HILO, Hawaii – The state’s Medical Marijuana Dispensary System Task Force will hold a public hearing in Hilo on Wednesday.
The Public Policy Center of the University of Hawai‘i at Manoa is convening the meeting in order to help develop recommendations for the establishment of a regulated statewide dispensary system for medical marijuana. The hearing will be held on Wednesday (Sept. 10) at the Aupuni Center 101 Pauahi Street beginning at 5:00pm.
The hearing follows the release of an updated report (“Is the Grass Always Greener? An Updated Look at Other State Medical Marijuana Programs”) on the policies and procedures for access and distribution of medical marijuana in Hawaii. The report was produced by the Hawaii Legislative Reference Bureau and serves as an update to the findings released in August 2009.
Big Island Video News has included the executive summary of the report at the bottom of this article.
From the State House of Representatives:
This year the Legislature passed HCR48, establishing under the University of Hawaii at Manoa’s Public Policy Center, the Medical Marijuana Dispensary Task Force to develop recommendations to establish a regulated statewide dispensary system for medical marijuana.
The updated LRB report highlights glaring uncertainties within Hawaii’s medical marijuana program in regards to the access and transportation of medical marijuana. The program currently only allows qualifying patients to use medical marijuana, but does not provide them with any method to obtain it other than for them to grow a limited amount on their own. However, the sale of marijuana—including seeds for cultivation—remains illegal under state law. As a result qualifying patients who suffer from cancer or other debilitating diseases are unable to legally acquire medical marijuana to find relief and improve the quality of their lives.
Additionally, it is uncertain whether or to what extent a qualifying patient or caregiver may transport medical marijuana anywhere outside the home on the same island, or island to island, without violating state drug enforcement laws.
“It has been over a decade since Hawaii took the historic step of legalizing medical marijuana to better the lives our residents. But as we have learned throughout the years and once again validated by the report, issues still exist with the program that need to be addressed,” said House Health Chair Della Au Belatti. “The task force is working towards improving our medical cannabis system with the goal of facilitating access for patients through a legal dispensary system or other means.”
The Dispensary System Task Force will submit a report of its findings and recommendations, including proposed legislation to the 2015 Legislature.State House of Representatives media release
The Alternative Pain Management Club Hawaii has been encouraging medical marijuana users to submit their testimony. We interviewed some members of the club earlier this year during the state legislative session:
The Dispensary Task Force will be briefed by the Legislative Reference Bureau on its 2014 report on Tuesday on Oahu.
Here is the executive summary from the report entitled “Is the Grass Always Greener? An Updated Look at Other State Medical Marijuana Programs”
History of Hawaii’s Medical Marijuana Program
Hawaii was the first state to establish a medical marijuana program by legislation rather than by ballot initiative. Authorized by Act 228, Session Laws of Hawaii 2000. Hawaii’s medical marijuana program became effective on June 14, 2000, and is codified as part IX, chapter 329, Hawaii Revised Statutes (HRS). The Department of Public Safety adopted administrative rules to implement the provisions of Act 228 on December 28, 2000.
Current Operating Structure of the Hawaii Medical Marijuana Program
Currently administered by the Department of Public Safety, the Hawaii medical marijuana program affords certain protections to qualifying patients, primary caregivers, and treating physicians by providing that the medical use of marijuana is an affirmative defense to any prosecution involving marijuana, so long as the qualifying patient or primary caregiver has strictly complied with the requirements of the program. Hawaii law also provides that no physician shall be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for providing written certification for the medical use of marijuana for a qualifying patient so long as the physician strictly complies with the requirements of the program. The cumulative effect of these protections is the decriminalization of medical use of marijuana by qualifying patients.
Under the Hawaii medical marijuana program, the medical use of marijuana by a qualifying patient is permitted only so long as the amount of marijuana possessed does not exceed “an adequate supply,” which Hawaii state law presently defines as not more than three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant, jointly possessed between a qualifying patient and a primary caregiver.
In order to qualify as a patient under the program, a person must have written certification from a physician, affirming that the person has been diagnosed with a debilitating medical condition and that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient.
