Last summer Mark Kleiman, the UCLA drug policy
expert who has advised Washington state’s marijuana regulators,
told me “the legal market is going to have a hard time competing
with the illegal market, but a particularly hard time competing
with the untaxed, unregulated sort-of-legal market.” He was
referring to the hundreds of medical marijuana suppliers in
Washington, which are not licensed by the state but operate under
creative interpretations of a provision allowing patients to
operate “collective gardens.” Yesterday the state House of
Representatives took up the question of how to deal with these
competitors. The leading proposal, reflected in a bill
considered by the House Health and Wellness Committee, is
to abolish them.
Under
H.B. 2149, introduced by Rep. Eileen Cody (D-West Seattle),
patients would instead obtain marijuana at the same state-licensed
stores that serve recreational consumers, which will be regulated
by the Washington State Liquor Control Board. Those stores are
expected to start opening this summer, and under Cody’s bill they
would be the only commercial providers of medical marijuana as of
May 1, 2015, when the provision allowing collective gardens would
be repealed. The bill would create a “patient recognition” system
(don’t call it a registry!) that would allow cardholders to buy up
to three ounces at a time (as opposed to one ounce for recreational
customers), avoid paying sales taxes (a privilege addressed in a
separate bill), and claim immunity from arrest for possession or
cultivation within the limits set by law. Currently there is no
central record of qualified patients. Patients with doctor’s
recommendations have an affirmative defense against marijuana
charges, meaning they can still be arrested, although not
convicted. H.B. 2149 would eliminate that affirmative defense,
effectively requiring qualified patients to register with the state
if they want to be recognized as such.
Cody’s bill, which tracks the final recommendations
of the liquor control board pretty closely, would reduce the cap on
possession of medical marijuana from 24 ounces to three (or up to
eight if a health care professional documented an extraordinary
need). It would continue to allow home cultivation for medical use
while reducing the maximum number of plans from 15 to six (three of
them flowering). The provision allowing home cultivation would
expire on July 1, 2020, at which point the state-licensed stores
would become the only legal source of medical marijuana unless the
legislature decided, based on the results of a study mandated by
the bill, that they were not adequately meeting patients’ needs.
The bill also would restict the use of marijuana for relief of
“intractable pain,” which would have to be “objectively assessed
and evaluated” and “of such severity as to significantly interfere
with the patient’s activities of daily living and ability to
function.”
At yesterday’s hearing, patients
complained that the amount of home cultivation allowed would
not be adequate for some people’s medical needs; that their
medicine would be subject to the new marijuana excise taxes (25
percent at each of three levels), although not the standard sales
taxes (which total 9.5 percent in Seattle); and that the
elimination of home cultivation in 2020 would leave them with no
legal alternative if the marijuana sold by the state-licensed
stores proved too expensive or ill-suited to their symptoms. “We
are self-regulating,” said Stephanie Viskovich of the Cannabis
Action Coalition. “We have created a system that does work for
us.”
What works for patients, however, does not necessarily work for
the state, which wants to maximize tax revenue and head off federal
intervention by creating a tightly regulated system aimed at
preventing diversion to minors and other states. Although the
backers of I-502, Washington’s legalization initiative, assured
skeptics that the measure would not change the rules for medical
marijuana, it was pretty much inevitable
that legislators would once they absorbed the fiscal and political
realities created by the new distribution system.
The legislature has until March 13, when its 2014 session
ends, to
approve a bill regulating medical marijuana. In addition to Cody’s
bill, the options include
S.B. 6178, introduced yesterday by Sen. Jeanne Kohl-Welles
(D-Seattle), a longtime champion of medical marijuana. Her bill
also would eliminate “collective gardens” and create a “medical
marijuana verification program.” But according to her office’s
summary, that program would be voluntary; patients without
state-issued cards would still have an affirmative defense.
Kohl-Welles’ bill also sets a higher limit on cultivation than
Cody’s bill does (10 plants vs. six) and allows possession of
larger amounts (eight ounces vs. three, with higher quotas allowed
by special permission). She would exempt medical marijuana from the
25 percent excise tax at the retail level but not the standard
sales taxes.
“I feel reasonably optimistic that we’ll get something through,”
says Kohl-Welles. “I anticipate most legislators will see the need
to do something about medical marijuana. They won’t want a totally
unregulated system.”
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