MARIJUANA BUSINESS

Mr. Shevin represents clients exclusively in the area of State and Federal criminal law with a focus on marijuana and drug cases.  Mr. Shevin’s practice also represents clients in matters dealing with medical marijuana business formation and corporate representation.

Presently, Mr. Shevin teaches a course on Medical Marijuana Laws to the Los Angeles County Judiciary, provides continuing legal education on Medical Marijuana Laws for the National Business Institute and teaches at the NACDL Advanced Criminal Law Seminar in Aspen, Colorado.

Mr. Shevin represents individuals nationally and has won significant victories for his clients in Hawaii, Louisiana, North Carolina, Utah, Arkansas, Missouri, Ohio, New York, Nevada, Texas and Tennessee. Mr. Shevin has been featured and/or quoted in more than 25 articles and news stories including the following media outlets:  Los Angeles Times, Los Angeles Daily Journal, ABC News, CBS News, MSNBC, Newshour with Jim Lehrer, Huffington Post, National Public Radio, Hartford Courant, Orange County Register, The 420 Times, West Coast Leaf, Marijuana Anti Prohibition Project, Press Enterprise, Metropolitan News Enterprise, Hemp Evolution, The Compassion Club, Cannabis News, The Medical Marijuana Magazine, The Marijuana News, OC Weekly and High Times Freedom Fighter of the month.

MEDICAL MARIJUANA LEGAL ISSUES

BY ERIC D. SHEVIN & ARIEL D. CLARK, ATTORNEYS AT LAW

I.

FEDERAL DRUG LAWS VS. STATE MEDICAL MARIJUANA ACTS

As of the time of this writing, 16 states including the District of Columbia have laws that  allow for the use and cultivation of marijuana for medical purposes. (State by State breakdown provide for in appendix).

Whether by State Initiative (California, Arizona, Montana, Washington, Vermont), Senate Bill (Hawaii, New Jersey, New Mexico, Rhode Island, Vermont), Ballot Measure (Alaska, Colorado, Maine, Nevada, Oregon) or Constitutional Amendment (Colorado), an irreversible momentum is under way in the United States to allow for the use of marijuana as medicine.  As a direct result, multiple business opportunities have arisen to promote the lawful distribution of safe and affordable medicinal marijuana to medical patients.  These businesses take the form of collective and cooperative cultivation locations, medical dispensaries that distribute to patients, consultants who provide training and assistance to patients desiring to cultivate their own marijuana, testing facilities to ensure marijuana cultivated is free of contaminants, and many others.

Despite the will of its citizens in each of the states that allow for medicinal use, marijuana remains a Schedule I controlled substance under the Federal Controlled Substance Act (“CSA”) and is defined as having no accepted medical use whatsoever, not even under the close supervision of a Physician.  As a result, individuals who have a legal right to possess and use marijuana as a medicine are exposed to Federal prosecution for a violation of 21 USC § 841.  Moreover, as there is no medical marijuana defense under Federal Law, the entire issue of medical marijuana is irrelevant in a Federal trial, leaving medical marijuana patients exposed to harsh mandatory minimum prison sentences despite their good faith reliance on the valid laws of their respective states.

Under the Commerce Clause, the Ninth Circuit upheld the Controlled Substances Act as it applies to medical marijuana laws that may exist in a given State.  Raich v. Gonzales, 545 U.S. 1 (2005).  The Raich Court ruled that the Supremacy Clause unambiguously provides that if there is any conflict between Federal and state law, Federal law shall prevail.  Raich at 29.  Under the logic of Raich, the commerce clause gives the Federal Government jurisdiction to prosecute someone who is growing one (1) plant in their closet, for their own personal medical use, even if the marijuana would never leave their residence.

Subsequent to Raich, several developments have begun to open the door to allow for challenges to Federal Jurisdiction concerning medical marijuana cases.  These developments and approaches will be explained in detail in the following pages and involve: 1) a recent policy change of the Department of Justice indicating that individuals in compliance with their state’s medical marijuana laws will not be targeted for prosecution;  2) state’s rights challenges to Federal Jurisdiction;  and, 3) the failure of the CSA to preempt medical marijuana laws.

Additionally, California Democrat Sam Farr, along with a bipartisan coalition of 27 co-sponsors, has reintroduced legislation to protect state-authorized medical cannabis patients and their providers from Federal prosecution.   House Bill 3939: the Truth in Trials Act of 2009 would provide an affirmative defense in Federal court for defendants whose actions were in compliance with the medical marijuana laws of their state.  Passage of House Bill 3939 would codify legal protections for defendants caught between state and Federal laws, ensuring that they can cite state law as a legal defense in Federal trials.

II.

PROVING PATIENT ELIGIBILITY

In a given state, who may or may not qualify as a medical marijuana patient is controlled by specific definitions within each state’s medical marijuana statutes.  In California, only the seriously ill may use medical marijuana. U.S. v. Rosenthal(N.D.Cal. 2003) 266 F.Supp2d 1068. However, the definition extends to any chronic or persistent medical symptom that either: (A) substantially limits the ability of the person to conduct one or more major life activities as defined in the American with Disabilities Act of 1990; or (B) if not alleviated, may cause serious harm to the patient’s safety or physical or mental health.  See, California Health and Safety Code § 11362.7(h).

In order to prove your status as a qualified medical marijuana patient, you must receive a recommendation from a licensed physician who attests that you have a qualifying condition that will benefit from medical marijuana.  The recommendation should be in writing and maintained in its original form on the person of the patient at anytime that they are in possession of any marijuana.  In California, the law provides for a voluntary, County issued, identification card that assists law enforcement in determining if an individual is in fact a qualified patient.  The police are not the judges and jurors out in the field, nor do we want them to be, and they are not going to call a doctor to verify if a doctor’s recommendation is valid.  For this reason, a County ID card provides the verification to the police out in the field and is the best protection for a patient who is attempting to establish his or her qualified status.

III.

SALE AND TRANSPORTATION

Selling marijuana for profit remains a crime in most states with medical marijuana laws, and sales of any kind is a serious drug trafficking offense under Federal law.  The fact remains that while medical marijuana laws are springing up throughout the country, there is little agreement as to how patients are supposed to obtain the medicine that they need if they are unable to grow it themselves.   A great concern of law enforcement when it comes to medical marijuana is how to prevent the diversion of medical marijuana for non-medical recreational use.  Essentially, how do you control a patient who is lawfully in possession from selling it to his or her friends.  In most states, medical marijuana dispensaries are operating and provide a means for patients to obtain a supply of their medicine.  There is no better legal protection for a dispensary that exchanges marijuana for money, than operating in an open and transparent way.  In order to operate as a true non-profit, the cost of the marijuana is limited to reimbursement of the overhead and operating costs tied to the production and distribution of the medicine to the patient. There are numerous costs associated with the growing and distribution of marijuana, including but not limited to, obtaining a location for the cultivation and for the ultimate distribution of the marijuana to patients, obtaining the equipment and nutrients involved, obtaining the marijuana seeds or plants, compensation for managers and employees, providing security at the locations and maintaining membership verification, not to mention bookkeepers and accountants, as well as attorneys.  All of these aspects of collective or cooperative cultivation require a capital contribution that would be reimbursed by the members.  In order to operate in a transparent way, these costs should be made readily available to members of a collective or to law enforcement as confirmation that the prices charged for the marijuana are only the amounts necessary to reimburse the costs and expenses.

Most states view transportation of marijuana very differently than simple possession of marijuana.  The amount of marijuana involved, as well as the method, timing and distance of the transportation, are relevant factors when determining whether the transportation of medical marijuana is related to the patient’s individual need. Transportation beyond a patient’s own need, such as on behalf of a group of patients, is regulated much more strictly than individual personal use amounts.  You can imagine that this is an area susceptible to great abuse as commercial growers transport large amounts in order to sell marijuana on the black market, and attempt to obtain protection under a medical marijuana umbrella, if possible.  For this reason, any individual who is transporting marijuana on behalf of a group of qualified patients should carry written proof establishing the existence of a lawful medical marijuana collective and a written designation by the collective in the name of the individual transporting the medicine that he or she is authorized on behalf to the collective to transport the collective’s medicine.  The documentation should at a minimum provide proof that the collective complies with the state’s medical marijuana laws.

IV.

