Advocates welcome Delaware as the 16th medical marijuana state, but decry its prohibition on patient cultivation

May 16, 2011 | Kris Hermes


Patient advocates welcomed Delaware’s adoption late last week of the 16th medical marijuana state law. However, its prohibition on patient cultivation fails to adequately provide for the needs of patients. Advocates argue that restrictive laws like Delaware’s placate law enforcement and opponents of medical marijuana at the expense of patients’ rights and dignity.

SB 17, which goes into effect July 1st of this year, would apply to patients with an array of medical conditions, including cancer, HIV/AIDS, Alzheimer’s, PTSD, severe nausea, wasting syndrome, severe, debilitating pain, that “has not responded to previously prescribed medication or surgical measures for more than three months or for which other treatment options produced serious side,” and seizures, or “severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

The law sensibly provides for regulated nonprofit medical marijuana production and distribution sites, one location in each of the state’s three counties. Certainly, we’ve come far enough from the passage of the 1996 Compassionate Use Act in California -- the first state medical marijuana law -- to know that the vast majority of patients need a pharmacy-like option that is safe and accessible. However, at the same time, this cannot be patients’ only option.

Until 2010, with the passage of New Jersey’s law, all 13 previous medical marijuana state laws recognized and protected patient cultivation. The people and legislators of these states realized the importance of patient cultivation, which is why they made such an option the primary focus of their laws. We must understand that not all patients have mobility or access to transportation. Not all patients want to risk frequenting a known establishment that is considered illegal under federal law. Some patients want to maintain their privacy and not be subjected to intense video surveillance commonly used at distribution facilities.

Then, there’s the federal government. While Americans for Safe Access (ASA) and other groups are mobilizing people to change federal law, the government remains hostile to large-scale production and distribution, whether it’s state licensed or not. Letters sent by U.S. Attorneys to local and state officials in at least 9 medical marijuana states underscores that hostility and intolerance. In fact, letters sent to public official in Montana, Rhode Island, and Washington have either derailed or suspended plans to implement a state distribution licensing system.

While the law allows for the possession of up to 6 ounces per patient -- more liberal than most other medical marijuana states -- there are plenty of patient-unfriendly provisions to be alarmed about. For example, the requirement of a “bona fide physician-patient relationship” rules out physicians who specialize in medical marijuana and will make it much more difficult for patients to find a doctor willing to provide them with a recommendation. Most physicians remain concerned about repercussions by the federal government, despite their protection under the First Amendment, and refuse to issue recommendations.

A further restriction came at the last minute when the Delaware Senate removed glaucoma, Crohn’s disease and early stages of hepatitis C from the list of conditions that would qualify. This was done at the behest of Delaware physicians who apparently thought that sufficient evidence of medical efficacy didn’t exist to warrant providing this option -- and protection under the law -- to possibly hundreds of patients.  Finally, just to stick it to those patients who are poor enough to live in public housing -- or for other reasons cannot consume their medical marijuana at home -- the law imposes criminal sanctions for smoking “in any public place.”

We agree with the Marijuana Policy Project when it says that Delaware’s new law is “the most…tightly-written medical marijuana bill in the country.” However, that’s not necessarily anything to brag about. We also beg to differ that it’s “the most comprehensive” state law. If you look at the law from a patient’s perspective -- something that politicians and “industry”-motivated advocates rarely do these days -- you’ll find that Delware’s law is far from comprehensive.
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