Does Prop 64 Threaten, Diminish, Or End Medical Cannabis As We Know It?
(Answer: Yes, Yes, and Yes)
By Sasha Brodsky
Attorney at Law
Originally published November 6, 2016
This essay explains how Prop 64 fundamentally threatens, diminishes, and/or ends medical cannabis rights as we know them. “Medical cannabis rights as we know them” essentially includes the caselaw, legislation, and governmental authority conferring protection on cannabis patients and doctors in California since November 6, 1996, when Voters passed The Compassionate Use Act, a.k.a., the CUA, or Prop 215–twenty years ago to this day, the 20th Anniversary of Prop 215.
Prop 215 and Its Progeny
Prop 215 protects patients and defined caregivers who possess or cultivate cannabis for medical treatment recommended by a physician against criminal laws that otherwise prohibit possession or cultivation of cannabis. In addition to protecting the relationship between the medical cannabis patient and that patient’s cannabis-recommending physician, 215 also validates and legalizes medical cannabis not only for a list of serious illnesses, including cancer, anorexia, AIDS, and chronic pain… but also for “any other illness for which marijuana provides relief,” thus validating medical cannabis and patient access in a rather sweeping sense. California Health & Safety Code 11362.5.
In the twenty years following Prop 215, the California Legislature, Supreme Court, and Attorney General have clarified Prop 215’s scope and meaning, restricting its scope in some instances, but in most cases expanding it. An entire body of patient/doctor medical cannabis rights has thus emerged from and out of 215, and remains law till at least 2018.
Among other things, SB 420, in 2004, extended Prop 215’s protection of patients and patient providers to collectives and cooperatives. See Health and Safety Code § 11362.7 et seq. Collectives and cooperatives are the Legislature’s further development of the scope and meaning of Prop 215, and they, in conjunction with Prop 215, are the basis on which all medical cannabis law is founded in California. Collectives and cooperatives were further validated in 2008 by then Attorney General Edmund G. Brown, Jr.’s “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical use.”
The Kelly decision, rendered in 2010 by the California Supreme Court, established that Prop 215 does not place limits on the amount that a given patient may possess, and therefore Kelly holds, among other things, that a law attempting to limit the amounts that a patient may possess is unconstitutional. As long as the amounts possessed by the patient are consistent with a doctor’s recommendations, a patient may, under Kelly, possess whatever amounts of medical cannabis that she medically needs.
Prop 215 gave birth to a paradigm that allowed collectives and coops comprised of patients and patient providers to grow, cultivate, harvest, and distribute whatever cannabis amounts that a doctor determined was required by a patient in need of medical cannabis. This framework left other questions, such as safety, quality, and the idea that Prop 215 suffers from widespread “abuse” by non-seriously ill patients, unanswered. A relatively consistent Federal backdrop of pot criminalization, resultant inability for legitimate patient providers to bank, and the uncertain tax status of cannabis providers, among other things, left many cannabis issues fundamentally unresolved by Prop 215.
While the CUA, as well as subsequent legislation, Supreme Court rulings, and Attorney General commentary, provided some clarity as regards the sanctity of medical cannabis, as well as the need to protect cannabis patients and doctors from prosecution, many argued it was not sufficiently developed, and/or was too grey, ambiguous, and Wild West to be sustainable. Some consensus emerged that in order to make cannabis safe, legitimate, kept out of the black market, and kept away from kids, a far more sweeping regulatory effort would be needed. Another consensus concluded that such an effort would not be comfortable or fair for many, and, if the regulations were too oppressive and top-heavy, this would simply push many people, including veteran, law-abiding patient providers, out of the industry. Many “reformers” nonetheless accepted this, along with a range of other negative results, as an inevitable consequence of progress.
In October 2015, the Legislature passed the Medical Marijuana Regulation and Safety Act, now known as the Medical Cannabis Regulation and Safety Act (MCRSA). MCRSA is the most sweeping body of cannabis legislation passed in California, ever, and is thus far the most far-impacting cannabis law in this State since Prop 215. It has not yet been challenged constitutionally, but is arguably quite subject to such challenge, particularly in that it significantly burdens a Prop 215/SB 420 patient’s criminal defense.
Among other things, MCRSA provides for comprehensive environmental, health, testing (for contaminants, microbiological impurities, residual solvents, pesticides) for all flowers, extracts for concentration and purity, pesticide standards, water quality and use, testing, production and labeling for edibles, and background checks for all licensees, among other things. Health and safety standards for cannabis are of course critical to long term viability of cannabis as an industry, and this feature of MCRSA is arguably quite essential to any sustainable cannabis laws.
MCRSA also establishes a licensing structure for cannabis cultivators, manufacturers, and other industry players (testing, transport, dispensaries, distribution, etc.), with a requirement that every State license holder obtain a license from their local municipality as a condition to obtaining a State license, i.e., local laws are key.[i] A cannabis license system alone is not per se objectionable, and arguably provides some or most license holders with better legal “cover” than that provided solely by 215 and its 20 years of protections developed since 215’s inception.