THE AMOUNT IN POSSESSION AND RESTRICTIONS ON CULTIVATION

Medical marijuana laws only provide protection to patients who are in possession, or are cultivating, an amount of marijuana for their own personal medical use.  While this amount is often subjective, the burden is on the patient to establish that an amount in his or her possession is reasonably related to his or her medical need.  In California, a threshold limit has been established by statute, whereby an individual may cultivate 12 immature or 6 mature plants and possess up to 8 ounces of marijuana buds.  That does not mean that there is absolute immunity from prosecution if you are within these amounts, and someone could always be prosecuted for unlawful possession even if they are in possession of a small amount if the circumstances support that the possession is unlawful.  Factors law enforcement considers include, but are not limited to, packaging, scales, money, ledgers, lack of paraphernalia and the total amount of marijuana or plants possessed or being cultivated.

The total yield of a marijuana plant is highly speculative; however, law enforcement receives training on cannabis yield and have become much more aware of amounts that a given plant will produce.  The majority of all medical marijuana is now grown indoors in an environment intended to simulate an outdoor environment.  The grow equipment associated with an indoor cultivation can be extremely expensive and begs the question: Would an individual growing medical marijuana for his or her own personal use go to the expense of setting up an elaborate indoor operation?  Again, the burden is on the patient to establish that the amount being cultivated is only the amount necessary to support his or her own medical need.

V.

LEGAL ISSUES FOR PHYSICIANS AND CAREGIVERS

In Conant v. Walters (9^th Cir. 2002) 309 F.3d 629, a number of patients and doctors sued the Federal government for declaratory relief in U.S. District Court in San Francisco.  The lower court stated, “The First Amendment allows physicians to discuss and advocate medical marijuana, even though use of marijuana is itself illegal.”   The Ninth Circuit upheld the validity of the permanent injunction and affirmed that the government was enjoined from punishing physicians or taking their DEA licenses for recommending medical use of marijuana.  “The government policy does, however, strike at core First Amendment interests of doctors and patients.  An integral component of the practice of medicine is the interaction between patients and their doctors who must be able to speak frankly and openly.   Physicians may not aid patients in actually obtaining marijuana”. Id. at p. 635.

In California, notwithstanding Conant, doctors have suffered disciplinary action for failing to conduct good faith medical examinations prior to recommending marijuana for a specific medical condition.  A rule of thumb for physicians is to use the same care in recommending medical marijuana as they would in recommending any other medication.

Laws involving primary caregivers differ from state to state and involve who may provide assistance to a qualified medical marijuana patient in obtaining or cultivating marijuana.  The general rule is that to qualify as a primary caregiver, you must first satisfy the traditional definition of a caregiver absent anything to do with marijuana.  A primary caregiver is the one who “consistently” assumes responsibility for the patient’s housing, health or safety.  At a minimum, that he or she (1) consistently provided caregiving services relating to the housing, health or welfare of the patient, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.

VI.

MEDICAL MARIJUANA DISPENSARY COMPLIANCE

Dispensaries are “storefront” locations where medical marijuana patients access their medicine in a legal and safe environment.  The laws governing how a dispensary must operate vary by State and municipality.  Lawyers counseling clients as to proper operation of dispensaries must provide detailed, thorough advice as to the applicable State and local laws that govern medical marijuana dispensaries, as clients risk harassment and criminal prosecution.  Because dispensaries run very similar to any other business entity, attorneys must also provide their dispensary clients general business and corporate counseling.

In California, a dispensary must be a not-for-profit corporation wherein managers and employees are paid salaries to manage and run the day-to-day operations of the dispensary, which includes ensuring the dispensary is operating in compliance with all applicable laws.  Every qualified medical patient who accesses marijuana through the dispensary must be a member of that particular dispensary, and should be educated by the managers and employees as to how the dispensary runs and their role as a member, as well as any benefits and services of membership the dispensary provides.

Meticulous record keeping of expenses, agreements and documented operating procedures are of central importance to compliance for medical marijuana dispensaries.  A dispensary should have clear agreements and contracts with members, growers and independent contractors, and should have very specific written policies and procedures governing the operations of the dispensary.  A dispensary is obligated to ensure marijuana is not distributed to non-members, and should put in place procedures to ensure non-diversion.  Records must be kept as to the qualified patient status and membership of individuals who access medicine from, and cultivate medicine for, the dispensary.  The dispensary must also keep records of operating and overhead expenses to show true not-for-profit operation (in applicable States) and, further, the dispensary should keep records of the marijuana it receives from growers and distributes to its patients.  Dispensaries should have an employee policy, follow wage and hour laws, have detailed job descriptions, and carry applicable worker’s compensation, liability and other relevant insurance.  Dispensaries must pay their Federal, State and local taxes, and must follow specific Federal tax laws that govern dispensaries.

It is the perception of law enforcement as it relates to a collective’s compliance with state law that dictates whether or not a collective will be busted.  For this reason, it is imperative to be aware of community standards and the attitudes of surrounding business owners and residents.

The above is not an exhaustive list as to how a compliant medical marijuana dispensary must run.  Attorneys representing dispensaries should be diligent to be informed as to trends and changes in local, State and Federal law regarding medical marijuana dispensaries, as well as changes in the application or enforcement of those laws.  As is clear, compliance is not easy and involves familiarity with a myriad of areas of laws, as well as intensive counseling to clients who require a great deal of time and work.

VII.

CONFIDENTIALITY ISSUES

Medical marijuana patients’ doctor recommendations, county-issued medical marijuana identification cards and patient medical records are confidential documents.  While there is some argument that medical records are not subject to the Health Insurance Portability and Accountability Act (“HIPAA”), as it is a Federal patient privacy law and marijuana remains illegal under Federal law, dispensary clients should be counseled to keep marijuana patient recommendations and records in compliance with HIPAA to ensure patient confidentiality.

Issues arise when local or State officials want copies of marijuana patients’ medical records from collectives, and often from the collective’s dispensing location, to ensure the collective is complying with applicable local or State law.  A warrant or subpoena is required, as they are private documents being sought by law enforcement as part of their investigation procedures.  The debate over required disclosure of records often turns on whether the specific patient’s medical marijuana recommendation sets forth the medical condition allowing for the lawful use of marijuana as medicine.  It is generally accepted that a patient’s medical condition is confidential but the fact of receiving a recommendation is not.

VIII.

PUBLIC SAFETY CONCERNS (CONTAMINANTS, FOOD PRODUCTS)

There are numerous public safety concerns that remain unaddressed when dealing with medical marijuana.  States’ are struggling with devising methods for the testing of medical marijuana as to potency and contaminants.  Laboratories and testing facilities are beginning to operate in order to provide this much needed data, however there are obstacles to their operation.  To begin, only qualified patients have a lawful right to possess marijuana and testing facilities themselves are not patients.  They are in possession of marijuana on behalf of a patient or collective, but they do not have a defense to prosecution.  Moreover, the Drug Enforcement Administration (“DEA”) requires a laboratory that is testing a schedule I controlled substances to possess a specific DEA permit, however the DEA will not issue a permit for medical marijuana testing.  This dilemma impacts patients directly who want to know that the medicine they are using is safe and effective.  Notwithstanding these obstacles, some facilities have opened that are willing to take their chances, knowing that they are serving an important interest to the welfare of patients, not to mention the facility’s bank account.

Medical marijuana is often consumed in the form of a food product or “edible”.  Edibles tend to have a delayed onset in terms of the effect due to a slower absorption rate.  They also tend to have a longer duration of effectiveness.  Like all food products that are made available to consumers, Federal law controls labeling requirements and any necessary warnings.  The Dietary Supplement Health and Education Act of 1994 establishes standards that must be complied with when making a medical marijuana edible available for a qualified patient.  Requirements include, but are not limited to, the drug name and ingredients, the producer’s name and location, statements as to quantity and concentration, directions for use and warning labels.  Additionally, compliance with local health requirements must be considered such as preparing the edibles in a county licensed kitchen.

Additional public safety concerns manifest themselves in the context of local zoning regulations as municipalities attempt to control the production of marijuana and its ultimate distribution to qualified patients through collectives or “dispensaries”.

IX.

ZONING

Regardless of what state you are in, compliance with medical marijuana laws take two (2) forms.  First, as discussed above, you must be in compliance with the specific statutes governing the medical marijuana conduct at issue.  This involves complying with laws regulating the lawful operation of medical marijuana collectives, whether a store front dispensary or a collective marijuana garden.  As set forth above, it is the perception of law enforcement as it relates to a collective’s compliance with state law that dictates whether or not a collective will be busted.  For this reason, it is imperative to be aware of community standards and the attitudes of surrounding business owners and residents.