Qualifying patients and their primary caregivers are required to provide registration information for a confidential patient registry administered by the Department of Public Safety in order to participate in the medical marijuana program. Upon verification of registration information, the Department of Public Safety issues registry identification certificates. Failure to obtain a registry identification certificate would disqualify a patient or caregiver from participating in the medical marijuana program and could render the person subject to criminal prosecution.
Issues that Remain Uncertain Under Hawaii’s Medical Marijuana Program
Access to Medical Marijuana
Although the Hawaii medical marijuana program permits qualifying patients to use medical marijuana, it does not provide patients with a method of obtaining marijuana other than by allowing the patient or caregiver to grow a limited amount of marijuana. Under federal law, pharmacies are only permitted to dispense medications that have been prescribed. However, since marijuana is classified under federal law as a Schedule I controlled substance, physicians are not allowed to write prescriptions for its use. Under Hawaii law, a physician does not prescribe marijuana for medical purposes, but merely issues a written certification to a qualifying patient. The law is silent regarding how the qualifying patient is to obtain the marijuana.
Furthermore, while the State’s medical marijuana program permits a qualifying patient and primary caregiver to grow marijuana plants for the patient’s medical use, the program does not supply marijuana seeds or plants, nor provide a source or means of obtaining them. Nor does the program offer guidance on the cultivation of marijuana. Moreover, the sale of marijuana in any amount is strictly prohibited under state law. As a result, there is no place within the State where a person, even a qualifying patient with a valid registry identification certificate, can legally purchase marijuana.
Transportation of Medical Marijuana in Hawaii
Federal law does not allow for the interstate transportation of medical marijuana, or transportation of medical marijuana through federal security checkpoints. However, as an island state, Hawaii must contend with a layer of potential federal intervention that other states may not otherwise have to contend with when implementing an efficient medical marijuana dispensing program. The vast majority of passengers who travel between Hawaii and other states, or from one of Hawaii’s islands to another, do so primarily via commercial passenger aircraft and traverse federal Transportation Security Administration checkpoints located in airports operated by the State of Hawaii. Further, federal authorities have long recognized that the channels between the State’s major islands are international waters, and thus, travel by air or sea between those islands constitutes interstate travel, even though the destinations are within a single state. The potential for federal prosecution of Hawaii qualified patients traveling interisland who possess medical marijuana underscores the need for any medical marijuana dispensing strategy developed by the state of Hawaii to recognize and address this concern.
Moreover, Hawaii state law remains unsettled concerning the transportation of medical marijuana outside the home, given the inconsistency in Hawaii law between the definition of “medical use” in section 329-121, HRS, which includes the “transportation of marijuana,” and the prohibition on the use of medical marijuana in any “place open to the public” under section 329-122(c)(2)(E), HRS. In 2013, the Hawaii Supreme Court overturned a qualifying patient’s conviction for promoting a detrimental drug in the third degree, in relation to his possession of medical marijuana in a public place, but emphasized that the decision applied only to the specific facts and circumstances of that case. The court held that there was an “irreconcilable inconsistency between the authorized transportation of medical marijuana under HRS § 329-121, and the prohibition on transport of medical marijuana through ‘any . . . place open to the public’ under HRS § 329-122(c)(E).” Thus, under the rule of lenity, the defendant was entitled to an affirmative defense and a judgment of acquittal. The court explicitly did not address whether other circumstances, including other locations or modes of transportation, may similarly trigger the rule of lenity, which strictly construes an ambiguous statute against the government and in favor of the accused. However, the court noted that Hawaii’s medical marijuana laws do not explicitly provide for how medical marijuana would initially arrive at the qualifying patient’s home, nor provide for its possession outside the home, even though “qualifying patients, like other ordinary people, may be absent from the home” for legitimate purposes.
Thus, at present, it is uncertain whether or to what extent a Hawaii qualifying patient or caregiver may transport medical marijuana anywhere outside the home, even when limited to travel within the same island, without violating state drug enforcement laws. The inconsistency between sections 329-121 and 329-122, HRS, presently presents an impediment to an effective medical marijuana distribution system in Hawaii and would need to be addressed if the State is to
implement a distribution system.