While in MCRSA a license is required for commercial cannabis cultivation (i.e., anything more than for more than up to 5 “patients,” each of whom is limited to no more than a single 10×10 grow), commercial cultivation, processing, distribution or transfer, in the absence of a license, shall nonetheless constitute a crime under MCRSA.
The Death of The Cooperative and The Collective
Under MCRSA, most if not all of the Prop 215 protections that developed over the past 20 years following Prop 215 will be wiped clean from California law by the end of 2018, and we will begin again with a stripped-down version of Prop 215, against a decidedly different legal backdrop: by the end of 2018, or one year after the first State license is issued, MCRSA “sunsets” or phases out, cannabis collectives and coops entirely, effectively removing all protections of cannabis collectives and coops.[ii] Among other things, MCRSA repeals the provisions of California Law that protect the exact people for whom Prop 215 and SB 420 were written: medical cannabis patients. See Section 6 of AB 266, subsection 11362.775 (b).
These restrictions are further codified in AB 266 Section 19317 (a), which allows cannabis cultivation only for a licensee, and also in Section 19318 (a), which makes the penalties astronomical, including up to twice the license fee (which can and will be high), up to each day, with each day constituting a separate penalty, in some cases up to $30,000.00 per violation, per day!
MCRSA also adds section 19318 (c) to the Business and Professions Code, where—in one fell swoop—it turns the activity of those operating without a license, namely patients engaged in commercial cannabis activity, including “those individuals [previously] covered [thanks to SB 420] under Section 11362.7 of the Health and Safety Code,” into fully criminal activity, i.e., no longer protected by 11362.7. [Emphases and clarifications supplied].
The impact of these changes alone cannot yet be fully measured. It is clear enough that MCRSA, in doing this, “burdens a defense” in the same way Kelly discussed putting possession limits as burdening a criminal defense. For any cannabis patient/provider attempting to simply continue operating under cover of the last 20 years of Prop 215 State interpretation, it simply bans and outlaws said activity for providers of medical cannabis unless one has two licenses. With a dual license requirement, making a local license a necessary condition for State licensure, this adds a significant compliance hurdle for patients and patient providers wanting to continue to produce and provide cannabis medicine legally. While licensing as part of a solution makes sense, the requirement that a local license is first obtained (although it would not otherwise be unusual, but for locals seizing on cannabis in a very different way than any other crop) imposes regulatory costs and hurdles that is likely to prove too burdensome for most individuals and groups in the industry (i.e., all but the bigger players) to survive. Among the results, it can be argued, are lower diversity and quality of product, less access points for patients, and higher prices, in turn limiting patient access.
Once MCRSA comes online more fully, “limited immunity” coop or collective protections against criminal prosecution for what has been a previously protected medical cannabis patient activity, namely possession of medical cannabis, will cease to exist. With some exceptions, such as for 5-patient collectives where local jurisdictions approve said collective activity, patients will be exposed to whatever criminal liability existed prior to SB 420, the Attorney General Guidelines, and the Kelly decision, among others. (Prop 64, if it passes, attempts to provide further non-medical protections for pot users, however that is problematic, as we shall see).
Therefore, while MCRSA is intended to be a set of medical cannabis regulations, MCRSA nonetheless abolishes the collective and cooperative growing and providing of cannabis medicine that has come to be the essence and crux of medical cannabis in California. So, MCRSA alone ends medical cannabis as we know it, and would be subject to constitutional attack and possibly reversible if it weren’t for the fact that Prop 64 makes MCRSA immune to constitutional attack by making the largely unprecedented move of putting amendments to MCRSA in the Legislature’s hands, as is discussed briefly herein.
With the end of collectives and coops also comes an end to the very laws written to protect those collectives and coops. As a result, the patients and patient providers comprising those collectives—the intended beneficiaries of Prop 215’s protections—are suddenly without the benefit of 20 years of development of the meaning of the CUA.
There is far more to this analysis, but this is the tip of the iceberg, and should suffice for either the more casual reader or the reader with little time before the vote on Tuesday November 8th 2016.
Prop 64: The End of Medical Cannabis?
Prop 64, or the Adult Use of Marijuana Act (AUMA) is the “recreational” or “adult use” bill that California voters will consider whether or not to pass this month (November 2016). If AUMA passes, California will be the 5th state to legalize adult use (following Colorado, Washington, Oregon and Alaska). With California a key influence in U.S. pot law, adult use legalization in California would surely be a radical and historical move, whether one agrees with AUMA or not.
Generally, legal adult use cannabis alone is arguably a good thing for at least the following reasons: 1) it appears to be THE cash opportunity of the century. “By 2020, legal market sales are expected to surpass $22 billion, with adult use sales comprising about 53% of the total legal market,”[iii] i.e., potentially bigger than the National Football League.[iv]; 2) legal adult use cannabis seems an inevitability—it has been moving in this direction and can only go further, it would appear; and 3) to grow in the right direction the cannabis industry needs something more rigorous and sustainable than what the last 20 years has offered since Prop 215—i.e., controls on the environment, health and safety, decriminalization, an end to racial disparities in arrests.
