Letter Opinion 1971 No. 018

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                                                                 February 5, 1971
 
 
 
Honorable Francis E. Holman
State Senator, 1st District
Room 410, Public Lands Bldg.
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 18 (not official)
 
 
Dear Senator Holman:
 
            This is in response to your recent request that we answer the following question:
 
            "Your opinion is requested as to whether and to what extent any current state law on the subject matter embraced by Title II of the Comprehensive Drug Abuse and Prevention Control Act of 1970 is in 'positive conflict' with any provision of that title so that the two cannot consistently stand together, within the meaning of Section 708 of such act."
 
            In answer to your inquiry, we do not find any such "positive conflict" between the new federal act and the existing state drug laws in chapter 69.40 RCW and chapter 69.33 RCW.
 
                                                                     ANALYSIS
 
            The new federal act has consolidated into a single enactment the federal control of drugs previously covered by the federal narcotic act, the federal marihuana tax act and the drug abuse control act of 1965.  The new federal act essentially creates five schedules of controlled substances.  The first consists essentially of those drugs for which there is no currently accepted medical use in the United States.  That schedule thus includes such drugs as heroin, LSD, and other hallucinogenic drugs.  Schedule 2 primarily includes those narcotic drugs which were previously known as class A narcotics.  The third schedule covers primarily the amphetamines and those narcotics which were previously class B narcotics.  Schedule 4  [[Orig. Op. Page 2]] includes the phenobarbital type of drugs which require a prescription in order to be dispensed.  Schedule 5 involves those drugs which are eligible for sale as "exempt narcotics"; that is, their sale is restricted but there is no requirement of a prescription from a physician.  Congress specifically provided in § 708 of the new federal enactment:
 
            "No provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together."
 
            This provision makes it clear that the federal government does not intend to preempt the area of drug control unless there is a "positive conflict" so that the state and federal laws cannot exist together.  Obviously, under this provision the state and federal criminal penalties for the same act can differ, and thus the states are not required to adhere to the same criminal sanctions as set forth in the federal act.
 
            The state of Washington now has comprehensive laws controlling the distribution and consumption of those drugs covered by the new federal enactment.  The state uniform narcotic act, chapter 69.33 RCW, imposes substantial controls on the distribution and consumption of narcotic drugs, including those incorporated on schedules 1, 2, 3 and 5 of the federal enactment.  The state act not only requires extensive record keeping but also limits the dispensing of drugs such that they must be pursuant to the prescription of a physician.  Furthermore, such prescriptions must be issued in "good faith and in the course of professional practice."  RCW 69.33.280 (1).  The provisions of chapter 69.33 RCW do not present a "positive conflict" with the new federal law.
 
            Washington laws also control the distribution and consumption of "drangerous drugs."  Dangerous drugs as defined in RCW 69.40.060 include the hallucinogenics now found in schedule 1 of the federal act and also the amphetamines found in schedule 3 of the federal act and also the phenobarbital type of drug referred to in schedule 4 of the federal act.  This act, like the state narcotic act, requires record keeping and restricts the dispensing of the drug to being pursuant to a prescription and said  [[Orig. Op. Page 3]] prescriptions must be for a legitimate medical purpose.  RCW 69.40.064.  By virtue of that restriction the inclusion of the hallucinogenics under the state act does not authorize their being dispensed pursuant to a prescription unless there is a legitimate medical purpose.
 
            We have reviewed the letter addressed to you dated January 26, 1971, signed by Ed Mackie of our office, and we concur with the conclusion expressed in that letter that there is not a "positive conflict" between the federal act and state law so that the two cannot consistently stand together.
 
            We trust the foregoing answers your inquiry and will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General