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Every year, Americans for Safe Access spends months comparing every medical cannabis program in the United States with the purpose of analyzing what each program is doing well, where it is failing, and how the state program can improve to best serve the needs of patients. In 2020, this meant assessing the medical cannabis programs of 47 states, the District of Columbia, and four territories. The nearly 200-page report provides a detailed analysis of the state of medical cannabis programs around the country. Access to medical cannabis has come a long way since California passed Proposition 215 in 1996. However, this report shows us that while medical cannabis programs grow throughout the country, states are still failing to provide programs that fulfill the needs of all patients.
1. The impact of COVID on medical cannabis was immense, but it wasn’t all bad news.
The ongoing coronavirus pandemic that began affecting the U.S. in early 2020 disrupted the lives of millions of Americans in countless ways, including access to cannabis. Many state legislatures gave up efforts to improve, expand, or put into place an effective medical cannabis program as a result of COVID, a theme that constantly recurs throughout the report. However, other states rose up to the challenge and created temporary regulations that actually improved access. This is why this year, we decided to base our “improvement bonus” (worth 20 points) on how the state or jurisdiction reacted to the COVID crisis.
On March 16, 2020, ASA sent out a letter to governors and directors of medical cannabis programs with recommendations on how to ensure that patients continue to have safe access to medical cannabis. Of the 55 states and territories we examined for this report, 20 of those states had no response to protect patients amidst the COVID-19 pandemic. Of the 14 states with low-THC or CBD-only programs, only Texas managed to earn points by declaring CBD providers essential and allowing for delivery to patients.
However, it wasn’t all bad news, many states put in place some of the temporary regulations we recommended that further protected patients while also guaranteeing no disruption to access to their medicine. These included classifying cannabis businesses as essential, and creating temporary regulations for delivery, telehealth, and curbside pick up. Five states - Maine, Massachusetts, Michigan, New York, and Rhode Island - all received the maximum score in this bonus category for introducing or maintaining pre-existing policies that preserved or improved functional patient access during the pandemic.
2. COVID highlighted needs for patients that existed before COVID.
The difficulties COVID presented to maintain safe access for patients highlighted the many needs for patients that were needed even before the COVID pandemic hit the country. Curbside pickup, delivery, and telehealth were temporary regulations many states put in place to ensure continued access to medicine. However, these were all regulations that patients could have used even before COVID to access their medicine.
Telehealth brought new and renewing patients access to medical cannabis like never before; many patients for the first time were able to talk to a health professional about their medical needs and secure medical cannabis cards without leaving the confines of their home. Curbside pickup was also a very important regulation during COVID to help keep patients safe while accessing their medicine. However, while curbside pickup is a viable option for many, patients who are immune-compromised, lack mobility, are sick and quarantining responsibly, or who may be confined to their residences for any other reason, all have no access without delivery. Meanwhile, delivery has become a normal part of life for meals, groceries, and even alcohol.
Delivery was a major component where state programs like Illinois or Washington, which have traditionally received high grades in this report, fell short. Both states scored 0’s in the category, demonstrating no pre-existing delivery policies in place prior to COVID, or inclusion of delivery as a program enhancement to keep patients safe. Failure to include delivery as an option for patients and caregivers during COVID further illustrates that even more advanced medical cannabis programs may still have a long way to go to provide safe and legal access in a manner that is functional for patients.
3. Many states move quickly to adult-use legalization, without addressing core medical program challenges that are leaving patients behind.
As this report illustrates there are 47 states who have organized medical cannabis models to assist patients who require safe and legal access to treat their health conditions. These programs range from limited, CBD-only systems with extremely limited participation and access to comprehensive systems that offer ease of access and cost sensitivity through delivery, tax-exemptions and home cultivation.
Eleven of the 47 states with medical systems have also developed adult-use programs. A key finding of this year’s report is the wide array of outstanding patient issues remaining to be addressed as states pivot their focus to adult-use. Colorado, the District of Columbia, and Illinois are each adult-use programs that saw score reductions in this year’s report.
Of the 11 states and the District of Columbia who have developed medical and adult-use systems, nine have outstanding work related to extending adequate patient legal protections. These issues range from protecting patients from punitive employer actions for legal medical cannabis possession and use, to ensuring that legal patient use of medical cannabis does not result in enforcement against patients regarding driving or child custody. Six of these states are still struggling to supply sufficient patient access, either due to local control laws that are being used to ban legal medical retail facilities from serving patients or arbitrary state medical retail licensing caps. And seven of these states still must resolve challenges related to medical product safety, testing, labeling and supply shortages. These are critical issues that must be resolved as states consider developing adult-use programs.
Often, medical programs are the first kinds of cannabis reforms to be developed in states, and therefore are subject to much more restrictive policy appetites from lawmakers. The proper organization and function of these systems is predicated on robust and ongoing dialogue between lawmakers, patients, physicians and the medical cannabis industry. This critical coordination must be maintained to keep patients a priority.