The second area of law involves complying with local zoning regulations that dictate where the collective may operate.  The starting point is evaluating how the regulation defines the term “collective”.   A collective may be defined as (1) a location where marijuana distribution occurs; (2) a location where marijuana cultivation occurs; or (3) both.  Los Angeles provides a dramatic example of how the different definitions interplay.  In the city of Los Angeles, the term “collective” is defined as any location where four (4) or more patients cultivate, however the definition is silent as it relates to distribution activities.  In the unincorporated areas of Los Angeles County, the term “collective” is defined as a location where marijuana is distributed, however the definition is silent as it relates to cultivation activities.  When read together, the zoning rules allow for cultivation in the County and distribution in the city.

Municipalities have a variety of approaches as to how they regulate medical marijuana activities through zoning regulations.  One common approach is to limit the number of collectives in a given municipality based on population density.  Other approaches involve restricting the collective’s proximity to various sensitive uses, such as schools, libraries, religious institutions and residential neighborhoods.  Many municipalities have chosen to pass zoning regulations that call for entire bans on any collective activity.

Depending on the approach of a municipality relative to zoning, those affected often initiate litigation against the municipality for violations of Equal Protection and Due Process.  The argument is that people who use medical marijuana should not be treated differently than those who use traditional forms of prescription medication, and therefore a patient’s access to their medical marijuana should not be unduly restricted.  Different standards apply when challenging a municipality for constitutional violations, depending on whether there is a zoning regulation in place that appears unfair or whether there is a flat out ban.  When a zoning regulation exists that allows for the existence of collectives, even if severely restricted, the municipality must only satisfy a rational relation test.  Essentially, is the zoning regulation rationally related to a legitimate government interest?  In the area of marijuana, this is a relatively simple standard to satisfy.  Municipalities routinely rely on reports of increased crime associated with medical marijuana collectives due to the “cash and carry” nature of the business transactions.  The rational relation test is such a low standard that any justification at all, that is not completely arbitrary and capricious, will typically pass muster.  There must be some support in the legislative record, but not much.

Challenging a total ban is completely different in that the municipality is completely prohibiting access to medicine which is provided for by state law.  Strict scrutiny applies here, namely a municipality must establish that (1) the ban satisfies a compelling government interest and (2) that the ban is the least restrictive means to achieve the compelling interest.  It is not difficult to argue that there are always some less restrictive means available short of a complete ban and therefore these suits are effective in forcing a municipality to pass zoning regulations that allow for collectives to operate in some manner.  A common argument on behalf of municipalities in support of complete bans is that they cannot be compelled to regulate conduct that violates Federal law.  This argument has been rejected by the courts due to a state’s medical marijuana laws not mandating conduct that Federal law prohibits, nor posing obstacles to Federal enforcement of Federal law.  Essentially, a state’s medical marijuana law does nothing to “override” Federal law, which remains in force.  See, Qualified Patients Association v. City of Anaheim(2010) 187  Cal.App.4^th, 734, 757.

X.

MEDICAL MARIJUANA USE IN THE WORKPLACE

Medical marijuana in the work place is a controversial issue across the country. Workplaces in states that permit medical marijuana use are entering unknown territory as they debate whether employees should be allowed to use the drug on the job. This situation poses both a legal and ethical dilemma for companies as they try to maintain a zero-tolerance drug-use policy and comply with state legislation at the same time. Some companies are choosing to ignore their state’s decision to allow the use of medical marijuana and are firing employees who test positive for the drug. For instance, one company in Oregon, Columbia Forest Products, has faced legal action for having company rules that go against Oregon’s medical marijuana law.

For many companies, liability is another issue to contend with. For example, should medical marijuana laws protect employers if an employee using marijuana makes a mistake on the job or injures someone? On the other hand, some companies have accepted the use of medical marijuana by workers, as long as they continue to do a good job. In the meantime, the debate continues.  In California, one can be fired or not hired from work for being a medical marijuana patient. Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4^th 920.  Nothing in California’s medical marijuana laws suggests that voters intended to address the respective rights and duties of employers and employees.

XI.

FEDERAL ENFORCEMENT

In October 2009, United States Attorney General Eric Holder issued a statement through his Deputy Attorney General David Ogden, to provide clarification and guidance to Federal prosecutors in States that have enacted laws authorizing the medical use of marijuana.  (Full text of memorandum attached in the Appendix).   In sum, a new policy was provided whereby Federal Prosecutions would no longer focus Federal resources on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.   This shift in policy has provided an opportunity to challenge the Government’s jurisdiction to prosecute where an individual is in compliance with the laws of their state.  One question that remains unanswered is who is empowered to make the decision with regard to State law compliance?  The DEA?  The U.S. Attorney?  Or, is it a question to be resolved through an evidentiary hearing as a prerequisite to Federal Jurisdiction.  It is important to remember that a policy statement is not law and may change with the next administration, which arguably could happen prior to the expiration of the Statute of Limitations for these offenses, leaving those who relied on this policy shift exposed to Federal Prosecution.

A. State’s Rights Challenges to Federal Jurisdiction

Under the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The Tenth Amendment was established to protect the people and the states from an intrusive Federal government. See New York v. U.S., 505 U.S. 144 (1992); Printz v. United States 538 U.S. 1036 (1997).  Accordingly, the Federal government has limited powers and can only assert powers specifically granted by the US Constitution.

With this authority, the people of California passed the Compassionate Use Act and the legislature subsequently passed the Medical Marijuana Program Act.  Accordingly, the people of California – supported by the legislature – have asserted the right conferred upon them by the US Constitution and showed their majority approval of medical marijuana.

“The Federal government may not compel the States to enact or enforce a Federal regulatory program.” Printz v. United States 538 U.S. 1036 (1997).  “Congress may not simply commandeer the legislative process of the states by directly compelling them to enact and enforce a Federal regulatory program.” New York v. United States, 505 U.S. 144, 161 (1992). The Federal Government’s actions constitute commandeering when it “requires state officials to assist in the enforcement of Federal statutes regulating private individuals.” Raich v. Gonzales, 500 F.3d 850 867 n.17 (9th Cir. 2007).  The manner in which the Controlled Substances Act is enforced can violate the Tenth Amendment.  Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (Chief Judge Kozinsky’s concurring opinion).

Notwithstanding its decision in Raich, the Supreme Court showed its tacit approval of California’s medical marijuana laws by refusing to review City of Garden Grove v. Superior Court of Orange County (Felix Kha), 157 Cal.App. 4th 355 (2007).  Defendant Kha was caught with a third of an ounce of marijuana and the case was dismissed because the defendant was a medical marijuana patient.  Id. The issue then became whether to return his medical marijuana, a Schedule 1 controlled substance under Federal Law.  Id. The Fourth District Court of Appeal ruled Defendant Kha was entitled to the return of his property.  Id. at 390.  The city, representing the police department, appealed the ruling, ultimately seeking review by the United States Supreme Court, who declined review.

Similarly, the U.S. Supreme Court refused to hear the appeals of two California Counties (San Diego and San Bernardino) who objected to California’s 13 year old medical marijuana law and claimed it should be struck down as violating the Federal Control Substance Act.  Again, the Supreme Court’s refusal to hear the matter shows tacit approval for California’s right to maintain medical marijuana laws.  Raich and Kha, when viewed together, demonstrate that the relationship of Federal drug laws and State’s medical marijuana laws remains unresolved.

B. The Controlled Substance Act does not Preempt States’ Medical Marijuana Laws

Congress has the power to preempt state law under the Supremacy clause.  See U.S. Const. Art VI, cl. 2; Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372-374.  However, there is a strong presumption against Federal preemption when it comes to the exercise of historic police powers of the states.  Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516;   That presumption will not be overcome absent a clear and manifest congressional purpose.   Id.

There are three types of Federal preemption: express, field and conflict.  English v. General Electric (1990) 496 US 72, 78-79.    Express preemption occurs when Congress explicitly defines to what extent state law is preempted.  Id. at 79.  Field preemption occurs when Congress intends to pre-empt all state law on a subject.  Id.  These last two types of preemption do not apply to the CSA relative to medical marijuana laws.

21 U.S.C. §903 states “No provision of this subchapter shall be construed as indicating an intent on the part of 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 a within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.”  This section shows that Congress declined to assert express preemption and foreswore field preemption in the CSA.

Conflict preemption occurs when simultaneous compliance with both state and Federal directives is impossible or where a state law stands as an “obstacle to the accomplishment and execution of the full purposes of the objectives of Congress.” Id.; See also Viva! International Voice for Animals v. Addias, inc. (2007) 41 Cal.4^th929, 936.  “If the purpose of the Federal act ‘cannot otherwise be accomplished – if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect – the state law must yield to the regulation of Congress within the sphere of its delegated power.”  Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 373.

