state-by-state medical marijuana laws

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STATE-BY-STATE MEDICAL MARIJUANA LAWS: How To Remove the Threat of Arrest Marijuana Policy Project February 2001 Written by Richard Schmitz and Chuck Thomas Edited by Robert Kampia “I believe each state can choose that decision as they so choose.” George W. Bush in “Bush Backs States’ Rights on Marijuana: He Opposes Medical Use But Favors Local Control,” Dallas Morning News (10/20/99)

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Page 1: STATE-BY-STATE MEDICAL MARIJUANA LAWS

STATE-BY-STATE

MEDICAL MARIJUANA LAWS:

How To Remove the Threat of Arrest

Marijuana Policy Project

February 2001

Written by Richard Schmitz and Chuck Thomas

Edited by Robert Kampia

“I believe each state can choose that decision as they so choose.”— George W. Bush in “Bush Backs States’ Rights on Marijuana: He Opposes

Medical Use But Favors Local Control,” Dallas Morning News (10/20/99)

Page 2: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Kenny and Barbra Jenks were

arrested for using medical

marijuana to treat AIDS wasting

syndrome in Florida in 1990.

Jim Montgomery, who is paralyzedfrom the chest down, was arrestedand imprisoned in Oklahoma in 1993

for using medical marijuana to treat

pain and spasticity.

Hazel Rodgers legally used marijuana to

treat glaucoma after California voters

passed a medical marijuana ballot

initiative in 1996.

Jim Harden needs medical

marijuana to treat the

pain and muscle spasms

caused by a broken back

and other injuries.

Cheryl Miller was arrested in March

1998 for using marijuana in Washington,

D.C., to treat multiple sclerosis.

Renee Emry was arrested in September 1998

for smoking one marijuana cigarette in

Washington, D.C., to treat multiple sclerosis.

Bill Anderson was

arrested in 1997 for

using marijuana in

Michigan to treat the

pain caused by massive

head injuries.

Richard Brookhiser, senioreditor of National Review, used

medical marijuana during cancer

chemotherapy in the early 1990s.

Calvin Nokes uses

marijuana to treat AIDS

wasting syndrome.

Should these medical marijuana users be treated like criminals?

Marijuana can treat the symptoms of cancer, AIDS, multiple sclerosis, glaucoma, and other

serious illnesses. Doctors often recommend it when other medicines have failed to help.

More than 100,000 Americans are already using medical marijuana.

“We concluded that there are some limitedcircumstances in which we recommendsmoking marijuana for medical uses.”

— National Academy of Sciences’ Institute ofMedicine, March 17, 1999

Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington all have effective medical

marijuana laws. And every nationwide survey of voters shows at least 60% support. Yet most state

governments continue to wage war on marijuana-using patients!

Page 3: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Table of Contents

Executive Summary .......................................................................................................................................iii

Overview.........................................................................................................................................................1

Marijuana’s medical uses ................................................................................................................................1

Criminalizing patients ....................................................................................................................................1

Changing federal law......................................................................................................................................2

Changing state laws: Past efforts ....................................................................................................................2

Changing state laws: Since 1996 ....................................................................................................................3

What the new state laws do............................................................................................................................3

Conflict between new state laws and federal law...........................................................................................4

Court rulings have not overturned state laws ................................................................................................5

Overview of kinds of state laws ......................................................................................................................5

Where things are going from here................................................................................................................ 10

Maps

States with effective medical marijuana laws.................................................................................................6

States with other medical marijuana laws......................................................................................................7

States that considered medical marijuana legislation during the 1999-2000 legislative sessions ............... 10

Tables

Table 1: Effective medical marijuana laws in eight states..............................................................................8

Table 2: Tally of state medical marijuana laws ............................................................................................ 11

Appendices

Appendix A

States with effective medical marijuana laws (removal of criminal penalties) .................................... A-1

States with medical marijuana research laws (therapeutic research programs) ................................... A-3

States with symbolic medical marijuana laws....................................................................................... A-5

States in which medical marijuana laws have expired or have been repealed..................................... A-8

States that have never had medical marijuana laws............................................................................. A-10

States that have passed non-binding resolutions urging the federal government to make marijuana medically available .................................................................................................. a-10

Appendix B: Medical marijuana briefing paper ....................................................................................... B-1

Appendix C: Excerpts from the Institute of Medicine’s 1999 report ....................................................... C-1

Appendix D: Surveys of public support for medical marijuana ................................................................ D-1

Appendix E: The Controlled Substances Act (and drug schedules) ....................................................... E-1

Appendix F: How the effective laws are currently working..................................................................... F-1

Appendix G: Types of legal defenses afforded by effective state medical marijuana laws ....................... G-1

i

Page 4: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Table of Contents (continued)

Appendix H: Types of physician documentation required to cultivate, possess, or usemedical marijuana ............................................................................................................... H-1

Appendix J: Federal litigation and other federal attempts to thwart effective state medicalmarijuana laws ..................................................................................................................... J-1

Appendix K: Therapeutic research programs ........................................................................................... K-1

Appendix L: Medical necessity defense.................................................................................................... L-1

Appendix M: State medical marijuana legislation considered during the 1999-2000 legislativesessions................................................................................................................................. M-1

Appendix N: Resolution to protect seriously ill people from arrest and imprisonment for usingmedical marijuana ............................................................................................................... N-1

Appendix O: Initiative states .................................................................................................................... O-1

Appendix P: Responses to anti-medical marijuana arguments ................................................................ P-1

Appendix Q: Partial list of organizations with favorable positions on medical marijuana ...................... Q-1

Appendix R: Model medical marijuana bill ............................................................................................. R-1

Appendix S: Analysis of bill ..................................................................................................................... S-1

ii

Page 5: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Executive Summary

• Favorable medical marijuana laws have been enacted in 35 states since 1978. However, most of theselaws are ineffectual, due to the federal government’s overarching prohibition. (Five of these lawshave since expired or been repealed.)

• Currently, 30 states and the District of Columbia have laws on the books that recognize marijuana’smedical value:

— Twelve states with “Therapeutic Research Program” laws are nevertheless unable to give patientslegal access to medical marijuana because of federal obstructionism.

— Ten states and the District of Columbia have symbolic laws that recognize marijuana’s medicalvalue but fail to provide patients with protection from arrest.

— And, since 1996, eight states have enacted laws that effectively allow patients to use medicalmarijuana despite federal law.

• The effective medical marijuana laws were enacted through ballot initiatives in Alaska, California,Colorado, Maine, Nevada, Oregon, and Washington. In Hawaii, an effective law was passed by thelegislature and signed by the governor in June 2000.

• To be effective, a state law must remove criminal penalties for patients who use, possess, and growmedical marijuana with their doctors’ approval.

— Even though patients can still be penalized for violating federal marijuana laws, states are notrequired to have laws that are identical to federal law.

— Because 99% of all marijuana arrests in the nation are made by state and local (not federal)officials, properly worded state laws can effectively protect 99 out of every 100 medical marijuanausers who otherwise would have been prosecuted.

• Ultimately, federal law should be changed to treat marijuana like any other legal medication,available through pharmacies upon a doctor’s prescription. However, the federal governmentcurrently refuses to budge. In the meantime, the only way to protect marijuana-using patients fromarrest is through legislation in the states.

• This report describes all favorable medical marijuana laws ever enacted in the United States, detailsthe differences between effective and ineffective state laws, and explains what must be done to givepatients immediate legal access to medical marijuana. Accordingly, a model bill and a compilation ofresources for effective advocacy are provided.

iii

Page 6: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Overview Thousands of patients and their doctors havefound marijuana to be beneficial in treating thesymptoms of AIDS, cancer, multiple sclerosis,glaucoma, and other serious conditions.3 For manypeople, marijuana is the only medicine with asuitable degree of safety and efficacy.

Despite marijuana’s widely recognizedtherapeutic value, the medical use of marijuanaremains a criminal offense under federal law.Nevertheless, favorable medical marijuana lawshave been enacted in 35 states since 1978.1

In March 1999, the National Academy ofSciences’ Institute of Medicine (IOM) released itslandmark study, Marijuana and Medicine: Assessing

Most of the favorable state laws areineffectual, due to the federal government’soverarching prohibition. Fortunately, since 1996,

the Science Base. Thescientists who wrote thereport concluded that “thereare some limitedcircumstances in which werecommend smokingmarijuana for medical uses.”4

eight states have found a wayto help seriously ill peopleuse medical marijuana withvirtual impunity despitefederal law.2

The most cost-effective way to allowpatients to use medical marijuana isfor state legislatures to pass billssimilar to the law enacted by theHawaii legislature in June 2000This report analyzes the

existing federal and statelaws and describes what can

Accordingly, publicopinion polls typically find

be done to give patients legal access to medicalmarijuana. In the near future, the most cost-effective way to allow patients to use medicalmarijuana is for state legislatures to pass billssimilar to the law enacted by the Hawaiilegislature in June 2000.

that more than 60% of the American peoplesupport legal access to medical marijuana.5

Criminalizing patients

The federal marijuana penalties are up to ayear in prison for as little as one marijuanacigarette, and up to five years for growing evenone plant. There is no exception for medical use,and the laws are similar in most states.

Accordingly, MPP has prepared samplelegislation which would effectively removecriminal penalties for the medical use of marijuanain any given state.

State and local police make approximately700,000 marijuana arrests in the United Stateseach year, more than 600,000 of which are forpossession (not sale or manufacture).6 Even if onlyone percent of those arrested were using marijuanafor medical purposes, then there are more than6,000 medical marijuana arrests every year!

Marijuana’s medical uses

Marijuana has a wide range of therapeuticapplications, including:

• relieving nausea and increasing appetite;

• reducing muscle spasms and spasticity;

• relieving chronic pain; and

• reducing intraocular (“within the eye”)pressure.

3See Appendix B for a more detailed briefing paper aboutmarijuana’s medical uses.4See Appendix C for excerpts from the IOM report.

1See Appendix A for a chart of all 50 state laws. 5See Appendix D for the results of major public opinionpolls.2See Table 1, page 8, for details on the eight effective state

laws. 6FBI Uniform Crime Reports, Crime in the United States:1999, published in October 2000.

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Page 7: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Until a more sympathetic president or Congress isin power, there is little chance of changing federallaw to give patients legal access to medicalmarijuana. Consequently, the greatest chance ofsuccess is in the states.

However, there are several other ways tochange federal law to give patients legal access tomedical marijuana10:

• Since FDA is part of the U.S. Departmentof Health and Human Services (HHS), theU.S. Secretary of Health can declare thatmarijuana meets sufficient standards ofsafety and efficacy to warrant rescheduling.

Changing federal law

The federal Controlled Substances Act of1970 establishes a series of five “schedules”(categories) into which all illicit and prescriptionsubstances are placed. Marijuana is currently inSchedule I, defining the substance as having ahigh potential for abuse and no currently acceptedmedical use in treatment in the United States.7

The federal government does not allow Schedule Isubstances to be prescribed by doctors or sold inpharmacies. Schedule II substances, on the otherhand, are defined as having accepted medical use“with severe restrictions.” Schedules III, IV and Vare progressively less restrictive.

• Since Congress created the ControlledSubstances Act (CSA), Congress can changeit. Some possibilities include: passing a bill tomove marijuana into a less restrictiveschedule; moving marijuana out of the CSAentirely; or even replacing the entire CSAwith something completely different. Inaddition, Congress can remove criminalpenalties for the medical use of marijuanaregardless of what schedule it is in.

• HHS can allow patients to apply for specialpermission to use marijuana on a case-by-case basis. In 1978, the InvestigationalNew Drug (IND) compassionate accessprogram was established, enabling dozens ofpatients to apply for and receive marijuanafrom the federal government. Unfortunately,the program was closed to all new applicantsin 1992, and only eight patients remain inthe program.

The federal Drug EnforcementAdministration (DEA) has the authority to movemarijuana into a less restrictive schedule. Afteryears of litigation, it has essentially beendetermined that DEA will not move a substanceinto a less restrictive schedule without an officialdetermination of “safety and efficacy” by the Foodand Drug Administration (FDA).8

Unfortunately, current federal researchguidelines make it nearly impossible to dosufficient research to meet FDA’s exceedinglyhigh standard of medical efficacy for marijuana.9

Since 1995, MPP has been helping scientistsattempt to navigate the federal research obstacles,and it has become clear that it will take at least adecade—if ever—for FDA to approve the use ofnatural marijuana as a prescription medicine.

All of these routes have been tried—andfailed. Until a more sympathetic president orCongress is in power, there is little chance ofchanging federal law to give patients legal accessto medical marijuana. Consequently, the greatestchance of success is in the states.

Changing state laws: Past efforts

States have been trying to give patients legalaccess to marijuana since 1978. By 1991, favorablelaws had been passed in 34 states and the Districtof Columbia. (The 35th state, Hawaii, did notenact its law until 2000.) Unfortunately, due tothe overarching federal restrictions, most of these

7See Appendix E for more details on the federal ControlledSubstances Act.8Appendix B provides more information about this litigation.9See “Suggested Revisions to the HHS Medical MarijuanaResearch Guidelines,” which may be obtained by contactingMPP or viewing http://www.mpp.org/guidelines. 10Appendix B details some of these other routes.

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Page 8: STATE-BY-STATE MEDICAL MARIJUANA LAWS

laws have been largely symbolic, with little or nopractical effect.

a state legislature. Hawaii’s governor, whosubmitted the original bill and signed the finalmeasure into law on June 14, said, “The idea ofusing marijuana for medical purposes is one that’sgoing to sweep the country.”

For example, several states passed laws statingthat doctors may “prescribe” marijuana. However,federal law prohibits doctors from writing“prescriptions” for marijuana—so doctors areunwilling to risk federal sanctions for doing so.Furthermore, even if a doctor would give a patientan official “prescription” for marijuana, the statesdid not account for the fact that it is a crime forpharmacies to distribute it, so patients would haveno way to legally fill their marijuana prescriptions.(See “Overview of kinds of state laws” on page 5.)

More than 51 million Americans—19% of theU.S. population—now live in the eight states wheremedical marijuana users are protected by state law.

What the new state laws do

The seven state initiative-created laws andthe Hawaii law are similar in what theyaccomplish.11

Changing state laws: Since 1996 Each of the eight states allows patients to grow,possess, and use medical marijuana if approved by amedical doctor. Patients may also be assisted by acaregiver, who is authorized to help the patientgrow, acquire, or consume medical marijuana.Further, physicians are immune from liability fordiscussing or recommending medical marijuana inaccordance with the law.

The tide began to turn in 1996 with thepassage of a California ballot initiative. Californiabecame the first state to effectively removecriminal penalties for qualifying patients whogrow, possess, and use medical marijuana. Toqualify, the law specified that patients need adoctor to “recommend” marijuana. By avoidingthe word “prescribe,” doctors do not need toviolate federal law in order to help their patients.(Of note, Arizona voters passed a medicalmarijuana initiative at the same time, but itturned out to be only symbolic because it used theword “prescribe” rather than “recommend.”)

To qualify for protection under the law,patients must have documentation verifying theyhave been diagnosed with a specified seriousillness. Most states require a statement of approvalsigned by the patient’s physician, but some permita patient’s pertinent medical records to serve asvalid documentation. To help law enforcementidentify qualifying patients, some states haveimplemented formal state registry programs whichissue identification cards to registered patients andtheir caregivers.

Over the next four years, seven states and theDistrict of Columbia followed in California’sfootsteps. Alaska, Oregon, Washington, and theDistrict of Columbia passed similar initiatives in1998. Maine passed an initiative in 1999, whileColorado and Nevada followed suit in 2000. Eachstate approved its initiative by a wide margin, andno state has rejected an initiative that solelyaddressed medical marijuana.

Patients’ marijuana possession and cultivationlimits are generally restricted to a concrete number:1-3 ounces of usable marijuana and

(Congress was able to prevent the D.C.initiative from taking effect, because it is adistrict, not a state, and is therefore subject tostrict federal oversight.)

11See Table 1 on page 8 for specifics on each state law. Alsosee Appendix F for how these laws are working in the realworld.

To qualify, the law specified that patients need adoctor to “recommend” marijuana. By avoiding theword “prescribe,” doctors do not need to violatefederal law in order to help their patients.

Hawaii broke new ground in 2000, when itbecame the first state to enact a law to removecriminal penalties for medical marijuana users via

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Page 9: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Some believe that the federal governmentcan nullify those laws, or that the lawshave no real value in the face of conflictingfederal law. That is simply not the case.

individuals who can readily show that they arequalified patients, eliminating the need for a trial.Further, patients in some of the eight states havean exemption from prosecution, although this levelof legal protection is usually reserved for those whoare registered with the state.12

6-7 plants, three of which may be mature. Twostates, Washington and California, have conceptualmarijuana limits, respectively permitting a “sixty daysupply” and enough “marijuana for the personalmedical purposes of the patient.”

Conflict between new state laws andfederal law

Regardless of whether patients grow theirown, get it from a caregiver, or buy it on thecriminal market, a patient in possession of anallowable quantity of marijuana and otherwise incompliance with the law is typically protectedfrom arrest and/or prosecution.

With the recent advent of state laws toprotect patients who grow, possess, and usemedical marijuana, many questions have surfacedregarding the status of those laws in relation tofederal law. Some believe that the federalgovernment can nullify those laws, or that thelaws have no real value in the face of conflictingfederal law. That is simply not the case.

To illustrate how the law works, consider thefollowing prototypical vignette:

Even though patients can be penalized forviolating federal marijuana laws, a state governmentis not required to have identical laws. Therefore, astate may still allow its residents to possess, grow, ordistribute marijuana for medical purposes.

“Joe” has AIDS. His doctor advised him to smokemarijuana in order to boost his appetite, so he hasthree marijuana plants growing in the closet of hisapartment, and he smokes four puffs of marijuanaevery day before dinner. One day, Joe’s neighborsmells the marijuana smoke and calls the police. Theofficer knocks on Joe’s door, and when Joe opens it,the officer sees the marijuana pipe on the table.

The crucial distinction is frequentlymisunderstood: It is true that the federalgovernment can enforce federal laws anywhere inthe United States, even within the boundaries of astate that rejects those laws. Nevertheless, thefederal government cannot force states to havelaws that are identical to federal law, nor can thefederal government force state and local police toenforce federal laws.

Luckily, Joe lives in one of the eight states witheffective medical marijuana laws. Joe admits togrowing and using marijuana, but then shows theofficer a note on his doctor’s letterhead, which says,“I am treating Joe for AIDS, and in my professionalmedical opinion I believe that the benefits of Joe’smedical marijuana use outweigh any possible healthrisks.” The officer documents or verifies Joe’sinformation, gives Joe his best wishes, and goes on hisway. Joe takes another puff and finishes his dinner.

This division of power is extremelyadvantageous to patients who need to usemarijuana: Because 99% of all marijuana arrests inthe nation are made by state and local—notfederal—officials, favorable state laws caneffectively protect 99 out of 100 medicalmarijuana users who otherwise would have beenprosecuted. Federal drug enforcement agentssimply do not have the resources or the mandateto patrol the streets of any state looking for cancerpatients growing a few marijuana plants.

If Joe lived in one of the other 42 states, he wouldbe arrested, prosecuted, and possibly sent to prison.

In the unlikely event that a patient is arrestedin one of the eight states with effective laws, thepatient is still allowed to argue at trial that his orher marijuana use was medically necessary, ifcharged with unlawful marijuana possession orcultivation. As a matter of practice, police often donot arrest and prosecutors often do not prosecute 12See Appendix G for more detailed definitions of these

defenses.

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Page 10: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Simply put, individual medical marijuanausers generally are not on the federalgovernment’s radar screen.

are in compliance with the state law. State-levelcases have focused on whether individuals qualifyas patients or caregivers, or whether they possessan amount of marijuana in excess of the specifiedlegal limit. Thus, it is the actions of individuals inrelation to the law—not the law itself—that hasbeen litigated.

(One drawback is that distributors are on thefederal radar screen. Pharmacies do not sellmarijuana anywhere in the United States, andnumerous medical marijuana distribution centersthat emerged in various states—commonly knownas “cannabis buyers’ clubs”—have been hamperedby federal law.)

Overview of kinds of state laws14

At various times since 1978, 35 states and theDistrict of Columbia have had favorable medicalmarijuana laws. Laws in five states have eitherexpired or have been repealed, but 30 states andD.C. currently have a law on the books. Althoughwell-intentioned, most of these laws do notprovide effective protection for patients who needto use medical marijuana.

Court rulings have not overturnedstate laws

To date, there have only been two significantlegal cases at the federal level which deal withmedical marijuana policy: Conant v. McCaffreyand U.S. v. Oakland Cannabis Buyers’ Cooperative(OCBC).13 These cases do not challenge thelegitimacy of the state medical marijuana laws,and therefore do not affect the ability of states toprotect medical marijuana patients under statelaw. Instead, they focus solely on federal issues.

(Because some states have enacted more thanone type of law, the totals for the followingsubsections add up to more than 35.)

Effective laws. The only laws that currentlyprovide meaningful protection for patients areones that remove state-level criminal penalties forcultivation, possession, and use of medicalmarijuana. Eight states—Alaska, California,Colorado, Hawaii, Maine, Nevada, Oregon, andWashington—have effective laws of this nature,all of which were enacted since 1996. (Seepreceding three sections of this report.)

Conant considers whether the federalgovernment can punish physicians for discussingor recommending medical marijuana, and afederal district court ruling says the federalgovernment cannot.

The OCBC case examines whether a medicalmarijuana distributor can use a medical necessitydefense against federal marijuana distributioncharges. A federal appeals court said it could, butthat ruling is pending before the U.S. SupremeCourt. Regardless of the outcome of that case—which is expected to be resolved in the summer of2001—medical marijuana patients affordedprotection under state law will continue to havethe right to the medical necessity defense (or otherdefenses allowed) against state marijuana charges.

Therapeutic research programs. 15 Fourteen statescurrently have laws that allow patients to legallyuse medical marijuana through a state-runtherapeutic research program, and during the late1970s and early 1980s at least seven states

14See Appendix A for details on all state medical marijuanalaws.15See Appendix K for details on therapeutic researchprograms.At the state level, there have been no serious

challenges to the legality of medical marijuanalaws. The only cases that have emerged havequestioned whether individuals or organizations

The federal government cannot force states tohave laws that are identical to federal law, norcan the federal government force state andlocal police to enforce federal laws.13See Appendix J for details on these two cases.

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Page 11: STATE-BY-STATE MEDICAL MARIJUANA LAWS

The only laws that currently provide meaningfulprotection for patients are ones that removestate-level criminal penalties for cultivation,possession, and use of medical marijuana.

Federal law prohibits the distribution of marijuanaand other Schedule I substances for anythingother than research. Doctors cannot “prescribe”marijuana, and pharmacies cannot dispense it.

obtained all of the necessary federal permissions,received marijuana from the federal government,and distributed the substance to approved patientsthrough pharmacies. None of these programs,however, has been operational since 1985.

Laws of this nature demonstrate a state’srecognition of marijuana’s therapeutic use, butthey are not effective as written without a changein federal policy.

Establishing Provisions for the StateGovernment to Distribute Confiscated Marijuana.Before it was repealed in 1987, Oregon lawallowed physicians to prescribe confiscatedmarijuana. Several other states have consideredsimilar legislation, although it does not appearthat confiscated marijuana has ever beendistributed in any state.

The federal approval process for medicalmarijuana research is excessively cumbersome.As a result, state health departments are generallyunwilling to devote their limited resources to along and potentially fruitless application process.Additionally, many patient advocates opposeresearch programs as a primary mode of medicalmarijuana access because enrollment in researchprograms is highly restrictive. It is one thing for states to look the other way

while patients grow medical marijuana forthemselves, but it’s another thing for the stategovernment itself to distribute a Schedule Isubstance for anything other than federallyapproved research. State officials would be highlyvulnerable to federal prosecution for marijuanadistribution, as they are more visible targets thanindividual patients. States would also risk losing

In sum, therapeutic research program laws areno longer effective due to federal obstructionism.

Symbolic measures. Pseudo-Prescriptive Access.Seven states have laws that allows patients topossess marijuana if obtained directly from a validprescription. The problem is that there is no legalsupply of marijuana to fill such a prescription.

federal funding for operating state-run distribution systems. Anotherconcern is that confiscatedmarijuana may contain adulterants

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Page 12: STATE-BY-STATE MEDICAL MARIJUANA LAWS

The role of state legislatures in the movementto protect medical marijuana patients cannotbe overstated. Only 24 states and the Districtof Columbia have the initiative process, whichmeans that citizens in 26 states cannotdirectly enact their own laws.

and would require screening, which could beprohibitively expensive.

Rescheduling Marijuana. States have theirown controlled substance schedules, whichtypically mirror the federal government’s.However, states are free to place substances inwhatever schedules they see fit.

allow doctors to prescribe marijuana. Non-bindingresolutions are passed by both houses of a state’slegislature and do not require the governor’ssignature. The resolutions send a message,officially proclaiming the legislatures’ positions,but do not change policy on the state level andare unlikely to be of any practical help to patients.

Four states—Alaska, Iowa, Montana, andTennessee—and the District of Columbiacurrently have marijuana placed in a schedule thatrecognizes its therapeutic use.

However, there is little or no practicalsignificance to rescheduling marijuana on thestate level, because the federal schedules supersedestate schedules and the federal government doesnot permit marijuana prescriptions. Similar to“pseudo-prescriptive access,” it is unclear whethercourts would interpret these laws as permitting a“medical necessity” defense.

Laws that have been repealed or expired.In addition to the 30 states with current laws,Arkansas, Florida, and North Carolina haverepealed a medical marijuana law, while Michiganhas had one expire. In Ohio, one law expired anda second law was repealed. Other states have hadlaws that have expired or have been repealed—but subsequently have enacted other medicalmarijuana laws. Further, 15 states have never hada favorable medical marijuana law.

Non-Binding Resolutions. At least six statelegislatures—California, Michigan, Missouri, NewHampshire, New Mexico, and Washington—havepassed non-binding resolutionsurging the federal government to

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esig

nate

dby

the

pati

ent w

ho h

asco

nsis

tent

ly a

ssum

edre

spon

sibi

lity

for t

heho

usin

g, h

ealt

h, o

r saf

ety

of th

at p

erso

n

N/A

Col

orad

oA

men

dmen

t 20

(bal

lot i

niti

ativ

e/54

%)

Nov

embe

r 7, 2

000

cons

titu

-ti

onal

exem

ptio

n fr

ompr

osec

utio

n if

in la

wfu

lpo

sses

sion

of a

regi

stry

car

d;af

firm

ativ

e de

fens

e if

not

regi

ster

ed, b

ut in

com

plia

nce

wit

h th

e la

w

diag

nose

d by

a p

hysi

cian

(pr

ior t

o ar

rest

)as

hav

ing

a de

bilit

atin

g co

ndit

ion

and

“adv

ised

” by

the

phys

icia

n, in

the

cont

ext

of a

bon

a fid

e ph

ysic

ian-

pati

ent

rela

tion

ship

, tha

t the

pat

ient

“m

ight

bene

fit”

from

med

ical

mar

ijuan

a

opti

onal

, wit

hst

ate

Dep

artm

ent

of P

ublic

Hea

lth

and

Envi

ronm

ent

2 us

able

oun

ces a

nd 6

plan

ts; p

atie

nts m

ayus

e af

firm

ativ

ede

fens

e to

arg

ue th

atgr

eate

r am

ount

s are

med

ical

ly n

eces

sary

an in

divi

dual

who

has

sign

ifica

nt re

spon

sibi

lity

for m

anag

ing

the

wel

l-be

ing

of th

e pa

tien

t

yes

Haw

aii

S.B

. 862

HD

1(e

nact

ed b

y le

gisl

atur

e)Ju

ne 1

4, 2

000

stat

utor

yex

empt

ion

from

pros

ecut

ion

if in

law

ful

poss

essi

on o

f a re

gist

ry c

ard;

“cho

ice

of e

vils

” de

fens

eal

so o

n th

e bo

oks,

inde

pend

ent o

f thi

s sta

tute

pati

ent’s

med

ical

reco

rds o

r a st

atem

ent

sign

ed b

y th

e pa

tien

t’s p

hysi

cian

, sta

ting

that

in th

e ph

ysic

ian’

s pro

fess

iona

lop

inio

n, th

e pa

tien

t has

a d

ebili

tati

ngco

ndit

ion

and

the

“pot

enti

al b

enef

its o

fth

e m

edic

al u

se o

f mar

ijuan

a w

ould

like

lyou

twei

gh th

e he

alth

risk

s”

man

dato

ry,

wit

h st

ate

Dep

artm

ent

of P

ublic

Safe

ty

7 pl

ants

, 3 o

f whi

chm

ay b

e m

atur

e, a

nd1

ounc

e pe

r mat

ure

plan

t

one

care

give

r per

pati

ent,

and

a ca

regi

ver

may

serv

e on

ly o

nepa

tien

t at a

ny g

iven

tim

e

yes

Mai

neQ

uest

ion

2(b

allo

t ini

tiat

ive/

61%

)N

ovem

ber 2

, 199

9

stat

utor

ypr

ovid

es a

sim

ple

defe

nse,

whi

ch m

eans

the

burd

en is

on th

e st

ate

to p

rove

that

apa

tien

t’s m

edic

al u

se o

rpo

sses

sion

was

not

auth

oriz

ed b

y st

atut

e

an a

uthe

ntic

ated

cop

y of

per

tine

ntm

edic

al re

cord

s or w

ritt

en d

ocum

enta

tion

from

a p

hysi

cian

show

ing

that

the

pati

ent

has a

qua

lifyi

ng c

ondi

tion

; has

dis

cuss

edth

e ri

sks a

nd b

enef

its o

f med

ical

mar

ijuan

a; a

nd h

as b

een

“adv

ised

” by

the

phys

icia

n th

at h

e or

she

“mig

ht b

enef

it”

from

med

ical

mar

ijuan

a

N/A

1 1/

4 ou

nces

and

6pl

ants

, 3 o

f whi

chm

ay b

e m

atur

e

one

care

give

r, w

ho h

asbe

en c

onsi

sten

tly

resp

onsi

ble

for t

hepa

tien

t’s w

ell-

bein

g an

dis

nam

ed in

a w

ritt

enin

divi

dual

inst

ruct

ion

orpo

wer

of a

ttor

ney

for

heal

th c

are

no

Nev

ada

Que

stio

n 9

(bal

lot i

niti

ativ

e/65

%)

59%

in 1

998

also

Nov

embe

r 7, 2

000

cons

titu

-ti

onal

exem

ptio

n fr

ompr

osec

utio

n“a

dvic

e re

quir

ed;”

spec

ifics

to b

ede

term

ined

by

legi

slat

ure

man

dato

ry,

wit

h an

agen

cy n

otye

tde

term

ined

to b

e de

term

ined

by

legi

slat

ure

to b

e de

term

ined

by

legi

slat

ure

yes

Page 14: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

e;m

easu

re/%

of v

ote;

date

ena

cted

stat

utor

yor

cons

titu

-ti

onal

aho

w la

w p

rote

cts p

atie

nts

(def

ense

s pro

vide

d)b

docu

men

tati

on re

quir

ed

regi

stry

syst

emfo

r pat

ient

s and

care

give

rsm

ariju

ana

quan

tity

lim

its

care

give

r pro

visi

ons

can

med

ical

cond

itio

ns

be a

dded

?

