Washington's Medical Marijuana Mess - Part Two

Posted by 21pc on March 22, 2015

WA_logo.pngIn part one of our in depth two-part series, we provided a synopsis of Legislative action to date. Now, we delve a bit deeper with a point-by-point analysis of the latest version of 5052, passed via a striking amendment in the House. While some improvements have been made, patients still stand to lose access to their supply of safe, affordable medicine.

The overly-complex nature of 5052 is one of many reasons the proposal is running into strong resistance. It’s indisputably difficult to comprehend, even for lawmakers and policy enthusiasts. ASA has long been committed to demystifying the political process and empowering advocates with the tools they need be effective. With that in mind, here is a birds-eye-view of the Cody-Schmick striker, focusing on how it alters the bill passed by the Senate. 

Significant Improvements
For the first time since 5052’s introduction, some underlying patient concerns were addressed.

  • Affirmative Defense – Preserving the legal rights enshrined in law by Washington voters in 1998 is one of ASA’s top legislative priorities. Prior versions of SB 5052 repealed RCW 69.51A.043, which provides patients with an affirmative defense under the law, regardless of their willingness to put private health information at risk in a patient registry. It’s encouraging to see this touchstone issue being addressed, although technical changes are still required to ensure patients remain protected.
  • Post-Traumatic Stress Disorder – In the 17-year history of Washington’s medical marijuana law, the state’s Medical Quality Assurance Commission (MQAC) has granted only one petitioner’s request for relief. This leaves it up to the legislature to decide if a specific medical condition should qualify under the law. According to a growing body of research, cannabis therapy is proving beneficial in the treatment of PTSD. Yet, Washington remains one of 12 states where medical cannabis is legal, but PTSD is not an approved condition. The Cody-Schmick striker addresses the current disconnect, ensuring that military veterans and others with PTSD no longer have to suffer in silence. 
  • Homemade Infusions and Extracts – In an effort to crackdown on extractions made with flammable solvents, legislators have considered options ranging from outlawing the products altogether to requiring proof items were purchased from licensed outlets. The striker passed by the House Health Care and Wellness committee amends the law to allow patients to legally make butter, cooking oil, baked goods and other infused-products at home, so long as combustible products are not used

Areas That Need Fine Tuning
Several well-intended changes were also made to 5052, which need to be dialed in a bit more.

  • Authorization Forms – “Valid documentation” would be replaced with a standardized “authorization” form developed by the Department of Health (DOH). This form could be utilized by patients who wish to retain affirmative defense protection without registering with DOH. Unfortunately, health care professionals would be required to list types of products and amounts needed, which violates the dictates of the federal court decision in Conant v. Walters. Patient addresses would also be listed on the form, which together with an authorized number of plants, could make people easy targets for crime.
  • Authorization Cards – To obtain arrest protection, cultivate or possess increased quantities and/or receive a tax exemption for purchases of medical grade products, patients and designated providers would need an authorization card. Recreational stores with a medical marijuana endorsement are solely authorized to issue the cards. This presents an undue hardship for patients in nearly half the state, where commercial marijuana enterprises are presently outlawed. It’s also unclear the number of endorsements to be issued by the Liquor Control Board (LCB) and how these outlets will be distributed throughout the state.
  • Contingency Clause – Currently, implementation of 5052 is tied to the success or failure of House Bill 2136, which contains numerous “fixes” to the recreational licensing system. The fate of HB 2136 remains unclear, as it did not make the designated cutoff dates, but is likely to be declared "Necessary To Implement Budget" (NTIB). In its current form, outstanding concerns remain about local bans. Additionally, 2136 would exempt medical products from sales and use taxes, but a 30% excise tax would still apply. There is no other medicine in the United States taxed at such a high rate. 
  • Merit-Based Application – This concept is primarily the work of labor organizers with United Food and Commercial Workers (UFCW). It is intended to ensure that collective garden operators who meet basic standards are given the opportunity to move forward. Under the striker, medical cannabis businesses must meet four main criteria:
    • Operating on or before November 5, 2012
    • Having applied to the LCB for a marijuana retail license prior to July 1, 2014*
    • Having all applicable state and municipal business licenses
    • Have a history of paying all applicable taxes and fees**
      *Provision #2 should be eliminated entirely. Many outstanding medical marijuana providers did not apply because the law itself and/or the LCB’s rules precluded them from providing quality medical care.
      **Provision #4 is questionable due to federal concerns about IRS 280e, as well as ongoing legal disputes about the applicability of sales tax.

Persistent Concerns
Multiple overarching issues have yet to be addressed to ensure appropriate patient care.