Recent Developments in Hawaii’s Medical Marijuana Laws
During the Regular Session of 2013, two laws were enacted that will have a significant effect on Hawaii’s medical marijuana program commencing in January 2015.
Act 177, Session Laws of Hawaii 2013
Act 177, Session Laws of Hawaii 2013, implements the 2009 Medical Cannabis Working Group’s recommendation to transfer the administration of Hawaii’s medical marijuana program from the Department of Public Safety to the Department of Health no later than January 1, 2015.
Act 178, Session Laws of Hawaii 2013
Aside from making various technical as well as conforming amendments that address the transfer of administration of the medical marijuana program to the Department of Health in 2015, the most significant amendment to the Hawaii medical marijuana program included in Act 178, Session Laws of Hawaii 2013, is that, beginning January 2, 2015, the definition of “adequate supply” will change from “three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant” to “seven marijuana plants, whether immature or mature, and four ounces of usable marijuana at any given time.”
No One “Model” Program
Twenty-three states have medical marijuana programs: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. As would be expected, there are some issues or program characteristics that all or nearly all of the states with medical marijuana programs have addressed in one fashion or another. Exactly how they have addressed these issues or characteristics likely depends in large part upon a number of factors, which may include the size of their medical marijuana patient population, whether the majority of their population lives in urban or rural areas, whether distance from or access to medical marijuana is an issue, support for such programs within the state’s population and among its decision-makers, what is politically feasible at the time the program is established, and other factors that may be peculiar to a particular state.
As a result, there are many similarities, as well as many differences, among the various states’ medical marijuana programs. Accordingly, there does not appear to be any one model that can be touted as an exemplary program that all states should follow. Moreover, while many states have established medical marijuana programs, some of these are relatively new, and the programs, or aspects of the program such as the distribution systems, are not yet operational. For example, while eighteen states provide for distribution systems, only eight states (Arizona, California, Colorado, Maine, New Jersey, New Mexico, Rhode Island, and Vermont) have operational distribution systems. Further, it should be noted that many of the earlier states to adopt medical marijuana programs did not provide for distribution systems at that time. Thus only a few states have much of a track record concerning programmatic aspects of a medical marijuana distribution system and such concomitant issues as those relating to cultivation, access, safety, security, etc. That said, some general observations and conclusions about the states’ medical marijuana programs may be made.
General Program Characteristics of State Medical Marijuana Programs
All states with medical marijuana programs:
(1) Provide for the removal of state-level criminal penalties for the use of marijuana for medical purposes;
(2) Require that qualifying patients be certified by a physician as having a medical condition that would benefit from the medical use of marijuana; and
(3) Specify the maximum amount of medical marijuana that a qualifying patient and caregiver may possess.
Finally, nearly all of the state programs, with the exception of Washington, have confidential patient registries that are administered by a state agency
Access to Medical Marijuana
Of the twenty-three states that have medical marijuana programs, fifteen (Alaska, Arizona, California, Colorado, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington) allow qualifying patients to cultivate marijuana, under certain conditions, and eighteen (Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Vermont) incorporate some form of distribution system into their programs. Further, ten (Arizona, California, Colorado, Maine, Massachusetts, Nevada, New Mexico, Oregon, Rhode Island, and Vermont) of the twenty-three states appear to both allow patients to cultivate marijuana and provide for medical marijuana dispensaries.
Regulation of Distribution Systems
Of the eighteen states with some form of medical marijuana distribution system, seventeen states (with the exception of California) provide for statewide regulation of the distribution systems. In a majority of these states (Arizona, Delaware, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, and Rhode Island), the entity responsible for regulation is the state health agency. In a different mix of a majority of states (Arizona, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New York, Oregon, Rhode Island, and Vermont), the regulation takes the form of a registration requirement. In other states, regulation is through a licensure (Colorado, Connecticut, Maryland, and New Mexico) or permit (New Jersey) requirement. In yet a differing majority of these states (Arizona, Colorado, Delaware, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, and Vermont), the same regulated third party entity may both cultivate and dispense medical marijuana.
