The State of Medical Marijuana in California

2019-2020 Improvements and Recommendations

The foundation of a well-functioning program is patient access. And while California law provides for medical access, the effectiveness of that law is hamstrung by local control laws maintained in the state constitution. Under the law local governments maintain sole control of zoning and land-use decisions, which two-thirds of the state’s local governments are using to maintain bans on medical retail access. The sentiment against providing legal medical access is so strong among California local governments that, in 2019, 25 cities filed suit against the state to prevent legal cannabis delivery to patients from neighboring jurisdictions with legal access systems. A full five years after state lawmakers approved a comprehensive medical package (MCRSA) designed to extend safe and legal access to the state’s large population of cannabis patients, California’s medical access system continues to fail patients. The rate of patient enrollment in the state program has declined steadily since the 2009-2010 fiscal year, when over 12,000 new patients registered with the state to just over 3,300 in FY 2019-2020. As of August 2020, there are 111,387 patients enrolled in California’s medical cannabis program.

While the state continues to receive low marks for functional access due to this phenomenon, efforts were made in 2019 to restore a version of the state’s previously existing collective/caregiver model to benefit disadvantaged patients, reduce businesses tax burdens, and permit guardian possession and administration of cannabis medicine to minors at schoolsites. The state also maintained patient access by declaring cannabis businesses as essential during the COVID pandemic, provided for curbside pickup and home delivery subject to state and local authorization during the emergency and permitted telehealth visits with physicians for patient enrollment renewals.

As state lawmakers and regulators consider improvements for 2021, ASA encourages California lawmakers to identify strategies to overcome local resistance to extending legal medical access to patients. ASA also encourages a thorough review and update to California hemp-derived CBD laws, the absence of which are currently putting patient health at risk. CBD storefronts are proliferating in cities across the state selling hemp-derived CBD products that have undergone absolutely no government-mandated testing to ensure consumer safety. As of the writing of this report, California still has yet to submit its hemp production program to USDA for authorization to operate a state-run program, which was made possible by the 2018 federal Farm Bill.

Background

In 1996, California became the first medical cannabis state when voters approved Prop 215, the Compassionate Use Act. That law allowed doctors to recommend cannabis for any serious or persistent medical condition and allows patients to legally use, possess, and grow cannabis and designate caregivers to assist them. In 2003, the California legislature passed the Medical Marijuana Program Act, establishing a voluntary ID card program, protections for transporting cannabis, and a legal framework to protect not-for-profit dispensing collectives and cooperatives. The voluntary registry issued ID cards that offered protection from arrest for patients and caregivers in possession of no more than eight ounces of cannabis or cultivating no more than six mature or 12 immature plants. Patients and designated caregivers without a state ID card, or those in possession of larger quantities, are afforded an affirmative defense. Qualified patients on probation or parole may legally use medical cannabis with the consent of their probation or parole officer.

In 2015, the state passed the Medical Cannabis Regulation and Safety Act (MCRSA), a trio of bills that created a state-regulated medical cannabis production and sale system, and protected medical cannabis patients in need of an organ transplant. Voters approved the Adult Use of Marijuana Act (Proposition 64) in 2016, which expanded rights for patients by adding parental rights protections, enhancing patient privacy rules, prohibiting cities from banning personal cultivation, and exempting card-holding patients from sales tax.

In July of 2017, Governor Brown signed the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), legislation combining 2015’s MCRSA with 2016’s voter-approved AUMA ballot initiative (Prop 64). In November of 2017, California published emergency rules and regulations that implemented the combined measure. These emergency regulations also impacted the state’s medical program, particularly in regards to how businesses are licensed, purchasing limits for patients, and much-needed regulations for the manufacturing of cannabis products.

Despite the legacy of cannabis policy reform in California, local control responsibility provided for in the state’s constitution remains the primary tool being utilized by two-thirds of California local governments to deny safe, legal patient access to medical cannabis. A lack of leadership and coordination among state and local lawmakers, the Governor’s office, and medical cannabis reform organizations to overcome this issue also remains a key obstacle to addressing the state’s legal access challenges.

California’s 2018-2019 legislative session saw the state pass legislation designed to alleviate tax burdens on commercial cannabis businesses and introduce a statewide social equity program. AB 1863 allowed for the deduction of business expenses for a cannabis trade or business under the state’s personal income tax law, and SB 1294 created a voluntary statewide social equity program that offers technical assistance and grant funding to local governments interested in organizing programs designed to benefit minority-owned/operated cannabis businesses. To date, only a handful of California local governments have developed social equity programs including San Francisco and Los Angeles, and none of the programs have been successful in extending the intended benefit advertised during program enactment.

Patient Feedback

Surveyed patients continue to report concern over the inconsistent quality of medicine, limited supply of popular strains, and the high costs of medical cannabis, especially after taxes. This is causing many to turn to the illegal market for medicine. Surveyed patients in urban and suburban areas appreciate that there are more dispensaries with a large variety of products available to them in the state and that delivery services are also available. However, surveyed patients in rural areas report that there are still not enough dispensaries and delivery services in their areas. In addition, some feel that the compassionate programs in California are too restrictive. Other surveyed patients wish their doctors were more knowledgeable about medical cannabis and could prescribe specific products rather than offer general recommendations. They also complain that there are no protections from employers demanding drug tests of patients, even though they have medical cards. Surveyed patients would like to see pre-ordering, delivery, and curbside pickup services maintained in the future.