Distribution of Medical Cannabis in CA

 

The Compassionate Use Act:

 

On November 4, 1996, California voters passed Proposition 215, also known as the Compassionate Use Act (“CUA”), to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes” without criminal penalty.   Since then, hundreds of medical marijuana patients and those who supply them with the medicine they need have been searched, arrested and prosecuted for marijuana violations, in large part because the CUA has been interpreted in a very obscure manner. 

 

The CUA provides basic protections for medical marijuana patients and their primary caregivers from prosecution for cultivation and possession of marijuana for medical use.  Since it became effective on November 5, 1996, California courts of appeal have, for the most part, narrowly construed its provisions, fearing an “open sesame” for marijuana distribution not intended by the California voters.   As a result of their extreme caution, medical marijuana patients and their caregivers were left largely unprotected from arrest and prosecution for transporting and distributing medical marijuana, as well as the seizure of their medicine, even when they had valid documentation proving their eligibility for the protections of the CUA.  Their fates depended largely on the discretion of the local police, which has proved a mixed blessing due to vast disparities in the local guideline amounts of marijuana that a qualified patient could possess without fear of legal repercussion. 

Two legal models exist under the CPU:

 

  1. The Individual model is simply patients growing their own medicine for personal use
  2. The Caregiver model is a designated person growing cannabis for a patient who is unable.

 

Self-implementation of distribution:

 

Under the CPU, patients with a doctor's recommendation can obtain medical cannabis to treat their illness. This act left unclear, however, the means by which they should receive this medicine, and made no mention of distribution of cannabis to qualified patients. Despite the limited protection afforded under the law, patients and caregivers pushed the envelope to find distribution models that work for the many different types of patients. These issues were debated in several conflicting court decisions.  Following the passage of the CPU, the implementation of the law was completely sporadic across the state. In areas that are more progressive and/or had a significant patient base, cities and counties were tolerant if not supportive of the dispensary model and set large plant numbers for patients and caregivers. In more conservative areas, law enforcement or the courts did not recognize the CPU Act at all. This lead to almost completely unregulated system of distribution that includes:

 

  1. The Cooperative model seeks to combine the efforts of patients and caregivers, as the two work together to educate the public and grow cannabis.  Each individual involved is expected to give what he or she can to the endeavor. In return, the cooperative offers its members safe access to medical cannabis, often at no cost.

 

  1. The Dispensary model is perhaps the most simple, basic mechanism through which patients receive medical cannabis. Each dispensary maintains its own membership of legally qualified patients, and those members are allowed access to safe and affordable cannabis medicines.

 

  1. A Dispensary or Cooperative with patient services is a more comprehensive model. This dispensary does not simply provide its members the opportunity to secure safe, medical-grade cannabis, but also offers other services to meet the needs of the patient’s general well-being. In this way, the dispensary becomes its patient’s primary caregiver, as well as a provider of medicine. At these facilities, health professionals including nurses, doctors, and alternative medicine therapists provide consultations and other services.  Attorneys provide legal training to educate patients and caregivers as to their constitutional protections.  Grow workshops are another common service provided, along with peer counseling groups, classes, special events, and hospice style care.

 

SB 420- defining and clarifying distribution:

 

On January 1, 2004 S.B.420 became law in California and was an attempt to clarify the CPU and to set up a voluntary ID program to protect patients and caregivers from arrest. S.B.420 has expanded the protections available to those who cultivate medical marijuana for distribution through cooperatives.  Before the enactment of S.B.420, nearly all cooperatives were operating illegally, even under California law, because the Compassionate Use Act only exempts from the marijuana laws cultivation and sales of medical marijuana; it does not exempt sales or distribution.  Thus, even though courts had carved out an exception for qualified patients reimbursing their primary caregivers for the “bona fide reimbursement of costs” from cultivating medical marijuana, most cooperatives were left unprotected by the CPU (except for the tolerance afforded by local officials) because courts were reluctant to recognize cooperatives or their individual employees as “primary caregivers” under the CPU. 

 

            S.B.420 has expanded the opportunities for cooperatives to supply marijuana to the seriously ill patients who need it in several ways.  First, S.B.420 expressly exempts collectives and cooperatives formed in California for cultivating marijuana for medical purposes from prosecution for cultivation and distribution of marijuana, and for maintaining a place where marijuana is used and sold.  Second, S.B.420 greatly expands the amount of compensation a primary caregiver may receive for distributing marijuana to a qualified patient.  Although it is still illegal to distribute medical marijuana for profit, Cal. Health & Safety Code § 11362.765(a), a primary caregiver may now receive “reasonable compensation for services provided” and out-of-pocket expenses.  H & S § 11362.765(c).  Thus, primary caregivers and cooperatives may be reimbursed for cultivating marijuana for qualified patients, including a reasonable amount for their labor, so long as they do not otherwise earn a profit.  Finally, each designated primary caregiver of the cooperative may possess up to six mature or 12 immature plants per qualified patient, which can amount to a great quantity if the cooperative serves more than a few patients. 

 

Prop S- a step toward municipal distribution: 

 

Proposition S is the San Francisco ballot initiative passed in 2002 that directs the city to look into growing and distributing marijuana for medical purposes.  The first initiative of its kind in the country, Proposition S was a direct reaction to the federal government’s paramilitary raids on San Francisco medical marijuana cooperatives.

 

The wording of this proposition is very weak. In fact, the proposition only requires the city to “look into” growing and distributing medical marijuana. Currently, a coalition of patients groups and advocacy organizations are trying to map out models for the city. The most popular model has been the city providing land/property for patient collectives to grow their medication.

 

Oakland- A step toward regulation of dispensaries:

 

February 18th 2004, the city of Oakland became the first city to pass a resolution regulating dispensaries. On June 1st, 2004 after an inspection and compliance process, the city of Oakland will give 4 business permits to dispensaries. Berkeley, Santa Cruz, and San Francisco are considering a similar model.