Common Elements of Statewide Distribution Systems
Other issues or program characteristics generally considered by the states with medical marijuana programs that provide for some type of statewide distribution systems, and ways the majority of states have addressed these issues or characteristics, are as follows:
• Fees and Taxes
All seventeen of these states impose one or more operational fees, at widely varying amounts, on medical marijuana cultivation centers and dispensaries, and most (with the exception of Massachusetts, Minnesota, New Hampshire, Oregon, and Vermont) also impose various state or local taxes on the sale of medical marijuana.
• Training and Educational Requirements
The majority of these states (with the exception of Illinois, Maryland, and New York) appear to have incorporated some level of training requirements for medical marijuana dispensary staff, and most (with the exception of Colorado, Maryland, Minnesota, and Oregon) also require that certain educational information be provided to patients.
Most states (with the exception of Maryland) have also adopted some form of labeling requirement for medical marijuana products; however, these requirements differ widely among the states.
• Quality Control
At least eleven of the seventeen states (Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Hampshire, New Mexico, New York, and Oregon) have statutory provisions that address quality control to some extent. Of these, nine states (Colorado, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, and Oregon) have provisions that involve marijuana testing.
• Quantity Control
The majority of states (with the exception of Colorado, New Mexico, and Oregon) also appear to generally control the supply of medical marijuana by establishing either minimum or maximum limits on the number of cultivation centers or dispensaries that may be operated in the state. Further, nearly half of the states (Colorado, Maine, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, and Vermont) provide for a limitation on the inventory of cultivation centersor dispensaries.
The majority of the seventeen states (with the exception of Maryland and New Mexico) also limit the amounts of medical marijuana that dispensaries may provide to patients, which generally coincide with, or at least prevent exceeding, a patient’s legal possession limits. Finally, the statutes in a number of states (Colorado, Delaware, Illinois, Maine, Nevada, New Hampshire, Rhode Island, and Vermont) also provide that a patient may only obtain marijuana from a particular dispensary if that dispensary has been designated by the patient.
• Limits on Channels of Supply and Distribution
The regulatory statutes of all seventeen states establish controls on the channels of supply and distribution of medical marijuana. Generally, these statutes establish a closed circuit in which medical marijuana circulates only among cultivation centers, dispensaries, patients, and their caregivers. To this end, the majority of states (Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Hampshire, New York, Rhode Island, and Vermont) place restrictions on the cultivation site by specifying that the cultivation center may cultivate marijuana only in an enclosed, locked facility, and nearly half of these states (Arizona, Delaware, Illinois, Maine, Nevada, New Hampshire, and Vermont) also require that access to the facility be restricted.
To maintain this closed circuit, a number of states (Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New Mexico, Oregon, and Vermont) also limit the external sources from which cultivation centers or dispensaries may obtain medical marijuana that they themselves do not cultivate; these permissible sources include other dispensaries, other cultivation centers, or patients or their caregivers.
The states also limit the entities to whom medical marijuana may be distributed. All seventeen states specify that a dispensary may distribute medical marijuana to two entities — a patient or the patient’s caregiver. Ten of these states (Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont) limit distribution to only those two entities. Another six states (Arizona, Colorado, Nevada, New Hampshire, New Mexico, and New York) also permit a dispensary to distribute medical marijuana to another dispensary.
• Security Requirements
Finally, all seventeen states require their cultivation centers and dispensaries to comply with various security requirements. These requirements range from as simple as installing a functional security alarm, to requiring facilities to meet certain design specifications. The majority of states (with the exception of Maryland, Minnesota, New Mexico, New York, and Rhode Island) require, at minimum, installation of an alarm system and video surveillance of the premises, and most states (with the exception of Maryland, New Mexico, and New York) impose various additional security requirements.
