15 Years After Prop. 215, California's A.G. Wonders Where Patients Are Supposed to Get Their Marijuana

December 21, 2011

Jacob Sullum, Reason Online

Yesterday California Attorney General Kamala Harris urged state legislators to clarify the rules for growing and distributing medical marijuana. In a letter (PDF) to the leaders of the state Assembly and Senate, she notes that California law exempts patients and their primary caregivers from criminal penalties when they "associate...collectively or cooperatively to cultivate marijuana for medical purposes. " While "strict constructionists" argue that "any interpretation under which group members are not physically involved in cultivation is too broad," she says, others read this provision "expansively" to allow "large-scale cultivation and transportation of marijuana, memberships in multiple collectives, and the sale of marijuana through dispensaries." Harris says she planned to revise the medical marijuana guidelines (PDF) that her predecessor, Jerry Brown (now the governor), issued in 2008 but concluded that new legislation was necessary to clarify the law. "Without a substantive change to exiting law," she writes, "these irreconcilable interpretations of the law, and the resulting uncertainty for law enforcement and seriously ill patients, will persist."

Harris says the legislature also should address the issue of medical marijuana profits. "Nothing in Proposition 215 or the Medical Marijuana Program Act authorizes any individual or group to cultivate or distribute marijuana for profit," she writes. "Thus, distribution and sales for profit of marijuana—medical or otherwise—are criminal under California law." Brown took a similar position, but I don't see how this follows. Current law may or may not authorize dispensaries, but either way it says nothing about the relationship between a dispensary's revenue and its expenses. In any case, a "nonprofit" dispensary that pays salaries to its operators is hard to distinguish from a for-profit store, as Harris implicitly concedes:

It would be helpful if the Legislature could clarify what it means for a collective or cooperative to operate as a "nonprofit." The issues here are defining the term "profit" and determining what costs are reasonable for a collective or cooperative to incur. This is linked to the issue of what compensation paid by a collective or cooperative to members who perform work for the enterprise is reasonable.

A.P. reports that Harris also sent a letter to California's U.S. attorneys, who recently launched a conspicuous crackdown on dispensaries, informing them of her support for new legislation. "The federal government is ill-equipped to be the sole arbiter of whether an individual or group is acting within the bounds of California's medical marijuana laws when cultivating marijuana for medical purposes," she wrote. Harris has previously criticized the federal crackdown, saying "an overly broad federal enforcement campaign will make it more difficult for legitimate patients to access physician-recommended medicine." Reflecting the Obama administration's inconsistent, shifting, self-contradictory, and deliberately ambiguous policy in this area, the version of Harris' letter to legislators that she posted on her website includes this sentence: "The California-based United States Attorneys have stated (parphrase Cole memo re: hands off approach to those clearly complying with relevant state medical marijuana laws)." Someone in Harris' office clearly was supposed to summarize the Justice Department's position on medical marijuana, but I guess that proved to be too big a challenge. I sympathize.

Meanwhile, Americans for Safe Access and other medical marijuana supporters are backing a ballot initiative that aims to do what Harris says she wants: specify where the marijuana that patients are allowed to use is supposed to come from. A.P. reports that the initiative, which was submitted to California's secretary of state last week for approval prior to signature collection, "would create an appointed Board of Medical Marijuana Enforcement charged with overseeing businesses and nonprofits that grow, distribute, sell and test pot both in its raw state and in finished products like food items." A.P. says "the envisioned regulatory scheme would be financed through application and registration fees, as well as through a 2.5 percent retail sales tax on marijuana and pot-infused products."

Depending on the details, this approach might conflict with an October 4 state appeals court ruling that said Long Beach's dispensary licensing system conflicted with the federal Controlled Substances Act (CSA) because it went "beyond decriminalization into authorization." In her letter to legislators, Harris says that decision could still be overturned by the California Supreme Court, but "for now it is binding law" and "may limit the ways in which the State can regulate dispensaries and related activities." Specifically, the decision suggests that the CSA bars state or local governments from issuing dispensary permits, requiring license or registration fees, or mandating testing of marijuana.

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