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Legalization is Not to Blame for Changes to Medical Marijuana Programs

Russ Belville

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Changes to Washington and Oregon Medical Marijuana

In the Pacific Northwest, medical marijuana supporters are up in arms about recent legislation aiming to curtail and even eliminate some portions of the medical marijuana laws that have existed since 1998. And they’re blaming these changes, mistakenly, on recreational marijuana legalization for all adults.

First off, let’s review the changes. In Washington State, a new voluntary patient registry was created. Washington had been the only state without some form of patient registry all of this time. California and Maine have voluntary ones. The rest are mandatory. And registration in some states can cost as much as $200. Washington’s card will cost one dollar.

If registered, a patient can purchase and possess up to three ounces of usable marijuana (down from 24 ounces) and can home-grow up to six plants (down from 15). They can also form cooperative grows of up to four patients (down from 10) who may cultivate 60 plants (up from 45). Unregistered patients will be allowed just one ounce, like personal adult-use consumers, but unregistered patients are allowed to home-grow four plants, unlike personal adult-use consumers who currently have no home grow rights.

Most troubling to Washington patient advocates is that the plethora of unregulated, unlicensed, uninspected, tax-free medical marijuana dispensaries will be shuttered, and patients will have to shop in the same regulated, licensed, inspected, taxed marijuana stores as everyone else. A new designation of a “medically-endorsed store” has been created, requiring those stores to carry some medical-only products (CBD salves, for instance) and to train their employees on medical advising. This also allows the designated stores to give medicine for free to qualified patients. Worst of all, the patient card only gives patients a break on the sales taxes, but not the excise taxes, expected to be 30 or 37 percent, depending on which taxation bill survives in Olympia.

In Oregon, it looks as though the changes will be far less draconian and, in some cases, an improvement. Patients will still be able to cultivate six mature plants, but no longer will the state count how many immature plants are cultivated. The definition of “mature” is becoming botanically accurate—a plant with buds—instead of the current law that says a plant over 12 inches tall is mature. No longer will the state care how much usable marijuana a patient possesses at home or at a grow site.

What has advocates in Oregon upset are the changes to multi-patient grow sites. Currently, we have what are called “card-stacked” gardens. A patient can designate a grower who can cultivate those six mature plants for the patient. A grower can cultivate for up to four patients. Many growers can cultivate on the same land. Multiply six plants times four patients times x-number of growers and soon we had marijuana farms, mostly outdoors, producing monster 15-foot plants that produce pounds of usable marijuana each.

Now the Oregon proposal is to limit the current grow sites within city limits to 24 mature plants and those in rural areas to 96. A new four-year residency requirement to become a grower has been proposed (though it may be unconstitutional), and new grow sites would be limited to 12 mature plants in the city, 48 mature plants in the country. There are also proposals to require record-keeping and inspections for any growers cultivating for others, with the most recent proposal requiring that records be kept for two years.

These proposals are all still within legislative committee and could change. But some form of these changes is expected to pass and be signed into law by the Oregon governor soon.

How “bad” these changes are is a matter of perspective

These new limits move Washington from having the greatest possession amounts allowed to the fourth-most nationally and from the greatest plant amounts allowed to the second-most nationally. Washington will also go from having a Colorado-like amount of untaxed dispensaries to more of a Nevada-like amount of taxed dispensaries. The new limits in Oregon would still leave Oregon with, by far, the most generous medical marijuana program outside of California.

Those limits probably don’t seem so bad if you’re reading this in Idaho or Oklahoma or even some of the more restrictive medical marijuana states, which since 2010 forbid most or all home grows or forbid any smokable marijuana at all. But if you’re a patient in severe need accustomed to easy access, low cost and abundant supply, these changes are devastating. To those points, I sympathize and support the medical advocates’ complaints. However, what I can’t abide is medical marijuana advocates blaming these reductions and limitations on the legalization of personal adult use in both these states.

