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Jacob Sullum, Reason.com
It looks increasingly likely that Washington's legislature will approve new restrictions on medical marijuana by the end of its current session a week from Thursday. The two leading bills both involve mandatory registration of patients, sharp reductions in the limits on possession and home cultivation, and elimination of "collective gardens," including hundreds of dispensaries operating under that label. The general thrust of the bills is to ban the untaxed, unregulated outlets that otherwise would compete with state-licensed pot shops, which are supposed to become the main source of medical marijuana.
Patients have several concerns about that plan:
Will the stores be ready in time? The Washington State Liquor Control Board (LCB), which is expected to issue its first marijuana cultivation licenses this week, says marijuana retailers should be open by June. But the Washington State Economic and Revenue Forecast Council, an independent agency charged with projecting tax revenue, notes that local bans and moratoriums, which Washington Attorney General Bob Ferguson says are not pre-empted by state law, make hitting the LCB's target pretty iffy. "Although LCB has indicated that it expects retail sales to start in June 2014," says a February 19 report from the council, "local moratoria on cannabis businesses and other production uncertainties have the potential to impact the timing and amount of cannabis produced and sold. As a result, we have assumed retail sales will start in June 2015."
That's a month after dispensaries would be abolished by H.B. 2149, the bill approved by the state House of Representatives in February. S.B. 5887, introduced by state Sen. Ann Rivers (R-La Center), would repeal the provision allowing collective gardens as of July 15. But assuming that Washington's pot stores experience shortages like those seen in Colorado, it is not clear that an adequate supply will be available to patients even by the middle of next year, or that they will be able to find a retailer within a reasonable distance. If a patient happens to live in, say, Yakima, which has banned marijuana retailers, where will he go to buy his medicine? Kari Boiter, a lobbyist who works with Americans for Safe Access, warns that "the proposed repeal dates are likely to leave patients without access."
Will the stores cater to patients? The cannabis strains that best meet patients' needs may not appeal to recreational consumers. They may be low in psychoactive THC, for example, but high in cannabidiol (CBD), which shows promise as a treatment for a wide range of disorders, including epilepsy and multiple sclerosis. "It's not the same marijuana," says Douglas Hiatt, a Seattle criminal defense attorney and longtime marijuana activist who opposed I-502, Washington's legalization initiative, largely because he worried that it would hurt patients. H.B. 2149 and S.B. 5887 both would offer "medical marijuana endorsements" to pot stores that choose to serve patients, either exclusively or in addition to recreational users. The endorsements would allow registered patients to benefit from a higher purchase limit (three ounces rather than one) and an exemption from the standard sales tax. But patients worry that they will still be treated as an afterthought and may have trouble obtaining the specific varieties that are tailored to their symptoms. Boiter says legislators should put "health before happy hour."
Are the ceilings on home cultivation high enough? Currently patients are allowed to grow up to 15 plants. H.B. 2149 and S.B. 5887 both would reduce the limit to six plants, although the latter bill would allow as many as 15 plants if a health professional certified the larger number was medically appropriate. The possession limit would be cut from 24 ounces to three under H.B. 2149 and to eight (with a health professional's recommendation to that effect) under S.B. 5887. Even the lower limits may sound generous for a single person, but patients tend to consume a lot more cannabis than recreational users do, especially if they make concentrates to be taken orally. Depending on where the nearest state-licensed store is located, the prices it charges, and the selection it offers, some patients may end up growing most or all of their own medicine, in which case the six-plant limit may prove too low.
What about collective gardens? Legislators want to repeal the provision allowing collective gardens mainly because dispensaries have seized on it as a legal rationale, counting each customer as a temporary "member." But the provision originally was intended as an alternative for patients who were not up to growing cannabis on their own and could not find "designated providers" to do it for them. Given the uncertainties surrounding the newly legal pot stores, some patients think they should still have the option of pooling their resources to produce medical marijuana for their own use. "For [cultivation rights] to be meaningful," Hiatt argues, "you've got to allow people to grow together."
What will registration mean? H.B. 2149 and S.B. 5887 both require that patients register with the state if they want to grow their own marijuana, enjoy higher purchase and possession limits, and escape part of the taxes imposed on cannabis sales. Currently there is no registry, but patients with medical recommendations have an affirmative defense against marijuana charges, a right that both bills would eliminate. Some patients are not keen to be officially identified in a central database as marijuana consumers, a fact that can have social, professional, and legal implications. Even if the Justice Department refrains from prosecuting patients for possession or home cultivation, for example, the Gun Control Act of 1968 strips all marijuana consumers of their Second Amendment rights. Under H.B. 2149, information from the patient registry can be disclosed to various people, including "law enforcement and prosecutorial officials engaged in a specific investigation involving a designated person."
Supporters of the new restrictions argue that it makes little sense to have a parallel distribution system for patients once state-licensed marijuana stores are up and running. They also note that Jenny Durkan, the U.S. attorney for the Western District of Washington, has called the current system "not tenable" given the Justice Department's demand for a strictly regulated market in which diversion to minors and other states is minimized. But Hiatt complains that legislators are so eager to maximize tax revenue and discourage federal intervention that they are willing to compromise the interests of patients. "They're saying, 'We'll throw medical marijuana under the bus if you'll let us get away with 502,'" he says. "People in the community here are furious. They feel like they've been betrayed."