Conflict preemption does not apply to a State’s medical marijuana laws as there is no positive conflict due a State’s medical marijuana law not making marijuana a legal substance.  Marijuana remains a controlled substance under State law, and there is a carved out exception for medical marijuana patients.  See City of Garden Grove v. Superior Court 157 Cal.App.4^th 355, 385 (4^th Dist 2007); accord Hyland v. Fukuda580 F.2d 977, 981 (9^th Cir. 1978), (finding no conflict preemption between state law allowing felons to carry guns and contrary Federal law).  As explained in greater depth below, the CUA is not an obstacle to the CSA’s function to control recreational drugs.

There is considerable evidence that efforts to regulate marijuana use in the early-twentieth century targeted recreational use, but permitted medical use. See Richard J. Bonnie & Charles H. Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 Va. L.Rev. 971, 1010, 1027, 1167 (1970) (noting that all twenty-two states that had prohibited marijuana by the 1930s created exceptions for medical purposes). By 1965, although possession of marijuana was a crime in all fifty states, almost all states had created exceptions for “persons for whom the drug had been prescribed or to whom it had been given by an authorized medical person.” Leary v. United States, 395 U.S. 6, 16-17 (1969).  See Raich v. Gonzales, 500 F.3d 850, 865 (9^th Cir. 2007).

The CSA was passed in 1970 with the main objectives of combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances.  Gonzales v. Oregon (2006) 546 U.S. 243, 250.  The CSA set up a comprehensive regulatory scheme criminalizing unauthorized activities relating to the substances in any of the Act’s five schedules.  Id.  The focus of the CSA is “combating recreational drug abuse.”  Id. at 246.  The purpose of the CSA is to combat recreational drug abuse and not regulate state medical practices.  Id. at 270-272; County of San Diego v. San Diego NORML, 165 Cal.App.4^th 798; City of Garden Grove v. Superior Court, 157 Cal.App.4^th 355.  Thus, the goal of the CSA is to regulate and control recreational drug use, while allowing states to regulate medical practices.

In Gonzalez v. Oregon 546 U.S. 243, (2006), the United States Supreme Court held that the United States Attorney General could not use his authority under the CSA to prevent licensed doctors from prescribing medications under the state passed physician assisted suicide law.  Justice Kennedy’s majority opinion focuses on the limited role the CSA plays in the practice of medicine.  Id. at 246.

“The CSA and this Court’s case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood.  Beyond this, the Act manifests no intent to regulate the practice of medicine generally, which is understandable given Federalism’s structure and limitations.  The CSA’s structure and operation presume and rely upon a functioning medical profession regulated under the States’ police powers.”  Id. at 246.

The Government is using the CSA to regulate the practice of medicine in a given State by prosecuting those individuals who supply medical marijuana to qualified patients.  This clearly goes beyond the intended purpose of the CSA to regulate the recreational use of drugs.  The Government is using the cover of the CSA to justify regulating the practice of medicine in California to ban marijuana.

 

 

APPENDIX

ALASKA

SUMMARY: Fifty-eight percent of voters approved Ballot Measure #8 on November 3, 1998. The law took effect on March 4, 1999. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physician advising that they “might benefit from the medical use of marijuana.” Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer; chronic pain;epilepsy and other disorders characterized by seizures; glaucoma; HIV or AIDS;multiple sclerosis and other disorders characterized by muscle spasticity; andnausea. Other conditions are subject to approval by the Alaska Department of Health and Social Services. Patients (or their primary caregivers) may legally possess no more than one ounce of usable marijuana, and may cultivate no more than six marijuana plants, of which no more than three may be mature. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients.

The medical use provisions in Alaska do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes.

Senate Bill 94, which took effect on June 2, 1999, mandates all patients seeking legal protection under this act to enroll in the state patient registry and possess a valid identification card. Patients not enrolled in the registry will no longer be able to argue the “affirmative defense of medical necessity” if they are arrested on marijuana charges.

MEDICAL MARIJUANA STATUTES: Alaska Stat. §§ 17.37.10 – 17.37.80 (2007).

CAREGIVERS: Yes. The caregiver must be 21 years of age or older. The caregiver can never have been convicted of a felony controlled substances offense. The caregiver must be listed by the patient as either the primary caregiver or an alternate caregiver. Only one primary caregiver and one alternate caregiver may be listed in the registry for a patient. A person may be a primary caregiver or alternate caregiver for only one patient at a time, unless the primary caregiver or alternate caregiver is simultaneously caring for two or more patients who are related to the caregiver by at least the fourth degree of kinship by blood or marriage. Alaska Stat. §17.37.010 (2007).

CONTACT INFORMATION: For more information on Alaska’s medical marijuana law, please contact:

Alaskans for Medical Rights
P.O. Box 102320
Anchorage, AK 99510
(907) 277-AKMR (2567)

Application information for the Alaska medical marijuana registry is available by writing or calling:

Alaska Department of Health and Social Services
P.O. Box 110699
Juneau, AK 99811-0699
(907) 465-5423

ARIZONA

SUMMARY: Just over 50 percent of voters (50.13 percent) approved Proposition 203 on November 2, 2010. The law removes state-level criminal penalties on the use and possession of marijuana by patients who have “written cerification” from their physician that marijuana may alleviate his or her condition. Patients diagnosed with the following illnesses are afforded legal protection under this act: cancer; glaucoma; positive status for HIV or AIDS, hepatitis C, amyotrophic lateral sclerosis (Lou Gehrig’s disease), Crohn’s disease, agitation of Alzheimer’s diseaseor any chronic or debilitating medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, including those characteristic of epilepsy, severe or persistent muscle spasms, including those characteristic of multiple sclerosis, persistent muscle spasms or seizures, severe nausea or pain. Other conditions will be subject to approval by the Arizona Department of Health Services. Patients (or their primary caregivers) may legally possess no more than two and one-half ounces of usable marijuana, and may cultivate no more than twelve marijuana plants in an “enclosed, locked facility.” The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. Under the law, the Arizona Department of Health Services has 120 days to adopt rules ‘governing nonprofit dispensaries,’ which may produce and dispense marijuana to authorized patients on a not-for-profit basis. Neither patients nor their caregivers may legally cultivate marijuana under this act if they reside within 25 miles of an operating, state-licensed not-for-profit dispensary. Read the full text of the law here: http://stoparrestingpatients.org/home/initiative.

RECIPROCITY: Yes. The act defines a ‘visiting qualifying patient’ as a person ‘who has been diagnosed with a debilitating medical condition by a person who is licensed with authority to prescribe drugs to humans in the state of the person’s residence.’

CALIFORNIA

SUMMARY: Fifty-six percent of voters approved Proposition 215 on November 5, 1996. The law took effect the following day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a “written or oral recommendation” from their physician that he or she “would benefit from medical marijuana.” Patients diagnosed with any debilitating illness where the medical use of marijuana has been “deemed appropriate and has been recommended by a physician” are afforded legal protection under this act. Conditions typically covered by the law include but are not limited to: arthritis; cachexia; cancer; chronic pain; HIV or AIDS; epilepsy; migraine; and multiple sclerosis. No set limits regarding the amount of marijuana patients may possess and/or cultivate were provided by this act, though the California Legislature adopted guidelines in 2003.

The medical use provisions in California do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes. Senate Bill 420, which was signed into law in October 2003 and took effect on January 1, 2004, imposes statewide guidelines outlining how much medicinal marijuana patients may grow and possess. Under the guidelines, qualified patients and/or their primary caregivers may possess no more than eight ounces of dried marijuana and/or six mature (or 12 immature) marijuana plants. However, S.B. 420 allows patients to possess larger amounts of marijuana when such quantities are recommended by a physician. The legislation also allows counties and municipalities to approve and/or maintain local ordinances permitting patients to possess larger quantities of medicinal pot than allowed under the new state guidelines.

Senate Bill 420 also mandates the California Department of State Health Services to establish a voluntary medicinal marijuana patient registry, and issue identification cards to qualified patients. To date, however, no such registry has been established.

Senate Bill 420 also grants implied legal protection to the state’s medicinal marijuana dispensaries, stating, “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients … who associate within the state of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions.”

MEDICAL MARIJUANA STATUTES: California Compassionate Use Act 1996, Cal. Health & Saf. Code, § 11362.5 (1996) (codifying voter initiative Prop. 215).

Cal. Health & Saf. Code, §§ 11362.7 – 11362.83 (2003) (codifying SB 420).

CAREGIVERS: Yes. Primary caregiver is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person. The caregiver must be 18 years of age or older (unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card). Cal. Health & Saf. Code, §11362.7 (2003).

