Medical marijuana users living in limbo They worry regulatory efforts tied to legalization of recreational pot will limit access, drive up costs
May 25, 2014 | Kris Hermes
Marissa Harshman, The Columbian
John first smoked marijuana to alleviate his pain in 2010. That first hit came after taking thousands of narcotic pain reliever pills prescribed over several years. It came after the methadone and oxycodone changed his personality, left him moody and depressed, and made his world foggy.
John found the relief he was looking for in marijuana.
“I don’t think people understand the benefit it has for people,” John, a 64-year-old Camas resident, said.
Since that first hit, John has weaned himself off the methadone and oxycodone. He hasn’t taken a narcotic pain reliever in more than two years. Instead, he smokes marijuana daily to manage his pain.
But recent legislative efforts to regulate the state’s medical marijuana system have John, and other patients like him, worried about the ramifications. They fear the new system will make medical marijuana difficult to access and, if subject to the same tax structure as the recreational market, considerably more expensive.
Lawmakers and state officials, however, argue that the state’s current, largely unregulated medical marijuana system puts patients at risk for federal prosecution and could interfere with the state’s ability to establish a legal market for recreational marijuana.
The medical marijuana system “originally came into existence because of compassion,” said Kari Boiter, state coordinator for Americans for Safe Access, a national medical marijuana advocacy group. “Now it’s about generating the most revenue and making sure people who are using marijuana are paying taxes.”
“Patients kind of got caught up in the shuffle,” Boiter said.
Syncing pot systems
In 1998, Washington voters approved Initiative 692 to allow qualifying patients to use marijuana for medicinal purposes. Qualifying patients are those diagnosed with a terminal or debilitating condition and who have a provider advising them that they may benefit from the medical use of marijuana.
Under the current system, patients may grow marijuana themselves or have a designated provider grow it on their behalf. They also can obtain marijuana through collective pot gardens, which consist of up to 10 patients who share the responsibilities of producing and processing the marijuana for medical use.
For years, that system, although loosely regulated, was the only regulated marijuana system in the state. But in November 2012, Washington voters approved Initiative 502 to legalize the possession and sale of small amounts of marijuana for recreational use.
In August, the U.S. Department of Justice announced it would defer its right to challenge the legalization of the law. That decision was based on the assurance Washington would impose an appropriately strict regulatory system.
In order to create such a regulatory system, state officials realized the need to reform the state’s largely unregulated medical marijuana system.
The Legislature directed staff from the state Liquor Control Board, Department of Health and Department of Revenue to work together to develop recommendations for regulating both marijuana systems. The work group was asked to specifically address age limits; authorization requirements for medical users; health care provider regulations; collective gardens; possession amounts; medical marijuana producing, processing and retail licensing; and taxation of medical marijuana.
The work group submitted recommendations to the Liquor Control Board, which then submitted final recommendations to the Legislature in December.
Points of contention
The Liquor Control Board recommendations included several things that became points of contention for medical marijuana users and advocates, including the creation of a mandatory patient and provider registry; elimination of collective gardens; combining medical and recreational marijuana for retail sales; and reducing the amount of marijuana a qualified patient can possess.
The recommendations also included less controversial pieces, such as providing health care providers with additional education and establishing better definitions for recommending marijuana to patients; and exempting qualified patients from state and local retail sales and use taxes.
The Legislature used those recommendations to draft Senate Bill 5887, which was sponsored by Sen. Ann Rivers, R-La Center. The bill, with numerous amendments, passed the Senate on March 8 but never made it to a vote on the House floor. The Legislature adjourned March 13 without implementing any regulations on the medical marijuana system.
The intense discussion, urgency to act before the session ended and concerns about federal intervention “all went out the window in the 11th hour” when lawmakers began arguing over the distribution of money to be collected through marijuana taxation, Boiter said.
At the time, Sen. Rivers called the failed efforts a blow to the medical marijuana community. She said the Legislature will resume its work on the medical marijuana system when lawmakers return to Olympia in January. She didn’t return calls requesting an interview for this story.