In both states, medical advocates object that Washington’s I-502 and Oregon’s Measure 91 specifically campaigned that they would not change medical marijuana in any way. In that sense, medical advocates can’t complain, because there is not a single word within either of those measures that mandates the changes being proposed. In Oregon’s measure, the language even specifically says “this Act may not be construed to amend or affect in any way the Oregon Medical Marijuana Act.”

The reason why those campaigns pointedly avoided dealing with medical marijuana was that the medical advocates screamed that legalization better not touch medical in any way. So legalization didn’t, which killed the opportunity, especially in Washington, for a new law to take medical into account, include it within the new regime and provide statutory protections for it.

With medical marijuana unmentioned, new strictly-regulated legalization regimes were created, which shined a spotlight on how loosely-regulated medical marijuana had become. It wasn’t Washington’s I-502 that was setting up tents at the Seattle Hempfest with naturopaths offering medical marijuana recommendations to anyone who walked in with $200 bucks and a story or that was creatively interpreting loopholes in caregiver language and collective gardens to promulgate dispensaries that were clearly not intended by the medical marijuana law.

It wasn’t Oregon’s Measure 91 that was opening up medical dispensaries called “Wake and Bake” (with its owners on the front page pictured with a six-foot bong) and “Club Pit Bull” (brought to you by “Stoney Girl”) before dispensaries were legal or that was establishing mega-growers who tell the media they pay their employees in weed or that was setting up 624-plant Oregon gardens purportedly serving 104 patients who all live in Southern California.

It wasn’t the legalization campaigns that were shipping excess medical marijuana by the trunkload to destinations east.

In other words, to believe that medical marijuana was going to continue unchanged if legalization efforts failed in Washington and Oregon is to blissfully ignore the medical marijuana abuses that had become exceedingly obvious to the general public. In fact, had legalization failed in Washington and (again) in Oregon, there would have been even more political will to make these changes as legislators would’ve sensed an electorate wary of marijuana freedom.

Medical Marijuana Must Evolve

And now with legalization, medical marijuana has to evolve. No system of commercial pot shops and grows are going to survive when someone can buy for $200 a permission slip to gain entry to thrice as many untaxed medical shops selling at half the price. No system that requires testing of recreational pot, but not medical pot, can be considered logical. No set of commercial growers facing the costs of licensing, inspections and taxes can compete with medical growers whose only hurdle is getting a patient’s permission. It’s not legalization, however, that’s causing the problem, it’s the lack of regulation and control in medical.

Case in point: Colorado. The Centennial State has avoided much of the upheaval being suffered in the Pacific Northwest mainly because its medical program was already tightly regulated. Patients had been kept to just three mature plants and two ounces of possession, so legalizing three mature plants and one ounce for all adults didn’t create such a glaring disparity. Even though a Colorado “red card” costs just $15 and is somewhat easy to acquire, granting access to the medical system that has far lower prices, there isn’t the perception of abuse of the system in Colorado as there is in the West.

Both Oregon and Washington began their medical marijuana programs with a small amount of possession and plants. Oregon originally allowed just 3 mature plants and an ounce; Washington originally allowed a vague “60-day supply.” Medical advocates complained that since the medical laws provided for no dispensaries (or “safe access points”), those limits were too low. The states responded by increasing the limits in Oregon to 6 mature plants and 24 ounces, while Washington decided a “60-day supply” was 15 plants (any stage) and 24 ounces. Even then, some patient advocates in Washington complained about those limits, defending up to 70 plants per patient as reasonable.

But then when dispensaries began to appear in Washington and Oregon, nobody ever recognized that the reason medical advocates gave for needing increased limits had vanished. Medical advocates had their cake and got to eat it, too. Soon enough, the increased limits and the unregulated dispensaries were known more for the abuses they fostered than for helping seriously sick and disabled people.

So as legalization progresses into the 2016 election and the medical marijuana states of California, Massachusetts, Maine, Vermont and Rhode Island are on deck to legalize recreational pot, medical advocates (especially in California) would be wise to take the opportunity of new legalization initiatives to carefully consider how to include medical marijuana protections within those initiatives. Promising that medical marijuana shall never change, while offering zero language to include medical marijuana within legalization, doesn’t seem to be possible so long as state legislatures exist.

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