also vote -- as with steering children away from drugs.

The November 1996 meeting took place immediately following an election season in which President Clinton had been slammed by the Republicans as being soft on drugs. Sen. Kay Bailey Hutchison, R.-Texas, described the administration as "drug coddling" during the 1996 Republican convention, a theme echoed by candidate Bob Dole.

Last month -- when ONDCP was offered the chance to respond to a draft of a congressionally mandated, General Accounting Office analysis critical of McCaffrey and the drug office's management -- ONDCP chief of staff Janet Crist wrote: "The agency is very mindful of previous congressional complaints that the administration had been 'AWOL' in the area of drug control early in its term and determined to respond to constituent demands that their extensive efforts in the areas of prevention, treatment, enforcement and interdiction be publicly recognized."

But the October 1997 legislation that paved the way for the paid media campaign states that ONDCP must submit a strategy for approval by both the House and the Senate that includes "guidelines to ensure and certify that none of the funds will be used for partisan political purposes." As their statements quoted in this article suggest, the participants discussed using public monies for a media campaign to try to defeat a specific political viewpoint -- one that will be contested in the upcoming elections in Colorado and Nevada.

Medical use initiatives have passed in six states: California, Arizona, Alaska, Washington, Oregon and Maine. A non-binding first initiative also passed in Nevada, and an initiative in Colorado was disqualified because supporters hadn't gathered enough signatures to get it on the ballot. Both states will reconsider the matter this year. Additionally, this past spring, state legislators in Hawaii voted to allow medical use.

When asked about her department's participation in the meeting, Department of Education spokesperson Melinda Malico would say only that "General McCaffrey sets drug policy for the federal government. We participate in many meetings over at ONDCP." The Treasury and Health and Human Services departments declined comment.

However, in the statement he issued on Dec. 30, 1996, regarding "the administration's response" to the Arizona and California initiatives, a response coming "at the direction of the president," McCaffrey noted that the "interagency working group" met four times during November and December 1996. He also notes that "HHS and the Department of Education will educate the public in both Arizona and California about the real and proven dangers of smoking marijuana." But there was no discussion of the multimillion dollar anti-drug media campaign ONDCP was developing with the assistance of HHS -- and the PDFA.

Not surprisingly, ONDCP critics were dismayed to hear of the meeting. Steve Kubby, California's Libertarian Party candidate for governor in 1998, decried a meeting involving "public officials on the public payroll in a public facility conspiring to commit actions to undermine an election." The medical marijuana advocate is undergoing prosecution for alleged marijuana possession with the intent to sell, but he recently told the Los Angeles Times he was just using marijuana to combat the effects of adrenal cancer.

Another campaign critic, Sanho Tree, director of the Drug Policy Project at the Institute for Policy Studies, observed that Rep. Mica has held hearings on the lobbying efforts of nonprofit drug reform groups. "Rep. Bob Barr [R-Ga.] even wanted to prosecute [reform] advocates under the RICO laws. Does this mean the Republican drug warriors will investigate the lobbying activities of PDFA?"

Adds Kevin B. Zeese, president of Common Sense for Drug Policy, "We see one more example of the drug war going too far, putting the drug war ahead of democracy. In reality, the drug czar is ginning up support through a phony grass-roots effort."

By Daniel Forbes

Daniel Forbes is a New York freelancer who writes on social policy and the media.

MORE FROM Daniel Forbes

Related Topics ------------------------------------------