4. The majority of patients feel they are paying too much for their medicine.
One consistent issue raised by patients in our feedback survey is limited medical product availability and high product costs. It’s easy to scapegoat retailers at the end of the supply chain, however a variety of factors can contribute to high prices. A common policy gap is insufficient or absent regulations incentivizing or requiring cultivators and manufacturers to design and produce specific medical cannabis products. States may also lack regulations requiring retailers to carry such products.
The most prevalent issue facing patients are regulatory models that force vertical integration of cannabis businesses, which limit legal participation of all potential cannabis business operators. These policy frameworks can produce a limited population of large, well-financed cannabis businesses that impose oligopoly practices on the supply of cannabis products and a limited number of retailers. Patients are often the victims of these policy regimes, and are forced to face high product costs, limited product availability and retail access.
5. CBD-only or Low-THC programs are woefully insufficient for patients.
Currently, 14 states have CBD oil or low THC oil exclusive programs. While this is certainly preferable to no recognition or protection for cannabis use at all, these systems are failing to meet the needs of medical cannabis patients. Reflecting on this fact, every state with this kind of program has received an F in this year’s report.
The hallmark of these programs is their varying degrees of difficulty to obtain a certification to possess CBD. Of these 14 states, only Georgia, Iowa, and Texas keep an active patient registry. Qualifying conditions in these narrow systems are much more restrictive than in full medical cannabis states. The process for acquiring a certification is often arbitrary, and with the lack of an organized registry, permission to possess cannabis oil comes down to a physician's note. Tennessee is an example where a combination of restrictive qualifying conditions and narrow legal protections leaves patients vulnerable, as the state only permits cannabis use for intractable seizures.
This rigid regulatory system is especially absurd in the wake of the 2018 Farm Bill which has legalized hemp-derived CBD with less than 0.3 percent THC at the federal level. It leaves patients in these 14 states wondering why they have to ask for permission or fear retaliation from the state for something that the FDA has approved for use.
As always, the main takeaway from our report is that no matter how great a state's medical cannabis program is, no state program has yet to provide adequate access and protections to all patients in need. Unfortunately, and for a variety of reasons, many states with medical cannabis programs have failed to licence an adequate number of dispensary locations to serve their patient population. In some cases, the scarce population of licensed retailers is tied to specific regulations calling for a designated number of retail facilities. Delaware provides an example of this, where the law calls for only six dispensaries to be operated by three companies.
Another common policy challenge are pre existing or new state laws that permit local governments to prohibit legal medical retail facilities. California and Massachusetts offer two examples where local control laws are being used to ban patients from legal medical cannabis access in a majority of local communities. While it is appropriate for local governments to make decisions about the configuration of their communities, it is completely inappropriate and discriminatory to use these powers to deny patients access to medicine that they need to treat their health conditions.
When looking at state data in the aggregate, it is clear that nationwide medical cannabis programs need to be stronger. Programs ranged from 0% (South Dakota) to 90.29% (Oregon), however, when the 52 existing programs were averaged, medical cannabis access in the United States only received 64.1%, or a “D” on ASA’s grading scale. This shows the challenging nature of having a patchwork approach to state laws.
While states continue to reform their cannabis laws one critical piece of the puzzle is missing: enactment of similar federal reforms. Over the last few years support for changes to federal cannabis laws has grown exponentially, with dozens of lawmakers introducing solutions to resolve the federal-state conflict of cannabis laws. However, while many of these bills focus on important topics like criminal justice reform and descheduling cannabis, few envision any regulatory or oversight role for the federal government. As federal lawmakers grapple with various cannabis proposals, it is critical that state governments ask for federal oversight that is comprehensive, and provides for safe and legal cannabis access, without overly burdening existing state policy frameworks.
For further insight on what a Federal regulatory framework might look like, please visit ASA’s report: Ending the Federal Conflict: Changing The Paradigm on Medical Cannabis at www.safeaccessnow.org/model_federal_legislation.
Read the full report at: www.safeaccessnow.org/sos
Don’t Forget to Vote!
With the 2020 presidential election upon us, the future of medical cannabis legalization depends on you and your vote! At the state level and at the federal level, it is imperative to vote for legislators that are in favor of moving cannabis policies forward. The upcoming 117th congress will have our best opportunity yet to enact federal medical cannabis laws. Your votes can help keep existing allies in office and bring new advocates in but to pass those laws we will not only need champions in the House and the Senate but also support in the White House. With the 2020 presidential election upon us, the future of medical cannabis legalization depends on you and your vote!
Go to www.SafeAccessNow.org/Vote to check your registration status, register to vote, or find out how to vote by mail or online in your state. Make your voices heard and cast your vote this election season, because every vote is a medical cannabis vote!