Ore

gon

Mea

sure

67

(bal

lot i

niti

ativ

e/55

%)

Nov

embe

r 3, 1

998

(mod

ified

by

H.B

. 305

2, e

ffect

ive

July

21,

199

9)

stat

utor

yex

empt

ion

from

pros

ecut

ion

if in

law

ful

poss

essi

on o

f a re

gist

ry c

ard;

affir

mat

ive

defe

nse

if no

tre

gist

ered

, but

inco

mpl

ianc

e w

ith

the

law

;“c

hoic

e of

evi

ls”

defe

nse

also

aut

hori

zed

by st

atut

e

diag

nose

d w

ithi

n 12

mon

ths p

rior

to a

rres

tw

ith

a qu

alify

ing

cond

itio

n; a

dvis

ed b

yat

tend

ing

phys

icia

n th

at m

ariju

ana

“may

mit

igat

e th

e sy

mpt

oms o

r effe

cts”

of t

hede

bilit

atin

g co

ndit

ion

opti

onal

, wit

hst

ate

Hea

lth

Div

isio

n

if no

t at a

loca

tion

whe

re m

ariju

ana

ispr

oduc

ed, u

p to

1us

able

oun

ce m

ay b

epo

sses

sed;

if at

the

loca

tion

whe

re m

ariju

ana

ispr

oduc

ed, u

p to

7pl

ants

, 3 o

f whi

chm

ay b

e m

atur

e, a

ndon

e us

able

oun

ce o

fm

ariju

ana

per m

atur

epl

ant;

affir

mat

ive

defe

nse

may

be

used

to a

rgue

that

gre

ater

am

ount

is m

edic

ally

nec

essa

ryas

det

erm

ined

by

the

pati

ent’s

att

endi

ngph

ysic

ian

one

care

give

r per

pati

ent,

alth

ough

care

give

rs c

an se

rve

mul

tipl

e pa

tien

tssi

mul

tane

ousl

y

yes

Was

hing

ton

Mea

sure

692

(bal

lot i

niti

ativ

e/59

%)

Nov

embe

r 3, 1

998

stat

utor

yex

empt

ion

from

pros

ecut

ion

if pa

tien

t mee

tsal

l cri

teri

a fo

r sta

tus a

s aqu

alify

ing

pati

ent,

poss

esse

sno

mor

e m

ariju

ana

than

isne

cess

ary

for h

is o

r her

pers

onal

med

ical

use

, and

pres

ents

val

iddo

cum

enta

tion

to la

wen

forc

emen

t who

que

stio

nm

edic

al u

se; a

ffirm

ativ

ede

fens

e av

aila

ble

if in

com

plia

nce

wit

h st

atut

e

stat

emen

t sig

ned

by p

atie

nt’s

phys

icia

n, o

ra

copy

of t

he p

atie

nt’s

pert

inen

t med

ical

reco

rds,

whi

ch st

ates

that

in th

eph

ysic

ian’

s pro

fess

iona

l opi

nion

, the

“pot

enti

al b

enef

its”

of m

edic

al m

ariju

ana

“wou

ld li

kely

out

wei

gh th

e he

alth

risk

s”

N/A

“six

ty d

ay su

pply

”on

e ca

regi

ver p

erpa

tien

t, an

d a

care

give

rm

ay se

rve

only

one

pati

ent a

t any

giv

en ti

me

yes

a The

re is

no

diffe

renc

e in

the

func

tion

alit

y of

med

ical

mar

ijuan

a la

ws t

hat a

re e

nact

ed b

y “s

tatu

te”

vers

us “

cons

titu

tion

al a

men

dmen

t.” T

he o

nly

diffe

renc

e is

that

aco

nsti

tuti

onal

am

endm

ent c

anno

t be

chan

ged

by st

atut

ory

law

; it m

ay o

nly

be c

hang

ed o

r rep

eale

d by

ano

ther

con

stit

utio

nal a

men

dmen

t. T

here

fore

, con

stit

utio

nal

amen

dmen

ts a

re m

ore

entr

ench

ed th

an st

atut

ory

law

, whi

ch c

an b

e m

ore

easi

ly c

hang

ed o

r rep

eale

d by

the

legi

slat

ure.

b See

App

endi

x G

for d

efin

itio

ns o

f “af

firm

ativ

e de

fens

e,”

“exe

mpt

ion

from

pro

secu

tion

,” a

nd “

choi

ce o

f evi

ls.”

c In

prac

tice

, Ala

ska

cons

ider

s an

indi

vidu

al in

pos

sess

ion

of a

val

id re

gist

ry c

ard

and

othe

rwis

e in

com

plia

nce

wit

h th

e la

w to

be

exem

pt fr

om p

rose

cuti

on.

Page 15: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Where things are going from here Vermont, and Wyoming—considered symbolicpieces of legislation.16

The nine medical marijuana initiatives, sevenof which resulted in effective state laws, have beendescribed as the first wave of activity to protectmedical marijuana patients nationwide. Not onlydo they provide legal protection for patients instates that collectively contain more than 18% ofthe U.S. population, but they verified Americans’strong support for favorable medical marijuanalaws.

The role of state legislatures in the movementto protect medical marijuana patients cannot beoverstated. Only 24 states and the District ofColumbia have the initiative process, whichmeans that citizens in 26 states cannot directlyenact their own laws. They must rely on theirstate legislatures to enact favorable medicalmarijuana laws, and the number of futurelegislative victories will depend on how manypeople effectively lobby their state officials.Moreover, legislation is much more cost-effectivethan ballot initiatives, which can be veryexpensive endeavors.

In turn, Hawaii’s success has been called thebeginning of the second wave, whereby statelegislatures will enact effective laws to protectmedical marijuana-using patients. Statelegislatures are increasingly supportive of medicalmarijuana. In the 1999-2000 legislative sessions,17 states considered medical marijuana legislation.Seven states, including Hawaii, consideredlegislation to remove criminal penalties formedical marijuana. Six states consideredlegislation to amend existing medical marijuanalaws, and four states—Colorado, New Hampshire,

State medical marijuana laws have the addedbenefit of putting political pressure on the federalgovernment to change its laws.

The third and final wave will be a change infederal law.

16See Appendix M for a listing of all state medical marijuanabills and resolutions considered during the 1999-2000legislative sessions.

10

Page 16: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Table 2: Tally of State Medical Marijuana Laws

Effective

TherapeuticResearchProgram Symbolic

Non-BindingResolution

State

Alabama ✔

Alaska ✔ ✔

Arizona ✔ ✔

Arkansas ✔

California ✔ ✔ ✔

Colorado ✔ ✔

Connecticut ✔

Delaware

District of Columbia ✔

Florida ✔

Georgia ✔

Hawaii ✔

Idaho

Illinois ✔

Indiana

Iowa ✔ ✔

Kansas

Kentucky

Louisiana ✔ ✔

Maine ✔ ✔

Maryland

Massachusetts ✔

Michigan ✔ ✔

Minnesota ✔

Mississippi

Missouri ✔

Montana ✔

Nebraska

Nevada ✔ ✔

11

Page 17: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Table 2: Tally of State Medical Marijuana Laws (continued)

Effective

TherapeuticResearchProgram Symbolic

Non-BindingResolution

State

New Hampshire ✔ ✔

New Jersey ✔

New Mexico ✔ ✔

New York ✔

North Carolina ✔

North Dakota

Ohio ✔ ✔

Oklahoma

Oregon ✔ ✔

Pennsylvania

Rhode Island ✔

South Carolina ✔

South Dakota

Tennessee ✔ ✔

Texas ✔

Utah

Vermont ✔

Virginia ✔

Washington ✔ ✔ ✔

West Virginia ✔

Wisconsin ✔

Wyoming

Totals 1 8 12 14 2 10plusD.C.

Grand Totals 9 26 12 plus D.C. 6

At some point in time, 35 states have had a favorable medical marijuana law. Twelve of

those 35 states have had more than one type of medical marijuana law. California, for

example, currently has both an effective law and a research law, while Arizona previously

had a research law and currently has a symbolic law.

12

Page 18: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Sta

tes

wit

h Ef

fect

ive

Med

ical

Mar

ijuan

a La

ws

(Rem

oval

of C

rim

inal

Pen

alti

es)

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll/in

itia

tive

#se

ssio

n la

wci

tati

on fo

rm

ed. m

j law

mar

ijuan

asc

hedu

leci

tati

on fo

rsc

hedu

les

AK

Nov

. 3, 1

998

Mar

ch 4

, 199

9B

allo

t Mea

sure

8Se

ctio

n 1,

199

8 B

allo

tM

easu

re 8

§ 17

.37

VIA

§ 11

.71.

160

Cur

rent

Law

:B

allo

t Mea

sure

8 re

mov

es st

ate-

leve

l cri

min

al p

enal

ties

for m

edic

al m

ariju

ana

use,

pos

sess

ion,

and

cul

tiva

tion

. How

ever

, S.B

. 94,

whi

ch to

ok e

ffect

June

2,

1999

, mad

e th

e st

ate’

s med

ical

mar

ijuan

a re

gist

ry p

rogr

am m

anda

tory

and

rem

oved

the

affir

mat

ive

defe

nse

for p

atie

nts (

or th

eir c

areg

iver

s) w

ho p

osse

ssm

ore

mar

ijuan

a th

an is

per

mit

ted

by th

e la

w.

His

tory

:A

ther

apeu

tic

rese

arch

pro

gram

— w

hich

was

nev

er o

pera

tion

al —

for c

ance

r che

mot

hera

py a

nd ra

diol

ogy

and

glau

com

a (s

tatu

te §

17.

35)

was

ena

cted

in19

82 (

sess

ion

law

§ 5

ch.

45)

. The

law

was

repe

aled

by

ch. 1

46 (

1986

). D

etai

ls o

f the

pro

gram

incl

uded

adm

inis

trat

ion

by th

e B

oard

of P

harm

acy;

pat

ient

cert

ifica

tion

by

a Pa

tien

t Qua

lific

atio

n R

evie

w C

omm

itte

e; th

e B

oard

of P

harm

acy

was

als

o pe

rmit

ted

to in

clud

e ot

her d

isea

se g

roup

s if a

phy

sici

anpr

esen

ted

pert

inen

t med

ical

dat

a.A

s a S

ched

ule

VIA

dru

g, m

ariju

ana

has t

he “

low

est d

egre

e of

dan

ger o

r pro

babl

e da

nger

to a

per

son

or th

e pu

blic

.”

CA

Nov

. 5, 1

996

Nov

. 6, 1

996

Bal

lot I

niti

ativ

e, P

ropo

siti

on 2

15N

/AH

& S

§ 1

1362

.5I

H &

S §

110

54C

urre

nt L

aws:

Prop

osit

ion

215

rem

oves

stat

e-le

vel c

rim

inal

pen

alti

es fo

r med

ical

mar

ijuan

a us

e, p

osse

ssio

n, a

nd c

ulti

vati

on.

In a

ddit

ion,

S.B

. 847

, whi

ch to

ok e

ffect

Oct

. 7, 1

999

(ses

sion

law

Ch.

750

), e

stab

lishe

d th

e C

alifo

rnia

Cen

ter f

or M

edic

inal

Can

nabi

s Res

earc

h (H

& S

§11

362.

9). A

one

-tim

e $3

mill

ion

appr

opri

atio

n w

as p

rovi

ded

in th

e 20

00-2

001

stat

e bu

dget

for t

he re

sear

ch, w

hich

is a

thre

e-ye

ar p

roje

ct c

oord

inat

ed b

yth

e Sa

n D

iego

and

San

Fra

ncis

co c

ampu

ses o

f the

Uni

vers

ity

of C

alifo

rnia

. Res

earc

h w

ill fo

cus o

n sa

fety

and

effi

cacy

of m

ariju

ana

for t

reat

ing

a w

ide

rang

eof

deb

ilita

ting

con

diti

ons.

Mar

ijuan

a us

ed in

the

rese

arch

will

be

obta

ined

from

the

fede

ral g

over

nmen

t. If

the

fede

ral g

over

nmen

t fai

ls to

pro

vide

an

adeq

uate

supp

ly, t

he st

ate

“Att

orne

y G

ener

al sh

all p

rovi

de a

n ad

equa

te su

pply

.”H

isto

ry:

From

July

25,

197

9 un

til J

une

30, 1

989,

a th

erap

euti

c re

sear

ch p

rogr

am —

whi

ch w

as o

pera

tion

al —

for c

ance

r and

gla

ucom

a ex

iste

d (H

& S

§ 1

1260

and

H &

S §

114

80);

ena

cted

via

S.B

. 184

, ses

sion

law

Ch.

300

(19

79).

The

Res

earc

h A

dvis

ory

Pane

l coo

rdin

ated

rese

arch

wit

h m

ariju

ana

and

its d

eriv

ativ

es;

$100

,000

was

app

ropr

iate

d fo

r the

firs

t yea

r. M

inor

am

endm

ents

by

ch. 3

74 (

1980

) an

d ch

. 101

(19

83).

H &

S §

112

60 w

ould

hav

e ex

pire

d on

June

30,

1985

, but

the

prog

ram

was

ext

ende

d an

d m

odifi

ed sl

ight

ly b

y ch

. 417

(19

84);

the

prog

ram

fina

lly e

xpir

ed o

n Ju

ne 3

0, 1

989;

§ 1

1480

rem

ains

on

the

book

s.

CO

Nov

. 7, 2

000

June

30,

200

1B

allo

t Ini

tiat

ive,

Am

endm

ent 2

0N

/AC

onst

itut

iona

lA

men

dmen

t 20

N/A

§ 18

-18-

203

Cur

rent

Law

:A

men

dmen

t 20

rem

oves

stat

e-le

vel c

rim

inal

pen

alti

es fo

r med

ical

mar

ijuan

a us

e, p

osse

ssio

n, a

nd c

ulti

vati

on.

His

tory

:A

ther

apeu

tic

rese

arch

pro

gram

— w

hich

was

nev

er o

pera

tion

al —

for c

ance

r and

gla

ucom

a (§

25-

5-90

1 to

-907

) w

as e

nact

ed a

nd to

ok e

ffect

on

June

21,

1979

(H

.B. 1

042,

ch.

265

). D

etai

ls o

f the

pro

gram

incl

uded

adm

inis

trat

ion

by a

Pha

rmac

y an

d T

hera

peut

ics C

omm

itte

e (P

TC

) at

the

Uni

vers

ity

ofC

olor

ado;

the

PTC

cou

ld in

clud

e ot

her d

isea

se g

roup

s aft

er re

view

of p

erti

nent

dat

a pr

esen

ted

by a

phy

sici

an; a

pply

to re

ceiv

e m

ariju

ana

from

the

Nat

iona

lIn

stit

ute

on D

rug

Abu

se (

NID

A);

if u

nabl

e to

obt

ain

mar

ijuan

a fr

om N

IDA

, inv

esti

gate

the

feas

ibili

ty o

f usi

ng se

ized

mar

ijuan

a th

at h

as b

een

test

ed fo

rim

puri

ties

; $15

,000

was

app

ropr

iate

d. A

men

ded

by c

h. 3

22 (

1981

) to

say

that

oth

er d

isea

se g

roup

s can

be

incl

uded

aft

er p

erti

nent

dat

a ar

e pr

esen

ted

by a

phys

icia

n w

ho h

as a

n IN

D (

Inve

stig

atio

nal N

ew D

rug)

num

ber i

ssue

d by

FD

A; a

pply

to re

ceiv

e m

ariju

ana

from

fede

ral g

over

nmen

t. T

he la

w w

as re

peal

edby

H.B

. 95-

1020

in 1

995

(ch.

71)

.

HI

June

14,

200

0Ju

ne 1

4, 2

000

S.B

. 862

Act

228

, SLH

200

329

329-

14C

urre

nt L

aw:

S.B

. 862

rem

oves

stat

e-le

vel c

rim

inal

pen

alti

es fo

r med

ical

mar

ijuan

a us

e, p

osse

ssio

n, a

nd c

ulti

vati

on. T

his i

s the

firs

t law

of t

his n

atur

e to

be

enac

ted

by a

stat

e le

gisl

atur

e, ra

ther

than

by

a ba

llot i

niti

ativ

e. (

Oth

er st

ate

legi

slat

ures

hav

e en

acte

d m

edic

al m

ariju

ana

rese

arch

law

s and

sym

bolic

law

s rel

atin

g to

mar

ijuan

a sc

hedu

ling

or p

resc

ript

ive

acce

ss.)

Thi

s is H

awai

i’s fi

rst m

edic

al m

ariju

ana

law

of a

ny k

ind.

Page 19: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll/in

itia

tive

#se

ssio

n la

wci

tati

on fo

rm

ed. m

j law

mar

ijuan

asc

hedu

leci

tati

on fo

rsc

hedu

les

ME

Nov

. 2, 1

999

Dec

. 22,

199

9R

efer

endu

m E

lect

ion

Bal

lot

Que

stio

n 2

Law

s of M

aine

199

9,In

itia

ted

Bill

Ch.

122

§ 2

383

N/A

17-A

§ 1

102

Cur

rent

Law

:Q

uest

ion

2 re

mov

es st

ate-

leve

l cri

min

al p

enal

ties

for m

edic

al m

ariju

ana

use,

pos

sess

ion,

and

cul

tiva

tion

.H

isto

ry:

A th

erap

euti

c re

sear

ch p

rogr

am —

whi

ch w

as n

ever

ope

rati

onal

— fo

r gla

ucom

a an

d ca

ncer

che

mot

hera

py (

22 §

240

1-24

10)

was

ena

cted

on

Sept

. 14,

1979

(H

.B. 6

65, c

h. 4

57).

The

pro

gram

exp

ired

in 1

981,

but

an

alm

ost i

dent

ical

law

rein

stat

ed th

e pr

ogra

m o

n Se

pt. 2

3, 1

983

(H.B

. 102

5, c

h. 4

23, 2

2411

-242

0). T

hat l

aw e

xpir

ed o

n D

ec. 3

1, 1

987,

whi

ch a

utho

rize

d a

rese

arch

pro

gram

wit

hin

the

Dep

artm

ent o

f Hum

an S

ervi

ces t

o us

e fe

dera

l mar

ijuan

aor

, if n

eces

sary

, mar

ijuan

a co

nfis

cate

d by

stat

e la

w-e

nfor

cem

ent a

genc

ies;

a Pa

rtic

ipat

ion

Rev

iew

Boa

rd w

ould

app

rove

phy

sici

ans.

Con

trol

led

subs

tanc

es a

re in

Sch

edul

es W

, X, Y

, and

Z, w

hich

det

erm

ine

the

seve

rity

of p

enal

ties

for p

osse

ssio

n, m

anuf

actu

re, a

nd d

istr

ibut

ion

of th

ese

subs

tanc

es. T

he sc

hedu

les m

ake

no st

atem

ent a

s to

the

med

ical

val

ue o

f the

con

trol

led

subs

tanc

es.

NV

Nov

. 7, 2

000

requ

ires

legi

slat

ive

impl

emen

tati

onB

allo

t Que

stio

n 9

N/A

Con

stit

utio

nal

Am

endm

ent

I45

3.51

0 N

AC

Cur

rent

Law

:Q

uest

ion

9 re

mov

es st

ate-

leve

l cri

min

al p

enal

ties

for m

edic

al m

ariju

ana

use,

pos

sess

ion,

and

cul

tiva

tion

.H

isto

ry:

A th

erap

euti

c re

sear

ch p

rogr

am —

whi

ch w

as n

ever

ope

rati

onal

— fo

r gla

ucom

a or

can

cer c

hem

othe

rapy

or o

ther

app

rove

d co

ndit

ions

(45

3.74

0 - 4

53.8

10an

d45

3.74

0 N

AC

) w

as e

nact

ed o

n Ju

ne 2

, 197

9 (S

.B. 4

70, c

h. 6

10).

Adm

inis

tere

d by

Hea

lth

Div

isio

n of

Dep

artm

ent o

f Hum

an S

ervi

ces a

nd a

Boa

rd o

fR

evie

w fo

r Pat

ient

s. T

he la

w w

as re

peal

ed b

y A

.B. 6

95 in

198

7 (c

h. 4

17).

OR

Nov

. 3, 1

998

Dec

. 3, 1

998

Bal

lot M

easu

re 6

7O

rego

n La

ws 1

999,

Ch.

447

5.30

0-34

6I

475.

035

and

OA

R 8

55-8

0C

urre

nt L

aw:

Mea

sure

67

rem

oves

stat

e-le

vel c

rim

inal

pen

alti

es fo

r med

ical

mar

ijuan

a us

e, p

osse

ssio

n, a

nd c

ulti

vati

on. M

inor

am

endm

ents

wer

e m

ade

via

H.B

. 305

2,w

hich

took

effe

ct Ju

ly 2

1, 1

999,

whi

ch m

anda

tes t

hat p

atie

nts m

ay n

ot u

se m

edic

al m

ariju

ana

in a

cor

rect

iona

l fac

ility

; lim

its p

atie

nts a

nd c

areg

iver

s to

grow

ing

mar

ijuan

a at

one

loca

tion

eac

h; re

quir

es th

at a

pat

ient

be

diag

nose

d w

ithi

n 12

mon

ths p

rior

to a

rres

t to

asse

rt a

n af

firm

ativ

e de

fens

e; re

lieve

spo

lice

from

the

resp

onsi

bilit

y to

mai

ntai

n liv

e m

ariju

ana

plan

ts w

hile

a c

ase

is p

endi

ng.

His

tory

:A

law

to a

llow

phy

sici

ans t

o pr

escr

ibe

mar

ijuan

a fo

r can

cer c

hem

othe

rapy

and

gla

ucom

a (§

475

.505

) w

as e

nact

ed o

n Ju

ne 1

8, 1

979

(H.B

. 226

7, c

h. 2

53).

Ore

gon

Stat

e Po

lice

coul

d m

ake

conf

isca

ted

mar

ijuan

a av

aila

ble

to th

e H

ealt

h D

ivis

ion

to te

st it

for c

onta

min

ants

; if m

ariju

ana

was

foun

d to

be

free

of

cont

amin

ants

, Hea

lth

Div

isio

n co

uld

mak

e m

ariju

ana

avai

labl

e to

phy

sici

ans u

pon

wri

tten

requ

est;

pati

ents

who

are

pre

scri

bed

such

mar

ijuan

a co

uld

poss

ess l

ess t

han

an o

unce

. In

1980

, the

Hea

lth

Div

isio

n re

ceiv

ed fe

dera

l per

mis

sion

to d

istr

ibut

e m

ariju

ana,

pur

suan

t to

the

stat

ute,

and

a fe

dera

l sup

ply

ofm

ariju

ana;

how

ever

, it i

s unl

ikel

y th

at d

istr

ibut

ion

ever

occ

urre

d. T

he la

w w

as re

peal

ed b

y S.

B. 1

60 in

198

7 (c

h. 7

5).

WA

Nov

. 3, 1

998

Nov

. 3, 1

998

Init

iati

ve M

easu

re N

o. 6

9219

99 c

2 §

1R

CW

69.

51A

I69

.50.

204

and

WA

C 2

46-8

87-1

00C

urre

nt L

aws:

Mea

sure

692

rem

oves

stat

e-le

vel c

rim

inal

pen

alti

es fo

r med

ical

mar

ijuan

a us

e, p

osse

ssio

n, a

nd c

ulti

vati

on.

In a

ddit

ion,

a th

erap

euti

c re

sear

ch p

rogr

am —

whi

ch w

as o

pera

tion

al —

for c

ance

r che

mot

hera

py a

nd ra

diol

ogy,

gla

ucom

a, a

nd o

ther

dis

ease

gro

ups

(RC

W 6

9.51

) w

as e

nact

ed o

n M

arch

27,

197

9 (H

.B. 2

59, c

h. 1

36)

and

rem

ains

on

the

book

s. Pr

ogra

m a

dmin

iste

red

by B

oard

of P

harm

acy

and

Pati

ent

Qua

lific

atio

n R

evie

w C

omm

itte

e; “

Boa

rd sh

all o

btai

n m

ariju

ana

thro

ugh

wha

teve

r mea

ns it

dee

ms m

ost a

ppro

pria

te a

nd c

onsi

sten

t wit

h re

gula

tion

spr

omul

gate

d by

fede

ral g

over

nmen

t”; “

boar

d m

ay u

se m

ariju

ana

whi

ch h

as b

een

conf

isca

ted

by lo

cal o

r sta

te la

w e

nfor

cem

ent a

genc

ies a

nd h

as b

een

dete

rmin

ed to

be

free

from

con

tam

inat

ion.

”T

here

was

dua

l sch

edul

ing

for m

ariju

ana

and

ever

y co

mpo

und

(inc

ludi

ng T

HC

— te

trah

ydro

cann

abin

ol, t

he p

rim

ary

acti

ve in

gred

ient

) in

the

mar

ijuan

apl

ant;

amen

dmen

t in

1986

(ch

. 124

) re

mov

ed th

e du

al sc

hedu

ling

of m

ariju

ana

and

TH

C; m

inor

am

endm

ents

mad

e in

198

9 (c

h. 9

).O

n M

arch

30,

199

6, W

ashi

ngto

n St

ate

enac

ted

the

1996

supp

lem

enta

l ope

rati

ng b

udge

t whi

ch a

lloca

ted

$130

,000

for t

wo

med

ical

mar

ijuan

a-re

late

dpr

ojec

ts: $

70,0

00 to

rese

arch

a ta

mpe

r-fr

ee m

eans

of c

ulti

vati

ng m

ariju

ana

for m

edic

inal

pur

pose

s, an

d $6

0,00

0 to

rese

arch

the

ther

apeu

tic

pote

ntia

l of

mar

ijuan

a. R

esea

rch,

how

ever

, was

nev

er c

ondu

cted

and

the

$60,

000

appr

opri

atio

n ex

pire

d.

Page 20: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Sta

tes

wit

h M

edic

al M

ariju

ana

Res

earc

h La

ws

(The

rape

utic

Res

earc

h P

rogr

ams)

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll #

sess

ion

law

cita

tion

for m

ed. m

j law

mar

ijuan

asc

hedu

leci

tati

on fo

rsc

hedu

les

AL

July

30,

197

9Ju

ly 3

0, 1

979

S. 5

59A

ct N

o. 7

9-47

20-2

-110

20-2

-23(

3) a

ndA

AC

Cha

p. 4

20-7

-2

Cur

rent

Law

:Fo

r can

cer c

hem

othe

rapy

and

gla

ucom

a.St

ate

Boa

rd o

f Med

ical

Exa

min

ers i

s aut

hori

zed

to c

reat

e re

view

com

mit

tee

to a

dmin

iste

r pro

gram

— w

hich

has

nev

er b

een

oper

atio

nal.

S. 1

63 (

Act

. No.

81-

506)

mad

e m

inor

cha

nges

.

GA

Feb.

22,

198

0Fe

b. 2

2, 1

980

H.B

. 107

7N

o. 7

10 (

1980

)43

-34-

120

and

Rul

es a

ndR

egul

atio

ns C

hapt

er 3

60-

12

N/A

16-1

3-25

Cur

rent

Law

:Fo

r can

cer a

nd g

lauc

oma

(mar

ijuan

a or

TH

C).

Com

posi

te S

tate

Boa

rd o

f Med

ical

Exa

min

ers h

as a

utho

rity

to a

ppoi

nt a

Pat

ient

Qua

lific

atio

n R

evie

w B

oard

whi

ch c

an a

ppro

ve p

atie

nts,

phys

icia

ns, a

ndph

arm

acie

s for

par

tici

pati

on in

the

prog

ram

— w

hich

was

ope

rati

onal

; no

othe

r ailm

ents

allo

wed

.

ILSe

pt. 9

, 197

8Se

pt. 9

, 197

8H

.B. 2

625

80-1

426

720

ILC

S 55

0/11

and

77

IAC

Ch.

X,

Sec.

208

5N

/A72

0 IL

CS

570/

206

and

77 I

AC

Ch.

X,

Sec.

207

0

Rem

arks

:Fo

r gla

ucom

a an

d ca

ncer

che

mot

hera

py a

nd ra

diol

ogy

or o

ther

pro

cedu

res.

The

pro

gram

has

nev

er b

een

oper

atio

nal.

Allo

ws p

erso

ns “

enga

ged

in re

sear

ch”

to u

se m

ariju

ana

whe

n au

thor

ized

by

phys

icia

n; m

ust b

e ap

prov

ed b

y D

epar

tmen

t of M

enta

l Hea

lth

and

Dev

elop

men

tal D

isab

iliti

es.

MA

Dec

. 31,

199

1D

ec. 3

1, 1

991

S. 1

582

ch. 4

80 (

1991

)94

D §

1N

/A94

C §

31

Cur

rent

Law

:Fo

r can

cer c

hem

othe

rapy

and

radi

olog

y, g

lauc

oma,

and

ast

hma

(mar

ijuan

a or

TH

C).

The

pro

gram

has

nev

er b

een

oper

atio

nal.

On

Aug

ust 8

, 199

6, M

assa

chus

etts

pas

sed

a se

cond

med

ical

mar

ijuan

a bi

ll (H

. 217

0) w

hich

man

date

d th

at w

ithi

n 18

0 da

ys, t

he st

ate’

s pub

lic h

ealt

hde

part

men

t mus

t est

ablis

h th

e ru

les a

nd re

gula

tion

s nec

essa

ry to

get

its t

hera

peut

ic re

sear

ch p

rogr

am ru

nnin

g an

d to

allo

w a

def

ense

of m

edic

al n

eces

sity

for

enro

lled

pati

ents

. Rul

es w

ere

esta

blis

hed,

but

fede

ral p

erm

issi

on fo

r res

earc

h w

as n

ever

obt

aine

d.C

ontr

olle

d su

bsta

nces

are

in C

lass

es A

, B, C

, and

D, w

hich

det

erm

ine

the

seve

rity

of p

enal

ties

for p

osse

ssio

n, m

anuf

actu

re, a

nd d

istr

ibut

ion

of th

ese

subs

tanc

es. T

he c

lass

es m

ake

no st

atem

ent a

s to

the

med

ical

val

ue o

f the

con

trol

led

subs

tanc

es.

MN

Apr

il 24

, 198

0A

pril

25, 1

980

H.F

. 247

6ch

. 614

(19

80)

§ 15

2.21

152.

02 a

nd M

R 6

800.

4200

Cur

rent

Law

:Fo

r can

cer o

nly

(TH

C o

nly)

. TH

C is

in S

ched

ule

I but

is c

onsi

dere

d to

be

in S

ched

ule

II w

hen

used

for m

edic

inal

pur

pose

s.T

he 1

980

bill

orig

inal

ly a

ppro

pria

ted

$100

,000

to th

e T

HC

The

rape

utic

Res

earc

h A

ct, b

ut th

is li

ne-i

tem

was

vet

oed

by th

e go

vern

or. T

he p

rogr

am h

asne

ver b

een

oper

atio

nal.

NJ

Mar

ch 2

3, 1

981

Mar

ch 2

3, 1

981

A.B

. 819

ch. 7

2 (1

981)

26:2

LI

24:2

1-5

and

8:65

-10

New

Jer

sey

Adm

inist

rativ

e C

ode

Cur

rent

Law

:Fo

r life

- or s

ense

-thr

eate

ning

dis

ease

s. T

he p

rogr

am h

as n

ever

bee

n op

erat

iona

l.Pe

rtai

ns to

any

Sch

edul

e I s

ubst

ance

(no

t spe

cific

to m

ariju

ana)

; adm

inis

tere

d by

Dep

artm

ent o

f Hea

lth;

onl

y fo

r pat

ient

s par

tici

pati

ng in

rese

arch

prog

ram

s con

duct

ed b

y FD

A; p

atie

nts a

nd p

hysi

cian

s cer

tifie

d by

The

rape

utic

Res

earc

h Q

ualif

icat

ion

Boa

rd; g

et su

bsta

nces

from

NID

A.

Page 21: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll #

sess

ion

law

cita

tion

for m

ed. m

j law

mar

ijuan

asc

hedu

leci

tati

on fo

rsc

hedu

les

NM

Feb.

21,

197

8Fe

b. 2

1, 1

978

H.B

. 329

ch. 2

2 (1

978)

26-2

AI*

30-3

1-3

Cur

rent

Law

:Fo

r gla

ucom

a an

d ca

ncer

che

mot

hera

py (

mar

ijuan

a or

TH

C);

pat

ient

s wit

h ot

her d

isea

ses m

ust g

et a

ppro

val f

rom

Pat

ient

Qua

lific

atio

n R

evie

w B

oard

.A

dmin

iste

red

by th

e D

epar

tmen

t of H

ealt

h an

d En

viro

nmen

t; th

e pr

ogra

m w

as o

pera

tion

al. W

ould

hav

e ex

pire

d on

July

1, 1

979,

but

ch.

11

(197

9)ex

tend

ed th

e pr

ogra

m in

defin

itel

y.*S

tate

follo

ws t

he fe

dera

l gov

ernm

ent’s

sche

dulin

g of

con

trol

led

subs

tanc

es a

s art

icul

ated

in th

e C

ode

of F

eder

al R

egul

atio

ns [3

0-31

-5; B

oard

of P

harm

acy,

505-

841-

9102

]. M

ariju

ana

and

TH

C a

re in

Sch

edul

e I b

ut a

re c

onsi

dere

d to

be

in S

ched

ule

II w

hen

used

for m

edic

al p

urpo

ses.

NY

June

30,

198

0Se

pt. 1

, 198

0S.

B. 1

123-

6ch

. 810

(19

80)

PHL

§ 33

97 a

nd P

HL

§ 33

28I

PHL

§ 33

06

Cur

rent

Law

:Fo

r can

cer,

glau

com

a, a

nd o

ther

life

- and

sens

e-th

reat

enin

g di

seas

es a

ppro

ved

by th

e co

mm

issi

oner

. Adm

inis

tere

d by

Dep

artm

ent o

f Hea

lth

and

Pati

ent

Qua

lific

atio

n R

evie

w B

oard

; the

pro

gram

was

ope

rati

onal

; con

fisca

ted

mar

ijuan

a m

ay b

e us

ed if

nec

essa

ry.

In 1

981,

the

nam

e of

the

“con

trol

led

subs

tanc

es th

erap

euti

c re

sear

ch p

rogr

am”

was

cha

nged

to th

e “A

nton

io G

. Oliv

ieri

con

trol

led

subs

tanc

es th

erap

euti

cre

sear

ch p

rogr

am”

by c

h. 2

08 (

1981

).

RI

May

19,

198

0M

ay 1

9, 1

980

H.B

. 79.

6072

ch. 3

75 (

1980

21-2

8.4-

1I

§ 21

-28-

2.08

Cur

rent

Law

:Pa

tien

ts m

ust b

e in

volv

ed in

a li

fe- o

r sen

se-t

hrea

teni

ng si

tuat

ion

(ori

gina

l law

spec

ified

can

cer c

hem

othe

rapy

, gla

ucom

a, a

nd o

ther

dis

ease

gro

ups)

; pro

gram

— w

hich

has

nev

er b

een

oper

atio

nal —

adm

inis

tere

d by

dir

ecto

r of t

he D

epar

tmen

t of H

ealt

h; d

irec

tor o

r dir

ecto

r’s d

esig

nee

auth

oriz

ed to

revi

ew p

atie

nts

and

phys

icia

ns fo

r par

tici

pati

on in

pro

gram

(or

igin

al la

w sp

ecifi

ed P

atie

nt Q

ualif

icat

ion

Rev

iew

Boa

rd).

Am

ende

d by

86-

H 7

817

in 1

986

(ch.

236

) to

inst

ead

say

“life

- or s

ense

-thr

eate

ning

con

diti

ons,”

and

del

etes

refe

renc

es to

Pat

ient

Qua

lific

atio

n R

evie

w B

oard

.

SCFe

b. 2

8, 1

980

Feb.

28,

198

0S.

350

Act

No.

323

(198

0)§

44-5

3-61

0I

§ 44

-53-

160

and

§ 44

-53-

190

Cur

rent

Law

:Fo

r gla

ucom

a, c

ance

r che

mot

hera

py a

nd ra

diol

ogy,

and

oth

er d

isea

se g

roup

s (m

ariju

ana

and

TH

C).

The

pro

gram

has

nev

er b

een

oper

atio

nal.

Adm

inis

tere

d by

com

mis

sion

er o

f Dep

artm

ent o

f Hea

lth

and

Envi

ronm

enta

l Con

trol

and

pat

ient

qua

lific

atio

n re

view

adv

isor

y bo

ard;

“C

omm

issi

oner

shal

lob

tain

mar

ijuan

a th

roug

h w

hate

ver m

eans

he

deem

s mos

t app

ropr

iate

con

sist

ent w

ith

fede

ral l

aw.”

Min

or a

men

dmen

ts m

ade

by A

ct N

o. 1

81 (

1993

).

TX

June

14,

197

9Ja

nuar

y 1,

198

0S.

B. 8

77ch

. 826

(19

79)

H &

S §

481

.111

and

§ 48

1.20

1-20

5I

H &

S §

481

.032

and

§ 4

81.0

38 a

nd37

TA

C §

13.

1

Cur

rent

Law

:Fo

r can

cer a

nd g

lauc

oma

(TH

C o

r its

der

ivat

ives

). T

he p

rogr

am h

as n

ever

bee

n op

erat

iona

l.A

dmin

iste

red

by B

oard

of H

ealt

h an

d R

esea

rch

Prog

ram

Rev

iew

Boa

rd; R

PRB

, aft

er a

ppro

val o

f Boa

rd o

f Hea

lth,

may

seek

aut

hori

zati

on to

exp

and

rese

arch

pro

gram

to in

clud

e ot

her d

isea

ses;

get T

HC

from

fede

ral g

over

nmen

t.M

inor

am

endm

ents

mad

e by

S.B

. 688

in 1

983

(ch.

566

). H

.B. 2

136

in 1

989

(ch.

678

) m

oved

the

ther

apeu

tic

rese

arch

pro

gram

law

from

Civ

il St

atut

esH

ealt

h A

rt. 4

476-

15 to

H &

S §

481

.201

-205

.H

.B. 2

213,

sign

ed in

to la

w b

y T

exas

Gov

erno

r Geo

rge

W. B

ush

on Ju

ne 1

8, 1

997,

pro

hibi

ts lo

cal g

over

nmen

ts in

Tex

as fr

om a

dopt

ing

polic

ies o

f not

fully

enfo

rcin

g ex

isti

ng st

ate

drug

law

s. T

he b

ill w

as in

spir

ed b

y th

e vo

ter i

niti

ativ

e in

San

Mar

cos —

reje

cted

by

vote

rs o

n M

ay 3

, 199

7 —

whi

ch w

ould

hav

eal

low

ed p

olic

e to

ove

rloo

k th

e m

edic

al u

se o

f mar

ijuan

a. T

his l

aw d

oes n

ot a

ffect

the

exis

ting

ther

apeu

tic

rese

arch

pro

gram

law

.

Page 22: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll #

sess

ion

law

cita

tion

for m

ed. m

j law

mar

ijuan

asc

hedu

leci

tati

on fo

rsc

hedu

les

WV

Mar

ch 1

0, 1

979

June

8, 1

979

S.B

. 366

ch. 5

6 (1

979)

§ 16

-5A

-7I

§ 60

A-2

-204

Cur

rent

Law

:Fo

r can

cer c

hem

othe

rapy

and

gla

ucom

a. T

he p

rogr

am h

as n

ever

bee

n op

erat

iona

l.Pr

ogra

m a

dmin

iste

red

by d

irec

tor o

f the

Dep

artm

ent o

f Hea

lth

and

Pati

ent Q

ualif

icat

ion

Rev

iew

Boa

rd; P

QR

B a

utho

rize

d to

cer

tify

the

part

icip

atio

n of

pati

ents

, phy

sici

ans,

and

phar

mac

ies f

or p

arti

cipa

tion

in th

e pr

ogra

m; m

ay in

clud

e ot

her d

isea

se g

roup

s if a

ppro

ved;

dir

ecto

r sha

ll co

ntra

ct w

ith

fede

ral

gove

rnm

ent f

or su

pply

of m

ariju

ana.

Sta

tes

wit

h S

ymbo

lic M

edic

al M

ariju

ana

Law

s

stat

em

ed. m

j law

appr

oved

took

effe

ctm

easu

rese

ssio

n la

wci

tati

on fo

rm

ed. m

j law

desc

ript

ion

of la

wm

ariju

ana

sche

dule

cita

tion

for

sche

dule

s

AZ

Nov

. 5, 1

996

Dec

. 6, 1

996

Prop

osit

ion

200

N/A

§ 13

-341

2.01

phys

icia

ns m

ay p

resc

ribe

36-2

512

Cur

rent

Law

:Si

mila

r to

othe

r sta

te m

edic

al m

ariju

ana

init

iati

ves,

but u

ses t

he w

ord

“pre

scri

be”

rath

er th

an “

reco

mm

end.

” B

ecau

se o

f thi

s nar

row

lang

uage

, pat

ient

s do

not h

ave

lega

l pro

tect

ion.

Pre

scri

ptiv

e au

thor

ity

is c

ontr

olle

d by

the

fede

ral g

over

nmen

t, w

hich

doe

s not

per

mit

mar

ijuan

a pr

escr

ipti

ons.

The

refo

re, a

val

idpr

escr

ipti

on c

anno

t be

obta

ined

.H

.B. 2

518

was

sign

ed b

y th

e go

vern

or o

n A

pril

21, 1

997,

to re

peal

the

med

ical

mar

ijuan

a pr

ovis

ion

of P

rop.

200

. H.B

. 251

8 re

quir

es th

e FD

A to

app

rove

the

med

ical

use

of m

ariju

ana

befo

re A

rizo

na p

hysi

cian

s can

pre

scri

be it

. To

prev

ent H

.B. 2

518

from

taki

ng e

ffect

, the

spon

sors

of P

rop.

200

qua

lifie

dan

othe

r bal

lot p

ropo

sal (

Prop

. 300

) th

at w

ould

allo

w th

e m

edic

al m

ariju

ana

prov

isio

n of

Pro

p. 2

00 to

rem

ain

in e

ffect

. On

Nov

. 3, 1

998,

Ari

zona

vot

ers

vote

d “n

o” to

the

legi

slat

ure’

s law

by

reje

ctin

g Pr

op. 3

00 (

57%

opp

osed

, 43%

in fa

vor)

and

thus

uph

oldi

ng th

e m

edic

al m

ariju

ana

stat

ute.

The

med

ical

mar

ijuan

a pr

ovis

ions

of P

ropo

siti

on 2

00 w

ere

only

a sm

all p

art o

f thi

s mor

e co

mpr

ehen

sive

dru

g po

licy

refo

rm in

itia

tive

, whi

ch is

effe

ctiv

ely

keep

ing

man

y lo

w-l

evel

, non

viol

ent d

rug

offe

nder

s out

of p

riso

n.H

isto

ry:

A m

edic

al m

ariju

ana

(and

TH

C)

rese

arch

law

— w

hich

was

nev

er o

pera

tion

al —

for c

ance

r and

gla

ucom

a re

sear

ch (

§ 36

-260

1), e

nact

ed o

n A

pril

22, 1

980

(H.B

. 202

0; C

h. 1

22),

exp

ired

on

June

30,

198

5. D

irec

tor o

f the

Dep

artm

ent o

f Hea

lth

Serv

ices

aut

hori

zed

to a

ppoi

nt a

Pat

ient

Qua

lific

atio

n R

evie

wB

oard

; PQ

RB

was

aut

hori

zed

to re

view

pat

ient

s and

doc

tors

for p

arti

cipa

tion

in th

e pr

ogra

m; U

nive

rsit

y of

Ari

zona

was

to o

btai

n m

ariju

ana

or T

HC

from

NID

A. S

.B. 1

023

in 1

981

(ch.

264

) m

oved

the

ther

apeu

tic

rese

arch

pro

gram

pro

visi

ons f

rom

§ 3

6-10

31 to

§ 3

6-26

01.

Had

a d

ual s

ched

ulin

g sc

hem

e fo

r mar

ijuan

a, b

ut th

e pr

ovis

iona

l Sch

edul

e II

mar

ijuan

a pr

ovis

ion

was

ult

imat

ely

repl

aced

wit

h a

perm

anen

t Sch

edul

e II

prov

isio

n fo

r TH

C.

CT

not a

vaila

ble

July

1, 1

981

Sub.

H.B

. 521

7Pu

blic

Act

No.

81-

440

§ 21

a-24

6 an

d §

21a-

253

phys

icia

ns m

ay p

resc

ribe

21a-

243

and

§ 21

a-24

3-7

Reg

.of

Con

n. S

tate

Age

ncie

s

Cur

rent

Law

:Fo

r can

cer c

hem

othe

rapy

and

gla

ucom

a.La

w fo

rmer

ly se

t out

as §

19-

453

and

§ 19

-460

a, b

ut se

ctio

ns w

ere

tran

sfer

red

in 1

983;

allo

ws p

hysi

cian

s lic

ense

d by

the

Com

mis

sion

er o

f Con

sum

erPr

otec

tion

to p

rovi

de m

ariju

ana;

allo

ws p

atie

nts t

o po

sses

s mar

ijuan

a ob

tain

ed fr

om a

pre

scri

ptio

n; m

akes

no

prov

isio

n fo

r the

sour

ce o

f the

mar

ijuan

asu

pply

.

Page 23: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

em

ed. m

j law

appr

oved

took

effe

ctm

easu

rese

ssio

n la

wci

tati

on fo

rm

ed. m

j law

desc

ript

ion

of la

wm

ariju

ana

sche

dule

cita

tion

for

sche

dule

s

DC

July

27,

200

0pr

ojec

ted

to ta

keef

fect

May

200

1B

ill N

o. 1

3-24

0A

ct 1

3-39

5(2

000)

§ 33

-518

sche

dulin

g re

cogn

izes

mar

ijuan

a’s t

hera

peut

ic u

seII

33-5

16

Cur

rent

Law

:D

.C. m

oved

mar

ijuan

a fr

om S

ched

ule

V to

Sch

edul

e II

I in

2000

, whi

ch m

eans

“T

he su

bsta

nce

has c

urre

ntly

acc

epte

d m

edic

al u

se in

trea

tmen

t in

the

Uni

ted

Stat

es o

r the

Dis

tric

t of C

olum

bia.

” D

.C. i

nsti

tute

d a

sche

dulin

g sy

stem

in 1

981

(Bill

No.

4-1

23, L

aw 4

29 (

1981

), e

nact

ed o

n Ju

ne 9

, 198

1, to

okef

fect

on

Aug

ust 5

, 198

1) th

at li

sted

mar

ijuan

a (“

cann

abis

”) a

mon

g th

e su

bsta

nces

in S

ched

ule

V, t

he le

ast r

estr

icti

ve sc

hedu

le.

His

tory

:D

.C. v

oter

s pas

sed

Bal

lot I

niti

ativ

e 59

on

Nov

. 3, 1

998

(69%

in fa

vor,

31%

opp

osed

), w

hich

is si

mila

r to

othe

r sta

te in

itia

tive

s and

rem

oves

cri

min

alpe

nalt

ies f

or m

edic

al m

ariju

ana

use.

The

U.S

. Con

gres

s, ho

wev

er, n

ullif

ied

the

elec

tion

resu

lts i

n N

ovem

ber 1

999

and

agai

n in

Dec

embe

r 200

0, th

war

ting

the

will

of t

he v

oter

s. D

.C. i

s the

onl

y ju

risd

icti

on w

here

the

fede

ral g

over

nmen

t can

pre

vent

such

law

s fro

m ta

king

effe

ct. I

niti

ativ

e 59

wou

ld h

ave

perm

itte

d pa

tien

ts to

hav

e up

to fo

ur c

areg

iver

s; pe

rmit

ted

non-

prof

it m

ariju

ana

supp

liers

; and

allo

wed

a “

suffi

cien

t qua

ntit

y” o

f mar

ijuan

a to

trea

t illn

ess.

Itis

unc

lear

whe

ther

Con

gres

s mus

t blo

ck th

e in

itia

tive

eve

ry y

ear i

n or

der t

o pr

even

t it f

rom

taki

ng e

ffect

, or w

heth

er it

s Nov

embe

r 199

9 ac

t per

man

entl

yov

ertu

rned

the

ballo

t ini

tiat

ive.

IAJu

ne 1

, 197

9Ju

ly 1

, 197

9S.

F. 4

87C

h. 9

(19

79)

§ 12

4.20

4 an

d §

124.

206

sche

dulin

g re

cogn

izes

mar

ijuan

a’s t

hera

peut

ic u

seI*

§ 12

4.20

4 an

124.

206

Cur

rent

Law

:*T

he b

ill im

plem

ente

d a

dual

sche

dulin

g sc

hem

e fo

r mar

ijuan

a an

d T

HC

, whi

ch a

re in

Sch

edul

e I b

ut a

re c

onsi

dere

d to

be

in S

ched

ule

II w

hen

used

for

med

icin

al p

urpo

ses.

His

tory

:T

he b

ill a

ppro

pria

ted

$247

,000

to th

e B

oard

of P

harm

acy

Exam

iner

s whi

ch w

as c

onti

ngen

t upo

n th

e B

oard

of P

harm

acy

Exam

iner

s’ es

tabl

ishi

ng a

ther

apeu

tic

rese

arch

pro

gram

wit

hin

90 d

ays o

f the

effe

ctiv

e da

te o

f the

act

(Ju

ly 1

, 197

9); t

he b

oard

was

man

date

d to

org

aniz

e a

Phys

icia

ns A

dvis

ory

Gro

up to

adv

ise

the

boar

d on

the

stru

ctur

e of

the

prog

ram

— w

hich

was

nev

er o

pera

tion

al.

Sche

dulin

g in

form

atio

n w

as o

rigi

nally

loca

ted

at §

204

.204

but

was

mov

ed to

§ 1

24.2

04 in

199

3 by

the

Iow

a C

ode

Edit

or. N

o di

seas

e gr

oups

wer

e sp

ecifi

edin

the

bill.

The

dua

l sch

edul

ing

sche

me

still

exi

sts i

n th

e st

atut

es, b

ut th

e la

ngua

ge fo

r the

ther

apeu

tic

rese

arch

pro

gram

— A

dmin

istr

ativ

e C

ode

620-

12 —

was

act

ive

from

Oct

ober

1, 1

979,

to Ju

ne 3

0, 1

981,

and

was

rem

oved

on

Janu

ary

20, 1

987.

LAJu

ly 1

7, 1

978;

July

23,

199

1A

ugus

t 14,

197

8;A

ugus

t 21,

199

1S.

B. 2

45 (

1978

);H

.B. 1

187

(199

1)A

ct N

o. 7

25(1

978)

;A

ct N

o. 8

74(1

991)

40:1

021

phys

icia

ns m

ay p

resc

ribe

I40

:964

Cur

rent

Law

:Fo

r gla

ucom

a, c

ance

r che

mot

hera

py, a

nd “

spas

tic

quad

ripl

egia

.”A

pre

viou

s law

, 40:

1021

- 40

:102

6, h

ad b

een

repe

aled

by

H.B

. 122

4 in

198

9 (A

ct N

o. 6

62).

The

pre

viou

s law

was

a th

erap

euti

c re

sear

ch p

rogr

am th

atad

dres

sed

only

gla

ucom

a an

d ca

ncer

.T

he p

rese

nt la

w a

llow

s phy

sici

ans w

ith

Sche

dule

I lic

ense

s to

pres

crib

e m

ariju

ana

in a

ccor

danc

e w

ith

regu

lati

ons p

rom

ulga

ted

by th

e Se

cret

ary

of H

ealt

han

d H

ospi

tals

.

MT

Mar

ch 2

6, 1

979

Mar

ch 2

6, 1

979

H.B

. 463

ch. 3

20 (

1979

)50

-32-

222(

7)sc

hedu

ling

reco

gniz

esm

ariju

ana’

s the

rape

utic

use

I50

-32-

222

Cur

rent

Law

:W

ould

aut

omat

ical

ly re

sche

dule

TH

C a

nd m

ariju

ana

to S

ched

ule

II if

the

fede

ral g

over

nmen

t aut

hori

zes t

he p

resc

ript

ion

or a

dmin

istr

atio

n of

thes

esu

bsta

nces

.

Page 24: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

em

ed. m

j law

appr

oved

took

effe

ctm

easu

rese

ssio

n la

wci

tati

on fo

rm

ed. m

j law

desc

ript

ion

of la

wm

ariju

ana

sche

dule

cita

tion

for

sche

dule

s

NH

Apr

il 23

, 198

1Ju

ne 2

2, 1

981

S.B

. 21

ch. 1

07 (

1981

)31

8-B

:9ph

ysic

ians

may

pre

scri

beI*

318-

B:1

-a

Cur

rent

Law

:Fo

r can

cer c

hem

othe

rapy

and

radi

olog

y.A

men

ded

by H

.B. 1

563

(ena

cted

June

8, 1

998;

took

effe

ct Ja

n. 1

, 199

9), w

hich

says

doc

tors

may

onl

y pr

escr

ibe

mar

ijuan

a if

it is

app

rove

d by

the

FDA

;pr

evio

usly

doc

tors

cou

ld p

resc

ribe

it w

itho

ut F

DA

app

rova

l, bu

t the

abs

ence

of a

lega

l sup

ply

mad

e th

e la

w in

effe

ctiv

e.*S

tate

follo

ws t

he fe

dera

l gov

ernm

ent’s

sche

dulin

g of

con

trol

led

subs

tanc

es a

s art

icul

ated

in th

e C

ode

of F

eder

al R

egul

atio

ns [3

18-B

:1-a

; Jun

e 11

, 199

6,ph

one

conv

ersa

tion

wit

h Jo

hn M

cCor

mic

k at

New

Ham

pshi

re S

tate

Lib

rary

, 603

-271

-223

9].

TN

Apr

il 2,

198

1A

pril

2, 1

981

H.B

. 314

ch. 1

14 (

1981

68-5

2-10

1sc

hedu

ling

reco

gniz

esm

ariju

ana’

s the

rape

utic

use

VI*

§ 39

-17-

408

Cur

rent

Law

:O

nly

the

sche

dulin

g pr

ovis

ion

of th

e th

erap

euti

c re

sear

ch p

rogr

am re

mai

ns o

n th

e bo

oks.

His

tory

:T

he b

ill c

reat

ed a

ther

apeu

tic

rese

arch

pro

gram

— w

hich

was

ope

rati

onal

— fo

r can

cer c

hem

othe

rapy

or r

adio

logy

or g

lauc

oma

(mar

ijuan

a or

TH

C);

adm

inis

tere

d by

Pat

ient

Qua

lific

atio

n R

evie

w B

oard

cre

ated

wit

hin

Boa

rd o

f Pha

rmac

y; P

QR

B w

as a

utho

rize

d to

con

trac

t wit

h fe

dera

l gov

ernm

ent f

orm

ariju

ana.

The

rape

utic

rese

arch

pro

gram

was

repe

aled

by

S.B

. 181

8 in

199

2 (c

h. 5

37),

but

dua

l sch

edul

ing

sche

me

still

rem

ains

.*M

ariju

ana

and

TH

C a

re in

Sch

edul

e V

I but

are

con

side

red

to b

e in

Sch

edul

e II

whe

n us

ed fo

r med

icin

al p

urpo

ses.

(Sch

edul

e V

I inc

lude

s con

trol

led

subs

tanc

es th

at “

shou

ld n

ot b

e in

clud

ed in

Sch

edul

es I

thro

ugh

V.”

Sch

edul

es I

thro

ugh

V h

ave

the

typi

cal d

efin

itio

ns u

sed

in o

ther

stat

es.)

VA

Mar

ch 2

7, 1

979

Spri

ng 1

979

S. 9

13ch

. 435

(19

79)

§ 18

.2-2

50.1

and

§ 1

8.2-

251.

1ph

ysic

ians

may

pre

scri

beN

/A§

54.1

-344

3

Cur

rent

Law

:Fo

r can

cer a

nd g

lauc

oma

(mar

ijuan

a or

TH

C).

Allo

ws p

hysi

cian

s to

pres

crib

e an

d ph

arm

acis

ts to

dis

pens

e m

ariju

ana

and

TH

C fo

r suc

h pu

rpos

es.

VT

Apr

il 27

, 198

1A

pril

27, 1

981

H. 1

30A

ct N

o. 4

9(1

981)

18 V

SA §

447

1ph

ysic

ians

may

pre

scri

beN

/AN

/A

Cur

rent

Law

:Fo

r can

cer a

nd o

ther

med

icin

al u

ses a

s det

erm

ined

by

the

Com

mis

sion

er o

f Hea

lth.

Adm

inis

tere

d by

Dep

artm

ent o

f Hea

lth;

cal

led

a “r

esea

rch

prog

ram

” bu

t rea

lly e

nabl

es p

hysi

cian

s to

pres

crib

e m

ariju

ana;

“co

mm

issi

oner

of h

ealt

h sh

all

have

the

auth

orit

y to

obt

ain

… c

anna

bis a

dmin

iste

red

unde

r thi

s pro

gram

.”

WI

not a

vaila

ble;

Apr

il 20

, 198

8A

pril

20, 1

982;

Apr

il 28

, 198

8A

.B. 6

97;

A.B

. 662

ch. 1

93(1

981)

; Act

339

(198

7)

46.6

0ph

ysic

ians

may

pre

scri

beI

161.

13; 1

61.4

1(3r

)

Cur

rent

Law

:N

o di

seas

e gr

oups

spec

ified

(m

ariju

ana

or T

HC

).A

llow

s med

ical

mar

ijuan

a pr

escr

ipti

ons i

n ac

cord

ance

wit

h fe

dera

l IN

D (

Inve

stig

atio

nal N

ew D

rug)

per

mit

s; gi

ves c

ontr

olle

d su

bsta

nces

boa

rd th

eau

thor

ity

to se

t up

regu

lati

ons.

A.B

. 662

in 1

987

(Act

339

), e

nact

ed in

198

8, a

llow

s for

the

poss

essi

on o

f TH

C if

obt

aine

d di

rect

ly fr

om a

val

id p

resc

ript

ion.

Page 25: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Sta

tes

in w

hich

Med

ical

Mar

ijuan

a La

ws

Hav

e EX

PIR

ED o

r H

ave

Bee

n R

EPEA

LED

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll #

sess

ion

law

cita

tion

for

med

. mj l

awde

scri

ptio

nof

law

law

exp

ired

/rep

eale

dm

ariju

ana

sche

dule

cita

tion

for

sche

dule

s

AR

Jan.

30,

198

1Ja

n. 3

0, 1

981

H.B

. 171

Act

No.

8 (

1981

82-1

007

(num

beri

ngsy

stem

has

chan

ged

sinc

ela

w w

asre

peal

ed)

phys

icia

nsm

aypr

escr

ibe

repe

aled

by

Act

No.

52

(198

7)V

5-64

-215

Cur

rent

Law

:M

ariju

ana

and

TH

C a

re li

sted

in S

ched

ule

VI,

but S

ched

ule

VI s

ubst

ance

s are

def

ined

sim

ilarl

y —

yet

eve

n m

ore

rest

rict

ivel

y —

than

Sch

edul

e I s

ubst

ance

s.H

isto

ry:

For c

ance

r (la

wfu

lly o

btai

ned

TH

C).

FLJu

ne 2

6, 1

978

July

1, 1

978

H.B

. 123

7c.

78-

413

(197

8)§

402.

36th

erap

euti

cre

sear

chpr

ogra

m

repe

aled

by

c. 8

4-11

5(1

984)

893.

03

His

tory

:Fo

r can

cer a

nd g

lauc

oma

(mar

ijuan

a or

TH

C).

The

rape

utic

Res

earc

h Pr

ogra

m —

whi

ch w

as n

ever

ope

rati

onal

— a

dmin

iste

red

by S

ecre

tary

of D

epar

tmen

t of H

ealt

h an

d R

ehab

ilita

tive

Ser

vice

s (H

RS)

who

wou

ld d

eleg

ate

to P

atie

nt Q

ualif

icat

ion

Rev

iew

Boa

rd th

e au

thor

ity

to a

ppro

ve c

ance

r and

gla

ucom

a pa

tien

ts; P

QR

B a

utho

rize

d to

incl

ude

othe

rdi

seas

e gr

oups

aft

er p

erti

nent

dat

a ha

ve b

een

pres

ente

d by

phy

sici

an; S

ecre

tary

of H

RS

was

man

date

d to

app

ly to

fede

ral g

over

nmen

t for

mar

ijuan

a an

dtr

ansf

er m

ariju

ana

to c

erti

fied

stat

e-op

erat

ed p

harm

acie

s for

dis

trib

utio

n to

cer

tifie

d pa

tien

ts u

pon

wri

tten

pre

scri

ptio

n of

cer

tifie

d ph

ysic

ians

.M

inor

mod

ifica

tion

s: c.

79-

209

(197

9), c

. 81-

279

(198

1); i

nter

esti

ng m

odifi

cati

on w

ith

c. 8

2-12

(19

82),

whi

ch c

hang

ed n

ame

from

“co

ntro

lled

subs

tanc

esth

erap

euti

c re

sear

ch”

to “

canc

er th

erap

euti

c re

sear

ch”

to a

llow

for “

unco

nven

tion

al th

erap

ies”

that

are

not

yet

app

rove

d by

the

fede

ral g

over

nmen

t.

MI

Oct

. 22,

197

9;D

ec. 2

1, 1

982

Oct

. 22,

197

9;D

ec. 2

1, 1

982

S.B

. 185

(19

79);

S.B

. 816

(19

82)

Act

No.

125

(19

79);

Act

No.

352

(19

82)

§ 33

3.73

35th

erap

euti

cre

sear

chpr

ogra

m

1979

law

exp

ired

Nov

embe

r 1, 1

982;

1982

law

doe

s not

appl

y af

ter

Nov

embe

r 1, 1

987

333.

7212

; MA

C33

8.31

14 a

nd33

8.31

19a

(198

6 A

nnua

lSu

pple

men

t);

MA

C 3

38.3

113

(198

8 A

nnua

lSu

pple

men

t)

His

tory

:Fo

r gla

ucom

a an

d ca

ncer

che

mot

hera

py (

mar

ijuan

a or

TH

C);

allo

wed

pat

ient

s wit

h ot

her d

isea

ses i

f pat

ient

s hav

e IN

D (

Inve

stig

atio

nal N

ew D

rug)

per

mit

from

FD

A.

Adm

inis

tere

d by

the

Dep

artm

ent o

f Pub

lic H

ealt

h, th

e pr

ogra

m w

as o

pera

tion

al; m

ariju

ana

and

TH

C c

onsi

dere

d to

be

in S

ched

ule

II w

hen

disp

ense

dth

roug

h th

e pr

ogra

m; u

sed

fede

ral m

ariju

ana;

als

o au

thor

ized

to u

se m

ariju

ana

conf

isca

ted

by st

ate

law

-enf

orce

men

t age

ncie

s (w

hich

alm

ost c

erta

inly

nev

erha

ppen

ed).

1979

law

exp

ired

on

Nov

embe

r 1, 1

982,

and

then

a n

earl

y id

enti

cal l

aw w

as e

nact

ed a

mon

th la

ter,

whi

ch e

xpir

ed o

n N

ovem

ber 1

, 198

7.

Page 26: STATE-BY-STATE MEDICAL MARIJUANA LAWS

stat

em

ed. m

j law

appr

oved

took

effe

ctbi

ll #

sess

ion

law

cita

tion

for

med

. mj l

awde

scri

ptio

nof

law

law

exp

ired

/rep

eale

dm

ariju

ana

sche

dule

cita

tion

for

sche

dule

s

NC

June

5, 1

979

June

5, 1

979

H.B

. 106

5ch

. 781

(19

79)

§ 90

-101

phys

icia

nsm

aypr

escr

ibe

de fa

cto

repe

aled

by

H.B

. 878

in 1

987

(ch.

412

), w

hich

allo

ws p

hysi

cian

s to

adm

inis

ter o

nly

dron

abin

ol(s

ynth

etic

TH

C)

for

canc

erch

emot

hera

py

VI

§ 90

-90

His

tory

:“A

phy

sici

an …

may

pos

sess

, dis

pens

e or

adm

inis

ter t

etra

hydr

ocan

nabi

nols

in d

uly

cons

titu

ted

phar

mac

euti

cal f

orm

for h

uman

adm

inis

trat

ion

for

trea

tmen

t pur

pose

s pur

suan

t to

rule

s ado

pted

by

the

[Nor

th C

arol

ina

Dru

g] C

omm

issi

on.”

Sche

dule

VI (

§ 90

-94)

is sp

ecifi

c to

mar

ijuan

a: “

no c

urre

ntly

acc

epte

d m

edic

al u

se in

the

Uni

ted

Stat

es, o

r a re

lati

vely

low

pot

enti

al fo

r abu

se in

term

s of

risk

to p

ublic

hea

lth

and

pote

ntia

l to

prod

uce

psyc

hic

or p

hysi

olog

ical

dep

ende

nce

liabi

lity

base

d up

on p

rese

nt m

edic

al k

now

ledg

e, o

r a n

eed

for f

urth

eran

d co

ntin

uing

stud

y to

dev

elop

scie

ntifi

c ev

iden

ce o

f its

pha

rmac

olog

ical

effe

cts.”

OH

Mar

ch 2

1, 1

980;

1995

June

20,

198

0;Ju

ly 1

, 199

6S.

B. 1

84; S

.B. 2

Act

No.

230

(19

80);

not a

vaila

ble

§ 29

25.1

1(I)

ther

apeu

tic

rese

arch

prog

ram

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Page 27: STATE-BY-STATE MEDICAL MARIJUANA LAWS

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Page 28: STATE-BY-STATE MEDICAL MARIJUANA LAWS

For thousands of years, marijuana has been used to treat awide variety of ailments. Until 1937, marijuana (C a n n a b i ssativa L.) was legal in the United States for all purposes.P r e s e n t l y, federal law allows only eight (8) Americans to usemarijuana as a medicine.

On March 17, 1999, the National Academy of Sciences’Institute of Medicine (IOM) concluded that “there are somelimited circumstances in which we recommend smokingmarijuana for medical uses.” The IOM report released thatday was the result of two years of research that was funded bythe White House drug policy office, which comprised ameta-analysis of all existing data on marijuana’s therapeuticuses. Please see <http://www. m p p . o r g / s c i e n c e . h t m l > .

Medicinal Va l u eMarijuana is one of the safest therapeutically active sub-stances known. No one has ever died from an overdose, andit has a wide variety of therapeutic applications:

■ Relief from nausea and increase of appetite;■ Reduction of intraocular (“within the eye”) pressure;■ Reduction of muscle spasms;■ Relief from chronic pain.Marijuana is frequently beneficial in the treatment of the

following conditions:■ AIDS. Marijuana can reduce the nausea, vomiting, and

loss of appetite caused by the ailment itself and by vari-ous AIDS medications.

■ Glaucoma. Marijuana can reduce intraocular pressure,thereby alleviating the pain and slowing—and some-times stopping—the progress of the condition.(Glaucoma is the leading cause of blindness in theUnited States. It damages vision by increasing eye pres-sure over time.)

■ C a n c e r. Marijuana can stimulate the appetite and alle-viate nausea and vomiting, which are common sideeffects of chemotherapy treatment.