Medical Marijuana Programs Resist Simple Categorization
There may be a tendency to want to categorize medical marijuana programs along artificial lines (such as restrictive or nonrestrictive programs) in order to better grasp the similarities and differences of programs established by other states. The reader is cautioned against such an attempted approach, however, given the wide variation in how states have addressed the issues and program characteristics in establishing their medical marijuana programs. Such an approach would seem too simplistic and would ignore significant nuances of Limited Access Marijuana Product Laws. In addition to the twenty-three states with medical marijuana programs, eleven other states have enacted limited access marijuana product laws over the past year that make provision for the use of certain strains of marijuana for limited medical or research purposes. While not as comprehensive as more traditional medical marijuana programs, these limited access laws have the attraction of focusing on strains of marijuana that have little or no psychoactive effects. As a result, an increasing number of states have shown interest in pursuing similar laws.
Federal Position on the Medical Use of Marijuana
Controlled Substances Act
The Controlled Substances Act, enacted by the United States Congress in 1970, is the basis for federal drug policy under which the manufacture, use, possession, and distribution of certain substances is regulated. The Controlled Substances Act classifies marijuana as a Schedule I substance, which means that the federal government considers marijuana to have a high potential for abuse and no currently accepted medical use in treatment in the United States.
United States Department of Justice Guidelines
On October 19, 2009, the United States Department of Justice issued a memorandum that advised federal prosecutors in states with medical marijuana programs to refrain from pursuing cases against individuals for marijuana offenses that did not violate state medical marijuana laws.
In a subsequent memorandum issued on August 29, 2013, the Department of Justice clarified its position on marijuana by enumerating specific nationwide enforcement priorities and noted that it has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property and that it has generally left enforcement to state and local authorities unless the marijuana-related activities run afoul of the enumerated enforcement priorities.
The Department of Justice indicated that it is inclined to defer to state and local enforcement in states that authorize the production, distribution, and possession of medical marijuana, provided the affected states implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. However, the 2013 memorandum also warned that states that enact marijuana legalization schemes but fail to implement them effectively could be subject to federal intervention.
United States Department of the Treasury Guidelines
Marijuana-related businesses have complained that federal marijuana prohibitions, combined with federal requirements regarding financial institutions, block their access to banking and credit card services and limit them to cash transactions that raise security concerns. Banks have also raised concerns that providing services to marijuana-related businesses could subject them to federal penalties. These combined concerns resulted in medical marijuana businesses being unable to deposit revenues from their businesses into financial institutions.
Given these concerns, the United States Department of the Treasury issued a memorandum on February 14, 2014, to clarify Bank Secrecy Act expectations for financial institutions, such as banks, that seek to provide services to medical marijuana-related businesses.
Recent Federal Developments
There do not appear to be any strong indications that the United States Congress will approve the legalization of marijuana for medical purposes in the near future. However, it is possible that Congress will prohibit certain federal spending on enforcement that interferes with state implementation of laws authorizing the use of medical marijuana, which could effectively curtail federal enforcement.
The United States House of Representatives has approved an amendment to an appropriations bill that would, if approved by the Senate and the President, prohibit the United States Department of Justice from spending federal funds in federal fiscal year 2015 to prevent states from implementing state laws that authorize the use, distribution, possession, or cultivation of marijuana for medical purposes. It should be noted that, as currently drafted, the measure would not explicitly preclude federal enforcement of prohibitions against marijuana despite state legalization schemes and could therefore be subject to interpretation. Also, the measure would not affect federal spending for such purposes in subsequent years.
In addition to the pending legislation discussed above, other bills or amendments to existing bills have recently been proposed. For example, on July 24, 2014, an amendment was proposed to a bill being heard by the United States Senate that would recognize the right of states to enact laws that authorize the use, distribution, possession, or cultivation of marijuana for medical use.
On July 28, 2014, a bill was introduced to the United States House of Representatives that would remove therapeutic hemp and cannabidiol from the definition of marijuana in the Controlled Substances Act. If enacted, most strains of marijuana would still be prohibited under federal law. However, strains of marijuana with extremely low THC concentrations and cannabidiol oil would effectively become legal on a national basis.Executive Summary of “Is the Grass Always Greener? An Updated Look at Other State Medical Marijuana Programs”, Hawaii State Legislative Reference Bureau