CONTACT INFORMATION: For more information on California’s medical marijuana law, please contact:

California NORML
2215-R Market Street #278
San Francisco, CA 94144
(415) 563-5858

http://www.canorml.org/

For detailed information on county or municipal medical marijuana
guidelines, please visit: http://www.canorml.org/prop/local215policies.html

For a list of California doctors who recommend medical cannabis, please
visit:
www.canorml.org/prop/215physicians.html

For a list of California medical cannabis providers, please visit:
www.canorml.org/prop/cbclist.html

http://www.canorml.org/prop/local215policies.html

COLORADO

SUMMARY: Fifty-four percent of voters approved Amendment 20 on November 7, 2000, which amends the state’s constitution to recognize the medical use of marijuana. The law took effect on June 1, 2001. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physician affirming that he or she suffers from a debilitating condition and advising that they “might benefit from the medical use of marijuana.” (Patients must possess this documentation prior to an arrest.) Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer; chronic pain; chronic nervous system disorders;epilepsy and other disorders characterized by seizures; glaucoma; HIV or AIDS;multiple sclerosis and other disorders characterized by muscle spasticity; andnausea. Other conditions are subject to approval by the Colorado Board of Health. Patients (or their primary caregivers) may legally possess no more than two ounces of usable marijuana, and may cultivate no more than six marijuana plants. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. Patients who do not join the registry or possess greater amounts of marijuana than allowed by law may argue the “affirmative defense of medical necessity” if they are arrested on marijuana charges.

The medical use provisions in Colorado do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes. House Bill 1284, signed into law on June 7, 2010, establishes state provisions regulating medical cannabis dispensaries. The law requires medical marijuana dispensing facilities to obtain state and local licensing approval and to be in compliance with all local zoning codes. Dispensaries must pay a state licensing fee, shall be located no closer than 1,000 feet from a school or daycare (municipalities have the authority to issue exemptions to this rule), and operators must oversee the cultivation at least 70 percent of the marijuana dispensed at the center. Licensed dispensary owners will be required to undergo criminal background checks by the state.

House Bill 1284 imposes a statewide moratorium on the establishment of new dispensaries, beginning in July 2010. HB 1284 also grants local municipalities the authority to prohibit the establishment of dispensaries in their community. Individual caregivers are legally permitted to provide medical cannabis for up to five patients in localities that have formally banned dispensaries.

Full text of the law is available here.

AMENDMENTS: Yes. Senate Bill 109, signed into law on June 7, 2010, limits the authority of physicians to recommend cannabis therapy to patients with which the doctor has had a prior counseling relationship.

Full text of the law is available here.

MEDICAL MARIJUANA STATUTES: C.O. Const. art. XVIII, §14 (2001) (codified as §0-4-287 art. XVIII).

Colo. Rev. Stat. § 18-18-406.3 (2001) (interpreting the provisions of the ballot initiative and constitutional amendment).

Colo. Rev. Stat. § 25-1.5-106 (2003) (originally enacted as § 25-1-107(1)(jj) (2001)) (describing the powers and duties of the Colorado Department of Public Health).

CAREGIVERS: Yes. Primary caregiver is a person other than the patient or the patient’s physician. The caregiver must be 18 years of age or older. A patient can only have one primary caregiver at a time. A patient who has designated a primary caregiver for himself or herself may not be designated as a primary caregiver for another patient. A primary caregiver may be listed on the medical marijuana registry for no more than 5 patients. Colo. Rev. Stat. §25-1.5-106 (2), (10) (2001).

CONTACT INFORMATION: Application information for the Colorado medical marijuana registry is available online or by writing:

Colorado Department of Public Health and Environment
HSVR-ADM2-A1
4300 Cherry Creek Drive South
Denver, CO 80246-1530
Phone: 303-692-2184

http://www.cdphe.state.co.us/hs/medicalmarijuana/fullpacket.pdf

DISTRICT OF COLUMBIA

SUMMARY: D.C. Council Members enacted legislation in May 2010 authorizing the establishment of regulated medical marijuana dispensaries in the District of Columbia. On Monday, July 26, members of Congress allowed the measure to become law without federal interference.

The law amends the Legalization of Marijuana for Medical Treatment Initiative, a 1998 municipal ballot measure which garnered 69 percent of the vote yet was never implemented. Until 2010, D.C. city lawmakers had been barred from instituting the measure because of a Congressional ban on the issue. Congress finally lifted the ban in 2009.

Under the law, D.C. Health Department officials will oversee the creation of as many as eight facilities to dispense medical cannabis to authorized patients. Medical dispensaries would be limited to growing no more than 95 plants on site at any one time.

Both non-profit and for-profit organizations will be eligible to operate the dispensaries.

Qualifying D.C. patients will be able to obtain medical cannabis at these facilities, but will not be permitted under the law to grow their own medicine. Patients diagnosed with the following illnesses are afforded legal protection under this act:HIV or AIDS; glaucoma; conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis; cancer; or any other condition, as determined by rulemaking, that is: “(i) chronic or long-lasting; “(ii) debilitating or interferes with the basic functions of life; and (iii) A serious medical condition for which the use of medical marijuana is beneficial: (I) That cannot be effectively treated by any ordinary medical or surgical measure; “(II) For which there is scientific evidence that the use of medical marijuana is likely to be significantly less addictive than the ordinary medical treatment for that condition. The maximum amount of medical marijuana that any qualifying patient may possess at any moment is 2 ounces of dried medical marijuana, though this limit is subject to revision by the Mayor.

A separate provision enacted as part of the 2011 D.C. budget calls for the retail sales of medical cannabis to be subject to the District’s six percent sales tax rate. Low-income will be allowed to purchase medical marijuana at a greatly reduced cost under the plan.

It will likely be several months before Health officials establish a patient registry and/or begin accepting applications from the public to operate the City’s medical marijuana production and distribution centers.

he medical use provisions in the District of Columbia do not include reciprocity provisions protecting visitors from other medical use states.

CAREGIVERS: Yes. Caregiver is a person designated by a qualifying patient as the person authorized to possess, obtain from a dispensary, dispense, and assist in the administration of medical marijuana. The caregiver must be 18 years of age or older. The caregiver must be registered with the Department as the qualifying patient’s caregiver. A caregiver may only serve one qualifying patient at a time.  D.C. Act 13-138 §2 (3) (2010).

CONTACT INFORMATION: DC City Council Committee on Health or DC Department of Health

HAWAII

SUMMARY: Governor Ben Cayetano signed Senate Bill 862 into law on June 14, 2000. The law took effect on December 28, 2000. The law removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a signed statement from their physician affirming that he or she suffers from a debilitating condition and that the “potential benefits of medical use of marijuana would likely outweigh the health risks.” Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer;chronic pain; Crohn’s disease; epilepsy and other disorders characterized by seizures; glaucoma; HIV or AIDS; multiple sclerosis and other disorders characterized by muscle spasticity; and nausea. Other conditions are subject to approval by the Hawaii Department of Health. Patients (or their primary caregivers) may legally possess up to 3 ounces of usable marijuana, and may cultivate no more than seven marijuana plants, of which no more than three may be mature. The law establishes a mandatory, confidential state-run patient registry that issues identification cards to qualifying patients.

The medical use provisions in Hawaii do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: No, although Hawaii has a separate statute allowing patients arrested on marijuana charges to present a “choice of evils” defense arguing that their use of marijuana is medically necessary.

MEDICAL MARIJUANA STATUTES: Haw. Rev. Stat. §§ 329-121 to 329-128 (2008).

CAREGIVERS: Yes. Primary caregiver is a person who has the responsibility for managing the well-being of the qualifying patient with respect to the medical use of marijuana. Primary caregiver is a person other than the qualifying patient, or the patient’s physician. The caregiver must be 18 years of age or older. Qualifying patients shall have only one primary caregiver an any given time. Primary caregiver shall be responsible for the care of only one qualifying patient at any given time. Haw. Rev. Stat. §§329-121; 329-123 (b),(c) (2008).

CONTACT INFORMATION: Administrative rules for Hawaii’s medical marijuana program are available online from the Drug Policy Forum of Hawaii website at: http://www.dpfhi.org/

Application information for the Hawaii medical marijuana registry is available by writing or calling:

Hawaii Department of Public Safety
919 Ala Moana Boulevard
Honolulu, HI 96814
(808) 594-0150

MAINE

SUMMARY: Sixty-one percent of voters approved Question 2 on November 2, 1999. The law took effect on December 22, 1999. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess an oral or written “professional opinion” from their physician that he or she “might benefit from the medical use of marijuana.” Patients diagnosed with the following illnesses are afforded legal protection under this act: epilepsy and other disorders characterized by seizures; glaucoma; multiple sclerosis and other disorders characterized by muscle spasticity; and nausea or vomiting as a result of AIDS or cancer chemotherapy. Patients (or their primary caregivers) may legally possess no more than one and one-quarter ounces of usable marijuana, and may cultivate no more than six marijuana plants, of which no more than three may be mature. Those patients who possess greater amounts of marijuana than allowed by law are afforded a “simple defense” to a charge of marijuana possession. The law does not establish a state-run patient registry.

RECIPROCITY: Yes. Authorizes visiting qualifying patient with valid registry identification card (or its equivalent), to engage in conduct authorized for the registered patient (the medical use of marijuana) for 30 days after entering the State, without having to obtain a Maine registry identification card. Visiting qualifying patients are not authorized to obtain in Maine marijuana for medical use. Me. Rev. Stat. Tit. 22, §2423-D (2010).

AMENDMENTS: Yes. Senate Bill 611, which was signed into law on April 2, 2002, increases the amount of useable marijuana a person may possess from one and one-quarter ounces to two and one-half ounces. Question 5, approved by 59 percent of voters on November 3, 2009, mandates the Department of Health to enact rules within 120 days establishing a confidential patient registry and identification card system, and allowing for the dispensing of medicinal cannabis via state-licensed nonprofit dispensaries. The act also expands the list of qualifying illnesses for which a physician may recommend medical cannabis to include: “A. cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail-patella syndrome or the treatment of these conditions; B. a chronic or debilitating disease or medical condition or its treatment that produces intractable pain, which is pain that has not responded to ordinary medical or surgical measures for more than 6 months; C. a chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis; or D. any other medical condition or its treatment approved by the department as provided.” Read the full text.

ADDITIONAL AMENDMENTS: Yes.

LD. 1811, signed into law on April 9, 2010, authorizes the creation of up to eight nonprofit medical cannabis dispensaries – one for each of the state’s public health districts. Under the measure, dispensaries may legally “acquire, possess, cultivate, manufacture, deliver, transfer, transport, sell, supply or dispenses marijuana or related supplies and educational materials” to state-authorized medical marijuana patients. The Maine Department of Health and Human Services will oversee the licensing of these facilities.

The law also requires, for the first time, that authorized patients join a confidentially state registry. Cardholding patients will not be subject to “arrest, prosecution or penalty in any manner, including but not limited to a civil penalty or disciplinary action by any business or occupational or professional licensing board or bureau, or denied any right or privilege,” for their possession, use, or cultivation of authorized amounts of medical cannabis (2 and one-half ounces and/or six plants).

Full text of the law is available here.

MEDICAL MARIJUANA STATUTES: Me. Rev. Stat. tit. 22, § 2383-B(5), (6) (1999) (amended 2001).

Me. Rev. Stat. tit. 22, § 2383-B(3)(e) (amended 2001) (increasing amount of marijuana a patient may posses to two and one-half ounces).

CAREGIVERS: Yes. Primary caregiver is a person providing care for the registered patient. The caregiver must be 21 years of age or older. The caregiver can never have been convicted of a disqualifying drug offense. Patients can name one or two primary caregivers. (only one person may be allowed to cultivate marijuana for a registered patient) Me. Rev. Stat. Tit. 22, §§2422; 2425 (2010).

STATE REGULATIONS: Statement of Maine’s Medicinal Marijuana Law [PDF]

CONTACT INFORMATION: Brochures outlining Maine’s medical marijuana law are available from:

www.mainecommonsense.org

Maine Citizens for Patients Rights
PO Box 1074
Lewiston, ME 04243

MARYLAND

SUMMARY: Maryland’s legislature passed a medical marijuana affirmative defense law in 2003. This law requires the court to consider a defendant’s use of medical marijuana to be a mitigating factor in marijuana-related state prosecution. If the patient, post-arrest, successfully makes the case at trial that his or her use of marijuana is one of medical necessity, then the maximum penalty allowed by law would be a $100 fine.

MEDICAL MARIJUANA STATUTES: Maryland Darrell Putman Compassionate Use Act, Md. Code Ann., Crim. Law §5-601(c)(3)(II) (2003).

MICHIGAN

SUMMARY: Sixty-three percent of voters approved Proposal 1 on November 4, 2008. The law took effect on December 4, 2008. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physicians authorizing the medical use of marijuana. Patients diagnosed with the following illnesses are afforded legal protection under this act: Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions. Patients are also offered legal protection if they have a chronic or debilitating disease or medical condition or treatment of said condition that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis. Patients (or their primary caregivers) may possess no more than 12 marijuana plants kept in an enclosed, locked facility or 2.5 ounces of usable marihuana. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. The state officially began accepting applications for the program on April 6, 2009.

RECIPROCITY: Yes. Authorizes visiting qualifying patient with registry identification card (or its equivalent) from a State that also allows the medical use of marijuana by visiting qualifying patients, to engage in the medical use of marijuana. Also authorizes a person to assist with a visiting qualifying patient’s medical use of marijuana. Mich. Comp. Law § 333.26424(j) (2008).

(other state, district, territory, commonwealth, or insular possession of the U.S. must offer reciprocity to have reciprocity in Michigan)

AMMENDMENTS: Yes

Administrative rules for the program took effect on April 4, 2009. A copy of the regulations is available here.

MEDICAL MARIJUANA STATUTES: Michigan Medical Marihuana Act, Mich. Comp. Law §§ 333.26421 – 333.26430 (2008).

CAREGIVERS: Yes. Primary caregiver is a person who has agreed to assist with a patient’s medical use of marihuana. The caregiver must be 21 years of age or older. The caregiver can never have been convicted of a felony involving illegal drugs. Each patient can only have one primary caregiver. The primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana. Mich. Comp. Law §§ 333.26423; 333.26426(d) (2008).

CONTACT INFORMATION:

Michigan Medical Marihuana Program (MMMP)
Michigan.gov/mmp

Michigan Medical Marijuana Association

http://michiganmedicalmarijuana.org/

MONTANA

SUMMARY: Sixty-two percent of voters approved Initiative 148 on November 2, 2004. The law took effect that same day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physicians authorizing the medical use of marijuana. Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia or wasting syndrome; severe or chronic pain; severe nausea; seizures, including but not limited to seizures caused by epilepsy; or severe or persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis or Crohn’s disease. Patients (or their primary caregivers) may possess no more than six marijuana plants. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients.

Valid medical marijuana registry cards from other medical marijuana states are recognized in this state, so long as the cardholder is in compliance with the possession limits imposed on cardholders in this state.

RECIPROCITY: Yes. Authorizes qualifying patient with registry identification card (or its equivalent) to engage in the medical use of marijuana. Also authorizes a person to assist with a qualifying patient’s medical use of marijuana. Mont. Code Ann. §50-46-201(8) (2009).

AMENDMENTS: No

MEDICAL MARIJUANA STATUTES: Montana Medical Marijuana Act, Mont. Code Ann. §§ 50-46-1 to 50-46-2 (2007).

CONTACT INFORMATION: www.dphhs.mt.gov/medicalmarijuana/

NEVADA

SUMMARY: Sixty-five percent of voters approved Question 9 on November 7, 2000, which amends the states’ constitution to recognize the medical use of marijuana. The law took effect on October 1, 2001. The law removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who have “written documentation” from their physician that marijuana may alleviate his or her condition. Patients diagnosed with the following illnesses are afforded legal protection under this act: AIDS; cancer; glaucoma; and any medical condition or treatment to a medical condition that produces cachexia, persistent muscle spasms or seizures, severe nausea or pain. Other conditions are subject to approval by the health division of the state Department of Human Resources. Patients (or their primary caregivers) may legally possess no more than one ounce of usable marijuana, and may cultivate no more than seven marijuana plants, of which no more than three may be mature. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. Patients who do not join the registry or possess greater amounts of marijuana than allowed by law may argue the “affirmative defense of medical necessity” if they are arrested on marijuana charges.

The medical use provisions in Nevada do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: No.

MEDICAL MARIJUANA STATUTES: Nev. Rev. Stat. §§ 453A.010 – 453A.240 (2008).

CAREGIVERS: Yes. Designated primary caregiver is a person who has significant responsibility for managing the well-being of a person diagnosed with a chronic or debilitating medical condition. Caregiver does not include the attending physician. The caregiver must be 18 years of age or older. Patients may only have one designated primary caregiver. Nev. Rev. Stat. Ann. §§435A.080(1)(a), (2); 435A.250(2) (2008).