■ Multiple Sclerosis. Marijuana can limit the musclepain and spasticity caused by the disease, as well asrelieving tremor and unsteadiness of gait. (Multiple scle-rosis is the leading cause of neurological disability amongyoung and middle-aged adults in the United States.)

■ E p i l e p s y. Marijuana can prevent epileptic seizures insome patients.

■ Chronic Pain. Marijuana can alleviate the chronic,often debilitating pain caused by myriad disorders andi n j u r i e s .

Each of these applications has been deemed legitimate byat least one court, legislature, and/or government agency inthe United States.

Many patients also report that marijuana is useful fortreating arthritis, migraine, menstrual cramps, alcohol and

opiate addiction, and depression and other debilitating moodd i s o r d e r s .

Marijuana could be helpful for millions of patients in theUnited States. Nevertheless, other than for the eight p e o p l ewith special permission from the federal government, med-ical marijuana remains illegal!

People currently suffering from any of the conditionsmentioned above, for whom the legal medical options haveproven unsafe or ineffective, have two options:

1 . Continue to suffer from the ailment itself; or2 . Illegally obtain marijuana—and risk suffering conse-

quences such as:■ an insufficient supply due to the prohibition-

inflated price or scarcity;■ impure, contaminated, or chemically adulterated

marijuana; ■ arrests, fines, court costs, property forfeiture, incar-

ceration, probation, and criminal records.

B a c k g r o u n dThe Marijuana Tax Act of 1937 federally prohibitedmarijuana. Dr. William C. Wo odward of the AmericanMedical Association opposed the Act, testifying that prohi-bition would ultimately prevent the medicinal uses ofm a r i j u a n a .

The Controlled Substances Act of 1970 placed all illicitand prescription drugs into five “schedules” (categories).Marijuana was placed in Schedule I, defining the substanceas having a high potential for abuse, no currently acceptedmedicinal use in treatment in the United States, and a lackof accepted safety for use under medical supervision.

This definition simply does not apply to marijuana. Ofcourse, at the time of the Controlled Substances Act,marijuana had been prohibited for more than three decades.Its medicinal uses forgotten, marijuana was considered adangerous and addictive narcotic.

A substantial increase in the number of recreational usersin the 1970s contributed to the rediscovery of marijuana’smedicinal uses:

■ Many scientists felt the obligation to study the healtheffects of marijuana. They inadvertently discoveredm a r i j u a n a ’s astonishing medicinal history in thep r o c e s s .

■ Many people who used marijuana recreationally werealso suffering from diseases for which marijuana isbeneficial. By fluke, they discovered its therapeuticu s e f u l n e s s .

As the word spread, more and more patients started self-medicating with marijuana. However, because of marijuana’sSchedule I status, doctors cannot prescribe it, and researchapproval and funding are severely curtailed.

Medical Marijuana Briefing Paper – 2001– The Need to Change State and Federal La w –

■ ■ ■

■ ■ ■

Appendix B

B-1

Page 29: STATE-BY-STATE MEDICAL MARIJUANA LAWS

The Struggle in CourtIn 1972, a petition was submitted to the Bureau of Narcoticsand Dangerous Drugs—now the Drug EnforcementAdministration (DEA)—to reschedule marijuana to make itavailable by prescription.

After 16 years of court battles, the DEA’s chief adminis-trative law judge, Francis L. Young, ruled:

“Marijuana, in its natural form, is one of the safesttherapeutically active substances known. ...

“... [T]he provisions of the [Controlled Substances]Act permit and require the transfer of marijuana fromSchedule I to Schedule II.

“It would be unreasonable, arbitrary and capricious forDEA to continue to stand between those sufferers andthe benefits of this substance. ...”

(September 6, 1988)

M a r i j u a n a ’s placement in Schedule II would enabledoctors to prescribe it to their patients. But top DEAbureaucrats rejected Judge Y o u n g ’ s ruling and refused toreschedule marijuana. Two appeals later, petitioners experi-enced their first defeat in the 22-year-old lawsuit. OnF e b r u a r y 18, 1994, the U.S. Court of Appeals (D.C. Circuit)ruled that the DEA is allowed to reject its judge’s ruling andset its own criteria—enabling the DEA to keep marijuana inSchedule I.

H o w e v e r , Congress still has the power to reschedulemarijuana via legislation, regardless of the DEA’s wishes.

Te m p o r a ry CompassionIn 1975, Robert Randall, who suffers from glaucoma, wasarrested for cultivating his own marijuana. He won his caseby using the “medical necessity defense,” forcing thegovernment to find a way to provide him with his medicine.As a result, the Investigational New Drug (IND) compas-sionate access program was established, enabling somepatients to receive marijuana from the government.

The program was grossly inadequate at helping the poten-tially millions of people who need medical marijuana:

■ Most patients would never consider the idea that anillegal drug might be their best medicine;

■ Most patients fortunate enough to discover marijuana’smedicinal value did not discover the IND program;

■ Most of those who did learn of the program could notfind doctors willing to take on the arduous task ofenrolling in and working through the IND program.

In 1992, in response to a flood of new applications fromAIDS patients, members of the Bush administration closedthe program to all new applicants. On December 1, 1999,the Clinton administration implemented its medicalmarijuana policy restating that the IND program would notbe reopened. Consequently, the IND program remains inoperation only for the eight surviving previously approvedp a t i e n t s .

Public OpinionThere is tremendous public support for ending the prohibi-tion of medical marijuana:

■ Since 1996, a majority of voters in Alaska, California,Colorado, the District of Columbia, Maine, Nevada,Oregon, and Washington state have voted in favor ofballot initiatives to remove criminal penalties for seri-ously ill people who grow or possess medical marijuana.

■ A 1990 scientific survey of oncologists (cancer special-ists) found that 54% of those with an opinion favoredthe controlled medical availability of marijuana and 44%had already broken the law by suggesting at least oncethat a patient obtain marijuana illegally. [R. D o b l i n &M . Kleiman, “Marijuana as Antiemetic Medicine,”Journal of Clinical Oncology 9 (1991): 1314-1319.]

■ A nationwide Gallup poll taken on March 19-21, 1999,found that 73% of American adults are for “makingmarijuana legally available for doctors to prescribe in orderto reduce pain and suffering.” All other public opinionpolls taken in the 1990s have shown between 60% and80% support for making marijuana medically available.

Changing State La w sThe federal government has no legal authority to preventstate governments from changing their laws to remove state-level criminal penalties for medical marijuana use. Indeed,Hawaii enacted a medical marijuana law via its state legisla-ture in June 2000. State legislatures have the authority andmoral responsibility to change state law to:

■ exempt seriously ill patients from state-level prosecutionfor medical marijuana possession and cultivation; and

■ exempt doctors who recommend medical marijuanafrom prosecution or the denial of any right or privilege.

Even within the confines of federal law, states can enactreforms that have the practical effect of removing the fear ofpatients being arrested and prosecuted under state law—aswell as the symbolic effect of pushing the federal governmentto allow doctors to prescribe marijuana.

U.S. Congress: The Final BattlegroundState governments that want to allow marijuana to be soldin pharmacies have been stymied by the federal govern-m e n t ’s overriding prohibition of marijuana.

Patients have exhausted the option of working throughthe judicial branch of the federal government. The courtsultimately defer to the judgment of the DEA, which createsits own regulations in order to keep medical marijuana illegal.

Efforts to obtain FDA approval of marijuana have similar-ly been thwarted by prohibitionist agencies. Instead of sup-plying marijuana to any FDA-approved researcher whorequests it, the National Institute on Drug Abuse—the onlylegal source of marijuana for clinical research in the UnitedStates—uses unnecessary bureaucratic hurdles to justifydenying researchers the marijuana they need.

In the meantime, patients continue to suffer. C o n g r e s shas the power and the responsibility to change federal lawso that seriously ill people nationwide can use medicalmarijuana without fear of arrest and imprisonment.

Appendix B (continued)

B-2

Page 30: STATE-BY-STATE MEDICAL MARIJUANA LAWS

What conditions can marijuana treat?

“The accumulated data indicate a potential thera-peutic value for cannabinoid drugs, particularly forsymptoms such as pain relief, control of nausea andvomiting, and appetite stimulation.” [p. 3 ]

“[B]asic biology indicates a role for cannabinoids inpain and control of movement, which is consistentwith a possible therapeutic role in these areas. Theevidence is relatively strong for the treatment ofpain and, intriguing although less well established,for movement disorders.” [p . 7 0]

“For patients such as those with AIDS or who are under-going chemotherapy and who suffer simultaneouslyfrom severe pain, nausea, and appetite loss, cannabinoiddrugs might offer broad-spectrum relief not found in anyother single medication. The data are weaker for mus-cle spasticity but moderately promising.” [p. 1 7 7 ]

“The most encouraging clinical data on the effects ofcannabinoids on chronic pain are from three studiesof cancer pain.” [p . 1 4 2]

Why can’t patients use medicines that arealready legal?

“[T]here will likely always be a subpopulation ofpatients who do not respond well to other medica-tions.” [Pp. 3, 4]

“The critical issue is not whether marijuana orcannabinoid drugs might be superior to the newdrugs, but whether some group of patients mightobtain added or better relief from marijuana orcannabinoid drugs.” [p. 1 5 3 ]

“The profile of cannabinoid drug effects suggests thatthey are promising for treating wasting syndrome inAIDS patients. Nausea, appetite loss, pain, andanxiety are all afflictions of wasting, and all can bemitigated by marijuana. Although some medica-tions are more effective than marijuana for theseproblems, they are not equally effective in allpatients.” [p. 1 5 9 ]

What about Marinol®, the major activeingredient in marijuana in pill form?

“It is well recognized that Marinol’s oral route ofadministration hampers its effectiveness because ofslow absorption and patients’ desire for more con-trol over dosing.” [Pp. 205, 206]

Why not wait for more research before makingmarijuana legally available as a medicine?

“[R]esearch funds are limited, and there is a dauntingthicket of regulations to be negotiated at the federallevel (those of the Food and Drug Administration,FDA, and the Drug Enforcement Administration,DEA) and state levels.” [p. 1 3 7 ]

“Some drugs, such as marijuana, are labeledSchedule I in the Controlled Substance Act, andthis adds considerable complexity and expense totheir clinical evaluation.” [p. 1 9 4 ]

“[O]nly about one in five drugs initially tested inhumans successfully secures FDA approval for mar-keting through a new drug application.” [p. 1 9 5 ]

“From a scientific point of view, research is difficultbecause of the rigors of obtaining an adequate supplyof legal, standardized marijuana for study.” [p . 2 1 7 ]

Questions about medical marijuana answered by the

Institute of Medicine’s report

Marijuana and Medicine: Assessing the Science Base*

Excerpts compiled by the Marijuana Policy Pr o j e c t

■ ■ ■

■ ■ ■

“[W]e concluded that there are some limited circumstances in which we recommendsmoking marijuana for medical uses.”

— from Principal Investigator Dr. John Benson’s opening remarks at IOM’s 3/17/99 news conference

*Copyright 1999 by the National Academy of Sciences (ISBN 0-309-07155-0)

Appendix C

C-1

Page 31: STATE-BY-STATE MEDICAL MARIJUANA LAWS

“In short, development of the marijuana plant isbeset by substantial scientific, regulatory, and com-mercial obstacles and uncertainties.” [p. 2 1 8 ]

“[D]espite the legal, social, and health problems asso-ciated with smoking marijuana, it is widely used bycertain patient groups.” [p. 7 ]

Do the existing laws really hurt patients?

“G.S. spoke at the IOM workshop in Louisianaabout his use of marijuana first to combat AIDSwasting syndrome and later for relief from the sideeffects of AIDS medications. … [He said,] ‘Everyday I risk arrest, property forfeiture, fines, andi m p r i s o n m e n t . ’ ” [Pp. 27, 28]

Why shouldn’t we wait for new drugs based onmarijuana’s components to be developed, ratherthan allowing patients to eat or smoke naturalmarijuana right now?

“Although most scientists who study cannabinoidsagree that the pathways to cannabinoid drug devel-opment are clearly marked, there is no guaranteethat the fruits of scientific research will be madeavailable to the public for medical use.” [p. 4 ]

“[I]t will likely be many years before a safe and effec-tive cannabinoid delivery system, such as an inhaler,is available for patients. In the meantime there arepatients with debilitating symptoms for whomsmoked marijuana might provide relief.” [p . 7]

“[W]hat seems to be clear from the dearth of prod u c t sin development and the small size of the companiessponsoring them is that cannabinoid development isseen as especially risky.” [Pp. 211, 212] [IOM later notesthat it could take more than five years and cost $200-300million to get new cannabinoid drugs approved—if ever. ]

“Cannabinoids in the plant are automatically placedin the most restrictive schedule of the ControlledSubstances Act, and this is a substantial deterrentto development.” [p. 2 1 9 ]

I s n’t marijuana too dangerous to be used as am e d i c i n e ?

“[E]xcept for the harms associated with smoking, theadverse effects of marijuana use are within the rangeof effects tolerated for other medications.” [p . 5]

“Until the development of rapid onset antiemeticdrug delivery systems, there will likely remain a sub-population of patients for whom standard antiemetictherapy is ineffective and who suffer from debilitat-ing emesis. It is possible that the harmful effects ofsmoking marijuana for a limited period of time

might be outweighed by the antiemetic benefits ofmarijuana, at least for patients for whom standardantiemetic therapy is ineffective and who suffer fromdebilitating emesis. Such patients should be evaluat-ed on a case-by-case basis and treated under closemedical supervision.” [p . 1 5 4]

“Terminal cancer patients pose different issues. Forthose patients the medical harm associated withsmoking is of little consequence. For terminalpatients suffering debilitating pain or nausea and forwhom all indicated medications have failed to pro-vide relief, the medical benefits of smokedmarijuana might outweigh the harm.” [p. 1 5 9 ]

What should be done to help the patients whoalready benefit from medical marijuana, prior tothe development of new drugs and delivery devices?

“Patients who are currently suffering from debilitatingconditions unrelieved by legally available drugs, andwho might find relief with smoked marijuana, willfind little comfort in a promise of a better drug1 0 years from now. In terms of good medicine,marijuana should rarely be recommended unless allreasonable options have been eliminated. But thenwhat? It is conceivable that the medical and scientif-ic opinion might find itself in conflict with drug reg-ulations. This presents a policy issue that mustweigh—at least temporarily—the needs of individualpatients against broader social issues. Our assessmentof the scientific data on the medical value ofmarijuana and its constituent cannabinoids is butone component of attaining that balance.” [p . 1 7 8]

“Also, although a drug is normally approved formedical use only on proof of its ‘safety and efficacy, ’patients with life-threatening conditions are some-times (under protocols for ‘compassionate use’)allowed access to unapproved drugs whose benefitsand risks are uncertain.” [p. 1 4 ]

“Until a nonsmoked rapid-onset cannabinoid drugdelivery system becomes available, we acknowledgethat there is no clear alternative for people sufferingfrom chronic conditions that might be relieved bysmoking marijuana, such as pain or AIDS wasting.One possible approach is to treat patients as n- o f - 1clinical trials (single-patient trials), in whichpatients are fully informed of their status as experi-mental subjects using a harmful drug delivery systemand in which their condition is closely monitoredand documented under medical supervision. … ”[ p . 8] [The federal government’s “compassionate use”program, which currently provides marijuana to eightpatients nationwide, is an example of an n-of-1 study. ]

Appendix C (continued)

C-2

Page 32: STATE-BY-STATE MEDICAL MARIJUANA LAWS

The IOM report doesn’t explicitly endorse statebills and initiatives to simply remove criminalpenalties for bona fide medical marijuana users.Does that mean that we should keep the lawsexactly as they are and keep arresting patients?

“This report analyzes science, not the law. As in anypolicy debate, the value of scientific analysis is thatit can provide a foundation for further discussion.Distilling scientific evidence does not in itself solvea policy problem.” [p. 1 4 ]

If patients were allowed to use medicalmarijuana, wouldn’t overall use increase?

“F i n a l l y, there is a broad social concern that sanc-tioning the medical use of marijuana might increaseits use among the general population. At this pointthere are no convincing data to support this con-cern. The existing data are consistent with the ideathat this would not be a problem if the medical useof marijuana were as closely regulated as other med-ications with abuse potential. … [T]his question isbeyond the issues normally considered for medicaluses of drugs and should not be a factor in evaluat-ing the therapeutic potential of marijuana orcannabinoids.” [Pp . 6, 7]

“No evidence suggests that the use of opiates or cocainefor medical purposes has increased the perception thattheir illicit use is safe or acceptable.” [p. 1 0 2 ]

“Thus, there is little evidence that decriminalizationof marijuana use necessarily leads to a substantialincrease in marijuana use.” [p. 1 0 4 ][Decriminalization is defined as the removal of criminalpenalties for all uses, even recreational.]

D o e s n’t the medical marijuana debate sendchildren the wrong message about marijuana?

“[T]he perceived risk of marijuana use did not changeamong California youth between 1996 and 1997. In summary, there is no evidence that the medicalmarijuana debate has altered adolescents’ perceptionsof the risks associated with marijuana use.” [p. 1 0 4 ]

“Even if there were evidence that the medical use ofmarijuana would decrease the perception that it canbe a harmful substance, this is beyond the scope oflaws regulating the approval of therapeutic drugs.Those laws concern scientific data related to thesafety and efficacy of drugs for individual use; theydo not address perceptions or beliefs of the generalpopulation.” [p. 1 2 6 ]

I s n’t marijuana too addictive to be used as am e d i c i n e ?

“Some controlled substances that are approved med-ications produce dependence after long-term use;this, however, is a normal part of patient manage-ment and does not generally present undue risk tothe patient.” [p. 9 8 ]

“Animal research has shown that the potential forcannabinoid dependence exists, and cannabinoidwithdrawal symptoms can be observed. However,both appear to be mild compared to dependenceand withdrawal seen with other drugs.” [p. 3 5 ]

“A distinctive marijuana and THC withdrawal syn-drome has been identified, but it is mild and subtlecompared with the profound physical syndrome ofalcohol or heroin withdrawal.” [Pp. 89, 90]

Proportion Of Users That Drug Category Ever Became Dependent (%)

A l c o h o l 1 5

Marijuana (including hashish) 9 [ p . 9 5 ]

“Compared to most other drugs … dependenceamong marijuana users is relatively rare.” [p. 9 4 ]

“In summary, although few marijuana users developdependence, some do. But they appear to be lesslikely to do so than users of other drugs (includingalcohol and nicotine), and marijuana dependenceappears to be less severe than dependence on otherdrugs.” [p. 9 8 ]

D o e s n’t the use of marijuana cause people touse more dangerous drugs?

“[I]t does not appear to be a gateway drug to the extentthat it is the c a u s e or even that it is the most signifi-cant predictor of serious drug abuse; that is, care mustbe taken not to attribute cause to association.” [p. 1 0 1 ]

“There is no evidence that marijuana serves as a step-ping stone on the basis of its particular physiologicaleffect.” [p. 9 9 ]

“Instead, the legal status of marijuana makes it agateway drug.” [p. 9 9 ]

S h o u l d n’t medical marijuana remain illegalbecause it is bad for the immune system?

“The short-term immunosuppressive effects are notwell established; if they exist at all, they are probablynot great enough to preclude a legitimate medicaluse. The acute side effects of marijuana use are with-in the risks tolerated for many medications.” [p . 1 2 6]

Appendix C (continued)

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D o e s n’t marijuana cause brain damage?

“Earlier studies purporting to show structural changes inthe brains of heavy marijuana users have not beenreplicated with more sophisticated techniques.” [p. 1 0 6 ]

Doesn’t marijuana cause amotivational syndrome?

“When heavy marijuana use accompanies thesesymptoms, the drug is often cited as the cause, butno convincing data demonstrate a causal relation-ship between marijuana smoking and these behav-ioral characteristics.” [Pp. 107, 108]

D o e s n’t marijuana cause health problems thatshorten the life span?

“[E]pidemiological data indicate that in the generalpopulation marijuana use is not associated withincreased mortality.” [p. 1 0 9 ]

I s n’t marijuana too dangerous for ther e s p i r a t o ry system?

“Given a cigarette of comparable weight, as much asfour times the amount of tar can be deposited in thelungs of marijuana smokers as in the lungs of tobac-co smokers.” [p. 1 1 1 ]

“H o w e v e r, a marijuana cigarette smoked recreational-ly typically is not packed as tightly as a tobacco ciga-rette, and the smokable substance is about half thatin a tobacco cigarette. In addition, tobacco smokersgenerally smoke considerably more cigarettes per daythan do marijuana smokers.” [Pp. 111, 112]

“There is no conclusive evidence that marijuana caus-es cancer in humans, including cancers usually relat-ed to tobacco use. … More definitive evidence thathabitual marijuana smoking leads or does not lead torespiratory cancer awaits the results of well-designedcase control epidemiological studies.” [p. 1 1 9 ]

D o n’t the euphoric side effects diminishmarijuana’s value as a medicine?

“The high associated with marijuana is not generallyclaimed to be integral to its therapeutic value. Butm o od enhancement, anxiety reduction, and mildsedation can be desirable qualities in medications—particularly for patients suffering pain and anxiety.Thus, although the psychological effects ofmarijuana are merely side effects in the treatment ofsome symptoms, they might contribute directly torelief of other symptoms.” [p. 8 4 ]

What other therapeutic potential does marijuanah a v e ?

“One of the most prominent new applications ofcannabinoids is for ‘neuroprotection,’ the rescue ofneurons from cell death associated with trauma,ischemia, and neurological diseases.” [p . 2 1 1]

“There are numerous anecdotal reports that marijuanacan relieve the spasticity associated with multiplesclerosis or spinal cord injury, and animal studies haveshown that cannabinoids affect motor areas in thebrain—areas that might influence spasticity.” [p . 1 6 0]

“High intraocular pressure (IOP) is a known risk fac-tor for glaucoma and can, indeed, be reduced bycannabinoids and marijuana. However, the effect istoo and [sic] short lived and requires too high doses,and there are too many side effects to recommendlifelong use in the treatment of glaucoma. Thepotential harmful effects of chronic marijuana smok-ing outweigh its modest benefits in the treatment ofglaucoma. Clinical studies on the effects of smokedmarijuana are unlikely to result in improved treat-ment for glaucoma.” [p. 177] [Note that IOM foundthat marijuana does work for glaucoma, but was uncom-fortable with the amount that a person needs to smoke.P r e s u m a b l y, it would be an acceptable treatment forglaucoma patients to eat marijuana. Additionally, MPPbelieves that IOM would not support arresting patientswho choose to smoke marijuana to treat glaucoma.]

Do the American people really support legalaccess to medical marijuana, or were voterssimply tricked into passing medical marijuanaballot initiatives?

“Public support for patient access to marijuana formedical use appears substantial; public opinion pollstaken during 1997 and 1998 generally report 60-7 0 percent of respondents in favor of allowing med-ical uses of marijuana.” [p. 1 8 ]

But shouldn’t we keep medical marijuana illegalbecause some advocates want to “legalize”marijuana for all uses?

“[I]t is not relevant to scientific validity whether anargument is put forth by someone who believes thatall marijuana use should be legal or by someone whobelieves that any marijuana use is highly damagingto individual users and to society as a whole.” [p . 1 4]

The full report by the National Academy of Sciences can be viewed on-line ath t t p : / / b o b . n a p . e d u / b o o k s / 0 3 0 9 0 7 1 5 5 0 / h t m l /

Appendix C (continued)

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Appendix D: Surveys of public support for medical marijuana

Every scientifically conducted public opinion poll has found a majority of support for making marijuanamedically available to seriously ill patients.

In addition to the following tables, which break down nationwide and state-specific public opinionpolling results, there have been two reports that have analyzed nationwide polls on medical marijuana overtime:

Meta-analysis of nationwide polls

1997-1998: The Institute of Medicine (IOM) in its 1999 report, Marijuana and Medicine: Assessing theScience Base, reports that “public support for patient access to marijuana for medical use appears substantial;public opinion polls taken during 1997 and 1998 generally reported 60-70 percent of respondents in favor ofallowing medical uses of marijuana” (p. 18).

1978-1997: A study by the Harvard School of Public Health — published on March 18, 1998, in theJournal of the American Medical Association — analyzed the results of 47 national drug policy surveysconducted between 1978 and 1997. The study reports that more than 60% of the public support the“legalized use of marijuana for medical purposes.”

Nationwide medical marijuana public opinion polling results

date percent in favormargin of error /

respondents wording polling firm/where reported

Mar. 19-21, 1999 73 ±5%1,018 randomlyselected adults

support “making marijuana legallyavailable for doctors to prescribe inorder to reduce pain and suffering”

Gallup

Sept. 7-21, 1997 62 N/AN/A

favor legalizing marijuana “strictly formedical use”

The Luntz Research Companiesfor Merrill Lynch and Wiredmagazine

1997 66 - Independents64 - Democrats57 - Republicans

N/Aresponsesdivided amongparty affiliations

“doctors should be allowed to prescribesmall amounts of marijuana forpatients suffering serious illnesses”

CBS News/The New York Times,June 15, 1997

May 27, 1997 69 ±4.5 %517 adults

support “legalizing medical use ofmarijuana”

ABC News/Discovery News poll,conducted by Chilton Research,released May 29, 1997

Feb. 5-9, 1997 60 N/A1,002 registeredvoters

favor allowing doctors to prescribemarijuana for medical purposes forseriously ill or terminal patients

Lake Research on behalf ofThe Lindesmith Center

Feb. 5-9, 1997 68 N/A1,002 registeredvoters

the federal government should notpenalize physicians who prescribemarijuana, regardless of whether statelaws permit it

Lake Research on behalf ofThe Lindesmith Center

1997 74 ±2.8 %1,000 registeredvoters

“people who find that marijuana iseffective for their medical conditionshould be able to use it legally”

commissioned by theFamily Research Council

1995 79 ±3.1%1,001 registeredvoters

“it would be a good idea … to legalizemarijuana to relieve pain and for othermedical uses if prescribed by a doctor”

Belden & Russonello, ofWashington, D.C., on behalf ofthe American Civil LibertiesUnion

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Appendix D (continued)

State-specific medical marijuana public opinion polling results

state date% infavor

margin of error/respondents wording polling firm/where reported

Florida 1997 63 ±4%

400 registeredvoters

favor approving an amendment to theFlorida Constitution legalizing“medicinal” marijuana

Florida Voter Poll ofFt. Lauderdale/The MiamiHerald, Sept. 23, 1997

Hawaii Feb. 3-12, 2000 77 ±3.7%

703 registeredvoters

favor “the Hawaii State Legislaturepassing a law in Hawaii to allowseriously or terminally ill patients to usemarijuana for medical purposes ifsupported by their medical doctor”

QMark Research & Polling onbehalf of the Drug PolicyForum of Hawaii

Illinois 1998 67 ±3.5%

850 stateresidents

“doctors should be allowed to prescribesmall amounts of marijuana for patients”

Center for GovernmentalStudies at Northern Ill. Univ./Daily Chronicle (Dekalb/Sycamore, Ill.) April 9, 1998

Maryland 1999 73 N/A

1,000 stateresidents

“physicians should be allowed toprescribe marijuana for medical use”

Center for Substance AbuseResearch at the University ofMaryland, College Park, resultsreleased on January 24, 2000

Massachusetts 1999 81 N/A

N/A

would definitely (62%) or probably(19%) support “an initiative that wouldallow the medical use of marijuana bypatients with certain diseases, who havea doctor’s recommendation. … with theproper credentials could not be arrestedor prosecuted for marijuana possession”

Fairbank, Maslin, Maullin &Associates on behalf ofAmericans for Medical Rights

Minnesota March 10-12,1999

68 ±3.5%

N/A

“If a patient has a debilitating illnessand a doctor recommends marijuana asa medicine for that patient,” the patientand doctor should “be protected fromcivil and criminal penalties”

Mason-Dixon political andmedia research firm

Nebraska April 1979 83 N/A

1,040respondents

favor marijuana’s prescriptive medicalavailability

Joe B. Williams, ResearchConsultant, Elmwood,Nebraska

New York April 26-28,1999

80 ±3.8%

700 registeredvoters

allow physicians “to prescribe marijuanafor medical purposes to seriously andterminally ill patients, and to alleviatesymptoms of diseases and the side effectsassociated with treatments”

Zogby International

Pennsylvania Dec. 1978 83 N/A

1,008respondents

favor marijuana’s prescriptive medicalavailability

National Center for TelephoneResearch, Princeton, NJ

South Dakota Dec. 26, 2000 -Jan. 9, 2001

811

952N/A

505 registeredvoters

1 “favor a change in South Dakota lawso that seriously ill people — with adoctor’s approval — can use medicalmarijuana legally without fearing thepossibility of being arrested”2 do not “think that patient should bearrested and sent to prison"

Creative Broadcast Systems,Inc.

Virginia 1999 77 ±4.4 %

514 adults

“doctors should be allowed to prescribemarijuana for medical use when itreduces pain from cancer treatment orfor other illnesses”

Center for Survey Research atVirginia Tech University(Quality of Life in VirginiaSurvey)

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Appendix E: The Controlled Substances Act (and drug schedules)

The federal Controlled Substances Act of1970 created a series of five schedules establishingvarying degrees of control over certain substances.Marijuana and its primary active ingredient—tetrahydrocannabinol (THC)—are presently inSchedule I. As such, doctors may not prescribemarijuana under any circumstances.

Schedule II(includes morphine, used as a pain-killer, andcocaine, used as a topical anesthetic)

A. The drug or other substance has a high potential for

abuse.

B. The drug or other substance has a currently accepted

medical use in treatment in the United States or a

currently accepted medical use with severe restrictions.Although the DEA has not rescheduledmarijuana, it has made the drug “dronabinol”available by prescription. Dronabinol—marketedas “Marinol”—is synthetic THC in sesame oil in agelatin capsule. Unfortunately, evidence indicatesthat it is less effective than marijuana for manypatients. Dronabinol is currently in Schedule III.

C. Abuse of the drug or other substance may lead to severe

psychological or physical dependence.

Schedule III(includes anabolic steroids and Marinol)

A. The drug or other substance has a potential for abuse

less than the drugs or other substances in Schedules I

and II.Most states mirror the scheduling criteriaestablished by the federal government. However,marijuana has been assigned to Schedule II orlower in a few states that have recognized itsmedicinal value and/or relative safety.Rescheduling on the state level is mainly symbolicat this time—doctors may not prescribe marijuanain those states because the federal schedulessupersede state law.

B. The drug or other substance has a currently accepted

medical use in treatment in the United States.

C. Abuse of the drug or other substance may lead to

moderate or low physical dependence or high

psychological dependence.

Schedule IV(includes Valium and other tranquilizers)

The criteria for each of the schedules, listed inTitle 21 of the U.S. Code, Section 812(b)(21 U.S.C. 812(b)), and a few example substancesfrom Title 21 of the Code of Federal Regulations,Section 1308, are:

A. The drug or other substance has a low potential for abuse

relative to the drugs or other substances in Schedule III.

B. The drug or other substance has a currently accepted

medical use in treatment in the United States.

C. Abuse of the drug or other substance may lead to

limited physical dependence or psychological

dependence relative to the drugs or other substances in

Schedule III.

Schedule I(includes heroin, LSD, and marijuana)

A. The drug or other substance has a high potential for

abuse. Schedule V(includes codeine-containing analgesics)

B. The drug or other substance has no currently accepted

medical use in treatment in the United States. A. The drug or other substance has a low potential for

abuse relative to the drugs or other substances in

Schedule IV.C. There is a lack of accepted safety for use of the drug or

other substance under medical supervision.B. The drug or other substance has a currently accepted

medical use in treatment in the United States.

C. Abuse of the drug or other substance may lead to

limited physical dependence or psychological

dependence relative to the drugs or other substances in

Schedule IV.

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Appendix F: How the effective laws are currently working

California highlighted the discrepancies: In a case againstfive individuals connected to a medical marijuanaclinic in Hillcrest, Judge William Mudd said thedefendants “took all steps necessary to complywith the statute,” but the law is so “botched up”that what is legal in some parts of the state isillegal in San Diego. Consequently, Mudddismissed the charges which could have put thedefendants behind bars for six years if they hadbeen convicted.

California’s initiative was the first to beenacted and, as with all initial efforts,Proposition 215 did not address every aspect ofmedical marijuana policy. Most notably,California’s law did not place a specific limit onthe amount of marijuana that may be possessed bya patient, nor did it permit any state agency toestablish guidelines for the law.

Estimates of the number of patients currentlyutilizing Proposition 215 range from 25,000 tomore than 100,000. Patients throughout the state,with the help of their primary caregivers, aregrowing and using medical marijuana upon therecommendations of their physicians.

