Still waiting to inhale
March 24, 2007
Alan Bock, Columnist, Orange County Register (CA)
California voters in 1996 passed Proposition 215, which exempted bona fide patients with a recommendation from a licensed physician from certain aspects of state prohibition against the possession, use or transportation of marijuana, or cannabis. More than 10 years later, however, implementation of the law is spotty and still controversial.
Several recent developments, however, have put the issue in the news: Comedian Drew Carey is stepping up as a Hollywood spokesperson; the Orange County Board of Supervisors is weighing medical marijuana ID cards, and one of the most famous cases has come to an unhappy and unfavorable, in my view, conclusion. There have been a number of promising studies and decisions, too.
Taken together, these events and others signal progress for those patients who might benefit from using marijuana. But, it's excruciatingly slow, considering the California law was passed more than 10 years ago and that one cause of the foot-dragging over implementation – that California law conflicts with federal law – has not been brought to court successfully. Public opinion still leans strongly in favor of allowing the medicinal use of marijuana, but most public officials are still more wary than seems justified.
So, the small steps continue:
•Carey, in conjunction with the Los Angeles-based Reason Foundation, is planning a series of short documentaries, to be distributed initially via the Internet, on freedom-related issues.
The first film will be centered on medical marijuana.
I spent Tuesday, March 13, at the Farmacy, a medical cannabis dispensary in West Hollywood, where Carey and his crew filmed the facility and did interviews with patients, doctors, caregivers and others (I was interviewed as author of the book, "Waiting to Inhale: The Politics of Medical Marijuana"). The final cut is expected to be available in mid-April. The Farmacy was one of 11 medical marijuana dispensaries in Los Angeles County raided in January by Drug Enforcement Administration agents.
• Orange County's Board of Supervisors is scheduled to hold hearings, probably on April 17, on setting up a system in which the health department will issue identification cards to qualified patients, as mandated by Senate Bill 420, the state law that set up a system of voluntary ID cards and directed county health departments to set up procedures to screen and approve applicants.
• The 9th U.S. Circuit Court of Appeals recently declined to give Angel Raich, whose doctors say the use of cannabis is the difference between living and dying, protection from federal prosecution for medicinal use of marijuana. She may be so prominent that the feds will not come after her, but despite prior DEA promises that it would not target patients, it has raided or prosecuted several patients.
• In February a new study at UC San Francisco demonstrating the efficacy of cannabis in treating neuropathic pain was published in the professional journal Neurology. This was the first study conducted in the U.S. in 20 years on the medical efficacy of cannabis (due to federal restrictions), but a number of studies in other countries have solidified marijuana's medical efficacy, including a study in Spain that demonstrated that cannabis stops the growth of certain kinds of cancerous tumors.
• Also in February, DEA Administrative Law Judge Mary Ellen Bittner ruled in favor of University of Massachusetts-Amherst researcher Lyle Craker, who had sought a DEA license to grow his own research-grade cannabis rather than relying on the stuff grown at the federal government's marijuana plantation in Mississippi, which has up to now been the only legal source of cannabis for research purposes.
The DEA controls the only legal source, and it has decided not to supply cannabis for any research except the aforementioned UC San Francisco study. Judge Bittner's decision could set the stage for a flurry of medical cannabis research projects, but the DEA administrator will have the final say.
• New Mexico is on the verge of becoming the 12th state to approve doctor-recommended medical marijuana. Gov. Bill Richardson, a declared candidate for the presidency as a Democrat, was instrumental in shepherding the bill through the Legislature when it hit a few snags, because, as he put it, "it was the right thing to do."ENTER DREW CAREY
People have said for a long time that Drew Carey's comedy has a libertarian tinge. Recently, with his professional success established, he decided to do more reading and find out if it was true. He decided he really does lean libertarian, so he might as well use his fame to help push the country a bit more in the direction of personal freedom.
Because Carey interviewed so many people at the Farmacy, a storefront on Santa Monica Boulevard in West Hollywood, I was able to see a number of activists I hadn't talked to in some time and get updated on many facets of the ongoing struggle to make cannabis available to patients whose doctors believe they can benefit from using it.
Although the feds raided the Farmacy in January and confiscated its cannabis, they did not seize the organization's computers, which leads Joanna LaForce, one of the proprietors, to believe they are not developing a case for prosecution. She told me that their lawyers now believe, after discussing the matter with representatives from the DEA, that federal prosecution is unlikely, although some of the 10 other dispensaries raided the same day could face prosecution.