CONTACT INFORMATION: Application information for the Nevada medical marijuana registry is available by writing or calling:

Nevada Department of Health and Human Services, Nevada State Health Division
1000 East Williams St., Ste. 209
Carson City, NV 89701
775-687-7590
Contact: Jennifer

NEW JERSEY

SUMMARY: Governor Jon Corzine signed the New Jersey Compassionate Use Medical Marijuana Act into law on January 18, 2010. As initially passed, the law was scheduled to take effect in July 2010. However, lawmakers in June amended the legislation at the behest of Republican Gov. Chris Christie to delay the enactment of the law until October 1, 2010. The law mandates the state to promulgate rules governing the distribution of medical cannabis to state-authorized patients. These rules shall address the creation of up to six state-licensed “alternative treatment centers.” Patients diagnosed with the following illnesses are afforded legal protection under this act: cancer, glaucoma, seizure and/or spasticity disorders (including epilepsy), Lou Gehrig’s disease, multiple sclerosis, muscular dystrophy, HIV/AIDS, inflammatory bowel disease (including Crohn’s disease), any terminal illness if a doctor has determined the patient will die within a year. Other conditions are subject to approval by the state Department of Health. Patients authorized to use marijuana under this act will not be permitted to cultivate their own cannabis, and are limited to the possession of two ounces of marijuana per month. Additional information on this measure is available here.

The medical use provisions in New Jersey do not include reciprocity provisions protecting visitors from other medical use states.

CAREGIVERS: Yes. Primary Caregiver is a person who has agreed to assist with a registered qualifying patient’s medical use of marijuana. Primary caregiver cannot be the patient’s physician. Primary caregiver must be a resident of New Jersey. The primary caregiver can never have been convicted of a felony drug offense. The caregiver must be 18 years of age or older. The caregiver may only have one qualifying patient at any one time. N.J. Stat. Ann. §24:6I-3 (2010).

• (Registration process for caregivers has not yet been determined.)

FOR MORE INFORMATION:

New Jersey NORML

http://www.normlnj.org

Coalition for Medical Marijuana — New Jersey

http://www.cmmnj.org/

NEW MEXICO

SUMMARY: Governor Bill Richardson signed Senate Bill 523, “Lynn and Erin Compassionate Use Act,” into law on April 2, 2007. The new law took effect on July 1, 2007. The law mandates the state Department of Health by October 1, 2007, to promulgate rules governing the use and distribution of medical cannabis to state-authorized patients. These rules shall address the creation of state-licensed “cannabis production facilities,” the development of a confidential patient registry and a state-authorized marijuana distribution system, and “define the amount of cannabis that is necessary to constitute an adequate supply” for qualified patients.

The medical use provisions in New Mexico do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes. In January 2009, the New Mexico Department of Health finalized rules governing the production, distribution, and use of medicinal cannabis under state law. Patients registered with the state Department of Health and who are diagnosed with the following illnesses are afforded legal protection under these rules:

• Arthritis
• Severe chronic pain
• Painful peripheral neuropathy
• Intractable nausea/vomiting
• Severe anorexia/cachexia
• Hepatitis C infection currently receiving antiviral treatment
• Crohn’s disease
• Post-traumatic Stress Disorder
• Amyotrophic Lateral Sclerosis (Lou Gehrig’s disease)
• Cancer
• Glaucoma
• Multiple sclerosis
• Damage to the nervous tissue of the spinal cord with intractable spasticity
• Epilepsy
• HIV/AIDS
• Hospice patients

Other conditions are subject to approval by the Department of Health. Patients may legally possess six ounces of medical cannabis (or more if authorized by their physician) and/or 16 plants (four mature, 12 immature) under this act.

State regulations also authorize non-profit facilities to apply with the state to produce and dispense medical cannabis. State licensed producers may grow up to 95 mature plants at one time. (UPDATE! The New Mexico Department of Health finalized revised regulations in December 2010 increasing the number of plants that may be produced at one time from 95 to 150. The updated regulations also allow licensed producers to obtain plants, seeds, and/or usable cannabis from other non-profit producers. The licensing fee for producers is: $5,000 for producers licensed less than one year, $10,000 for more than one year, $20,000 for more than two years and $30,000 for more than three years. For further information, please see: http://nmhealth.org/idb/medical_cannabis.shtml)

MEDICAL MARIJUANA STATUTES: Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. § 30-31C-1 (2007).

CAREGIVERS: Yes. Primary caregiver is designated by patient’s practitioner as necessary to take responsibility for managing the well-being of a qualified patient with respect to the medical use of cannabis. Primary caregiver must be a resident of New Mexico. The caregiver must be 18 years of age or older. N.M. Stat. Ann. §26-2B-3(F) (2007).

CONTACT INFORMATION: Please contact the Medical Cannabis Program Coordinator at (505) 827-2321 or medical.cannabis@state.nm.us or visit www.nmhealth.org/marijuanahtml for more information.

OREGON

SUMMARY: Fifty-five percent of voters approved Measure 67 on November 3, 1998. The law took effect on December 3, 1998. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a signed recommendation from their physician stating that marijuana “may mitigate” his or her debilitating symptoms. Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer; chronic pain; epilepsy and other disorders characterized by seizures; glaucoma; HIV or AIDS; multiple sclerosis and other disorders characterized by muscle spasticity; and nausea. Other conditions are subject to approval by the Health Division of the Oregon Department of Human Resources. Patients (or their primary caregivers) may legally possess no more than three ounces of usable marijuana, and may cultivate no more than seven marijuana plants, of which no more than three may be mature. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. Patients who do not join the registry or possess greater amounts of marijuana than allowed by law may argue the “affirmative defense of medical necessity” if they are arrested on marijuana charges.

The Oregon law does not include a reciprocity provision. However, the Oregon Court of Appeals has ruled (and the Oregon Medical Marijuana Program has confirmed) that patients from out of state are permitted to register with the Oregon Medical Marijuana Program to obtain a registry identification card, the same as an Oregon resident, which will protect them from arrest or prosecution while in Oregon. These out of state patients are required to obtain a recommendation for the medical use of marijuana from an Oregon licensed physician. State v. Berringer, 229 P3d 615 (2010).

AMENDMENTS: Yes.

House Bill 3052, which took effect on July 21, 1999, mandates that patients (or their caregivers) may only cultivate marijuana in one location, and requires that patients must be diagnosed by their physicians at least 12 months prior to an arrest in order to present an “affirmative defense.” This bill also states that law enforcement officials who seize marijuana from a patient pending trial do not have to keep those plants alive. Last year the Oregon Board of Health approved agitation due toAlzheimer’s disease to the list of debilitating conditions qualifying for legal protection.

In August 2001, program administrators filed established temporary procedures further defining the relationship between physicians and patients. The new rule defines attending physician as “a physician who has established a physician/patient relationship with the patient; … is primarily responsible for the care and treatment of the patients; … has reviewed a patient’s medical records at the patient’s request, has conducted a thorough physical examination of the patient, has provided a treatment plan and/or follow-up care, and has documented these activities in a patient file.”

Also, Senate Bill 1085, which took effect on January 1, 2006, raises the quantity of cannabis that authorized patients may possess from seven plants (with no more than three mature) and three ounces of cannabis to six mature cannabis plants, 18 immature seedlings, and 24 ounces of usable cannabis. However, those state-qualified patients who possess cannabis in amounts exceeding the new state guidelines will no longer retain the ability to argue an “affirmative defense” of medical necessity at trial. Patients who fail to register with the state, but who possess medical cannabis in amounts compliant with state law, still retain the ability to raise an “affirmative defense” at trial.

Other amendments to Oregon’s medical marijuana law redefine “mature plants” to include only those cannabis plants that are more than 12 inches in height and diameter, and establish a state-registry for those authorized to produce medical cannabis to qualified patients.

MEDICAL MARIJUANA STATUTES:Oregon Medical Marijuana Act, Or. Rev. Stat. § 475.300 (2007).

CAREGIVERS: Yes. Designated primary caregiver is the person that has significant responsibility for managing the well-being of a person who has been diagnosed with a debilitating medical condition. Primary caregiver does not include the patient’s physician. The caregiver must be 18 years of age or older. A patient may only have one primary caregiver. Or. Rev. Stat. §§ 475.302(5); 475.312(2) (2007).