However, for any good that AUMA may bring, its impact on medical cannabis is a critical question worth examining for anyone who cares about medical cannabis. Further, it is less than clear that AUMA will accomplish its stated objectives, particularly its civil rights claims[v].
Prop 64 Ratifies MCRSA and Makes the End of the Collective/Coop Permanent
There are at least three things that AUMA does to end medical cannabis as we know it:
1) by virtue of incorporating MCRSA into its framework, it makes MCRSA (and its arguably unconstitutional anti-medical features) immune to any constitutional challenges to MCRSA via the courts, thereby making MCRSA only changeable by another voter initiative, just like AUMA will be if AUMA is voted in (e.g., Sections 3 (k), Section 6, Ch. 2, 26010 (a), Ch. 17, 26170 (a));
2) it puts MCRSA and AUMA together in a kind of single body of law where the Legislature now has all of the control over the content of both AUMA and MCRSA (Section 10); and
3) it consolidates recreational and medical (Section 2B), which is what took place in Washington State, where medical cannabis has died.[vi]
“Adult Use to Defeat the Black Market and as an Answer to Racial Disparity” Arguments Probably Fail In Light of Colorado Black Market and Racial Disparity Statistics
Among “legalization’s most touted goals,”[vii] adult use proponents also insist—against some evidence and argument to the contrary[viii]—that adult use in the form of AUMA will also “incapacitate” the black market (AUMA, Section 2D) as well as reduce the severely disproportionate impacts of cannabis prohibition against communities and individuals of color.[ix]
A valid test of this hypothesis might have already yielded a “fail” in Colorado, where the Adult Use law after which Prop 64 was largely modeled, has been in effect since roughly 2012, and where the black market is nonetheless reportedly “alive and well and will continue to thrive in Colorado,” where, as a Drug Policy Alliance report puts it, “black Coloradoans continue to be arrested for marijuana at 2.4 times the rate of whites.” “While the number of marijuana possession arrests has dropped, the law enforcement practices that produce racial disparities in such arrests have not changed.”[x] This DPA statistic should provide a potent counterpoint to the pro-64 advocates who see 64 as a remedy for racial disparity in stops, arrests, and sentences for cannabis use or production, and should give pause to the voter concerned about the possible unintended consequences of 64.
Why the Tipping Point Argument is Suspicious
AUMA advocates insist that this initiative is particularly critical, in that AUMA represents an opportunity, one that comes no more often than once every four years, to reach the tipping point that will convince the Federal government to finally legalize cannabis. This latter point has been met with tremendous skepticism, given the Feds’ consistently anti-cannabis stance of the past 80 years or so. The notion that the Federal government will suddenly change its mind because California legalizes adult use is seen as highly questionable particularly given the recent Federal decision, last summer, to continue to keep cannabis squarely in the Schedule I category, meaning “it has no currently accepted medical use.” This issue is further complicated and thrown in to suspicious light by the fact that the Feds have patented cannabis for its medical properties.[xi] This arguably belies the AUMA “tipping point” argument, and compels any critical thinker considering voting for Prop 64 to at least scrutinize AUMA logic further.
A great deal of good can come as a result of adult use legalization.
However, one should not so easily give up the hard-won fight for medical cannabis. In Washington state, adult use in the form it took eviscerated medical cannabis entirely. In Colorado, adult use did not decrease the cannabis-related arrests of people of color, nor did it kill the black market.
There is still time to sort things out and come up with a better solution to the cannabis issue.
There is still time to constitutionally challenge the bad things in MCRSA, and leave intact the basic licensing framework, environmental protections, and health and safety standards, while cutting out the elements of MCRSA that unnecessarily eviscerate medical cannabis.
Adult use should take its proper place in legal cannabis history, but not at the expense of medical cannabis.
The orientation that a State has toward making cannabis medicine and protecting cannabis patients is a very different orientation that a State has when their objective is to help get people high. Neither are themselves a problem, but they are different goals.
Let’s keep them separate.
And let’s keep medical sacred, alive, protected, and available to patients.
Vote No on Prop 64!
[ii] AB 266, Section 6, Section 11362.775 (a) and (b). https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB266
[iii] The State of Legal Marijuana Markets, Executive Summary, 4th Ed., ArcView Group, at 9. www.arcviewgroup.com
[ix] “Why California Should Vote Yes On Prop. 64 To Legalize The Adult Use Of Marijuana,” Huffington Post, Joy Haviland, Staff Attorney, DPA (Drug Policy Action), July 6, 2016. http://www.huffingtonpost.com/joy-haviland/california-prop-64_b_10830226.html http://www.yeson64.org/about; http://www.wfwproject.org/2016/09/christopher-carr-hoist-weed-4-warriors-cannabis-connection/