Attempting to address the questions leftunanswered by Proposition 215, CaliforniaAttorney General Bill Lockyer formed a task forcein 1999 to develop recommendations forimplementing the law. Co-chaired by state SenatorJohn Vasconcellos and Santa Clara DistrictAttorney George Kennedy, the task force produceda number of recommendations that were amendedinto a bill sponsored by Vasconcellos. The bill,Senate Bill 848, contained four major provisions:

The major unresolved issue is supply. Howmuch marijuana is sufficient for the “personalmedical purposes” of a patient, as defined byProposition 215? Without any specified numericalguidelines, law enforcement sometimes err on theside of arresting — or at least hassling — patients ifthe quantity seems too large. One ruling in thestate court of appeals, People v. Trippet (1997), 56Cal.App.4th 1532, addressed the issue, but failed toprovide much clarification. Commenting on thematter, Judge Paul Haerle said “the rule should bethat the quantity possessed should be reasonablyrelated to the patient’s current medical needs.” (Ofnote, that same ruling also said that transportationof marijuana by patients and caregivers wasimplicitly included in Proposition 215.)

• Establish a registry program within theDepartment of Health Services;

• Allow the Department of Health Servicesto determine what constitutes anappropriate medical marijuana supply;

• Permit regulated operation of cooperativecultivation projects; and

• Clarify those instances where medicalmarijuana may be authorized, and requirethat a patient’s personal physician makethe recommendation.

Another state appeals court ruling, People v.Rigo (1999), 69 Cal.App.4th 409, determined thatphysician approval is necessary prior to arrest inorder to assert an affirmative defense in courtagainst a charge of marijuana possession.

Although SB 848 was developed in abipartisan atmosphere, it failed to pass thelegislature in 1999 or 2000. As a result, many ofthe state's medical marijuana rules remain open-ended. As a related matter, the Department ofHealth Services feels little responsibility forcommunicating with patients about the law untila standardized policy is in place.

As one would expect, without statewideregulations, enforcement of Proposition 215 varieswidely. Some jurisdictions allow distribution,while some are hesitant to recognize a patient’sright to use medical marijuana at all. A September2000 ruling in San Diego Superior Court

Despite this problem, patients who possessand use a small amount of marijuana face very

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little threat of prosecution, despite the fact thatmany jurisdictions in California remain hostile tomedical marijuana. Most medical marijuanaarrests involve two dozen plants or more, althoughthere have been arrests for as few as six plants.

Unfortunately, most of the CBCs were shutdown either by state and local law enforcement orby federal legal action. The San Francisco CBC,for example, was targeted by the state attorneygeneral’s office. In the San Francisco case, theCalifornia First District Court of Appeals ruledthat a commercial enterprise that is sellingmarijuana does not qualify as a primary caregiver(People ex rel. Lungren v. Peron (1997),59 Cal.App.4th 1383).

As the pioneering state of effective medicalmarijuana laws, California has been the site of twokey cases of federal litigation. The first case,Conant v. McCaffrey, examines whetherphysicians have a right under federal law todiscuss marijuana and recommend it to theirpatients. (See Appendix J for detailedinformation.)

Distinct from a commercial enterprise, theOakland Cannabis Buyers’ Cooperative (OCBC)fought a January 1998 civil suit brought by theU.S. Department of Justice to stop the operationof OCBC and five other distribution centers innorthern California. (See Appendix J for detailedinformation on this case.)

The second case, U.S. v. Oakland CannabisBuyers’ Cooperative, considers whether “medicalnecessity” is a valid defense against federalmarijuana distribution charges.

Regardless of how these matters areresolved, patients and their primary caregiverswill continue to be allowed to acquire or growmedical marijuana under state law.

Similar to most other medical marijuanainitiatives, California’s law does not explicitlypermit distribution beyond individual caregiversassisting individual patients. Unfortunately, manypatients are not capable of growing their ownmarijuana, nor do they have a capable caregiver.In response to this unmet need, a number ofmedical marijuana distributors — often referred toas cannabis buyers’ cooperatives or clubs (CBCs)— emerged throughout the state. In fact, somehad been in existence before the initiative becamelaw. The CBCs essentially act as “caregivers” forthe patients they serve. In many CBCs, patientsare required to designate the CBC as his or herprimary caregiver.

Oregon

Oregon may have the most functional medicalmarijuana law: There have been few complaintsby either patients or law enforcement; the HealthDivision of the Department of Human Serviceshas taken the most active role of any state healthagency in the country; physicians have beenbroadly supportive; and only one registeredpatient out of the first 1,000 enrolled in theprogram has had a registry card revoked.

The most successful CBCs have been low-keyand politically savvy, carefully orchestrating theiroperation every step of the way. Working aboveground and above scrutiny, they have forgedpositive relationships with local governments,including law enforcement. These CBCs carefullyscrutinize all applicants, take careful inventory,and have strict policies for on-site behavior. Thesesteps allow local authorities to support thedistributors’ operation with the knowledge thatonly qualified patients receive marijuana and thatno marijuana is diverted for illicit purposes.

All of these elements have led law enforcementto ease its opposition to medical marijuana. Whenthe initiative was passed, law enforcement wasrunning to the legislature, fighting to have the lawoverturned. However, two years of enforcementhave shown that there is no widespread abuse, andnearly all Oregonians utilizing the law are legitimatepatients and caregivers.

The system is not perfect, however. Patients,law enforcement, and state health officials agreethat the greatest problem is the law’s failure toprovide for medical marijuana distribution —

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suppliers are not permitted. If a patient and his orher primary caregiver cannot cultivate their ownmarijuana, they must turn to the criminal market.Unfortunately, growing marijuana has been aproblem for many patients. For some, the costs areprohibitive, while others may not have the spaceor may not possess the horticultural skillsnecessary to cultivate a consistent supply.According to estimates by one patient advocate,as few as 25% of qualified patients have access to asteady supply.

To address remaining ambiguities, the stateattorney general’s office convened a workinggroup on medical marijuana to developrecommendations on how state and localauthorities should enforce the law. Issued onDecember 15, 1999, the recommendationselaborate on the range of defenses provided by thelaw and when they are applicable. Also, cautiouspolicies for seizing and destroying marijuana areprovided for jurisdictions to consider.

A major unresolved issue is whether acaregiver who serves multiple patients can havemore than seven plants at a single location. Oneinterpretation of the law says that if a caregiverserves three patients, then the caregiver couldgrow up to 21 plants, as each caregiver-patientpair is permitted to collectively possess sevenplants. A competing interpretation says acaregiver cannot exceed the seven-plant limit,regardless of the number of patients under his orher care. This issue is also addressed in theattorney general’s recommendations, which areavailable on-line:http://www.doj.state.or.us/medmar.htm

Patients are also unable to travel out of statewith their medicine, as the law protects them onlyin Oregon. Consequently, patients have suggestedthat Oregon develop reciprocity agreements withother states that allow medical marijuana. Undersuch an arrangement, patients could carry theirmedical marijuana with them when travelingbetween states that allow the possession and use ofmedical marijuana.

Amendments to and interpretations of the law

In July 1999, less than nine months after theinitiative was passed, the state amended theMedical Marijuana Act when Governor JohnKitzhaber (D) signed H.B. 3052 into law. Thechanges included:

Another looming question is what constitutesa “mature” plant. The law says that only three of apatient’s seven plants can be mature, which hasled to some disagreements between patients andpolice. According to a local patient advocate,however, police are beginning to ignore themature-immature distinction as long as patientshave seven or fewer plants. In cases whereregistered or qualified patients possess more thanseven plants, police are regularly destroying theplants in excess of the specified number, whileleaving the permissible limit intact, which was thepreferred policy by the legislative working groupthat produced the 1999 amendments to the law.

• mandating that patients may not usemarijuana for medical purposes incorrectional facilities;

• limiting a given patient and primarycaregiver to growing marijuana at onelocation each;

• requiring that people arrested for marijuanawho want to raise the medical necessitydefense in court must have been diagnosedwith a debilitating medical conditionwithin 12 months prior to the arrest; and

The Oregon Medical Marijuana Program—Registration System• specifying that a law enforcement agency

that seizes marijuana plants from a personwho claims to be a medical user has noresponsibility to maintain live marijuanaplants while the case is pending.

Though staffed by just one full-timeindividual, the Oregon Medical MarijuanaProgram—the state’s registration program—haslaid firm groundwork for a highly functionalmedical marijuana system. Beginning with its

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inception in May 1999, the program registeredjust over 1,600 patients in its first 20 months ofexistence and consistently receives 5-10 newapplications each day. The steady enrollment canbe attributed to growing comfort levels for bothpatients and physicians with medical marijuana.

laws, and Oregon is the only state to provide—asa courtesy—contact information for independentmedical marijuana organizations.

In addition to its direct work with the patients,the program has a public education component.Though not compelled by statute, the program—more specifically its director—has spoken tocountless groups across the state, includingemployers, attorneys, law enforcement, students,patient groups, other state agencies, and healthcare professionals. Through this outreach, theprogram has heightened awareness about the lawand assured patients, physicians, law enforcement,and citizens alike that the state is committed tohandling this issue in a sound manner.

The program has compiled extensive data onthe 594 patients who enrolled in the programduring its first year of operation (May 1, 1999 -April 30, 2000). Seventy percent of registrants aremale and the average age is 46—with a range ofages from 14 to 87. Sixty percent registered aprimary caregiver. Many patients report multiplesymptoms. Multiple sclerosis patients, forexample, often report both muscle spasms andsevere or chronic pain. The following tableprovides percentages for the diseases andsymptoms reported by card-holders.

Because of the outreach effort, all parties areincreasingly comfortable with the law and itsimplementation. For example, Oregon has asurprisingly high rate of physician participation inthe registry program. Approximately 500physicians have submitted documentation forpatients seeking a registry card. There is aboutone recommending physician for every 3.2patients in the registry system, which shows that itis not just a handful of doctors who recognize themedical benefits of marijuana. Comparatively,patient networks in Washington state andCalifornia report that there is one recommendingdoctor for every 3.5 to 5.5 patients. In addition toindividual physicians supporting the program,Kaiser Permanente, one of the nation’s largestHealth Maintenance Organizations, developed astandardized recommendation letter for its Oregonphysicians to use in conjunction with the registryprocess.

Symptoms reported by patients enrolled inOregon’s medical marijuana program

disease or condition percentage reported*

severe or chronic pain 67

muscle spasms 41

nausea 29

HIV/AIDS 10

cancer 9

cachexia 7

seizures 6

glaucoma 3*percentages total more than 100% because many patients report

multiple symptoms

In tune with the information age, the programprovides up-to-date information via the Internet.Recent changes to the law and relatedadministrative rules, application forms, and afrequently-asked-questions page, featuring contactinformation for patient network organizations thatcan assist those patients who are eligible to growtheir own medical marijuana, are available athttp://www.ohd.hr.state.or.us/hclc/mm/welcome.

htm (the program’s Web site). Oregon’s Web site isunmatched by other states with medical marijuana

The only clear flaw in the registry program isthat the legislature has not provided any funds forits operation. As a result, the program is entirelysupported by patient fees, which are $150 perapplication and must be renewed each year. Thispresents a financial hardship to many patientswho are too ill to work. Further, when this cost iscoupled with the costs of cultivating marijuana, itcould cost a patient $1,000 to get started, andinsurance does not cover any of this.

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In addition to administering the registryprogram, the Health Division considers petitionsto add conditions to the list of qualifyingconditions, diseases, and symptoms covered by thelaw. In the first year of the program, eightconditions were considered: agitation ofAlzheimer’s disease, anxiety, attention deficitdisorder, bipolar disorder, insomnia, posttraumatic stress disorder, schizophrenia, andschizo-affective disorder. After review by anexpert panel, three of the conditions (agitation ofAlzheimer’s disease, anxiety, and bipolar disorder)were recommended to the Health Division forfinal approval. The Division approved agitation ofAlzheimer’s disease, while rejecting the other two.The unapproved conditions may be reconsideredif additional supporting evidence can be offered.

often complain that the plant limit is too low andtoo restrictive.

Related to the low plant limit, local advocatesbelieve some patients are unable to maintain aconsistent supply of medical marijuana. With thenation’s shortest growing season, Alaskans generallyhave no choice but to grow indoors, which oftenpresents a financial hardship. Not only does thestate not permit medical marijuana distribution, butthe Department of Health and Social Servicesrejected an idea to allow the registry program toprovide patients with a list of independent groupsthat could provide them with the assistancenecessary to grow marijuana on their own.

Despite these restrictions, 180 patientsregistered with the program in the first 14 months ofits existence. Seventy-seven physicians submitteddocumentation on behalf of those patients—a ratioof 2.3 patients for every physician, almost identicalto Oregon’s ratio. Although physician participationappears strong, patient advocates argue that manydoctors refuse to sign statements on behalf ofpatients because of fear of federal retribution. Thisproblem may be uniquely compounded in Alaska,where many doctors are federal employees, workingfor either the Indian Health Services or VeteransAdministration. Outside of Washington, D.C.,Alaska has the nation’s largest per capita share offederal employees.

Alaska

Alaska’s medical marijuana history resemblesOregon’s. Both states passed initiatives in 1998.Registry programs were established in both states,and each legislature amended the law within ayear of its enactment. Differences, however, canbe traced to the legislature’s amendments, wherelawmakers imposed far greater restrictions onAlaska’s medical marijuana statute.

Signed into law on June 1, 1999, Senate Bill94 made Alaska’s medical marijuana registrationmandatory. No longer can residents assert amedical necessity defense if they adhere to theintent of the law but do not obtain a registry card.

Alaska has no breakdown of its registrants’conditions and symptoms because the physicianstatement forms do not name the specific ailment,in order to protect patient confidentiality.Despite the state’s efforts to protect patient

privacy, many Alaskans are reluctant to add theirnames to a list of individuals who have seriousmedical conditions and use medical marijuana. Asa result, many patients do not register and have nolegal protection.

Since the program has opened, no registrycards have been revoked, and there have been noreal test cases of the law. However, there arepending cases involving individuals who are onfelony probation and have applied for andreceived a medical marijuana registry card. Underthe terms of their probation, they are strictlyprohibited from using any controlled substanceand the state contends they are not eligible for themedical marijuana exception. The cases were stillpending as of November 2000.

Further, the legislature limited the amount ofmarijuana that a patient may legally possess to oneounce and six plants, with no exception.Previously, patients who exceeded the numericallimit could argue at trial that a greater amount wasmedically necessary. Understandably, patients

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Although the scope of the law has narrowed,police and prosecutors typically exercise discretionand maintain the spirit of the law whenconducting medical marijuana investigations,according to the state attorney general’s office.Unregistered patients are often either not chargedor are charged with a lesser crime, if they canclearly demonstrate their medical need to theinvestigating officer.

designate any state agency to implement oroversee the law. As a result, Washington has noformal system for identifying patients and therehas been no clarification of what a “sixty daysupply” of medical marijuana is.

Patient advocates such as Joanna McKee,director of Seattle’s Green Cross PatientCooperative, estimate that there are at least 3,000medical marijuana patients utilizing the state law.Most patients grow their own medical marijuana,either by themselves or with the help of acaregiver. To assist those patients who cannotgrow marijuana, a number of patient cooperativesexist. These discreet organizations verify patients’credentials, distribute marijuana, and providerelated services. Although they do not meet thestate’s strict definition of a caregiver, many of theorganizations—particularly the ones that provideidentification cards or certificates—bolster thecredibility of patients who are confronted bypolice. Nonetheless, disagreements and conflictsbetween patients and law enforcement remaincommon.

In one case, according to the Alaska attorneygeneral’s office, an unregistered wife and husbandwho possessed plants in excess of the specifiedlimit were initially charged with felonies. Afterobtaining evidence that the woman had aqualified medical need, the charges against herwere dropped and the husband was allowed toplead guilty to a lesser charge. Although notwholly absolved, the couple avoided prosecutionfor serious charges. At the same time, thisexample stresses the value of obtaining a registrycard. As enforcement practices vary fromjurisdiction to jurisdiction, patients are notguaranteed the same treatment across Alaska.

Overall, patients have made few complaints toeither the health department or attorney general’soffice regarding the law. State officials interpretthis to mean that those patients with a truemedical need are having their needs met.

Not only do police lack clear guidanceregarding what constitutes an appropriate supply,but they also complain that it is difficult todetermine what is an appropriate doctor’srecommendation. Although the law defines “validdocumentation” more clearly than supply, lawenforcement claims that it must guess at bothissues. As a result, enforcement practices varythroughout the state, and several patients havebeen arrested or have had their marijuana seizedbecause police and patients have differinginterpretations of the law.

Patient advocates have argued that the letterof the law permits nurse practitioners andphysician assistants to sign the recommendationform. However, the Department of Health andSocial Services obtained an opinion from theattorney general that only medical doctors anddoctors of osteopathy meet the law’s definition of“physician.” Alaskans for Medical Rights isattempting to overturn this opinion.

There have been several attempts to modifythe law. A bill was introduced in both the 1999and 2000 legislative sessions that would authorizethe state Department of Health to adoptadministrative rules to implement the medicalmarijuana law. Although the bill (S.B. 5704)passed the Senate in each session, it failed to movein the House. In Washington, it requires a two-thirds majority vote for the legislature to amend aninitiative in the two years after it takes effect.

Washington

Similar to California’s law, Washington’smedical marijuana statute does not place anumerical limit on the amount of marijuana thatmay be possessed by a patient. Instead, the lawallows patients to possess no more than a “sixtyday supply.” Further, the initiative did not

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Beginning in 2001, it will only take a simplemajority to amend the law via the legislature.

The only state agency with any administrativeauthority over the law is the Medical QualityAssurance Commission. It can expand the list ofterminal or debilitating conditions that may betreated with marijuana under state law. During thelaw’s first two years of effectiveness, the commissionadded Crohn’s disease and Hepatitis C, as well asdiseases that cause specific symptoms, includingnausea, vomiting, wasting, appetite loss, cramping,seizures, muscle spasms and/or spasticity, when thesesymptoms are unrelieved by standard treatments.The commission has rejected the inclusion ofinsomnia and post traumatic stress disorder.According to Rob Killian, M.D., who has frequentlypetitioned the commission, Washington state hascarefully listened to patient needs and has done themost of any state to expand the range of conditionsthat may be treated with medical marijuana.

In the interim, local law enforcement hastaken steps to limit the scope of the law. TheSeattle Police Department, for example,developed directives to streamline how medicalmarijuana investigations are conducted.Attempting to address the supply issue, Seattlepolice consider “suspicious” the possession of morethan two usable ounces of marijuana and morethan nine marijuana plants (3 mature, 3immature, and 3 starter plants). However, this isonly a benchmark and not an absolute standard.Each case is reviewed on an individual basis. TheSeattle police also obtained advice from the U.S.attorney for Western Washington, which said thepolice would not face any federal penalties forfollowing in good faith the state’s medicalmarijuana law. Maine

To assist patients, the Health Departmentprovides a toll-free phone number (800-525-0127)where patients can obtain information about thelaw. Although patient networks in Oregonmaintain toll-free hotlines, Washington is theonly state to provide this service through a stateagency. As an informational courtesy, thedepartment also distributes copies of the statute, afact sheet on the law, and a guide to the lawproduced by Washington Citizens for MedicalRights and the ACLU, which includes aphysician’s recommendation form developed bythe Washington State Medical Association.

According to the state attorney general’soffice, Maine’s medical marijuana law is bestsuited for patients to grow their marijuana supplyindoors. Indeed, for patients who can produce aconsistent supply with six indoor plants, the lawseems to be working well. Arrests have been fewand complaints have been minimal.

According to Mainers for Medical Rights, theadvocacy organization that sponsored the initiative,there are approximately 250 patients in the statewho use medical marijuana. Unfortunately, not allpatients can afford to grow their medical marijuanaindoors. The expensive lighting equipmentnecessary for growing indoors and the related energycosts are too great for some patients, many of whomhave limited incomes and face other financialhardships due to their conditions.

Most patients who contact the HealthDepartment know very little about the law andsometimes confuse it with the law in neighboringOregon. Patients most often ask about how theycan obtain marijuana, if they can be referred to aphysician, and what their status is under federallaw. The department does not refer patients tophysicians who can provide a recommendation,nor does it refer them to patient networks that canprovide medical marijuana. With no formal role inthe administration of the law, the department’smain advice for patients is to read the law carefully.

As an alternative, some patients have chosento grow their medical marijuana outdoors. Whilethis is not a crime, Maine’s short growing seasonalmost necessitates that many plants be grownsimultaneously, if the goal is to produce a reliablesupply for the entire year. Not surprisingly, largegrow operations, in excess of the law’s specified

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six-plant limit, have driven the state’s few arrestsrelated to the law.

a simple defense, the defendant need only producea relatively small amount of evidence at trial insupport of the defense, with the state then havingto disprove the existence of facts establishing thedefense beyond a reasonable doubt. Maine is theonly state where unregistered patients are affordedmore than an “affirmative defense” at trial. An“affirmative defense” places the burden on thedefendant to prove his or her medical necessity bya preponderance of the evidence. The “simpledefense,” on the other hand, makes it easier for alegitimate patient to avoid a conviction. Notsurprisingly, law enforcement and prosecutorswould like to see the simple defense tied to a stateregistry program. (California also does not have aregistry program and the law provides anexemption from prosecution. However, the courtshave interpreted the law as providing anaffirmative defense at trial, for those patients whoare prosecuted.)

For example, two patients in separate cases—a62-year-old man with muscular dystrophy and a53-year-old man with muscle hardening torticollisand a degenerative bone condition—were arrestedfor possessing 83 and 37 plants, respectively, inaddition to at least one pound each of processedmarijuana. These cases were reported in theBangor Daily News on August 23, 2000, and thePortland Press Herald on September 23, 2000,respectively. There is little doubt about thevalidity of their medical need. However, they arein clear violation of the law. Despite this, theyclaim that the excessive amounts are necessary tomaintain a medical marijuana supply throughoutthe year. The law does not, however, allowpatients to assert an affirmative defense and arguethat excessive amounts are medically necessary.

Patients who feel compelled to exceed theplant limit in outdoor grows are not the only oneswho find access to medical marijuana a problem.Some patients live in apartments and do not havethe space to grow marijuana. Others are too sickto grow for themselves and do not have acaregiver capable of growing it for them. Somelack the horticultural skills needed to cultivate areliable supply of marijuana. Time is anotherconsideration, especially for cancer patients whoneed immediate chemotherapy treatment and animmediate supply; it takes several months for amarijuana plant to mature.

Attempting to address law enforcementquestions, the attorney general’s office released a“Patrol Officer’s Guide to the MedicinalMarijuana Law,” which appeared in the MaineLaw Officer’s Bulletin on December 18, 1999, fourdays before the law took effect. The guide tellsofficers to conduct thorough investigations andexercise discretion. Of particular note, officers areencouraged to accompany suspects, whenreasonable, to the location where medicaldocumentation exists, if the suspect does not haveit on hand.

Access and enforcement issues drove the stateto examine additional proposals for implementingthe law. The state attorney general convened abroadly representative task force, which voted onthree legislative recommendations following sixmeetings spread over five months (May toSeptember 2000). Although the task force wasunable to reach a consensus, a majority (15–10)voted in favor of a pilot project to establish asingle non-profit center to sell medical marijuanato registered patients. A community oversightboard would administer the center. There was alsostrong support for a bill to establish a stateresearch program, and another bill to create a

In addition to access and distribution issues,other questions about the law have surfaced. Withno formal registry system, law enforcementmaintains that it cannot readily identifylegitimate patients. The law simply says that apatient’s documentation must be “available.” As aresult, police can be unnecessarily harsh whenindividuals possess marijuana, claim to haveappropriate medical documentation, but are not inpossession of the documentation.

Although the plant limit is low with noexceptions, patients are afforded a “simpledefense” to a charge of marijuana possession. With

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registry program for patients and caregivers, aswell as to allow patients to furnish marijuana toother patients on a one-to-one basis. Manysupporters of the two latter bills favored variousamendments. The results of the votes highlightedthe task force’s final report which was forwardedto the state legislature. The legislature willultimately determine if further implementationtakes place. The report is available on-line at theattorney general’s Web site:http://www.state.me.us/ag/medicalmarijuana.htm

One concern, however, is that the stateHealth Department has declined to take an activerole in the implementation of the law. In otherstates with formal systems, medical marijuana lawsare administered by health officials rather thanpublic safety officials. It remains to be seenwhether physicians and patients will be less likelyto utilize a program developed and maintained bylaw-enforcement officials.

Colorado

Maine’s Bureau of Health has expressed littleinterest in helping implement the law. TheBureau is not interested in conducting research,maintaining a registry, or monitoring medicalmarijuana distribution by patient cooperatives. Infact, the Bureau’s director, Dr. Dora Mills, was theonly medical marijuana task force member whovoted against all three legislative proposals thatwere considered.

Colorado voters passed a medical marijuanainitiative on November 7, 2000, with 53% of thevote. Similar to Nevada’s, the Colorado initiativeamends the state constitution, but it only requiredone vote.

Currently, the Colorado Department of PublicHealth and Environment is developing rules for aregistry identification card program that will providepatients and their primary caregivers an exceptionfrom the state’s marijuana laws. The registryprogram is expected to be effective by June 1, 2001.Until the registry is in place, Colorado patients havean affirmative defense to charges of unlawfulmarijuana possession or cultivation.

Hawaii

Although Hawaii’s medical marijuana statutewas signed into law on June 14, 2000, it did nottake effect until December 28, 2000, when theDepartment of Public Safety issued itsadministrative regulations and finalized designatedforms, allowing patients to register with the state.

Nevada

Voters in Nevada enacted a medicalmarijuana law via initiative with 65% of the voteon November 7, 2000. (Because Nevada’s lawamends the state constitution, it required twovotes. In 1998, Nevadans supported the proposalwith 59% of the vote.) The new law requires thestate legislature to provide for a system that allowsqualified patients to use medical marijuana. Untilthe legislature acts, however, patients in Nevadahave no legal protection for medical marijuana.

In addition to the registry, patients have a“choice of evils” defense to a charge of marijuanapossession if they have qualifying medical records ora signed statement by their physician stating thatthey have a debilitating condition and the medicalbenefits of marijuana likely outweigh the risks.

It is difficult to estimate how many patientswill utilize the law. However, Oregon has a similarlaw and twice as many residents as Hawaii.Therefore, it may be assumed that 500 citizens ofHawaii will register in the first two years of thelaw’s effectiveness.

Hawaii’s law is well written with preciselydefined terms, which may allow the state to avertmuch of the ambiguity and confusion experiencedby other states with medical marijuana laws.

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Medical conditions approved for treatment with marijuana in the eight states withmedical marijuana laws

Californiaa Oregon Alaska Washington Maine Hawaii Colorado Nevada

Specific diseases

cancer ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔

glaucoma ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔

AIDS or HIV ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔

Crohn’s disease ✔b, c ✔

Hepatitis C ✔b, c

Debilitating medical

conditions or symptoms

produced by those

conditions

cachexia, anorexia, or

wasting syndrome

✔ ✔ ✔ ✔b, c ✔ ✔ ✔

severe or chronic pain ✔ ✔ ✔ ✔b ✔ ✔

severe or chronic

nausea

✔ ✔ ✔ ✔ ✔ ✔ ✔

seizure disorders

(e.g., epilepsy)

✔ ✔ ✔ ✔ ✔ ✔ ✔

muscle spasticity

disorders (e.g.,

multiple sclerosis)

✔ ✔ ✔ ✔ ✔ ✔ ✔

arthritis ✔

migraines ✔

agitation of

Alzheimer’s disease

✔c

Allows addition of

diseases or conditions

by state health agency

a ✔ ✔ ✔ ✔ ✔ ✔

aIn addition to the specific diseases and conditions listed, the law covers treatment of “any other illness for which marijuanaprovides relief.”bRequires that medications available by prescription have failed to provide relief.cCondition added by state agency.

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Appendix G: Types of legal defenses affordedby effective state medical marijuana laws

i. Exemption from Prosecution

State governments are not required to enforce federal laws. A state may establish that it is no longer astate-level crime for patients to possess or cultivate marijuana for medicinal purposes. Federal lawswould be broken by individual patients, but an “exemption from prosecution” prevents the state fromprosecuting qualified patients. Most exemptions are tied to a state registry program, which allowspatients’ credentials to be easily verified.

ii. Simple Defense

With a simple defense to a charge of marijuana cultivation or possession, the defendant need onlyproduce a relatively small amount of evidence at trial in support of the defense that the cultivation orpossession was solely for a legitimate medical purpose. In order to win a conviction, the state mustdisprove the existence of facts establishing the defense beyond a reasonable doubt. Maine is the onlystate where unregistered patients are afforded a simple defense at trial.

In contrast to the affirmative defense, which places the burden on defendants to prove that theirmarijuana use or possession is medically necessary, a simple defense places the burden on prosecutorsto prove that marijuana use or possession is not medically necessary for the defendant. As a result, it isdifficult for prosecutors to win a conviction against legitimate patients afforded a simple defense inmedical marijuana cases.

iii. Affirmative Defense

Several state medical marijuana laws allow individuals to assert an affirmative defense to charges ofunlawful marijuana cultivation or possession. To establish the affirmative defense, individuals mustprove at trial—by a preponderance of the evidence—that they are in compliance with the medicalmarijuana statute. The affirmative defense is the only defense afforded individuals by the medicalmarijuana law in Alaska. Although this defense does not prevent patients from being arrested, as amatter of practice, individuals who are clearly in compliance with the law are typically not arrested.Two states, Colorado and Oregon, allow individuals to use an affirmative defense to argue that anamount of marijuana in excess of the specified legal limit is medically necessary.

iv. “Choice of Evils” Defense

In addition to providing one or more of the above specific defenses (exemption from prosecution,simple defense, or affirmative defense), the enactment of a medical marijuana law may allowdefendants to raise a medical necessity defense, often referred to as a “choice of evils” defense. Thisdefense is long recognized in common law and may be applied in states where a law or court decisiondefines or indicates circumstances where medical marijuana cultivation, possession, and use arepermitted. See Appendix L for more information on the medical necessity defense.

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Appendix H: Types of physician documentation required tocultivate, possess, or use medical marijuana

California and Arizona, the first two states to enact medical marijuana initiatives, used slightly differentwording in their enacting statutes:

• California law allows patients to use medical marijuana if they possess a recommendation from aphysician.

• Arizona law allows patients to use medical marijuana if they possess a prescription.

The differences seem slight, but their effects are great. Patients in California are now protected understate law if they possess a valid recommendation for medical marijuana. In Arizona, however, patients donot enjoy state-level legal protection because it is impossible to obtain a prescription for medical marijuana.

Definitions of “prescription” and “recommendation,” as they apply to medical marijuana, explain thedifferences in legal protection for California and Arizona patients.

Prescription

A prescription is a legal document from a licensed physician ordering a pharmacy to release a controlledsubstance to a patient. Prescription licenses are granted by the federal government; therefore, it is aviolation of federal law to “prescribe” marijuana, regardless of state law. Furthermore, it is illegal forpharmacies to dispense marijuana (unless as part of a federally sanctioned research program).

Six older state medical marijuana laws also use the word “prescribe,” and are consequently alsoineffective.

Recommendation

A recommendation is not a legal document, but a professional opinion provided by a qualified physicianin the context of a bona fide physician-patient relationship. The term “recommendation” skillfullycircumvents the federal prohibition on marijuana prescriptions, and federal court rulings have affirmed aphysician’s right to discuss medical marijuana with patients, as well as to recommend it. A“recommendation” is constitutionally protected speech. See Appendix J for details.

Whereas patients do not receive meaningful legal protection via marijuana “prescriptions” because theycannot be lawfully obtained, those who have a physician’s “recommendation” can meet their state’s legalrequirements for medical marijuana use.

States which followed California and Arizona in the initiative and legislative processes generallyavoided both “prescription” and “recommendation.” Instead, they require physicians to discuss, in thecontext of a bona fide physician-patient relationship, the risks and benefits of medical marijuana use andadvise patients that the medical benefits of marijuana would likely outweigh the health risks. Not only doesthis circumvent the federal prohibition on marijuana, but it minimizes physician concerns that they mightface liability related to medical marijuana.

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Appendix J: Federal litigation and other federal attemptsto thwart effective state medical marijuana laws

A New York Times article that covered the signing of Hawaii’s medical marijuana law on June 14, 2000,said, “the Justice Department is challenging those laws” that remove state-level criminal penalties forpatients who cultivate, possess, and use medical marijuana. That is simply false. The federal government hasnot tried to overturn any state medical marijuana law, nor does it plan on trying.

In fact, high-ranking members of the U.S. Department of Justice evaluated the legal prospects of a courtchallenge to the medical marijuana initiatives, and they concluded that such a challenge would fail.

This was stated on the record by David Anderson of the U.S. Department of Justice during a hearing inWayne Turner v. D.C. Board of Elections and Ethics, et al, (Civil Action No. 98-2634 RWR, September 17,1999).*

Anderson’s comments are supported by Footnote 5 in the federal court’s Turner opinion: “In addition,whatever else Initiative 59 purports to do, it proposes making local penalties for drug possession narrowerthan the comparable federal ones. Nothing in the Constitution prohibits such an action.”

Testifying at a June 16, 1999, hearing of the Government Reform Subcommittee on Criminal Justice,Drug Policy and Human Resources of the U.S. House of Representatives, Drug Czar Barry McCaffrey alsoadmitted that “these [medical marijuana] statutes were deemed to not be in conflict with federal law.”

Further, McCaffrey said that the federal government has “a problem” because there are not enoughDEA agents to enforce federal law against personal use, possession, and cultivation in the states that haveremoved criminal penalties for medical marijuana.

Speaking directly to that point, Kristina Pflaumer, U.S. attorney for Western Washington, informed theSeattle Police Department that her office did not intend to prosecute cases relating to the state’s medicalmarijuana law. Specifically, Pflaumer wrote:

Speaking for this office, we do not intend to alter our declination policies on marijuana, which preclude ourcharging any federal offense for the quantities legalized by the new ‘medical marijuana’ initiative. (I am assumingan authorized 60 day supply would be fewer than 250 plants.) Given our limited funding and overwhelmingresponsibilities to enforce an ever larger number of federal offenses, we simply cannot afford to devote prosecutiveresources to cases of this magnitude. In short, we anticipate maintaining our present declination standards.

We therefore have no interest in the Seattle Police Department investigating or forwarding such cases to us. Wecan also assure you in advance we will also decline to prosecute a police officer who merely returns to its ownermarijuana he believes to meet the ‘medical marijuana’ standards.

Further, Pflaumer said the U.S. attorney’s office did not expect that the Seattle Police Department wouldjeopardize any of its federal funding for complying with the state’s medical marijuana law. Pflaumer’sstatements were made to Seattle Police Department Vice and Narcotics Section Commander Tom Grabickiin a letter dated August 11, 1999, in response to Grabicki’s letter of July 22, 1999.

*Turner challenged the constitutionality of U.S. Rep. Bob Barr’s amendment to the fiscal year 1999 D.C. budget, which prohibitedthe District from spending any funds to conduct any initiative that would reduce the penalties for possession, use, or distribution ofmarijuana. The United States District Court for the District of Columbia ruled in Turner’s favor, the votes were counted, and themedical marijuana initiative passed; however, Congress subsequently prevented it from taking effect. This occurred only becauseD.C. is a district, not a state, and therefore is legally subject to greater federal oversight and control.

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Appendix J (continued)

Thus it seems doubtful that the federal government will ever be able to overturn the state medicalmarijuana initiatives. That is, the federal government cannot force states to have laws that are identical tofederal law, nor can the federal government force state and local police to enforce federal laws. In selectcases, however, the U.S. Department of Justice may take legal action against selected individuals andorganizations for federal marijuana offenses.

Since 1996, there have been two key cases of federal litigation relating to medical marijuana.

Dr. Marcus Conant v. Barry R. McCaffrey (Case No. C 97-00139 WHA)

Ruling: A federal district court ruled that the federal government cannot punish physicians for discussingor recommending medical marijuana.

Background:

Shortly after California voters approved Proposition 215 in 1996, the federal government threatened topunish—even criminally prosecute—physicians who recommend medical marijuana. Specifically, thefederal government wanted to take away their authority to write prescriptions for any controlled substances.In response to those threats, a group of California physicians and patients filed suit in federal court onJanuary 14, 1997, claiming that the federal government had violated their constitutional rights.

The lawsuit asserts that physicians and patients have the right—protected by the First Amendment tothe U.S. Constitution—to communicate in the context of a bona fide physician-patient relationship,without government interference or threats of punishment, about the potential benefits and risks of themedical use of marijuana.

On April 30, 1997, federal District Court Judge Fern Smith issued a preliminary injunction prohibitingfederal officials from threatening or punishing physicians for recommending medical marijuana to patientssuffering from HIV/AIDS, cancer, glaucoma, and/or seizures or muscle spasms associated with a chronic,debilitating condition. According to Judge Smith, "[t]he First Amendment allows physicians to discuss andadvocate medical marijuana, even though use of marijuana itself is illegal."

The case was finally heard in U.S. district court in August 2000. Plaintiffs argued that the threats amountto censorship. The federal government countered that there is a national standard for determining whichmedicines are accepted and that using marijuana should not be decided by individual physicians. In responseto that argument, Judge William Alsup stated, “Who better to decide the health of a patient than a doctor.”

Alsup ruled, on September 8, 2000, that the federal government cannot penalize California doctors whorecommend medical marijuana under state law. Specifically, he said the U.S. Department of Justice ispermanently barred from revoking licenses to dispense medication “merely because the doctor recommendsmedical marijuana to a patient based on a sincere medical judgment and from initiating any investigationssolely on that ground.”

Alsup further wrote that the ruling applies even if “the physician anticipates that the recommendationwill, in turn, be used by the patient to obtain marijuana in violation of federal law.”

The U.S. Department of Justice has not yet appealed Judge Alsup’s ruling.

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Appendix J (continued)

United States of America v. Oakland Cannabis Buyers’ Cooperative (Case No. 98-16950)

Ruling: A federal appeals court ruled that a medical marijuana distributor can use a medical necessitydefense against federal marijuana distribution charges.

Background:

Large-scale distribution is the key unresolved issue surrounding state laws that remove criminal penaltiesfor medical marijuana-using patients and the caregivers who assist them. In California, dozens of medicalmarijuana distribution centers received considerable media attention following the passage ofProposition 215. Many of them had been quietly operating for years before the law was enacted. State andlocal responses ranged from prosecution to uneasy tolerance to hearty endorsement.

In January 1998, the U.S. Department of Justice filed a civil suit to stop the operation of six distributioncenters in northern California, including the Oakland Cannabis Buyers’ Cooperative (OCBC).U.S. District Judge Charles Breyer issued a temporary injunction in May 1998 to shut down the distributioncenters, pending the outcome of the case. OCBC, however, remained open, fighting the injunction forseveral months until Breyer ultimately rejected their arguments in October 1998 and ordered them to stopdistributing marijuana. Six days later, OCBC complied—but immediately appealed the ruling.

Almost a year later, in September 1999, the Ninth U.S. Circuit Court of Appeals ruled 3–0 that“medical necessity” is a valid defense against federal marijuana distribution charges, provided that adistributor can prove in a trial court that the patients it serves are seriously ill, face imminent harm withoutmarijuana, and have no effective legal alternatives.

The case then went back to the district level, where Breyer reconsidered arguments in July 2000 beforeruling in favor of OCBC, which led him to modify his 1998 injunction. His new decision said OCBC coulddistribute marijuana to seriously ill people who meet the Ninth Circuit Court’s medical necessity criteria.

The Justice Department immediately filed two appeals: (1) asking the U.S. Supreme Court to overturnthe Ninth Circuit Court’s decision establishing a federal “medical necessity defense” for marijuanadistribution, and (2) asking the Ninth Circuit Court to overturn Judge Breyer’s ruling specifically allowingOCBC to operate. The Justice Department also asked both courts for emergency injunctions to preventmedical marijuana distribution during the appeals process.

The Ninth Circuit Court refused to grant an emergency stay of Breyer’s ruling, but on August 29, 2000,the U.S. Supreme Court granted the Justice Department’s request, preventing OCBC from distributingmedical marijuana in accordance with Breyer’s order until appeals are heard. And, on November 27, theU.S. Supreme Court announced that it will hear the Justice Department’s appeal of the Ninth CircuitCourt’s medical necessity decision.

Of note, the most recent stay applies only to OCBC. At least until the U.S. Supreme Court issues itsfinal ruling in June 2001, medical marijuana distributors in the Ninth Circuit can still raise a medicalnecessity defense at trial against federal marijuana distribution charges during the appeals process of theOCBC case.

Furthermore, even if the U.S. Supreme Court rules against allowing a medical necessity defense, it willnot affect the rights of California patients to grow, possess, and use medical marijuana under the state lawcreated by Proposition 215. The case deals only with federal law, and only with the distribution of medicalmarijuana.

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Appendix K: Therapeutic research programsThe federal government allows one exception to its prohibition of the cultivation, distribution, and use

of Schedule I controlled substances: research. Doctors who wish to conduct research on Schedule Isubstances such as marijuana must receive special permission from the federal government, including aspecial license from the DEA to handle the substance, FDA approval of the research protocol (ifexperimenting with human subjects), and a legal supply of the substance from a federally approved source—currently, the National Institute on Drug Abuse (NIDA).

An individual doctor may conduct research if all of the necessary permissions have been granted. Inaddition, a state may run a large-scale program involving many doctor-patient teams if the state secures thenecessary permission from the federal government for the researchers.

Beginning in the late 1970s, a number of state governments sought to give large numbers of patientslegal access to medical marijuana through federally approved research programs.

While 26 states passed laws creating therapeutic research programs, only seven obtained all of thenecessary federal permissions, received marijuana and/or THC (tetrahydrocannabinol, the primary activeingredient in marijuana) from the federal government, and distributed the substances to approved patientsthrough approved pharmacies. Those seven states were California, Georgia, Michigan, New Mexico,New York, Tennessee, and Washington.

Typically, patients were referred to the program by their personal physicians. These patients, who had notbeen responding well to conventional treatments, underwent medical and psychological screening processes.Then the patients applied to the state’s patient qualification review board, which resided within thedepartment of health. If granted permission, they would receive marijuana from approved pharmacies. Patientswere required to monitor their usage and its effects, which the state used to prepare reports for the FDA.

(Interestingly, Al Gore’s sister received medical marijuana through the Tennessee program whileundergoing chemotherapy for cancer in the early 1980s.)

These programs were designed to enable patients to use marijuana. The research was not intended togenerate data that could lead to FDA approval of marijuana as a prescription medicine. For example, theprotocols did not involve double-blind assignment to research and control groups, nor did they involve theuse of placebos.

Since the programs ceased operating in the mid-1980s, the federal government has made it moredifficult to obtain marijuana for research, preferring to approve only those studies that are well-controlledclinical trials designed to yield essential scientific data.

Outlining its position on medical marijuana research, the U.S. Department of Health and HumanResources—which oversees NIDA—issued new guidelines for research that became effective onDecember 1, 1999. The guidelines were widely criticized as being too cumbersome to enable research tomove forward as expeditiously as possible. (See http://www.mpp.org/guidelines.)

Because of the excessively strict federal guidelines for research and the high cost of performing double-blind, placebo-controlled studies, it is unlikely that the therapeutic research laws will again distributemarijuana to patients on a meaningful scale in the near future. States are generally unwilling to devote theirlimited resources to a long and potentially fruitless application process for research. However, the lawsestablishing these programs currently remain on the books in 14 states.

The one exception may be California—a large and wealthy state—which appropriated $3 million formedical marijuana research in the state’s fiscal year 2000-2001 budget. Research is expected to resume therein 2001, provided that federal approvals can be obtained. California’s new research program is morescientifically modern than previous therapeutic research programs and is administered within the Universityof California system, rather than through a state health agency.

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Appendix L: Medical necessity defense

The necessity defense, long recognized in common law, gives a defendant the chance to prove in courtthat his or her violation of the law was necessary to avert a greater evil. It is often referred to as the “defenseof choice of evils.”

If allowed in a medical marijuana case, the medical necessity defense may lead to an acquittal, even ifthe evidence proves that the patient did indeed possess or cultivate marijuana. This defense generally holdsthat the act committed (marijuana cultivation or possession, in this case) was an emergency measure toavoid an imminent harm. The threatened harm is so great that ordinary standards of intelligence andmorality consider the desirability of avoiding the harm to be greater than the harm that is caused byviolating the marijuana laws. Hence, it is the selection of the lesser harm.

Unlike “exemption from prosecution,” a patient is still arrested and prosecuted for the crime; given thatthe judge and/or jury may decide that the evidence was insufficient to establish medical necessity.

The necessity defense is not allowed as a defense to any and all charges. Typically, courts look to priorcourt decisions or legislative actions that indicate circumstances where a necessity defense may beapplicable. Regarding medical marijuana and the necessity defense, for example, a court’s decision onwhether to permit the defense may depend on whether the legislature has enacted a law that recognizesmarijuana’s medical benefits.

This defense is typically established by decisions in state courts of appeals. Additionally, a statelegislature may codify a medical necessity defense into law. Oregon’s medical marijuana law permits thisdefense (in addition to allowing an affirmative defense for unregistered but documented patients and anexemption for registered patients).

The first successful use of the medical necessity defense in a marijuana cultivation case led to the 1976acquittal of Robert Randall, a glaucoma patient in Washington, D.C.

In the Randall case, the court determined that the defense was available if (1) the defendant did notcause the compelling circumstances leading to the violation of the law, (2) a less offensive alternative wasnot available, and (3) the harm avoided was more serious than the conduct to avoid it, i.e., cultivatingmarijuana.

In addition to Washington, D.C., courts in at least five states have allowed the medical necessitydefense in medical marijuana cases, and in some cases those decisions have been reaffirmed.

States where courts have allowed the medical necessity defense in marijuana cases

California People v. Trippet, 56 Cal. App. 4th 1532, review denied (1997)

Florida Jenks v. Florida, 582 So. 2d 676 (Ct. App. 1st Dist., Fl. 1991)

Florida Sowell v. State, 738 So. 2d 333 (Ct. App. 1st Dist., Fl. 1998)

Hawaii State v. Bachman, 595 P. 2d 287 (Haw. 1979)

Idaho Idaho v. Hastings, 801 P. 2d 563 (Sup. Ct. Idaho 1990)

Washington Washington v. Diana, 604 P.2d 1312 (Ct. App. Wash. 1979)

Washington v. Cole, 874 P. 2d 878 (Ct. App. Wash. 1994)

Washington, D.C. United States v. Randall, 104 Wash. Daily L. Rep. 2249 (D.C. Super. Ct. 1976)

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Appendix L (continued)

It is also possible for a judge to allow an individual to raise a medical necessity defense based on thestate having a symbolic medical marijuana law. For example, an Iowa judge ruled (in Iowa v. Allen DouglasHelmers) that a medical marijuana user’s probation could not be revoked for using marijuana because theIowa legislature has defined marijuana as a Schedule II drug with a “currently accepted medical use.”There is presently no way for patients to obtain a legal prescription for marijuana in Iowa, however, becauseof federal law. Nevertheless, the Iowa judge ruled that the legislature’s recognition of marijuana’s medicalvalue protects Allen Helmers from being sent to prison for a probation violation for using marijuana.

Of note, Iowa moved marijuana into Schedule II in 1979, when it enacted a therapeutic researchprogram. The research program expired in 1981, but the schedule remains in place.

A different judge could have ruled that the legislature intended for marijuana to be used solely inconnection with the research program and, without the program, the medical necessity defense should notbe available. In fact, some state courts—Minnesota and Alabama, for example—have made similarinterpretations and have refused to allow this defense.

States where courts have refused to allow the medical necessity defense in marijuana cases

Alabama Kauffman v. Alabama,620 So. 2d 90 (1993)

The state Court of Appeals refused to allow a patient touse the medical necessity defense because the legislaturehad already expressed its intent by placing marijuana inSchedule I—and by establishing a therapeutic researchprogram, thereby directly establishing the very limitedcircumstances under which marijuana may be used.

Georgia Spillers v. Georgia,245 S.E. 2d 54, 55 (1978)

The state Court of Appeals ruled that the lack of anymedical marijuana recognition by the state legislatureprecluded the court from allowing the medical necessitydefense.

Massachusetts Massachusetts v. Hutchins,575 N.E. 2d 741, 742 (1991)

The state Supreme Judicial Court ruled that the societalharm of allowing the medical necessity defense would begreater than the harm done to a patient denied theopportunity to offer the medical necessity defense.

Minnesota Minnesota v. Hanson,468 N.W. 2d 77, 78 (1991)

The state Court of Appeals refused to allow a patient touse the medical necessity defense because the legislaturehad already expressed its intent by placing marijuana inSchedule I—and by establishing a therapeutic researchprogram, thereby directly establishing the very limitedcircumstances under which marijuana may be used.

New Jersey New Jersey v. Tate,505 A. 2d 941 (1986)

The state Supreme Court ruled that the state legislature—by placing marijuana in Schedule I—had already indicatedits legislative intent to prohibit the medical use ofmarijuana. In addition, the court claimed that the criteriaof “necessity” could not be met because there wereresearch program options that could have been pursuedinstead.

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Appendix L (continued)

These cases demonstrate that—although it is up to the courts to decide whether to allow the medicalnecessity defense—the activities of a state legislature may significantly impact this decision.

Some states have statutes that authorize a “necessity defense” generally and have specified elements ofproof needed to succeed. But this does not guarantee that the courts will recognize a medical necessitydefense for marijuana. It depends on how the courts interpret the legislature’s intent. If the defense is notrecognized, the case proceeds as if the defendant possessed marijuana for recreational purposes ordistribution. If found guilty, the offender is subject to prison time in most states.

The medical necessity defense is a very limited measure. Though a legislature may codify the defenseinto law, this is typically not the best course of action for a state legislature to pursue.

Preferably, a state would have a law that (1) exempts from prosecution qualified patients who cultivateand/or possess medical marijuana, and (2) allows patients to use a simple defense or an affirmative defense ifthey are arrested and prosecuted anyway. An ideal statute would allow the defense for personal-usecultivation, as well as possession.

MPP has identified only three states where legislators have passed bills to establish the medical necessitydefense for medical marijuana offenses—Maine, Massachusetts, and Ohio. Ultimately, the efforts wereshort-lived, if not unsuccessful.

Maine’s legislature passed a bill in 1992, but it was vetoed by the governor. An Ohio bill that included amedical necessity defense provision became law in 1996, only to be repealed a year later. Massachusettsenacted a law in 1996 to allow patients to use the defense, but only if they are “certified to participate” inthe state’s therapeutic research program. Unfortunately, the state has never opened its research program. Asa result, Massachusetts patients are likely to be denied the necessity defense, similar to patients inMinnesota and Alabama, as noted above.

The U.S. Supreme Court has not yet recognized the necessity defense for medical marijuana. A decisionfrom the U.S. Ninth Circuit Court of Appeals, however, has recognized medical necessity as a valid defenseto federal marijuana charges. That case—United States v. Oakland Cannabis Buyers’ Cooperative—is nowpending before the U.S. Supreme Court. (See Appendix J.)

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Appendix M: State medical marijuana legislation consideredduring the 1999-2000 legislative sessions

StateBill

Number IntentGoodor Bad

Alaska S.B. 94* amend the law created by the medical marijuana initiative B

Arkansas H.B. 1043 remove criminal penalties for patients with state-issued ID cards who grow, possess, anduse medical marijuana

G

California S.B. 847* establish a medical marijuana research program within the state university system G

California S.B. 848 implement the law created by the medical marijuana initiative, based onrecommendations of the attorney general’s task force

B

California S.B. 2089 narrow the scope of the law created by the medical marijuana initiative by establishing amandatory registration system and limiting a patient’s use to less than one year, amongother provisions

B

Colorado H.J.R. 00-1033**

non-binding resolution opposing Amendment 20, the medical marijuana initiative B

Hawaii S.B. 862* remove criminal penalties for patients who grow, possess, and use medical marijuana G

Iowa S.F. 2076 remove criminal penalties for patients who grow, possess, and use medical marijuana;establish a medical necessity defense; and establish a therapeutic research program

G

Maine S.P. 1012/L.D. 2580*

implement the law created by the medical marijuana initiative by requiring theDepartment of Public Safety to distribute confiscated marijuana to registered patients;bill was converted into a resolution creating a task force to examine broadimplementation issues

G

Maryland H.B. 308 remove criminal penalties for patients who grow, possess, and use medical marijuana G

Massachusetts H.B. 2128 expand therapeutic research program to include additional disease groups G

Minnesota S.F. 780/H.F. 936

remove criminal penalties for patients who grow, possess, and use medical marijuana(introduced in 1999)

G

Minnesota S.F. 3326/H.F. 3669

establish a medical necessity defense for patients who possess small amounts of marijuana(introduced in 2000)

G

New Hampshire H.B. 202 remove criminal penalties for patients who grow, possess, and use medical marijuana witha prescription (symbolic)

G

New York A.B. 8082 remove criminal penalties for patients who grow, possess, and use medical marijuana, andpermit distribution of medical marijuana

G

Oregon H.B. 3052* amend the law created by the medical marijuana initiative B

Rhode Island S.B. 2390/H.B. 7398

remove criminal penalties for patients who grow, possess, and use medical marijuana G

Vermont J.R.H. 72 implement a symbolic 1981 law that permits physicians to “prescribe” marijuana topatients

G

Washington S.B. 5704 implement the law created by the medical marijuana initiative, giving the Department ofHealth the authority to adopt rules

G

Washington S.B. 5771 narrow the scope of the law created by the medical marijuana initiative, designatingparameters of valid documentation, requiring physicians to determine specific dosage andmaximum quantity limits that may be legally possessed

B

Wyoming S.F. 20 move marijuana from Schedule I to Schedule II under state law should the federalgovernment do the same (symbolic)

G

*passed and signed into law (Maine’s resolution does not create statutory law, but it did appropriate funds for the task force)

**passed, but as a non-binding resolution does not require governor’s signature

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Appendix N

Resolutions demonstrate an organization’s support for a particular policy and can encourage publicofficials to take action. MPP encourages activists to urge local and state organizations—especially

health and medical groups—to pass this resolution, then forward a copy to MPP.

Resolution to Protect Seriously Ill Peoplefrom Arrest and Imprisonment for Using Medical Marijuana

Whereas, the National Academy of Sciences’ Institute of Medicine concluded, after reviewing relevantscientific literature including dozens of works documenting marijuana’s therapeutic value1, that there aresome circumstances in which smoking marijuana is a legitimate medical treatment2; and,

whereas, a scientific survey conducted in 1990 by Harvard University researchers found that 54% ofoncologists with an opinion favored the controlled medical availability of marijuana, and 44% had alreadysuggested at least once that a patient obtain marijuana illegally3; and,

whereas, tens of thousands of patients nationwide—people with AIDS, cancer, glaucoma, chronic pain, andmultiple sclerosis—have found marijuana in its natural form to be therapeutically beneficial4 and arealready using it with their doctors’ approval; and,

whereas, numerous organizations have endorsed medical access to marijuana, including the AIDS ActionCouncil, American Academy of Family Physicians, American Bar Association, American Medical StudentAssociation, American Preventive Medical Association, American Public Health Association, CaliforniaAcademy of Family Physicians, California Legislative Council for Older Americans, California MedicalAssociation, California Nurses Association, California-Pacific Annual Conference of the United MethodistChurch, California Pharmacists Association, California Society of Addiction Medicine, Florida MedicalAssociation, Gray Panthers, Lymphoma Foundation of America, Multiple Sclerosis California ActionNetwork, National Association for Public Health Policy, National Association of Attorneys General,National Association of People with AIDS, National Black Police Association, National Women’s HealthNetwork, New York State Nurses Association, Public Citizen, Virginia Nurses Association, Whitman-Walker Clinic (Washington, D.C.), Women of Reform Judaism; and,

whereas, a scientific survey conducted in 1995 by Belden & Russonello (a Washington, D.C.-based pollingfirm) indicated that 79% of U.S. voters support the idea of “legaliz[ing] marijuana to relieve pain and forother medical uses if prescribed by a doctor”5; and,

whereas, national public opinion polls conducted by ABC News, CBS News, the Family Research Council,and the Gallup Organization between 1997 and 1999 found substantial support for medical marijuana6; and,

whereas, since 1996, medical marijuana initiatives received a majority of votes in every state in which theyappeared on the ballot—Alaska, Arizona, California, Colorado, the District of Columbia, Maine, Nevada,Oregon, and Washington state7; and,

whereas, on June 14, 2000, Governor Ben Cayetano of Hawaii signed into law the first medical marijuana billenacted via a state legislature which permits the cultivation, possession, and use of medical marijuana; and,

whereas, on September 6, 1988, after reviewing all available medical data, the Drug EnforcementAdministration’s chief administrative law judge, Francis L. Young, declared that marijuana is “one of thesafest therapeutically active substances known” and recommended making marijuana available byprescription8; and,

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whereas, the federal penalty for possessing one marijuana cigarette—even for medical use—is up to one yearin prison, and the penalty for growing one plant is up to five years9; and,

whereas, the penalties are similar in most states, where medical marijuana users must live in fear of beingarrested; and,

whereas, the present federal classification of marijuana10 and the resulting bureaucratic controls impedeadditional scientific research into marijuana’s therapeutic potential11, thereby making it nearly impossiblefor the Food and Drug Administration to evaluate and approve marijuana through standard proceduralchannels; and,

whereas, seriously ill people should not be punished for acting in accordance with the opinion of theirphysicians in a bona fide attempt to relieve suffering; therefore,

Be it resolved that licensed medical doctors should not be punished for recommending the medical use ofmarijuana to seriously ill people, and seriously ill people should not be subject to criminal sanctions forusing marijuana if the patient’s physician has told the patient that such use is likely to be beneficial.

1“The Medical Value of Marijuana and Related Substances,” Chapter 4 of the Institute of Medicine’s Marijuana and Medicine: Assessingthe Science Base (Washington: National Academy Press, 1999), lists 198 references in its analysis of marijuana’s medical uses.2From Principal Investigator Dr. John Benson’s opening remarks at the Institute of Medicine’s news conference releasing the reportMarijuana and Medicine: Assessing the Science Base (March 17, 1999).3R. Doblin and M. Kleiman, “Marijuana as Antiemetic Medicine,” Journal of Clinical Oncology 9 (1991): 1314-1319.4The therapeutic value of marijuana is supported by existing research and experience. For example, the following statementappeared in the American Medical Association’s “Council on Scientific Affairs Report 10 — Medicinal Marijuana,” adopted by theAMA House of Delegates on December 9, 1997:

— “Smoked marijuana was comparable to or more effective than oral THC, and considerably more effective thanprochlorperazine or other previous antiemetics in reducing nausea and emesis.” (page 10)

— “Anecdotal, survey, and clinical data support the view that smoked marijuana and oral THC provide symptomatic relief insome patients with spasticity associated with multiple sclerosis (MS) or trauma.” (page 13)

— “Smoked marijuana may benefit individual patients suffering from intermittent or chronic pain.” (page 15)5Belden & Russonello interviewed 1,001 registered voters, selected by a national random digit dial survey, on behalf of theAmerican Civil Liberties Union, which released the results via its Department of Public Education on November 27, 1995.6ABC News/Discovery News (69% support medical marijuana, poll conducted May 27, 1997 by Chilton Research); CBS News(66% of Independent respondents, 64% of Democrat respondents, and 57% of Republican respondents support medical marijuana,poll reported in The New York Times, June 15, 1997); Family Research Council (74% support medical marijuana, poll conductedSpring 1997); Gallup (73% support medical marijuana, poll conducted March 19-21, 1999).7Alaska , Measure 8, Nov. 1998, received 58% of the vote; Arizona , Proposition 200, Nov. 1996, received 65% of the vote;Arizona , Proposition 300, Nov. 1998, rejected by 57% of the vote (by rejecting Proposition 300, voters upheld the medicalmarijuana provision in 1996’s Proposition 200); California , Proposition 215, Nov. 1996, received 56% of the vote; Colorado,Amendment 20, Nov. 2000, received 54% of the vote; District of Columbia , Initiative 59, Nov. 1998, received 69% of the vote;Maine, Question 2, Nov. 1999, received 61% of the vote; Nevada, Question 9, Nov. 2000, received 65% of the vote; Oregon,Measure 67, Nov. 1998, received 55% of the vote; Washington, Initiative 692, Nov. 1998, received 59% of the vote.8U.S. Department of Justice, Drug Enforcement Administration. “In The Matter Of Marijuana Rescheduling Petition, Docket No.86-22, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge,”Francis L. Young, Administrative Law Judge, September 6, 1988.9Section 844(a) and Section 841(b)(1)(D), respectively, of Title 21, United States Code.10Section 812(c) of Title 21, United States Code.11The U.S. Department of Health and Human Services (HHS) issued written guidelines for medical marijuana research, effectiveDecember 1, 1999. The guidelines drew criticism from a coalition of medical groups, scientists, members of Congress, celebrities,and concerned citizens. The coalition called the guidelines “too cumbersome” and urged their modification in a letter to HHSSecretary Donna Shalala, dated November 29, 1999. Signatories of the letter included 33 members of Congress, former SurgeonGeneral Joycelyn Elders, and hundreds of patients, doctors, and medical organizations.

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Appendix O: Initiative states

The initiative process allows citizens to vote on proposed laws, as well as amendments to the stateconstitution. There is no national initiative process, but 24 states plus the District of Columbia have theinitiative process in some form.

Some states allow citizens to propose laws which are placed directly on a ballot for voters to decide. Thelegislature has no role in this process, known as the direct initiative process. Some other states have anindirect initiative process, where laws or amendments proposed by the people must first be submitted to thestate legislature. If the legislature fails to approve the law or amendment, the proposal appears on the ballotfor voters to decide. Maine’s medical marijuana initiative, for example, was an indirect initiative; all otherstate medical marijuana initiatives have been direct.

Colorado’s and Nevada’s initiatives amended the state constitution, while measures in Alaska, Arizona,California, Maine, Oregon, and Washington enacted statutory law. (The initiative that appeared on theballot in the District of Columbia was also a statutory law.)

The initiative process is not a panacea, however. Twenty-six states do not have it, which means votersin more than half of the states cannot enact favorable medical marijuana laws via the ballot; rather, theymust rely on their elected representatives to change the medical marijuana laws. Moreover, legislation ismuch more cost-effective than ballot initiatives, which can be very expensive endeavors.

In contrast to “initiatives,” “referenda” deal with matters not originated by the voters. There are twotypes of referenda. A popular referendum is the power to refer to the ballot, through a petition, specificlegislation that was enacted by the legislature for the voters’ approval or rejection. A legislative referendum iswhen a state legislature places a proposed amendment or statute on the ballot for voter approval or rejection.

States with the Initiative Process

StatutoryLaw

ConstitutionalAmendment

StatutoryLaw

ConstitutionalAmendment

State Direct Indirect Direct Indirect State Direct Indirect Direct Indirect

Alaska Y N N N Missouri Y N Y N

Arizona Y N Y N Montana Y N Y N

Arkansas Y N Y N Nebraska Y N Y N

California Y N Y N Nevada N Y Y N

Colorado Y N Y N North Dakota Y N Y N

District of Columbia Y N N N Ohio N Y Y N

Florida N N Y N Oklahoma Y N Y N

Idaho Y N N N Oregon Y N Y N

Illinois N N Y N South Dakota Y N Y N

Maine N Y N N Utah Y Y N N

Massachusetts N Y N Y Washington Y Y N N

Michigan N Y Y N Wyoming Y N N N

Mississippi N N N Y Y = has the process; N = does not have the process

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P-1

C h a l l e n g e # 1 : “There is no reliable evidence thatmarijuana has medical value.”

C h a l l e n g e # 2 : “Other drugs work better than marijuana.We should not make marijuana medically availableunless it is shown to be the most effective drug for treat-ing a particular condition.”

C h a l l e n g e # 3 : “Why is marijuana needed when it isalready available in pill form?”

C h a l l e n g e # 4 : “Why not isolate the other useful cannabi-noids and make them available in a pure, synthetic form?”

C h a l l e n g e # 5 : “Why not make THC and other cannabi-noids available in inhalers, suppositories, and so forth?”

C h a l l e n g e # 6 : “ We should not subvert the FDA approvalprocess by passing bills and initiatives.”

C h a l l e n g e # 7 : “ D o e s n ’t medical marijuana send thewrong message to children?”

C h a l l e n g e # 8 : “Marijuana is too dangerous to be used as amedicine. Over 10,000 scientific studies have shownthat marijuana is harmful and addictive.”

C h a l l e n g e # 9 : “ I s n ’t marijuana bad for the immunes y s t e m ? ”

C h a l l e n g e # 1 0 : “Marijuana contains hundreds of com-pounds. Doesn’t that make it too dangerous?”

C h a l l e n g e # 1 1 : “ M a r i j u a n a ’s side effects—for instance,increased blood pressure—negate its effectiveness infighting glaucoma.”

C h a l l e n g e # 1 2 : “What exactly do all of the medicalmarijuana ballot initiatives do?”

C h a l l e n g e # 1 3 : “ D o n ’t state-level medical marijuana lawsput the states in violation of federal law?”

C h a l l e n g e # 1 4 : “ A r e n ’t these medical marijuana bills andinitiatives full of loopholes?”

C h a l l e n g e # 1 5 : “ We r e n ’t the initiatives passed because ofwell-funded campaigns that hoodwinked the voters?”

C h a l l e n g e # 1 6 : “This bill/initiative doesn’t even require ad o c t o r ’s prescription!”

C h a l l e n g e # 1 7 : “These bills and initiatives are confusingto law-enforcement officials.”

C h a l l e n g e # 1 8 : “Cannabis buyers’ clubs are totally out ofc o n t r o l ! ”

C h a l l e n g e # 1 9 : “If the U.S. Supreme Court rules againstthe buyers’ clubs, will state-level medical marijuana lawsbe effectively overturned or negated?”

C h a l l e n g e # 2 0 : “ I s n ’t the medical marijuana issue just asneaky step toward legalization?”

C h a l l e n g e # 2 1 : “Are people really arrested for medicalm a r i j u a n a ? ”

C h a l l e n g e # 2 2 : “Do people really go to prison for medicalmarijuana offenses?”

C h a l l e n g e # 2 3 : “Is the federal government allowing med-ical marijuana research?”

C h a l l e n g e # 2 4 : “How would doctors control the dosagesof medical marijuana?”

C h a l l e n g e # 2 5 : “Why make marijuana medically avail-able when no other medicines are smoked? How can youcall something a medicine when you have to smoke it?Smoke is not a medicine, and smoking is not a safedelivery system!”

C h a l l e n g e # 2 6 : “Medical marijuana is opposed by allmajor health and medical organizations.”

C h a l l e n g e # 2 7 : “Medical marijuana is advocated by thesame people who support drug legalization!”

C h a l l e n g e # 2 8 : “ Very few oncologists support medicalmarijuana. Newer surveys negate the Doblin/Kleimans u r v e y. ”

C h a l l e n g e # 2 9 : “In 1994, the U.S. Court of Appeals over-ruled DEA Administrative Law Judge Francis Yo u n g ’sdecision, so his ruling in favor of medical marijuana isi r r e l e v a n t . ”

C h a l l e n g e # 3 0 : “Drug policy should be based on ‘science,not ideology’.”

C h a l l e n g e # 3 1 : “ D o e s n ’t the federal government alreadyallow some people to use medical marijuana?”

Marijuana Policy Project ■ P. O. Box 7 7 4 9 2 ■ Capitol Hill ■ Washington, D.C. 2 0 0 1 3

tel 2 0 2 - 4 6 2 - 5 7 4 7 ■ fax 2 0 2 - 2 3 2 - 0 4 4 2 ■ M P P @ M P P. O R G ■ h t t p : / / w w w. m p p . o r g

The issue at hand is the removal of criminal penalties for patients who use medical marijuana. It is crucial to avoid get-ting lost in side arguments. Federal law and 42 state laws subject seriously ill people to arrest and imprisonment for usingmarijuana. It is important to ask opponents, “Should seriously ill people be arrested and sent to prison for using marijuanawith their doctors’ approval?”

The key issue is not making a “new drug” available. Rather, the goal is to protect from arrest and imprisonment the tensof thousands of patients who are already using marijuana, as well as the doctors who are recommending such use.

R e m e m b e r : Patients for whom the standard, legal drugs are not safe or effective are left with two terrible choices: (1) con-tinue to suffer, or (2) obtain marijuana illegally and risk arrests, fines, court costs, property forfeiture, incarceration, proba-tion, and criminal records.

This paper provides the Marijuana Policy Project’s (MPP’s) answers to the following common challenging questions:

Responses to Anti-Medical Marijuana Arguments

Appendix P

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Appendix P (continued)

P-2Page 2

“There is no reliable evidencethat marijuana has medicalv a l u e . ”

R e s p o n s e : In March 1999, the National Academy ofSciences’ Institute of Medicine concluded that “there aresome limited circumstances in which we recommend smokingmarijuana for medical purposes.” The report noted that “nau-sea, appetite loss, pain and anxiety … all can be mitigated bymarijuana.” (See h t t p : / / w w w . m p p . o r g / s c i e n c e . h t m l . )

“Other drugs work betterthan marijuana. We shouldnot make marijuanamedically available unless itis shown to be the mosteffective drug for treating aparticular condition.”

R e s p o n s e A : In March 1999, the National Academy ofSciences’ Institute of Medicine concluded, “Althoughsome medications are more effective than marijuana …they are not equally effective in all patients.”

Everyone knows that different people respond differ-ently to different medicines. The “most” effective drug forone person might not work at all for another person. Thatis why there are different drugs on the market to treat thesame ailment. Treatment decisions should be made in doc-tors’ offices, not by federal bureaucrats.

R e s p o n s e B : A 1997 National Institutes of Health med-ical marijuana report noted, “There was considerable dis-cussion and debate as to whether smoked marijuana …would need to demonstrate clear superiority or some uniquebenefit compared with other medications currently avail-able for these conditions. The Expert Group concludedthat smoked marijuana should be held to standards equiva-lent to other medications for efficacy and safety considera-tions.” [Emphasis added.]1

“Why is marijuana neededwhen it is already availablein pill form?”

R e s p o n s e A : Marijuana contains about 60 active cannabi-noids in addition to THC. Many of these compounds pro-duce therapeutic effects that THC alone does not. Forexample, cannabidiol seems to be primarily responsible forcontrolling spasticity.

R e s p o n s e B : In March 1999, the National Academy ofSciences’ Institute of Medicine noted, “It is well recognizedthat Marinol’s oral route of administration hampers itseffectiveness because of slow absorption and patients’ desirefor more control over dosing.”

“Why not isolate the otheruseful cannabinoids andmake them available in apure, synthetic form?”

R e s p o n s e : It took many years of research before THC wasapproved in pill form, and no other cannabinoids have sincebeen made available. What pharmaceutical company isgoing to spend millions of dollars on research when naturalmarijuana is currently widely available? How many decadeswould it take to synthesize, approve, and market 60 differentcompounds? Why make patients wait that long when thenatural substance already exists? Should patients who usemarijuana be arrested and put in prison in the meantime?

“Why not make THC andother cannabinoids availablein inhalers, suppositories,and so forth?”

R e s p o n s e A : If these delivery systems would help patients,then they should be made available. However, the devel-opment of these systems should not substitute for theresearch of smokable marijuana that is necessary for FDAapproval of the natural, whole marijuana.

R e s p o n s e B : The availability of such delivery systemsshould not be used as an excuse to maintain the prohibitionof the use of smokable marijuana. As long as there arepatients and doctors who prefer the natural substance, theyshould not be criminalized for using or recommending it,no matter what alternatives are available.

“We should not subvert theFDA approval process bypassing bills and initiatives.”

R e s p o n s e : There is already enough scientific evidence toestablish that marijuana is a safe and effective medicine forsome people. More research is needed simply to satisfy rigidFDA requirements for marketing, labeling, and distributingthe substance in pharmacies. But the current federalresearch guidelines make it nearly impossible to do theresearch required by the FDA to approve natural, smokablemarijuana as a prescription medicine. Even if the researchwere allowed to proceed, it could still take several yearsbefore marijuana is approved by the FDA.

Should the thousands of seriously ill people alreadyusing medical marijuana be arrested and sent to prison inthe meantime? Of course not. Therefore, the only immedi-ate solution is to change federal and state laws—throughlegislation and ballot initiatives—to exempt patients fromcriminal prosecution for using and obtaining marijuana, aslong as their doctors agree that it is medically beneficial.

CHALLENGE #6:

CHALLENGE #5:

CHALLENGE #4:

CHALLENGE #3:

CHALLENGE #2:

CHALLENGE #1:

1 . “Report on the Possible Medical Uses of Marijuana,” NIH medical marijuana expert group; Rockville, MD: NationalInstitutes of Health, August 8, 1997; page 5.

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Appendix P (continued)

P-3Page 3

“D o e s n’t medical marijuanasend the wrong message toc h i l d r e n ? ”

R e s p o n s e A : The federal government’s annual NationalHousehold Survey on Drug Abuse has found thatmarijuana use has not increased among young people inCalifornia since the passage of Proposition 215 in 1996. Infact, the marijuana usage rates among California teenagersis currently lower than the national average.

R e s p o n s e B : Children can and should be taught the differ-ence between medicine and drug abuse. There are no legalmedications that children should use for fun. In fact, doctorscan prescribe cocaine, morphine, and methamphetamine.Children are not taught that these drugs are good to userecreationally just because they are used as medicines.

R e s p o n s e C : It is absurd to think that children will want tobe as “cool” as a dying cancer patient. If anything, the use ofmarijuana by seriously ill people might de-glamorize it forchildren. The message is, “Marijuana is for sick people.”

R e s p o n s e D : Under federal law, cocaine and morphine arecurrently legal as medicines. This means that federal lawdefines cocaine and morphine as being better for you—inthat they have more therapeutic value and are less danger-ous—than marijuana. What kind of message does currentfederal law send to children?

“Marijuana is too dangerousto be used as a medicine.Over 10,000 scientificstudies have shown thatmarijuana is harmful anda d d i c t i v e . ”

R e s p o n s e A : Doctors are allowed to prescribe cocaine,morphine, and methamphetamine. Can anyone say with astraight face that marijuana is more dangerous than theses u b s t a n c e s ?

R e s p o n s e B : All medicines have some negative side effects.The question is this: Do the benefits outweigh the risks foran individual patient? That decision should be made by ap a t i e n t ’s doctor, not the criminal justice system. Patientsshould not be criminalized if their doctors believe that thebenefits of using medical marijuana outweigh the risks.

R e s p o n s e C : The medical marijuana opponents’ popular“10,000 studies” claim is simply not true. The University ofMississippi Research Institute of Pharmaceutical Sciences

maintains a 12,000-citation bibliography on the entirecanon of marijuana literature. The Institute notes: “Manyof the studies cited in the bibliography are clinical, but thetotal number also includes papers on the chemistry andbotany of the Cannabis plant, cultivation, epidemiologicalsurveys, legal aspects, eradication studies, detection, stor-age, economic aspects and a whole spectrum of others thatdo not mention positive or negative effects. … However,we have never broken down that figure into positive/nega-tive papers, and I would not even venture a guess as to whatthat number would be.”2

“I s n’t marijuana bad for theimmune system?”

R e s p o n s e A : No studies have conclusively establishedthat marijuana’s effects on the immune system exacerbatethe condition of AIDS or cancer patients, according to theJournal of the American Medical Association.3

R e s p o n s e B : According to Marijuana Myths, MarijuanaFacts, there is no evidence that marijuana users are moresusceptible to infections than non-users. Early studies thatshowed decreased immune function in cells taken frommarijuana users have since been disproved.4 Indeed, not asingle case of marijuana-induced immune impairment hasever been observed in humans.

“Marijuana containshundreds of compounds.D o e s n’t that make it tood a n g e r o u s ? ”

R e s p o n s e : Coffee, mother’s milk, broccoli, and most food salso contain hundreds of different chemical compounds.This number doesn’t mean anything. Marijuana is a rela-tively safe medicine, regardless of the number of chemicalcompounds found therein.

“Marijuana’s side effects — for instance, increasedb l o o d pressure — negate itseffectiveness in fightingg l a u c o m a . ”

R e s p o n s e A : NIH medical marijuana panelist PaulPalmberg, M.D., Ph.D., a glaucoma expert, said onF e b r u a r y 20, 1997, “I don’t think there’s any doubt about itseffectiveness, at least in some people with glaucoma.”5

CHALLENGE #11:

CHALLENGE #10:

CHALLENGE #9:

CHALLENGE #8:

CHALLENGE #7:

2 . Letter from Beverly Urbanek, Research Associate of the University of Mississippi Research Institute of PharmaceuticalSciences (601-232-5914), to Dr. G. Alan Robison, Drug Policy Forum of Texas, June 13, 1996.

3 . Journal of the American Medical Association, 267(19), May 20, 1992; page 2573.4 . Marijuana Myths, Marijuana Facts, L. Zimmer, Ph.D., and J. Morgan, M.D.; New York, NY: The Lindesmith Center,

1997; page 106.5 . Ibid note xx formerly “1”, pages 96-97.

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Appendix P (continued)

P-4Page 4

R e s p o n s e B : The federal government gives marijuana toat least three patients with glaucoma, and it has preservedtheir vision for years after they were expected to go blind.

R e s p o n s e C : So should someone who uses marijuana totreat glaucoma be arrested? Shouldn’t we trust a patient anda doctor to make the right decision regarding a particularp a t i e n t ’s circumstances?

R e s p o n s e D : Even if the benefits of using marijuana totreat glaucoma did not outweigh the risks, that would notnegate the medical utility of marijuana for treating all ofthe other conditions that marijuana helps treat. Should acancer patient be arrested for using marijuana if it is notparticularly helpful for glaucoma patients?

“What exactly do all of themedical marijuana ballotinitiatives do?”

R e s p o n s e : In short, they remove state-level criminal penal-ties for using, obtaining, or cultivating marijuana strictly formedicinal purposes. To verify a legitimate medical need, ad o c t o r ’s recommendation is required. Doctors may not bepunished by the state for making such recommendations.

U n f o r t u n a t e l y, federal laws still apply to patients.L u c k i l y, the federal government does not have the resourcesto arrest and incarcerate a significant number of small-scalemedical marijuana users and growers. Therefore, seriously illpeople in the eight states that have passed effective medicalmarijuana laws are essentially free to grow and usemarijuana if their doctors deem it appropriate.

“D o n’t state-level medicalmarijuana laws put the statesin violation of federal law?”

R e s p o n s e : No. There is no federal law that mandates thatstates must enforce federal laws against marijuana posses-sion or cultivation. States are free to determine their ownpenalties—or lack thereof—for drug offenses. State govern-ments cannot directly violate federal law by givingmarijuana to patients, but states can refuse to arrest patientswho grow their own.

“Aren’t these medicalmarijuana bills andinitiatives full of loopholes?”

R e s p o n s e A : The voters intended to allow seriously illpeople to use marijuana without being arrested. Whilesome of the wording of the California initiative may havebeen sloppy, the judicial system is clearing up the grayareas. The courts are making sure that the new laws arebeing implemented as the voters intended and making surethat healthy people do not have a green light to usemarijuana for fun. In California, there are still no reports ofpeople getting away with using marijuana recreationally by

using the initiative falsely as a defense. Judges and juries areable to decide who is a patient and who is not.

R e s p o n s e B : More recent bills and initiatives were draftedvery carefully to ensure that there are no loopholes, real orimagined. Read them carefully and you’ll see. Medicalmarijuana advocates have nothing to gain and everythingto lose by writing initiatives that enable recreationalmarijuana use.

R e s p o n s e C : If the bills and initiatives are not perfect,they are the best attempt to protect patients and physiciansfrom punishment for using or recommending medicalmarijuana. The real problem is that the federal govern-m e n t ’s overriding prohibition of medical marijuana leavesstate bills and initiatives as the only option to help patientsat this point. As soon as federal law changes, this processwill no longer be needed.

“We r e n’t the initiativespassed because of well-funded campaigns thathoodwinked the voters?”

R e s p o n s e A : No. Independent polls conducted before anymoney was spent on these campaigns indicated solid sup-port for the initiatives. Furthermore, opponents used taxdollars, government officials (such as Drug Czar BarryMcCaffrey), and statements from three former presidents tooppose the initiatives.

R e s p o n s e B : Proposition 215 was the culmination of morethan three years of legislative activity in Sacramento. TheCalifornia legislature passed one medical marijuana resolu-tion and two bills in 1993, 1994, and 1995. The 1995 bill—which Governor Pete Wilson vetoed—became the basis forProposition 215.

R e s p o n s e C : Ninety-five percent of California voters wereaware that marijuana is sometimes used for medical purpos-es, according to a June 1996 poll conducted for the cam-paign. In fact, 32% of the voters said that they knewsomeone who had used medical marijuana.

R e s p o n s e D : The budget for Proposition 215 (less than $2million) was peanuts compared to California campaignstandards. The campaign budgets for Governor PeteWilson and U.S. Senator Dianne Feinstein, for example,were each about $20 to $30 million in 1994. Interestingly,the entire Proposition 215 budget was less than half of whatthe so-called Partnership for a Drug-Free America spendseach week on its advertising campaign.

“This bill/initiative doesn’ teven require a doctor’ sp r e s c r i p t i o n ! ”

R e s p o n s e A : The federal government prohibits doctorsfrom “prescribing” marijuana for any reason. A prescriptionis a legal document ordering a pharmacy to release a

CHALLENGE #16:

CHALLENGE #15:

CHALLENGE #14:

CHALLENGE #13:

CHALLENGE #12:

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Appendix P (continued)

P-5Page 5

controlled substance. Currently, the federal governmentdoes not allow this for marijuana.

H o w e v e r, there needs to be some way for state crimi-nal justice systems to determine which marijuana usershave a legitimate medical need. So the initiatives and billsrequire a physician to document that a patient has a debil-itating medical condition whereby the potential benefits ofthe medical use of marijuana would likely outweigh thehealth risks for the qualifying patient.

The recommendation for marijuana must be written,or a physician must be willing to testify in court that he orshe orally recommended marijuana. Doctors do not risktheir reputations and livelihoods unless they very stronglybelieve that their patients need marijuana.

R e s p o n s e B : If you would trust a doctor to write a prescrip-tion for marijuana, why not trust a doctor to write a profes-sional opinion on his or her letterhead instead? Opponentssimply do not want patients to use medical marijuana, andthey’re just nit-picking for an excuse to attack the bill/initiative. What advantage would there be to a prescriptioninstead of a written, signed recommendation on a physician’sletterhead? What is the big difference, in practical terms?

“These bills and initiativesare confusing to law-enforcement officials.”

R e s p o n s e A : W h a t ’s so confusing? If a person is growing orusing marijuana and has a written recommendation from aphysician, do not arrest the patient or caregiver. If the per-son does not have suitable documentation, either call thep e r s o n ’s doctor or arrest the person and let the courts decide.

It should be no more confusing than determining ifsomeone drinking alcohol is underage or on probation, ifsomeone is the legal owner of a piece of property, or if a per-son is a legal immigrant or not.

R e s p o n s e B : Law enforcement officials are just playingdumb in order to scare the public into opposing medicalmarijuana bills and initiatives. Why? Because they have avested financial interest in being able to arrest as many peo-ple as possible.

“Cannabis buyers’ clubs aretotally out of control!”

R e s p o n s e : Most medical marijuana distribution centers(also known as cannabis buyers’ clubs) in Californiaworked out arrangements with local governments and law-enforcement officials. They were subject to strict guide-lines, and they verified patients’ diagnoses andrecommendations from physicians. Photo IDs were issuedin most cases. The marijuana was checked for quality con-trol. The buyers’ clubs were run above ground and wouldnot risk the consequences of providing marijuana tohealthy people.

U n f o r t u n a t e l y, federal and overzealous state law-enforcement officials shut down almost all of the centers,including those that were the most tightly run—drivingmany patients back to the streets to buy their medicine.Nevertheless, even without buyers’ clubs, the initiatives arestill effective, in that they protect patients from being arrest-ed regardless of how they obtain their medical marijuana.

“If the U.S. Supreme Courtrules against the buyers’clubs, will state-level medicalmarijuana laws be effectivelyoverturned or negated?

R e s p o n s e : Absolutely not. Contrary to common belief, thepending U.S. Supreme Court opinion on medicalmarijuana—which is expected to be issued in June 2001—will rule only on whether distribution (and presumably use)of medical marijuana is legal under federal law. The validityor nature of state medical marijuana laws is not in question.C o n s e q u e n t l y, state legislators should not use the upcomingCourt decision as an excuse for inaction during the 2001 leg-islative session, because the upcoming Court ruling will notimpact one way or the other on a state’s ability to changestate law in order to protect patients and primary caregiversfrom arrest. (If the Court rules that medical marijuana dis-tribution is legal under federal law, state legislatures will stillneed to pass bills to protect patients under state law. If, onthe other hand, the Court rules that medical marijuana dis-tribution is prohibited under federal law, that is the assump-tion that most patients, physicians, and state governmentshave been working under all along, so this would not changethe need to pass state medical marijuana bills.)

“I s n’t the medical marijuanaissue just a sneaky steptoward legalization?”

R e s p o n s e A : How? Exactly how does allowing seriously illpeople to use marijuana lead to the end of the prohibitionof marijuana for recreational use? Doctors are allowed toprescribe cocaine and morphine, and these drugs are noteven close to becoming legal for recreational use.

R e s p o n s e B : Each law should be judged on its own merits.Should seriously ill people be subject to arrest and impris-onment for using marijuana with their doctors’ approval? Ifnot, then people should support the new medical marijuanabills and initiatives. Should healthy people be sent toprison for using marijuana for fun? If so, then we shouldkeep all non-medical uses of marijuana illegal. There’s nomagic tunnel between the two.

“Are people really arrestedfor medical marijuana?”

R e s p o n s e A : There were dozens of known medicalmarijuana users arrested in California in the 1990s, which

CHALLENGE #21:

CHALLENGE #20:

CHALLENGE #19:

CHALLENGE #18:

CHALLENGE #17:

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Appendix P (continued)

P-6

is what prompted people to launch the medical marijuanainitiative in 1996. There have been many other publicizedand not-so-publicized cases across the United States.

R e s p o n s e B : More than 12 million marijuana users havebeen arrested since 1970.6 U n f o r t u n a t e l y, the governmentdoes not keep track of how many were medical users.H o w e v e r, even if only 1% of those arrestees used marijuanafor medical purposes, that is 120,000 patients arrested!

R e s p o n s e C : The threat of arrest is itself a terrible punish-ment for seriously ill people. Imagine the stress of knowingthat you can be arrested and taken to jail at any moment.Stress and anxiety are proven detriments to health and theimmune system. Should patients have to jump out of bedevery time they hear a bump in the night, worrying that thepolice are finally coming to take them away?

“Do people really go toprison for medicalmarijuana offenses?”

R e s p o n s e A : Federal law and the laws of most states do notmake any exceptions for medical marijuana. On the federallevel, possession of even one joint carries a maximum penal-ty of one year in prison. And cultivation of even one plantis a felony, with a maximum sentence of five years. Moststate laws are in this same ballpark. With no medical neces-sity defense available, medical marijuana users are treatedthe same as recreational users. Many are sent to prison.

R e s p o n s e B : There are numerous examples. The followingis a small sampling: Gordon Hanson served six months in aMinneapolis jail for growing his own marijuana to treat grandmal epilepsy. Byron Stamate spent three months in aCalifornia jail for growing marijuana for his disabled girlfriend(who killed herself so that she would not have to testifyagainst Byron). Gordon Farrell Ethridge spent 60 days in anOregon jail for growing marijuana to treat the pain from histerminal cancer. Will Foster was sentenced to more than9 0 years in Oklahoma for growing marijuana for chronic pain.

R e s p o n s e C : There are an estimated 60,000 marijuanaoffenders in prisons and jails at any given time.7 Even ifonly 1% of them are medical marijuana users, that is 600patients in prison at this moment!

R e s p o n s e D : Even if a patient is not sent to prison, con-sider the trauma of the arrest: A door kicked in, a houseransacked by police, a patient handcuffed and put into apolice car. Perhaps a night or two in jail. Court costs andattorney fees paid for by the patient and the taxpayers.Probation—which means urine tests for a couple of years,

which means that the patient must go without his or hermedical marijuana. Huge fines and possible loss of employ-ment, all of which hurt the patient’s ability to pay insur-ance, medical bills, rent, food bills, home care expenses,and so on. Then there’s the stigma of being a “druggie.”Doctors might be too afraid to prescribe pain medication tosomeone that the system considers a “drug addict.” Shouldany of this happen to seriously ill people for using what theyand their doctors believe is a beneficial medicine?

“Is the federal governmentallowing medical marijuanar e s e a r c h ? ”

R e s p o n s e : The 1999 federal medical marijuana researchguidelines still make it nearly impossible to do research thatwould generate the necessary data to enable the FDA toapprove natural, smokable marijuana as a prescription med-icine. (See h t t p : / / w w w . m p p . o r g / g u i d e l i n e s . )

Two things that would make it much easier to conductresearch would be (1) moving marijuana from Schedule I toSchedule II of the federal Controlled Substances Act, and(2) ending the National Institute on Drug Abuse’s monop-oly on the supply of marijuana for research.

“How would doctors controlthe dosages of medicalm a r i j u a n a ? ”

R e s p o n s e : According to NIH medical marijuana panelistAvram Goldstein, M.D., “We know that there are noextreme immediate toxicity issues. It’s a very safe drug, andtherefore it would be perfectly safe medically to let thepatient determine their own dose by the smoking route.”9

“Why make marijuanamedically available when noother medicines are smoked?How can you call somethinga medicine when you have tosmoke it? Smoke is not amedicine, and smoking is nota safe delivery system!”

R e s p o n s e A : While there are health hazards associatedwith smoking, medicines do not have to be completely safeto be approved. They must be safe relative to otherapproved medicines. Considering that cocaine, morphine,and methamphetamine are legal medicines, it is absurd toprohibit medical marijuana.

CHALLENGE #25:

CHALLENGE #24:

CHALLENGE #23:

CHALLENGE #22:

Page 6

6 . Crime in the United States, FBI Uniform Crime Reports; Washington, D.C.: U.S. Government Printing Office, annu-al series from 1970 to 1998.x x 7 . “Marijuana Arrests and Incarceration in the United States: Preliminary Report,” C. Thomas; Washington, D.C.:

Marijuana Policy Project, 1998.8 . Ibid note xx, page 82.

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Appendix P (continued)

P-7Page 7

R e s p o n s e B : Most medical marijuana users do not need tosmoke so much that they are put at risk. For example, AIDSand cancer patients generally need just a couple of puffs justbefore a meal. And the hazards of smoking can be reducedby (1) using higher potency marijuana, (2) using vaporiza-tion devices, or (3) eating the marijuana.

R e s p o n s e C : Many medical practices that seemed absurdat one time are now generally accepted; for example,acupuncture, massage therapy, hypnotherapy, guided visu-alizations, and herbal medicines.

R e s p o n s e D : Smoked medicine is not unprecedented. Forexample, stramonium cigarettes were used to treat asthmain the 20th century.

“Medical marijuana isopposed by all major healthand medical organizations.”

R e s p o n s e A : No medical organizations state that seriouslyill people should be subject to arrest and imprisonment forusing marijuana with their doctors’ approval, so the currentfederal laws are not in step with these organizations’ positions.

R e s p o n s e B : Numerous health and medical organizationsand other prominent associations do have favorable med-ical marijuana positions, including AIDS Action Council,American Academy of Family Physicians, American BarAssociation, American Medical Student Association,American Preventive Medical Association, AmericanPublic Health Association, California Academy of FamilyPhysicians, California Legislative Council for OlderAmericans, California Medical Association, CaliforniaNurses Association, California-Pacific Annual Conferenceof the United Methodist Church, California PharmacistsAssociation, California Society of Addiction Medicine,Florida Medical Association, Gray Panthers, Ly m p h o m aFoundation of America, Multiple Sclerosis CaliforniaAction Network, National Association for Public HealthP o l i c y, National Association of Attorneys General,National Association of People with AIDS, National BlackPolice Association, National Wo m e n ’s Health Network,New York State Nurses Association, Public Citizen,Virginia Nurses Association, Whitman-Walker Clinic( Washington, D.C.), Women of Reform Judaism, andnumerous other organizations.9

“Medical marijuana isadvocated by the samepeople who support drugl e g a l i z a t i o n ! ”

R e s p o n s e A : Many health and medical associations sup-port medical access to marijuana but do not advocatebroader reform of the drug laws.

R e s p o n s e B : Surely you’re not suggesting that patientsshould be punished just to spite people who believe thathealthy people should not go to prison for using marijuana.

“Ve ry few oncologistssupport medical marijuana.Newer surveys negate theDoblin/Kleiman surv e y. ”

R e s p o n s e A : The Doblin/Kleiman (Harvard University)scientifically valid, random survey of oncologists conductedin 1990 found that 54% of those with an opinion favoredthe controlled medical availability of marijuana, and 44%had already suggested to at least one of their cancer patientsthat they obtain marijuana illegally. This was published inthe peer-reviewed Journal of Clinical Oncology.1 0

R e s p o n s e B : Critics of the Doblin/Kleiman study typical-ly cite surveys by Schwartz/Beveridge and Schwartz/Vo t h ,claiming that a very small number of oncologists supportmedical marijuana. In actuality, a substantial minority ofoncologists (one-third) who responded to the Schwartz sur-veys said they “would prescribe” marijuana if it were legal.

In addition, a majority were not opposed to resched-uling marijuana to allow doctors to prescribe it (thoughmany registered no opinion). Because Schwartz did notguarantee anonymity, it is reasonable to expect that thenon-respondents had even more favorable opinions thanthe respondents.1 1

R e s p o n s e C : Even if only a small percentage of all oncol-ogists recommend medical marijuana, this translates tothousands of patients. Should these patients be subject toarrest and imprisonment?

CHALLENGE #28:

CHALLENGE #27:

CHALLENGE #26:

9 . “Partial List of Organizations With Favorable Positions on Medical Marijuana,” Marijuana Policy Project; 2001.1 0 . “Marijuana as Antiemetic Medicine: A Survey of Oncologists’ Experience and Attitudes,” Journal of Clinical Oncology,

9, R. Doblin & M. Kleiman, 1991; pages 1314-1319.1 1 . “The Medical Use of Marijuana: The Case for Clinical Trials,” Journal of Addictive Diseases 14(1), R. Doblin &

M . Kleiman, 1995; pages 5-14. (Refutes critics’ surveys.)

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Appendix P (continued)

P-8

“In 1994, the U.S. Court ofAppeals overruled DEAAdministrative Law JudgeFrancis Young’s decision, sohis ruling in favor of medicalmarijuana is irrelevant.”

R e s p o n s e : The U.S. Court of Appeals simply ruled thatthe DEA has the authority to ignore the administrative lawj u d g e ’s ruling and, therefore, may create the standards fordetermining which schedule a substance belongs in. Thiscatch-22 bolsters the argument that medical marijuanalaws should be changed by legislation or ballot initiatives.The DEA has proven itself to be completely opposed tomaking marijuana medically available, and the courts arewilling to allow this tyrannical behavior.

“Drug policy should be basedon ‘science, not ideology’ . ”

R e s p o n s e A : While science is important, mercy and com-passion are essential. Even if there were no scientific evidencesupporting the medical use of marijuana, it would be immoralto punish patients for doing something with the intent oftreating their pain. Fortunately, there is considerable scientif-ic evidence supporting marijuana’s therapeutic benefits.

R e s p o n s e B : What is the “scientific” basis for arrestingmedical marijuana users? What peer-reviewed research hasfound that prison is healthier than marijuana? The oppo-nents of medical marijuana have it backwards: In a frees o c i e t y, the burden of proof should be on the governmentto prove that marijuana is so worthless and dangerous thatpatients should be criminalized for using it.

R e s p o n s e C : Former Drug Czar Barry McCaffrey’s state-ment about “science, not ideology” is hollow rhetoric.When science did not back his favorite policies, he ignoredthe science. For example: The D.A.R.E. program has beenproven ineffective, but it still receives federal funds; needleexchanges have been shown to reduce HIV transmissionwithout encouraging more drug use, but the federal govern-ment does not fund them; the Institute of Medicine (IOM)once wrote “evidence of effectiveness” of community-baseddrug abuse prevention programs “is relatively weak,” yet thefederal government enacted a law in 1997 to spend morethan $140 million over five years to fund such programs;IOM also wrote, “Prevention intervention research shouldfocus more attention on the transition from use to abuseand dependence,” yet most programs and studies focus onthe unrealistic goal of preventing experimental use; andf i n a l l y, every comprehensive, objective government com-mission that has examined the marijuana phenomenonduring the past 100 years has recommended that adultsshould not be criminalized for using marijuana—yet simplepossession of marijuana remains a criminal offense in 40states and on the federal level.

“D o e s n’t the federalgovernment already allowsome people to use medicalm a r i j u a n a ? ”

R e s p o n s e : Only eight patients in the United States legal-ly receive marijuana from the federal government. Thesepatients are in an experimental program that was closed toall new applicants in 1992. Thousands of Americans usedmarijuana through experimental state programs in the late1970s and early 1980s, but none of these programs arepresently operating.

CHALLENGE #31:

CHALLENGE #30:

CHALLENGE #29:

Page 8

Other Important Points to Make When Advocating Legal Access to Medical Marijuana:

■ Which is worse for seriously ill people: marijuana or prison?

■ Saying that the THC pill is medicine but marijuana is not is like saying that vitamin C pills are good for you but orangesare not.

■ We’re very concerned about the message that’s sent to children when government officials deny marijuana’s medicinalvalue. They’re destroying the credibility of drug education.

■ The central issue is not research. It’s not the FDA. The issue is arresting patients.

■ How many more studies do we need to determine that seriously ill people should not be arrested for using their medi-c i n e ?

■ Tens of thousands of patients are already using medical marijuana. Should they be arrested and sent to prison? If so, thenthe laws should remain exactly as they are.

■ Arrest suffering, not patients.

■ If there must be a war against marijuana users, can’t we at least remove the sick and wounded from the battlefield?

revised2/2001

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Appendix Q: Partial list of organizations with favorable positions onmedical marijuana

Definitions

Legal/prescriptive access: This category encompasses the strongest of all favorable medical marijuanapositions. Although the exact wording varies, organizations advocating “legal/prescriptive access” assert thatmarijuana should be legally available upon a doctor’s official approval. Some groups say that marijuanashould be “rescheduled” and/or moved into a specified schedule (e.g., Schedule II) of the federal ControlledSubstances Act; others say that doctors should be allowed to “prescribe” marijuana or that it should beavailable “under medical supervision.” If federal and state laws were changed accordingly, marijuana wouldbe as available through pharmacies as other tightly controlled prescription drugs, e.g., morphine. Thiscategory also includes endorsements of specific efforts to remove state-level criminal penalties for medicalmarijuana use with a doctor’s approval.