I'd like to debunk what might be some preconceived notions about these dispensaries. The reception area at the front of the Farmacy is divided from the rest of the facility. Receptionists greet those who come in and check their membership cards. If they are approved, they may step past a security guard into the room where cannabis and other herbs – the Farmacy's proprietors are into all kinds of herbal medicine and insist that everything they dispense is strictly organic – are available. Shown in glass cookie jars are more than a dozen varieties of cannabis.
It's not cheap. Most of the cannabis buds go for $45 for an eighth of an ounce, and a few are $75 for an eighth.
As I was leaving I quizzed one of the receptionists about how they treat a new patient with a recommendation from a physician. Before they even are allowed into the center room, she said, the doctor who wrote the recommendation is called to verify that it is valid. Then they check to make sure the physician is properly licensed.PATIENT ID CARDS
SB420 is the bill passed by the Legislature that sets up a voluntary state identification card program, run by the Department of Health Services. It mandates counties and cities to develop procedures to screen patients, check the validity of the recommendations, take a photo, then send the information to Sacramento for issuance of the cards.
Unfortunately, the bill did not include a deadline for counties to comply with this mandate, and several larger counties, including San Diego and Orange, have not yet complied. Los Angeles County supervisors have approved a program but it is not expected to go into effect until June. However, 31 of California's 58 counties have approved a program, although not all of them are up and running yet, according to Aaron Smith of Safe Access Now, who is traveling the state, talking to officials, under a grant from the Marijuana Policy Project in Washington, D.C.
The Orange County board, pushed in some degree by local attorney Bill Paoli, who has some cannabis patients as clients, and led by Chairman Chris Norby, who leans libertarian much of the time, decided it was time to proceed, even though SB420 does not have a firm deadline. Los Angeles County has already acted and there are both medical cannabis patients and cannabis dispensaries in Orange County. The topic was originally on the agenda for last week, but the board decided to wait until the vacant 1st District seat is filled. The other supervisors say they are still studying the issue.
The organization that has perhaps done the most to push compliance with California's medical marijuana law is Americans for Safe Access, headquartered in Oakland. ASA lobbied to get SB420 passed, then negotiated with the state when officials wanted to raise the state's portion of the fee from $13 to $142. The fee has now been set at $66 (counties can charge an additional fee to cover their costs). ASA has worked with cities and counties and has several model laws available both for setting up the ID card system and for regulations governing dispensaries – a separate issue.
Many local officials are still reluctant about issuing ID cards, aware that marijuana is still strictly prohibited under federal law. Some officials wonder whether they could be liable for federal prosecution if they are seen as facilitating the distribution of marijuana, even though medical use is permitted by state law. Others wonder whether, as some news reports have suggested, U.S. Supreme Court decisions that have affirmed that marijuana is still prohibited at the federal level, mean that federal law overrides state law.
As to the first concern, Oregon has had a state ID card system in place for several years, and no Oregon official has been prosecuted or threatened with prosecution.
As to the second, the duty of state, county and city officials is to enforce state law, not federal law. The California constitution is quite explicit, in Article III, Section 3.5: "An administrative agency ... has no power ... to declare a statute unenforceable, or refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations."STATE, FEDERAL LAWS
When I attended oral arguments at the U.S. Supreme Court in 2001 on the Oakland Cannabis Cooperative case, Justice Ruth Bader Ginsburg asked the government's lawyer why the federal government was not asserting federal supremacy – the doctrine that federal law overrides and can invalidate state law – on this issue. The government lawyer replied that this was simply one of many instances in our federal system in which state law differs from federal law.
Neither the federal government nor anybody else challenged Prop. 215 when it was passed. Last year San Diego County filed a challenge to the state's medical marijuana law on the grounds that it conflicted with federal law. But in December a federal judge dismissed the suit on the grounds that its chances of success were minimal.
The evidence that cannabis is an effective therapeutic agent for conditions ranging from nausea to appetite loss (AIDS wasting syndrome) to multiple sclerosis to chronic pain has been affirmed many times, most recently by the 1999 federal Institute of Medicine report. California voters agreed 10 years ago that if morphine and cocaine can be used medicinally, marijuana also should be available. Every national poll shows that 70 percent to 80 percent of Americans agree.
It's high time the voters' will – and common sense – was fully implemented in California.
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