  • Requirements for Recommending Clinicians – Concerns here are so numerous that an additional blog is required to fully express them all. However, in a formal letter to policymakers, Dr. Greg Carter outlines a perspective shared by many health care professionals. Sweeping amendments to the authorization process are required to restore the doctor-patient relationship.
  • 60-day Supply – In this case, the striker shifts 5052 from bad to worse. Currently, patients may legally cultivate 15 plants and possess up to 24 ounces of useable cannabis. Under 5052, the standard amount for patients who choose not to register would be greatly reduced to 4 plants and 6 ounces, the equivalent of a two-week supply. No other medication in the U.S. is so tightly controlled. In a state where the majority of voters favor legalizing marijuana, patients should not need to sacrifice existing rights. Also of note, the current definition for 60-day supply was established in 2008, in consideration of substantial stakeholder input. Among the data presented was a peer-reviewed paper on guidelines for dosing medical cannabis.
  • Patient Cooperatives – For consumer safety and legal purposes, it’s important for medical marijuana laws to distinguish between commercial, for-profit businesses and private, patient-to-patient cooperatives. Businesses sell marijuana, advertise their services and typically rotate patients continually. Cooperatives ensure that patients who need large volumes, have limited incomes or live in remote regions are able to pool independent resources to reduce workload and overhead costs, in order to maintain a steady supply of medicine. As currently written, boundaries placed on patient cooperatives are costly and overly restrictive. While a new retail buffer zone would be reduced from 15 miles to one mile, other remaining restrictions are cumbersome and unnecessary, including seed to sale tracking and registration with the LCB, among other things. Instead, the Legislature should look to Spokane and Shoreline, where ordinances have been adopted that allow both licensed businesses and unlicensed patient cooperatives.
  • Dedicated Licensing Pathway – According to recent estimates from the state's Office of Financial Management, there are 1,100 medical marijuana dispensaries in Washington state. It's unclear if this number accounts for medical producers and processors or is limited to distribution only, but if each outlet averages 6 employees, between 5,000 and 6,000 local jobs could be lost if 5052 becomes law. Effective July of next year, every collective garden in Washington would be shut down entirely. Patients would instead be forced to rely on producers, processors and retailers licensed by the LCB under Initiative 502. This presents a slew of problems too abundant to detail, but primarily, it would effectively eliminate access to all products made by manufacturers who did not obtain a license from the LCB prior to July 1, 2014. The same goes for trusted medical dispensaries. In order for a single system to adequately serve two divergent populations, a designated track should be made available to experienced providers who meet specified benchmarks, enabling them to make a smooth and swift transition. Importantly, rules for licensed medical providers must be designed to increase quality and decrease price. As currently written, 5052 accomplishes none of these goals.

What's Next?
As you can see, 5052 is extremely complex, from start to finish. While steps are finally being taken to address key priorities for patients, the bill is presumably too far down the tracks to change course now. Now that 5052 has been sent to the Rules Committee for review, bypassing the chance for a final public hearing, the next stop will likely be a vote on the House Floor.

ASA continues to garner support from bipartisan champions for critical amendments, including a new striker compiled with stakeholder input that utilizes the basic framework in House Bill 2058, which simply implements the vetoed provisions of a bill first passed by the Legislature in 2011. Many members of the House have pledged to vote “No” on 5052 unless all of the chief concerns outlined above are addressed. If we keep up the pressure, a better solution is bound to emerge.

How You Can Help!

  1. Sign ASA’s Petition to the Washington State Legislature
    Kill two birds with one stone by joining hundreds of others who signed on our petition to explain the fundamental flaws of SB 5052 and why HB 2058 is a more practical solution. Once you’ve added your name to the growing list, consider maximizing your reach by forwarding the link to five friends or family members.
  2. Ask Your Health Care Provider to Sign On to Dr. Greg Carter’s Letter
    Make sure Legislators know that Dr. Carter is not alone! Visit your health care provider or neighborhood clinic and ask them to stand up for their patients by signing on to the letter from a highly-respected Spokane physician. Be sure to let them know the ability to legally recommend cannabis is in grave danger. 
  3. Send a Comment to the Bill Sponsor and Other Legislators
    When you visit the link above, you'll see a box near the top, highlighted in green, which says “Comment on this bill.” Clicking on this will take you to a standardized form that you can fill out, which will be routed directly to your lawmakers. Comments are limited to 1,000 characters, so you’ll need to keep your message short and to the point. Try this basic, fill-in-the-blank formula:
    I use cannabis to treat (insert medical condition here). I am concerned that 5052 will interfere with my ability to maintain a steady supply of safe, affordable medicine. Initiative 502 was not designed to meet my unique needs. I am worried about the lack of knowledge and experience, as well as product safety and diversity in recreational shops. I am also concerned that patients like me will be taxed out of the regulated marketplace. (Insert one sentence summary of your thoughts on a patient registry). In a state where an overwhelming majority voted to make marijuana legal for any purpose, regardless of medical need, patients shouldn't need to sacrifice existing legal protections. Please vote NO on 5052 when it comes to the Floor and help make sure I continue to have the high-quality medicine I need, at prices I can afford, from knowledgeable providers I can trust. Patients should not have to suffer to "level the playing field" for business owners and investors. Thank you!
  4. Call Senator and Representatives From Your Home District
    When you click on the link above, you will arrive at a screen where you can enter your address and find out who your elected representatives are. From there, click on their individual names to find a phone number for an Olympia office. You will likely reach a Legislative Assistant or Session Aide. Remember: Be friendly and polite! These are the messengers who will take your concerns directly to the top. If you’re a bit nervous, just duplicate the message from point three word for word.
  5. Email Senators and Representatives to Thank Them for Voting No on 5052
    Again, feel free to use the sample text above to craft a “Thank You” for each Senator and Representative who voted against 5052. Don’t be afraid to ask them to vote the same way when the bill comes before them again!
    Here's a list of supporter names and email addresses: