Other State Laws Offer Guidance and Contradiction

By Katie Doyle and Chelsea Sheasley
The Boston University Statehouse Program

With less than two weeks before Massachusetts’ medical marijuana law goes into effect, significant questions remain on how the voter-approved ballot question will be regulated.

How much marijuana will patients be allowed? Will there be a registry of marijuana patients and prescribing doctors? How will marijuana providers be certified by the state? Where will pot dispensaries be located? What about federal drug laws that consider any marijuana possession a crime?

The task of answering these and other questions falls to the state Department of Public Health – already hard-pressed by the state drug lab and compounding pharmacy scandals. The department’s official line, issued two days after the election, is that it will use other medical marijuana states’ laws a guide.

“We will work carefully, learn from other states’ experiences, and put a system in place that is right for Massachusetts,” the department said in a press release.

Massachusetts is the 18th state to legalize medical marijuana since California voters approved a measure in 1996, but there is no clear road map for regulation. Rules and practices vary widely from state to state.

Massachusetts could follow a variety of paths:

• Massachusetts law allows patients to keep a 60-day supply of marijuana, but the amount is still to be decided. California and Washington allow patients 24 ounces over a 60-day period. Montana and Alaska permit one ounce.

• Methods of distributing marijuana range from the hundreds of legal shops in California to “don’t-ask-don’t tell” policies in Alaska, Hawaii and Montana that allow patients to possess marijuana but continue to make it illegal to sell.

• Nearly all states require prescribing physicians to be licensed in state. Massachusetts will be only one of three states without this requirement.

• Rules vary on public access to information about who is prescribing and who is using medical marijuana. Some states protect the data others don’t.

According to Robert Mikos, a Vanderbilt University law professor who has studied medical marijuana laws, states have had a wide range of experience from California, where lax oversight of marijuana dispensaries resulted in federal raids to Colorado, which he said has done a better job regulating dispensaries.

“California is far and away the worst,” he said. “Colorado and perhaps New Mexico are the ones that have the most rigorous regulations in place, the ones that seem most genuinely interested in treating this like medicine.”

Massachusetts policy makers will have to make a number of decisions.

DISPENSARIES
Massachusetts will join 11 other states that allow marijuana dispensaries. Some states, such as Hawaii maintain a low-key program without dispensaries. Other states allow patients to grow their own.

Some states place a tight limit on the number of dispensaries. Rhode Island allows just three. Maine has eight. New Mexico has 23.

Arizona, whose 2010 law allows one dispensary for every 10 pharmacies, anticipates 126 dispensaries. Other states allow many more, with over 200 in Michigan, over 400 in Colorado and at least 500 in California.
Massachusetts law calls for no more than 35.

Jason Plume, a political scientist and lecturer at Humboldt State University’s Institute for Interdisciplinary Marijuana Research, said containing the number of dispensaries is vital to successful programs.

“We’ve seen this problem not just in Los Angeles County, which is highlighted all over the country about its number of dispensaries, but also in very conservative counties in California,” he said.

Other states abandoned dispensaries in the face of federal pressure. In May 2011, Montana Gov. Brian Schweitzer approved a law shutting down the state’s dispensaries after federal raids in 13 cities.

Last February, Delaware Gov. Jack Markell suspended state regulation and licensing of dispensaries after the U.S. attorney for Delaware warned that state employees involved in the medical marijuana program might not be immune to federal prosecution.

Washington D.C. still has no dispensaries 16 years after passing its medical marijuana law. Dispensaries were banned by Congress until 2010, when D.C. council members authorized them and Congress allowed the measure to become law. The district began issuing certificates this fall.

Mikos thinks state-regulated dispensaries are better for patients.

“If the state is genuinely concerned about the well being of patients who might use this drug, it wants them to have a safe and reliable source of supply and that’s hard to get on the black market,” he said.

Massachusetts’ law allows at least one but no more than five dispensaries in each county. The Department of Public Health can adjust the number.

But locating dispensaries looks to be tricky.

Wakefield and Reading residents approved zoning bylaws prohibiting dispensaries at November town meetings. Melrose held a public hearing on banning dispensaries on Nov. 19. Braintree, Lexington, Lowell, Quincy and Watertown are exploring the possibility of a ban. Others are likely to follow.

Municipalities that allow dispensaries face the question of where they can locate. Arizona, Maine and Delaware prohibit dispensaries from being within 500 feet of schools, while New Mexico’s law sets the limit at 300 feet.

Connecticut, Colorado, California and Michigan lack such regulations, resulting in conflict with the federal government. Some dispensaries near schools in Colorado and California have been forced to close because of federal law, which establishes a “drug-free zone” within 1,000 feet of schools.

Bill Downing, president of MassCann/NORML, an organization dedicated to easing restriction on marijuana laws, said some municipalities in Massachusetts have expressed interested in having their dispensaries located near medical centers.

Plume said it was important for dispensaries to be in appropriate locations in order to decrease conflict within communities and with federal laws.