CONTACT INFORMATION: Application information for the Oregon medical marijuana registry is available online or by writing:

Oregon Department of Human Services
800 NE Oregon St.
Portland, OR 97232
(503) 731-4000

http://egov.oregon.gov/DHS/ph/ommp/index.shtml

Oregon Cannabis Patients registry: 1 (877) 600-6767

Oregon NORML Medical Marijuana Act Handbook (PDF)

RHODE ISLAND

SUMMARY: The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act took effect immediately upon passage on January 3, 2006. The law removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess “written certification” from their physician stating, “In the practitioner’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient.” Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer; glaucoma; Hepatitis C; severe, debilitating, chronic pain; severe nausea; seizures, including but not limited to, those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to, those characteristic of multiple sclerosis or Crohn’s Disease; or agitation of Alzheimer’s Disease. Other conditions are subject to approval by the Rhode Island Department of Health. Patients (and/or their primary caregivers) may legally possess 2.5 ounces of cannabis and/or 12 plants, and their cannabis must be stored in an indoor facility. The law establishes a mandatory, confidential state-run patient registry that issues identification cards to qualifying patients. Patients who do not register with the Department of Health, but have received certification from their physician to use medicinal cannabis, may raise an affirmative defense at trial.

RECIPROCITY: Yes. Authorizes a patient with a debilitating medical condition, with a registry identification card (or its equivalent), to engage in the medical use of marijuana. Also authorizes a person to assist with the medical use of marijuana by a patient with a debilitating medical condition. R.I. Gen. Laws § 21-28.6-4(k) (2006).

AMENDMENTS: Yes.

In June 2007, the Rhode Island House and Senate enacted legislation eliminating the sunset clause of the The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, making the provisional program permanent

ADDITIONAL AMENDMENTS: Yes.

In 2009, lawmakers enacted legislation authorizing the establishment of state-licensed not-for-profit ‘compassion centers’ to “acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply or dispense marijuana, or related supplies and educational materials, to registered qualifying patients and their registered primary caregivers.” The Rhode Island Department of Health will oversee the licensing and regulating of these facilities. Copies of the regulations are available for public inspection in the Cannon Building, Room #201, Rhode Island Department of Health, 3 Capitol Hill, Providence, Rhode Island, on the Department’s website: http://www.health.ri.gov/ or the Secretary of State’s website: http://www.sos.ri.gov/rules/, by calling 401-222-7767 or by e-mail toBill.Dundulis@health.ri.gov.

ADDITIONAL AMENDMENTS: Yes.

In 2010, lawmakers enacted legislation, House Bill 8172, ensuring the confidentiality of medical marijuana patients’ records. The law states, in part, “Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and practitioners, are confidential and protected under the federal Health Insurance Portability and Accountability Act of 1996, and shall be exempt from the provisions of the RIGL chapter 38-2 et seq. the Rhode Island access to public records act and not subject to disclosure, except to authorized employees of the department as necessary to perform official duties of the department.”

MEDICAL MARIJUANA STATUTES: The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, R.I. Gen. Laws § 21-28.6 (2006).

CAREGIVERS: Yes. The caregiver must be 21 years of age or older.  Primary caregiver may assist no more than 5 qualifying patients with their medical use of marijuana. R.I. Gen. Laws 1956, §21-28.6-3 (9) (2006).

CONTACT INFORMATION: http://www.health.state.ri.us/
Application Forms are available at www.health.ri.gov/hsr/mmp/index.php or by visiting room 104 at the Health Department, 3 Capitol Hill, Providence.

More helpful information can be found here: http://ripatients.org/.

VERMONT

SUMMARY: Senate Bill 76 became law without Gov. James Douglas’ signature on May 26, 2004. The law takes effect on July 1, 2004. The law removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients diagnosed with a “debilitating medical condition.” Patients diagnosed with the following illnesses are afforded legal protection under this act: HIV or AIDS, cancer, and Multiple Sclerosis. Patients (or their primary caregiver) may legally possess no more than two ounces of usable marijuana, and may cultivate no more than three marijuana plants, of which no more than one may be mature. The law establishes a mandatory, confidential state-run registry that issues identification cards to qualifying patients.

The medical use provisions in Vermont do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes.

Senate Bill 7, which took effecton JULY 1, 2007, expands the definition of “debilitating medical condition” to include: “(A) cancer, multiple sclerosis, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions, if the disease or the treatment results in severe, persistent, and intractable symptoms; or (B) a disease, medical condition, or its treatment that is chronic, debilitating, and produces severe, persistent, and one or more of the following intractable symptoms: cachexia or wasting syndrome; severe pain; severe nausea; or seizures.”

The measure also raises the quantity of medical cannabis patients may legally possess under state law from one mature and/or two immature plants to two mature and/or seven immature plants. Senate Bill 7 also amends state law so that licensed physicians in neighboring states can legally recommend cannabis to Vermont patients.

MEDICAL MARIJUANA STATUTES: Therapeutic Use of Cannabis, Vt. Stat. Ann. tit. 18, §§ 4471- 4474d (2003).

CAREGIVERS: Yes. Registered caregiver is a person who has agreed to undertake responsibility for managing the well-being of a registered patient with respect to the use of marijuana for symptom relief. The registered caregiver can never have been convicted of a drug-related crime. The caregiver must be 21 years of age or older. Patients may only have one registered caregiver at a time. Registered caregiver may serve only one registered patient at a time. Vt. Stat. Ann. Tit. 18, §4472(6); 4474(1),(2)(c) (2003).

CONTACT INFORMATION:

Marijuana Registry
Department of Public Safety
03 South Main Street
Waterbury, Vermont 05671
802-241-5115
www.safeaccessnow.org/article.php?id=2012

WASHINGTON

SUMMARY: Fifty-nine percent of voters approved Measure 692 on November 3, 1998. The law took effect on that day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess “valid documentation” from their physician affirming that he or she suffers from a debilitating condition and that the “potential benefits of the medical use of marijuana would likely outweigh the health risks.” Patients diagnosed with the following illnesses are afforded legal protection under this act: cachexia; cancer;HIV or AIDS; epilepsy; glaucoma; intractable pain (defined as pain unrelieved by standard treatment or medications); and multiple sclerosis. Other conditions are subject to approval by the Washington Board of Health. Patients (or their primary caregivers) may legally possess or cultivate no more than a 60-day supply of marijuana. The law does not establish a state-run patient registry.

The medical use provisions in Washington do not include reciprocity provisions protecting visitors from other medical use states.

AMENDMENTS: Yes.

Senate Bill 6032, mandated the Department of Health to “adopt rules defining the quantity of marijuana that could reasonably be presumed to be a sixty-day supply for qualifying patients.” In October 2008, the department finalized guidelines allowing patients to cultivate up to 15 cannabis plants and/or possess up to 24 ounces of usable marijuana. The new limits took effect on November 2, 2008.

Patients who possess larger quantities of cannabis than those approved by the Department will continue to receive legal protection under the law if they present evidence indicating that they require such amounts to adequately treat their qualifying medical condition.

Senate Bill 6032 also affirmed changes previously recommended by the state’s Medical Quality Assurance Commission to expand the state’s list of qualifying conditions to include Crohn’s disease, hepatitis c, and any “diseases, including anorexia, which results in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, and/or spasticity, when these symptoms are unrelieved by standard treatments or medications.”

It also limits the ability of police to seize medicinal cannabis that is “determined … [to be] possessed lawfully [by an authorized patients] under the … law.”

ADDITIONAL AMMENDMENTS: Yes.

Senate Bill 5798 allows additional health care professionals including naturopaths, physician’s assistants, osteopathic physicians, osteopathic physicians assistants, and advanced registered nurse practitioners to legally recommend marijuana therapy to their patients. The new law will take effect on June 10, 2010.

MEDICAL MARIJUANA STATUTES: Wash. Rev. Code §§ 69.51A – 69.51A.901 (2007).

CAREGIVERS: Yes. Designated provider is a person who has been designated in writing by a patient to serve as a designated provider. The caregiver must be 18 years of age or older. The designated provider is prohibited from consuming marijuana obtained for the personal, medical use of the patient for whom the individual is acting as designated provider. The designated provider may be the primary caregiver for only one patient at any one time. Wash. Rev. Code §§69.51A.010, 69.51A.040 (2007).

CONTACT INFORMATION: Fact sheets outlining Washington’s medical marijuana law are available from:

Washington State Department of Health
1112 SE Quince St.
P.O. Box 47890
Olympia, WA 98504-7890
(800) 525-0127 or (360) 236-4052
Attention: Glenda Moore

http://www.doh.wa.gov/

ACLU of Washington, Drug Reform Project
(206) 624-2184

http://www.aclu-wa.org/detail.cfm?id=182