‘Demeaning to patients’
Patients such as John, who asked that his last name not be used for fear of prosecution, say they are worried lawmakers don’t fully understand the impacts the proposed regulations may have on medical marijuana users.
After moving to Camas about two years ago, John found a local naturopath who, after reviewing his federal disability paperwork, issued him a recommendation for marijuana. John looked online to find a medical marijuana provider. He settled on a local man who, with his roommate, operates a collective garden.
When John needs marijuana, he calls the man and places an order. The man delivers the marijuana to John’s door. In exchange, John makes a financial donation toward the cost of growing and delivering the marijuana.
While some municipalities — including Clark County and Battle Ground — have enacted bans on collective gardens, illegal operations continue in those areas. Under the proposed regulations, those collective gardens would be prohibited statewide.
Rather than discreetly receive his marijuana, John would be required to either grow his own limited supply or purchase marijuana at a retail store.
“To me, that’s demeaning to patients,” John said.
Marijuana use still carries a stigma. If people in the community see John walk into a marijuana retail store, they don’t know he’s purchasing medicine, he said.
He also worries about severely ill and bedridden medical marijuana users and wonders what will happen if they can’t get to a retail store to purchase their marijuana.
Boiter said she doesn’t believe patients’ needs can be met by the recreational retail stores.
Many medical marijuana users want strains high in cannabidiol, or CBD, which is believed to have therapeutic qualities and be lower in THC, the chemical that causes users to get high.
Those types of plants are low-yielding. People growing marijuana for profit are not going to invest in low-yielding plants. They’ll grow high-yielding plants that make more money, Boiter said.
For John, what’s more troubling than the requirement to purchase from the retail stores is the accompanying cost increase.
John smokes daily and occasionally uses topical marijuana-infused muscle pain relievers his wife makes. He uses about an ounce of marijuana each month. That costs him about $300, he said.
John and his wife live on a limited income. They both receive federal disability. If medical marijuana is subject to the excise taxes on recreational marijuana, it could make the cost too steep.
Under I-502, marijuana producers, processors and retailers each pay a 25 percent excise tax and business and occupation tax. In addition, customers will pay state and local retail sales and use taxes on the marijuana.
Lawmakers proposed a sales tax exemption for people purchasing marijuana for medicinal purposes. But the excise tax is what will drive up the cost of marijuana dramatically.
“It’s like saying we’ll give you a 10 percent break on the 75 percent markup,” Boiter said.
Based on state estimates for recreational marijuana, an ounce of marijuana will cost about $420 at a retail store. That number includes excise taxes but not sales and use taxes, from which patients would be exempt.
“To me, the controls are necessary, but is taxation necessary?” John said. “Nobody taxes medication.”
Pot gardens ‘abused’
Kristi Weeks, director of the state health department’s office of legal services, was a member of the work group that drafted the recommendations for integrating the recreational and medical marijuana systems.
Eliminating collective gardens, while controversial, was necessary to ensure the state was creating a strictly regulated system, Weeks said.
“For a truly regulated system with no diversion outside the system, that kind of growing would be a problem,” Weeks said.
The gardens were intended to be small collective grows between neighbors who would contribute resources and labor and share the spoils, Weeks said. That is not, however, how they exist today, she said.
“Instead, what it became was a large, for-profit endeavor, which it was never intended to be,” Weeks said. “They have been abused to the point that it’s untenable.”
The group also proposed reducing the amount of marijuana a patient can possess from 24 ounces to 3 ounces, or up to 8 ounces if authorized by their provider. The 24-ounce limit was established for a system without retail stores. The stores eliminate the need for such a large supply, Weeks said.
Despite patients’ lingering concerns, Senate Bill 5887 was something the medical marijuana patient community felt it could live with, Boiter said. Patients aren’t opposed to regulations on the medical system. In fact, the community has for years been advocating for licensed, regulated access points, she said.
What patients don’t want is for I-502 to become a means to regulate the medical marijuana system out of existence.
“While it’s getting really easy for a person over 21 to walk into a store and buy it,” Boiter said, “it hasn’t really gotten easier for medical patients.”