“I think it is best to have it zoned correctly, and that not only means away from educational facilities, but also away from compact residential areas, maybe even industrial areas, because usually industrial areas aren’t well lit at night, which can aid criminal behavior,” he said.

WHO WILL USE MEDICAL MARIJUANA?

All 18 states have specific criteria for medical marijuana eligibility. Massachusetts law allows pot for patients with a “debilitating medical condition, such as cancer, glaucoma, HIV-positive status or AIDS, hepatitis C, Crohn’s disease, Parkinson’s disease, ALS, or multiple sclerosis.”

The law does not mention chronic pain – one of the most common ailments among medical marijuana users in other states. In Oregon, 97.2 percent of patients listed chronic pain as one reason to use medical marijuana; In Colorado, Nevada and Arizona 90 percent or more cite chronic pain.

Connecticut specifically excludes chronic pain as an eligible condition.

Plume said it made sense for Massachusetts to exclude chronic pain, noting the criticism California has come under for the vague language about ailments covered by the law.

“This is a move towards containing medical marijuana,” he said.

The number of people who use medical marijuana is hard to determine. Some states, such as California, Washington and Maine, don’t require medical marijuana users to register with the state. Thirteen have mandatory patient registries. Three states – Maine, California, and Colorado – have voluntary registries.

Massachusetts law requires all patients to register with the Department of Health by submitting their physician’s certification.

WHO WILL PRESCRIBE AND DISTRIBUTE
Almost all of the states require that marijuana prescriptions be written by doctors licensed in the state, making it possible for regulators to monitor prescribers.

Rhode Island includes physicians licensed in Massachusetts and Connecticut. Alaska allows doctors in the military and those affiliated with United States Public Health Service or volunteering without pay to write marijuana prescriptions.

Massachusetts’ law makes no mention as to whether prescribing physicians must be licensed in the Bay State.

After getting a prescription patients can get marijuana from dispensaries or caregivers, whose role varies among states.

Massachusetts joins most other states in allowing patients to designate a caregiver to help them get marijuana, but the law does not say how many patients a caregiver could serve.

Most states limit caregivers to five patients. Montana passed a law last year that bans caregivers from serving more than three patients after federal agents raided dispensaries owned by providers who served up to 390 patients.

Washington, New Jersey and Nevada, caregivers are only permitted to serve one patient. Vermont and Hawaii are the only other states silent on this topic.

New Mexico, Rhode Island and New Jersey bar caregivers from growing marijuana for their patients. Montana and Alaska allow caregivers to grow it. Only Michigan’s law explicitly allows caregivers to receive “reasonable compensation.”

Hawaii, Maine and Rhode Island set no age requirement for a caregiver. In all other states, including Massachusetts, caregivers must be either 18 or 21 years old.

HOW MUCH WILL PATIENTS BE ALLOWED
Massachusetts law allows patients a 60-day supply for personal medical use. It leaves it up to the Department of Public Health to define that quantity based on the “best available evidence.”

Washington and California are the only states that quantify a 60-day supply as 24 ounces or 15 plants. Oregon allows 24 ounces without specifying a time period.

Most other states allow for a two or 2.5 ounce supply. Three states, Alaska, Montana and Nevada, permit just one ounce.

State laws also vary on how much marijuana, if any, a patient is able to grow. New Jersey does not allow patients to cultivate the drug. Growing marijuana is the only option for patients in Alaska and Hawaii.

The Massachusetts law says patients, or a caregiver, will be able to grow marijuana. The number of plants has not yet been determined.

NEGATIVE IMPACT
Beyond the mechanics of the law are questions of consequences. Will the availability of medical marijuana increase illegal use of pot and other drugs, especially among teens? Will there be more marijuana-fueled traffic accidents?

Economist Daniel Rees of the University of Colorado at Denver, who has studied the consequences of medical marijuana laws on traffic fatalities and alcohol use, doesn’t think medical marijuana encourages greater use among the general population.

Other studies vary in their findings and are often the subject of controversy over their methodology.

“I think it will simply allow patients who need marijuana access to it,” Rees said.

Rees also thinks Massachusetts’ law is more limiting than some other states.

“If you look at the spectrum of medical marijuana laws, with California, Oregon, Washington on the least restrictive side and New Jersey, Connecticut, Delaware, and D.C. on the more restrictive side, Massachusetts is clearly in the second group,” he said.

Another looming consequence: the tension between state laws that allow medical marijuana and federal laws that ban all use of pot.

Although federal law enforcement hasn’t undertaken many criminal prosecutions, citing limited resources – a position echoed earlier this month by the Obama administration – Mikos, the Vanderbilt professor, says the conflict between state and federal laws should be a concern for those in the medical marijuana business.

“You do have to worry – not so much the state, but the people who apply for the licenses and actually sell this. It’s true they’re violating federal law and the federal government could sweep in and try to prosecute them.”
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Editors: This piece was written by Katie Doyle and Chelsea Sheasley and researched by Doyle, Sheasley, Edward Donga, Jim Morrison, Lexi Salazar and Monique Scott.

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