Compassionate access: Organizations with positions in this category assert that patients should have theopportunity to apply to the government for special permission to use medical marijuana on a case-by-casebasis. Most groups in this category explicitly urge the federal government to re-open the compassionateaccess program which operated from 1978 until it was closed to all new applicants in 1992. (Only eightpatients remain enrolled and receive free marijuana from the federal government.) “Compassionate access”is a fairly strong position, as it acknowledges that at least some patients should be allowed to smokemarijuana right now. However, access to marijuana would be more restrictive than access to legallyavailable prescription drugs, as patients would have to jump through various bureaucratic hoops to receivespecial permission.

Research: This category includes positions urging the government to make it easier for scientists to conductresearch into the medical efficacy of natural, smokable marijuana. Many of these groups have recognizedthat the federal government’s current medical marijuana research guidelines are unnecessarily burdensome.Modifying the guidelines would increase the likelihood that the FDA will eventually approve natural,smokable marijuana as a prescription medicine. These groups want patients to be allowed to smokemarijuana as research subjects and—if the results are favorable—to eventually qualify marijuana as an FDA-approved prescription drug. Groups listed with a "research" position differ from the White House Office ofNational Drug Control Policy and numerous other drug war hawks that claim to support research. Groupsthat claim to be in favor of research are not listed if they (1) oppose research that has a realistic chance ofleading to FDA approval of natural marijuana, or (2) actively support the laws which criminalize patientscurrently using medical marijuana. (The groups listed as supporting research at worst remain silent on theissue of criminal penalties—and many, in fact, concurrently endorse legal/prescriptive access and/orcompassionate access.)

Q-1

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eric

an P

ublic

Hea

lth

Ass

ocia

tion

1995

;12

/200

0✔

✔✔

pres

crip

tive

acc

ess:

“mar

ijuan

a w

asw

rong

fully

pla

ced

in S

ched

ule

I of t

heC

ontr

olle

d Su

bsta

nces

Act

”; “

grea

ter

harm

is c

ause

d by

the

lega

l con

sequ

ence

sof

its p

rohi

biti

on th

an p

ossi

ble

risk

s of

med

icin

al u

se”

posi

tion

#95

13: A

cces

s to

The

rape

utic

Mar

ijuan

a/C

anna

bis;

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Bei

ng A

live:

Peo

ple

Wit

hH

IV/A

IDS

Act

ion

Com

mit

tee

(San

Die

go)

1/3/

1996

;1/

1997

;12

/200

0

✔✔

✔le

gal a

cces

s und

er a

phy

sici

an’s

supe

rvis

ion

and

pres

crip

tive

acc

ess;

othe

r: en

dors

emen

t of a

phy

sici

an’s

righ

tto

dis

cuss

mar

ijuan

a th

erap

y w

ith

apa

tien

t

lett

er fr

om e

xec.

dir

. sup

port

ing

the

effo

rts o

f Cal

iforn

ians

for

Com

pass

iona

te U

se; p

lain

tiff

inC

onan

t v.

McC

affr

ey; s

igna

tory

of

2000

lett

er to

U.S

. Dep

t. of

Hea

lth

and

Hum

an S

ervi

ces

Cal

iforn

ia A

cade

my

of F

amily

Phys

icia

ns19

94, 1

996

✔“S

uppo

rt e

ffort

s to

expe

dite

acc

ess t

oca

nnab

oids

[sic

] for

use

und

er th

edi

rect

ion

of a

phy

sici

an”;

end

orse

d 19

96C

alifo

rnia

Bal

lot P

ropo

siti

on 2

15

Febr

uary

199

4 st

atem

ent a

dopt

edby

Aca

dem

y’s C

ongr

ess o

fD

eleg

ates

; 199

6 en

dors

emen

t,re

port

ed v

ia th

e B

usin

ess W

ire

Serv

ice,

Oct

. 29,

199

6

Page 70: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Part

ial L

ist o

f Org

aniz

atio

ns W

ith

Favo

rabl

e Po

siti

ons o

n M

edic

al M

ariju

ana

Nam

e of

Gro

upD

ate

lega

l/pr

escr

ipti

veac

cess

com

pass

iona

teac

cess

rese

arch

othe

rC

omm

ents

Ref

eren

ce

Cal

iforn

ia L

egis

lati

ve C

ounc

ilfo

r Old

er A

mer

ican

s12

/1/1

993;

11/2

9/19

99;

12/2

000

✔✔

✔pr

escr

ipti

ve a

cces

s: ur

ges r

esch

edul

ing

adop

ted

at 2

3rd

Ann

ual A

ctio

nC

onfe

renc

e; si

gnat

ory

of 1

999

and

2000

lett

ers t

o U

.S. D

ept.

of H

ealt

han

d H

uman

Ser

vice

s

Cal

iforn

ia M

edic

alA

ssoc

iati

on19

97;

1/11

/200

0✔

✔✔

othe

r: le

tter

opp

oses

fede

ral t

hrea

tsag

ains

t doc

tors

for d

iscu

ssin

g ri

sks a

ndbe

nefit

s of m

ariju

ana

Mar

ch 1

4, 1

997

lett

er; M

ay 2

1,19

97 e

ndor

sem

ent o

f CA

rese

arch

bill;

am

icus

cur

iae

brie

f sup

port

ing

righ

t to

dist

ribu

te m

edic

alm

ariju

ana

in C

alifo

rnia

(U

.S.

v.O

akla

nd C

anna

bis

Buy

ers’

Coo

pera

tive)

Cal

iforn

ia N

urse

s Ass

ocia

tion

9/21

/199

5;12

/200

0✔

✔pr

escr

ipti

ve a

cces

s: su

ppor

ted

Cal

iforn

iabi

ll A

B 1

529

to re

mov

e pe

nalt

ies f

orm

edic

al u

se

lett

er to

Cal

iforn

ia G

over

nor P

ete

Wils

on; s

igna

tory

of 2

000

lett

er to

U.S

. Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Cal

iforn

ia-P

acifi

c A

nnua

lC

onfe

renc

e of

the

Uni

ted

Met

hodi

st C

hurc

h

6/19

96✔

pres

crip

tive

acc

ess:

via

reso

luti

on (

also

spec

ifica

lly e

ndor

sed

Prop

osit

ion

215)

Res

olut

ion

104

of th

e C

alifo

rnia

-Pa

cific

Ann

ual C

onfe

renc

e of

the

Uni

ted

Met

hodi

st C

hurc

h, Ju

ne 1

2-16

, 199

6

Cal

iforn

ia P

harm

acis

tsA

ssoc

iati

on2/

97;

11/2

9/99

;12

/200

0

✔✔

✔pr

escr

ipti

ve a

cces

s: ac

cord

ing

toA

ssoc

iate

d Pr

ess,

the

CPA

“pa

ssed

are

solu

tion

supp

orti

ng p

harm

acy

part

icip

atio

n in

the

lega

l dis

trib

utio

n of

med

ical

mar

ijuan

a”

AP

Fina

ncia

l New

s, 5/

26/9

7;si

gnat

ory

of 1

999

and

2000

lett

ers

to U

.S. D

ept.

of H

ealt

h an

d H

uman

Serv

ices

Cal

iforn

ia S

ocie

ty o

fA

ddic

tion

Med

icin

e5/

1997

✔pr

escr

ipti

ve a

cces

s: ur

ges r

esch

edul

ing

Cal

iforn

ia S

ocie

ty o

f Add

ictio

nM

edic

ine

New

s, Sp

ring

199

7

Col

orad

o N

urse

s Ass

ocia

tion

1995

✔pr

escr

ipti

ve a

cces

s: ur

ges r

esch

edul

ing

Col

orad

o N

urse

s Ass

ocia

tion

199

5C

onve

ntio

n D

irec

tory

and

Boo

k of

Rep

orts

, p. 2

8

Con

sum

er R

epor

ts m

agaz

ine

5/19

97✔

pres

crip

tive

acc

ess:

“Fed

eral

law

s sho

uld

be re

laxe

d in

favo

r of s

tate

s’ ri

ghts

toal

low

phy

sici

ans t

o ad

min

iste

r mar

ijuan

ato

thei

r pat

ient

s on

a ca

ring

and

com

pass

iona

te b

asis

.”

May

199

7 C

R a

rtic

le -

“Mar

ijuan

aas

med

icin

e: H

ow st

rong

is th

esc

ienc

e?”,

Pp.

62-

63

Epis

copa

l Chu

rch

1982

✔67

th C

onve

ntio

n of

the

Epis

copa

lC

hurc

h (B

-004

)a

Page 71: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Part

ial L

ist o

f Org

aniz

atio

ns W

ith

Favo

rabl

e Po

siti

ons o

n M

edic

al M

ariju

ana

Nam

e of

Gro

upD

ate

lega

l/pr

escr

ipti

veac

cess

com

pass

iona

teac

cess

rese

arch

othe

rC

omm

ents

Ref

eren

ce

Haw

aii N

urse

s Ass

ocia

tion

10/2

1/19

99;

12/2

000

✔✔

“sup

port

legi

slat

ion

to re

mov

e st

ate

leve

lcr

imin

al p

enal

ties

for b

oth

bona

fide

med

ical

mar

ijuan

a pa

tien

ts a

nd th

eir

heal

thca

re p

rovi

ders

reso

luti

on; s

igna

tory

of 2

000

lett

erto

U.S

. Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Life

Ext

ensi

on F

ound

atio

n3/

1997

;12

/200

0✔

✔co

mpl

aint

for d

ecla

rato

ry ju

dgm

ent

and

inju

ncti

ve re

lief,

Pear

son

and

Show

v.

McC

affr

ey; s

igna

tory

of

2000

lett

er to

U.S

. Dep

t. of

Hea

lth

and

Hum

an S

ervi

ces

Lym

phom

a Fo

unda

tion

of

Am

eric

a1/

1997

;11

/29/

1999

✔✔

✔pr

escr

ipti

ve a

cces

s: ur

ges r

esch

edul

ing

reso

luti

on; s

igna

tory

of 1

999

lett

erto

U.S

. Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Mul

tipl

e Sc

lero

sis C

alifo

rnia

Act

ion

Net

wor

k19

96✔

pres

crip

tive

acc

ess:

“the

dec

isio

n as

tow

heth

er o

r not

mar

ijuan

a co

nsti

tute

s an

appr

opri

ate

trea

tmen

t is o

ne b

est l

eft t

oph

ysic

ian

and

pati

ent o

n a

case

-by-

case

basi

s”

Gov

ernm

ent I

ssue

s Act

ion

(GIA

)R

epor

t, pa

ge 2

, Jan

uary

/Feb

ruar

y19

96

Nat

iona

l Ass

ocia

tion

of

Att

orne

ys G

ener

al6/

25/1

983

✔pr

escr

ipti

ve a

cces

s (ca

ncer

or g

lauc

oma)

reso

luti

on

Nat

iona

l Ass

ocia

tion

of

Peop

le W

ith

AID

S19

92;

11/2

9/19

99;

12/2

000

✔✔

✔si

gnat

ory

of 1

999

and

2000

lett

ers

to U

.S. D

ept.

of H

ealt

h an

d H

uman

Serv

ices

Nat

iona

l Nur

ses S

ocie

ty o

nA

ddic

tion

s5/

1/19

95✔

✔ha

s sin

ce m

odifi

ed it

s sup

port

of

pres

crip

tive

acc

ess

“Pos

itio

n Pa

per:

Acc

ess t

oT

hera

peut

ic C

anna

bis,”

app

rove

dby

NN

SA B

oard

of D

irec

tors

New

Mex

ico

Nur

ses

Ass

ocia

tion

7/28

/199

7;12

/200

0✔

✔“e

ndor

se th

e co

ncep

t of a

llow

ing

for t

heth

erap

euti

c us

e of

mar

ijuan

a in

a v

arie

tyof

dis

ease

stat

es …

whe

n co

nven

tion

altr

eatm

ents

are

inef

fect

ive”

lett

er to

Bry

an A

. Kru

mm

, RN

,B

SN; s

igna

tory

of 2

000

lett

er to

U.S

. Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

New

Yor

k St

ate

Nur

ses

Ass

ocia

tion

6/29

/199

5;11

/29/

1999

;12

/200

0

✔✔

✔si

gnat

ory

of 1

999

and

2000

lett

ers

to U

.S. D

ept.

of H

ealt

h an

d H

uman

Serv

ices

Nor

th C

arol

ina

Nur

ses

Ass

ocia

tion

10/1

5/19

96✔

✔“P

osit

ion

Stat

emen

t of T

hera

peut

icU

se o

f Can

nabi

s”

Page 72: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Part

ial L

ist o

f Org

aniz

atio

ns W

ith

Favo

rabl

e Po

siti

ons o

n M

edic

al M

ariju

ana

Nam

e of

Gro

upD

ate

lega

l/pr

escr

ipti

veac

cess

com

pass

iona

teac

cess

rese

arch

othe

rC

omm

ents

Ref

eren

ce

San

Fran

cisc

o M

edic

al S

ocie

ty8/

8/19

96;

2/19

97✔

✔✔

“The

SFM

S ta

kes a

supp

ort p

osit

ion

onth

e C

alifo

rnia

Med

ical

Mar

ijuan

aIn

itia

tive

” (P

ropo

siti

on 2

15);

oth

er:

endo

rsem

ent o

f a p

hysi

cian

’s ri

ght t

odi

scus

s mar

ijuan

a th

erap

y w

ith

a pa

tien

t

mot

ion

pass

ed b

y SF

MS

Boa

rd o

fD

irec

tors

; “M

edic

al M

ariju

ana:

APl

ea fo

r Sci

ence

and

Com

pass

ion,

”is

sued

join

tly

by G

LMA

and

San

Fran

cisc

o M

edic

al S

ocie

ty

Vir

gini

a N

urse

s Ass

ocia

tion

10/7

/199

4;12

/200

0✔

✔re

solu

tion

; sig

nato

ry o

f 200

0 le

tter

to U

.S. D

ept.

of H

ealt

h an

d H

uman

Serv

ices

Wom

en o

f Ref

orm

Juda

ism

12/1

999;

12/2

000

✔✔

✔H

ealt

h Is

sues

Res

olut

ion,

ado

pted

at th

e 19

99 O

rlan

do A

ssem

bly;

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

AID

S Fo

unda

tion

of C

hica

go2/

17/1

999

✔on

e of

17

orga

niza

tion

s tha

t sig

ned

lett

er to

ON

DC

P D

irec

tor B

arry

McC

affr

ey

AID

S N

atio

nal I

nter

fait

hN

etw

ork

2/17

/199

9✔

one

of 1

7 or

gani

zati

ons t

hat s

igne

dle

tter

to O

ND

CP

Dir

ecto

r Bar

ryM

cCaf

frey

AID

S Pr

ojec

t Ari

zona

2/17

/199

9✔

one

of 1

7 or

gani

zati

ons t

hat s

igne

dle

tter

to O

ND

CP

Dir

ecto

r Bar

ryM

cCaf

frey

AID

S Pr

ojec

t Los

Ang

eles

2/17

/199

9✔

one

of 1

7 or

gani

zati

ons t

hat s

igne

dle

tter

to O

ND

CP

Dir

ecto

r Bar

ryM

cCaf

frey

AID

S T

reat

men

t Ini

tiat

ives

(Atl

anta

)12

/200

0✔

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Bay

Are

a Ph

ysic

ians

for

Hum

an R

ight

s1/

1997

;12

/200

0✔

✔ot

her:

endo

rsem

ent o

f a p

hysi

cian

’s ri

ght

to d

iscu

ss m

ariju

ana

ther

apy

wit

h a

pati

ent

plai

ntiff

in C

onan

t v.

McC

affr

ey;

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Bou

lder

Cou

nty

AID

S Pr

ojec

t(C

olor

ado)

2/17

/199

9;12

/200

0✔

one

of 1

7 or

gani

zati

ons t

hat s

igne

dle

tter

to O

ND

CP

Dir

ecto

r Bar

ryM

cCaf

frey

; sig

nato

ry o

f 200

0 le

tter

to U

.S. D

ept.

of H

ealt

h an

d H

uman

Serv

ices

Page 73: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Part

ial L

ist o

f Org

aniz

atio

ns W

ith

Favo

rabl

e Po

siti

ons o

n M

edic

al M

ariju

ana

Nam

e of

Gro

upD

ate

lega

l/pr

escr

ipti

veac

cess

com

pass

iona

teac

cess

rese

arch

othe

rC

omm

ents

Ref

eren

ce

The

Cen

ter f

or A

IDS

Serv

ices

(Oak

land

)2/

17/1

999

✔on

e of

17

orga

niza

tion

s tha

t sig

ned

lett

er to

ON

DC

P D

irec

tor B

arry

McC

affr

ey

Col

orad

o A

IDS

Proj

ect

2/17

/199

9✔

one

of 1

7 or

gani

zati

ons t

hat s

igne

dle

tter

to O

ND

CP

Dir

ecto

r Bar

ryM

cCaf

frey

Con

tigo

-Con

mig

o12

/200

0✔

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Embr

ace

Life

(Sa

nta

Cru

z)12

/200

0✔

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Flor

ida

Med

ical

Ass

ocia

tion

6/1/

1997

✔✔

reso

luti

on #

97-6

1

Gay

and

Les

bian

Med

ical

Ass

ocia

tion

5/19

95;

2/19

97;

11/2

9/19

99;

12/2

000

✔✔

✔ot

her:

endo

rsem

ent o

f a p

hysi

cian

’s ri

ght

to d

iscu

ss m

ariju

ana

ther

apy

wit

h a

pati

ent

GLM

A P

olic

y St

atem

ent #

066-

95-

104;

“M

edic

al M

ariju

ana:

A P

lea

for S

cien

ce a

nd C

ompa

ssio

n,”

issu

ed jo

intl

y by

GLM

A a

nd S

anFr

anci

sco

Med

ical

Soc

iety

;si

gnat

ory

of 1

999

and

2000

lett

ers

to U

.S. D

ept.

of H

ealt

h an

d H

uman

Serv

ices

Gra

y Pa

nthe

rs12

/200

0✔

sign

ator

y of

200

0 le

tter

to U

.S.

Dep

t. of

Hea

lth

and

Hum

anSe

rvic

es

Har

m R

educ

tion

Coa

litio

n12

/200

0✔

sign

ator

y of

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Page 76: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Part

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Page 77: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Appendix R

MPP’s model state medical marijuana billbased on Hawaii law enacted on June 14, 2000

Marijuana Policy Project 202-462-5747 (phone)P.O. Box 77492 202-232-0442 (fax)Capitol Hill [email protected], D.C. 20013 http://www.mpp.org

TITLE: An Act to Protect Seriously Ill People from Prosecution and Prison for UsingMedical Marijuana Under a Medical Doctor’s Supervision

SECTION 1: Findings

(a) Modern medical research has discovered a beneficial use for marijuana in treatingor alleviating the pain or other symptoms associated with certain debilitatingmedical conditions, as found by the National Academy of Sciences’ Institute ofMedicine in March 1999.

(b) The legislature admits that it would prefer for the federal government to permitmarijuana to be prescribed by physicians and to be dispensed at pharmacies.However, the legislature finds that the federal government has shown noindication that it will change federal policy with regard to medical marijuana, asevidenced by the federal government’s reluctance to allow even FDA-approvedclinical trials to move forward.

(c) According to the U.S. Sentencing Commission and the Federal Bureau ofInvestigation, more than 99 out of every 100 marijuana arrests are made understate law, rather than under federal law. Consequently, the legislature finds thatchanging state law will have the practical effect of protecting from arrest the vastmajority of seriously ill people who have a medical need to use marijuana.

(d) Although federal law expressly prohibits the use of marijuana, the legislaturerecognizes that the laws of Alaska, California, Colorado, Hawaii, Maine, Nevada,Oregon, and Washington permit the medical use and cultivation of marijuana.The legislature intends to join in this effort for the health and welfare of its citizens.However, the legislature does not intend to make marijuana legally available forother than medical purposes.

(e) The legislature finds that the state is not required to enforce federal law orprosecute people for engaging in activities prohibited by federal law. Therefore,compliance with this act does not put the state in violation of federal law.

(f) The legislature finds that state law should make a distinction between the medicaland non-medical use of marijuana. Hence, the purpose of this act is to ensure thatphysicians are not penalized for discussing marijuana as a treatment option withtheir patients, and seriously ill people who engage in the medical use of marijuanaupon their physicians’ advice are not arrested and incarcerated for usingmarijuana for medical purposes.

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Page 78: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Appendix R (continued) 2

SECTION 2: Definitions

(a) “Adequate supply” means an amount of marijuana collectively possessed betweenthe qualifying patient and the qualifying patient’s primary caregivers that is notmore than is reasonably necessary to ensure the uninterrupted availability ofmarijuana for the purpose of alleviating the symptoms or effects of a qualifyingpatient’s debilitating medical condition; [ADDING THE FOLLOWING ISOPTIONAL … provided that an “adequate supply” shall not exceed three maturemarijuana plants, four immature marijuana plants, and one ounce of usablemarijuana per each mature plant. “Usable marijuana” means the dried leaves andflowers of marijuana, and any mixture or preparation thereof, that are appropriatefor the medical use of marijuana, and does not include the seeds, stalks, and rootsof the plant.]

(b) “Debilitating medical condition” means:

(1) cancer, glaucoma, positive status for human immunodeficiency virus,acquired immune deficiency syndrome, or the treatment of these conditions;

(2) a chronic or debilitating disease or medical condition or its treatment thatproduces one or more of the following: cachexia or wasting syndrome; severepain; severe nausea; seizures, including those characteristic of epilepsy; orsevere and persistent muscle spasms, including those characteristic ofmultiple sclerosis or Crohn’s disease; or

(3) any other medical condition or its treatment approved by the department, asprovided for as follows: Not later than 90 days after the effective date of thisact, the department shall promulgate regulations governing the manner inwhich it will consider petitions from the public to add debilitating medicalconditions to those included in this act. In considering such petitions, thedepartment shall include public notice of, and an opportunity to comment in apublic hearing upon, such petitions. The department shall, after hearing,approve or deny such petitions within 180 days of submission. The approvalor denial of such a petition shall be considered a final agency action, subject tojudicial review.

(c) “Department” means state department of health.

(d) “Marijuana” shall have the same meaning as “marijuana” and “marijuanaconcentrate” as provided in sections _____ and _____.

(e) “Medical use” means the acquisition, possession, cultivation, use, transfer, ortransportation of marijuana or paraphernalia relating to the administration ofmarijuana to alleviate the symptoms or effects of a qualifying patient’s debilitatingmedical condition. For the purposes of “medical use,” the term “transfer” islimited to the transfer of marijuana and paraphernalia between primary caregiversand qualifying patients.

(f) “Physician” means a person who is licensed under section _____, and is licensedwith authority to prescribe drugs under section _____.

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Page 79: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Appendix R (continued) 3

(g) “Primary caregiver” means a person who is at least 18 years old and who hasagreed to undertake responsibility for managing the well-being of a person withrespect to the medical use of marijuana.

(h) “Qualifying patient” means a person who has been diagnosed by a physician ashaving a debilitating medical condition.

(i) “Written certification” means the qualifying patient’s medical records or astatement signed by a physician, stating that in the physician’s professionalopinion, after having completed a full assessment of the qualifying patient’smedical history and current medical condition made in the course of a bona fidephysician-patient relationship, the qualifying patient has a debilitating medicalcondition and the potential benefits of the medical use of marijuana would likelyoutweigh the health risks for the qualifying patient.

SECTION 3: Exemption from criminal and civil penalties for the medical use ofmarijuana

(a) A qualifying patient who has in his or her possession written certification shall notbe subject to arrest, prosecution, or penalty in any manner for the medical use ofmarijuana, provided the quantity of marijuana does not exceed an adequatesupply.

(b) Subsection (a) shall not apply to a qualifying patient under the age of 18 years,unless:

(1) The qualifying patient’s physician has explained the potential risks andbenefits of the medical use of marijuana to the qualifying patient and to aparent, guardian, or person having legal custody of the qualifying patient; and

(2) A parent, guardian, or person having legal custody consents in writing to:

(A) allow the qualifying patient’s medical use of marijuana;

(B) serve as the qualifying patient’s primary caregiver; and

(C) control the acquisition of the marijuana, the dosage, and the frequency ofthe medical use of marijuana by the qualifying patient.

(c) When the acquisition, possession, cultivation, transportation, or administration ofmarijuana by a qualifying patient is not practicable, the legal protectionsestablished by this act for a qualifying patient shall extend to the qualifyingpatient’s primary caregivers, provided that the primary caregivers’ actions arenecessary for the qualifying patient’s medical use of marijuana.

(d) A physician shall not be subject to arrest or prosecution, penalized in any manner,or denied any right or privilege for providing written certification for the medicaluse of marijuana to qualifying patients.

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Page 80: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Appendix R (continued) 4

(e) Any property interest that is possessed, owned, or used in connection with themedical use of marijuana, or acts incidental to such use, shall not be harmed,neglected, injured, or destroyed while in the possession of state or local lawenforcement officials, provided that law enforcement agencies seizing live plantsas evidence shall not be responsible for the care and maintenance of marijuanaplants. Any such property interest shall not be forfeited under any provision ofstate or local law providing for the forfeiture of property other than as a sentenceimposed after conviction of a criminal offense or entry of a plea of guilty to acriminal offense. Marijuana, paraphernalia, or other property seized from aqualifying patient or primary caregivers in connection with the claimed medicaluse of marijuana shall be returned immediately upon the determination by a courtor prosecutor that the qualifying patient or primary caregivers are entitled to theprotections of this act, as may be evidenced by a decision not to prosecute, thedismissal of charges, or an acquittal.

(f) No person shall be subject to arrest or prosecution for “constructive possession,”“conspiracy,” or any other offense for simply being in the presence or vicinity ofthe medical use of marijuana as permitted under this act.

SECTION 4: Prohibitions, restrictions, and limitations regarding the medical use ofmarijuana

(a) The authorization for the medical use of marijuana in this act shall not apply to:

(1) The medical use of marijuana that endangers the health or well-being ofanother person, such as driving or operating heavy machinery while underthe influence of marijuana;

(2) The smoking of marijuana:

(A) in a school bus, public bus, or other public vehicle;

(B) in the workplace of one’s employment;

(C) on any school grounds;

(D) in any correctional facility; or

(E) at any public park, public beach, public recreation center, or youth center;and

(3) The use of marijuana by a qualifying patient, primary caregiver, or any otherperson for purposes other than medical use permitted by this act.

(b) Insurance companies shall not be required to cover the medical use of marijuana.

(c) Notwithstanding any law to the contrary, fraudulent representation to a lawenforcement official of any fact or circumstance relating to the medical use ofmarijuana to avoid arrest or prosecution shall be a petty misdemeanor and subject

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Page 81: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Appendix R (continued) 5

to a fine of $500. This penalty shall be in addition to any other penalties that mayapply for the non-medical use of marijuana.

SECTION 5: Establishing a defense in court for patients and primary caregivers

A person and a person's primary caregivers may assert the medical use ofmarijuana as a defense to any prosecution involving marijuana, and such defense shallbe presumed valid where the evidence shows that:

(a) the person’s medical records indicate, or a physician has stated that, in thephysician’s professional opinion, after having completed a full assessment of theperson’s medical history and current medical condition made in the course of abona fide physician-patient relationship, the potential benefits of the medical useof marijuana would likely outweigh the health risks for the person; and

(b) the person and the person’s primary caregivers were collectively in possession of aquantity of marijuana that was not more than was reasonably necessary to ensurethe uninterrupted availability of marijuana for the purpose of alleviating thesymptoms or effects of the person's medical condition.

SECTION 6: Severability of this act

If any provision of this act or the application thereof to any person or circumstanceis held invalid, the invalidity does not affect other provisions or applications of the actwhich can be given effect without the invalid provision or application, and to this endthe provisions of this act are severable.

SECTION 7: Implementation of this act

This act shall take effect upon its approval.

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Page 82: STATE-BY-STATE MEDICAL MARIJUANA LAWS

Appendix R (continued) 6

SECTION __: Registry identification cards issued by state health department

[OPTIONAL: This section can be removed without affecting any other section of thebill; a registry identification card section appeared in the Hawaii law.]

(a) “Registry identification card” means a document issued by the department thatidentifies a person as a qualifying patient or primary caregiver.

(b) A qualifying patient or primary caregiver shall qualify for the legal protections ofSection 3 only if the qualifying patient or primary caregiver is in possession of aregistry identification card.

(c) Not later than 90 days after the effective date of this act, the department shallpromulgate regulations governing the manner in which it will considerapplications for registry identification cards, and for renewing registryidentification cards, for qualifying patients and primary caregivers.

(d) The department shall issue registry identification cards to qualifying patients, andto qualifying patients’ primary caregivers, if any, who submit the following, inaccordance with the department’s regulations:

(1) written certification that the person is a qualifying patient;

(2) registration fee, not to exceed $25 per qualifying patient;

(3) name, address, and date of birth of the qualifying patient;

(4) name, address, and telephone number of the qualifying patient’s physician;and

(5) name, address, and date of birth of the qualifying patient’s primarycaregivers, if the qualifying patient has designated any primary caregivers atthe time of application.

(e) The department shall verify the information contained in an application submittedpursuant to this section, and shall approve or deny an application within 30 daysof receipt of the application. The department may deny an application only if theapplicant did not provide the information required pursuant to this section, or ifthe department determines that the information provided was falsified. Anyperson whose application has been denied may not reapply for six months fromthe date of the denial, unless so authorized by the department or a court ofcompetent jurisdiction.

(f) The department shall issue registry identification cards within five days ofapproving an application, which shall expire one year after the date of issuance.Registry identification cards shall contain:

(1) the name, address, and date of birth of the qualifying patient and primarycaregivers, if any;

(2) the date of issuance and expiration date of the registry identification card; and

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(3) other information that the department may specify in its regulations.

(g) A person who possesses a registry identification card shall notify the departmentof any change in the person’s name, address, qualifying patient’s physician,qualifying patient’s primary caregiver, or change in status of the qualifyingpatient’s debilitating medical condition within 10 days of such change, or theregistry identification card shall be deemed null and void.

(h) Possession of, or application for, a registry identification card shall not aloneconstitute probable cause to search the person or property of the person possessingor applying for the card, or otherwise subject the person or property of the personpossessing the card to inspection by any governmental agency.

(i) The department shall maintain a confidential list of the persons to whom thedepartment has issued registry identification cards. Individual names on the listshall be confidential and not subject to disclosure, except to:

(1) authorized employees of the department as necessary to perform officialduties of the department; or

(2) authorized employees of state or local law enforcement agencies, only for thepurpose of verifying that a person who is engaged in the suspected or allegedmedical use of marijuana is lawfully in possession of a registry identificationcard.

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SECTION __: State-sanctioned non-profit distribution of medical marijuana

[OPTIONAL: This section can be removed without affecting any other section of thebill; this section does not appear in the Hawaii law.]

(a) A “registered organization” is a non-profit corporation registered with the stateunder section _____ and organized for the purpose of lawfully selling,administering, delivering, dispensing, distributing, cultivating, or possessingmarijuana, cultivation equipment, related supplies and educational materials, ormarijuana seeds for medical use.

(b) Prior to selling, administering, delivering, dispensing, distributing, cultivating, orpossessing marijuana for medical use, a registered organization shall file aregistration statement with the department, and thereafter shall file an annualregistration statement with the department, in accordance with departmentregulations which shall provide for the form and content of the registrationstatement.

(c) Not later than 90 days after the effective date of this act, the department shallpromulgate regulations that include procedures for the oversight of registeredorganizations, specifications for the membership of the staff and the boards ofdirectors of registered organizations, appropriate protections for people associatedwith registered organizations, a registration system for qualifying patients and

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primary caregivers who use the services of registered organizations, record-keeping and reporting requirements for registered organizations, the potentialtransference or sale of seized cultivation equipment and related supplies from lawenforcement agencies to registered organizations, and procedures for suspendingor terminating the registration of registered organizations.

(d) It shall be lawful to sell, administer, deliver, dispense, distribute, cultivate, orpossess marijuana where it is:

(1) by a registered organization to a qualifying patient or primary caregiver; or

(2) by any federal, state, or local law enforcement agency to a registeredorganization.

(e) The registered organization is prohibited from:

(1) obtaining marijuana from outside the state in violation of federal law;

(2) employing or utilizing the services of any person who has a criminal recordinvolving a controlled substance offense; and

(3) selling, administering, delivering, dispensing, or distributing marijuana toqualifying patients or primary caregivers without first verifying the validity ofthe qualifying patient’s written certification by:

(A) contacting the office of the qualifying patient’s physician; and

(B) contacting the appropriate state medical board or association to determinethat the physician is licensed to practice medicine under section _____.

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