Marijuana at the Crossroads: Issues Confronted in Practice
Wednesday, February 22, 2012 at 10:52 AM Zoe Laird[1]
The day began with a heated discussion regarding the legality of marijuana in Colorado, created by the tension between the state amendment allowing medical marijuana and the federal prohibition on growing and distributing marijuana, a Class 1 drug. In addition to a fundamental introduction to medical marijuana, the panel explored issues attorneys confront in practice when working with marijuana growers and caregivers.
The first panelist to speak was Tae Darnell, a founding partner of Darnell & Gottlieb, P.C. His firm that advises a number of dispensaries, cultivation experts, caregivers, and patients on marijuana issues, as well as securing a large number of licenses for dispensaries in Denver. In doing this work, Mr. Darnell noted how the majority of the work he does is in criminal defense, where medical marijuana raises a number of issues. He was emphatic that his job is to protect people’s constitutional and legislative protections from the Drug Enforcement Agency (DEA), whose mission he described as “thugging people into submission.”
The main issue is that his typical clients are caregivers, patients, or distributors, and while their medical marijuana use is allowed under Colorado law, technically, at the federal level, these people are all breaking the law. Yet, as an attorney, his job involves telling people cultivating marijuana that they are allowed to do this in Colorado while requiring them to sign a waiver on his retainer agreement notifying the client that they are engaging in illegal behavior under federal law and may be subject to prosecution. He believes that he can do this because his job as an attorney in the state of Colorado is to uphold Colorado’s Constitution. And under that state constitutional protection, caregivers are allowed to grow a certain number of plants per patient. The other issue his clients face is that doctors refusing to proscribe medical marijuana, limiting their access to a medicinal drug.
Another issue Mr. Darnell described was the increasing number of raids on caregivers. Although the DEA raids the homes and makes arrest, they do not file any charges. This is problematic because the arrested individual is often in the process of applying to be a licensed caregiver. The application may be refused due to a felony arrest.
The last issue Mr. Darnell discussed is when this law went into effect it created a lot of “shotgun marriages” between the dispensers and the growers. These partnerships led to contracts that are now in conflict with some of the rules, especially when the partnerships are breaking up. This raises contractual corporate issues that people in this industry are not adequately prepared to handle.
The next speaker was Dr. Amanda Reiman, the director of research for Berkeley Patients Group, a community-based medical cannabis dispensary. Dr. Reiman is also a lecturer in the School of Social Welfare at the University of California, Berkeley, and is an affiliate scientist at the Alcohol Research Group in Emeryville, California. Although Dr. Reiman is not a lawyer, her dissertation was the first in-depth study of medical cannabis patients using dispensaries and her discussion focused on why patients use medical marijuana and why it has such a negative connotation in society.
Dr. Reiman began by stating that she was here to speak on behalf of patients who rely on marijuana for their health. Part of the problem with medical marijuana is that there is a mixed message about cannabis: it can be used recreationally, therapeutically, and for its curative properties. This last area of cannabis research, she stressed, is so important to discovering what cannabis really can do but noted that because cannabis is considered a Class 1 drug, only one research facility in the United States can do this type of research and the marijuana they receive for this research is very poor quality. In addition, Dr. Reiman discussed the deontological issues with legalizing medical marijuana or even legalizing marijuana. Drug use is perceived to be bad. Dispensaries are caught up in the mixed message between the wellness and recreational usage of cannabis as well as the deontological hurdles they face because of people’s perceptions.
Despite all the issues with legalizing medical marijuana, Dr. Reiman believes cannabis has many uses as a treatment for addiction, the area where her research focuses. She discussed how it could be used to help with a mind and body balance as well as for harm reduction because patients are using marijuana rather than harder drugs. Clients using dispensaries also benefit from the additional aspects offered by dispensaries because they serve as a quasi-community center where people can come for massage, acupuncture, chiropractic adjustments, mediation and community. Lastly, there are cannabinoid-based medications that have shown promise in treating addictions. The research she discussed has shown that it can block receptors that send out signals for cravings and can stop the patient from having seizures while the patient is going through withdrawal. Dr. Reisman noted the positive uses of medical marijuana as well as some of the possibilities of the drug, none of which will come to fruition without less regulation and more research opportunities.
The next speaker was Professor Marsha Cohen, professor at University of California, Hastings Law School. Professor Cohen worked with the Consumers Union’s public interest law office in Washington, D.C. and practiced primarily in the areas of federal food, drug, and product safety. Professor Cohen has served on various government and National Academy of Sciences panels and was a member of the California State Board of Pharmacy for almost eight years.
Professor Cohen began by discussing how she has been a pharmacy regulator and had represented the pharmacy profession. Her discussion focused on defining what is really medicine and how, in law, words can have very different meanings from their regular, every day uses. Medical is one of those words and she believes that just putting medical in front of marijuana does not make it medicine in the eyes of law or healthcare. Her discussion was much more based on how the law defines drugs and medicines and some of the regulations that are in place. In citing the federal regulations about what is a drug,[2] she wanted to emphasize that there are rules and requirements in place before people can sell something as a drug. These are laws that are meant to protect people from those selling potentially dangerous drugs. In this same vein, she raised concerns about the California statute allowing medical marijuana for two reasons: (1) it is written by law-men, and (2) it states that medical marijuana can be proscribed as a treatment for issues like anorexia, which is a psychological condition.[3]
The next issue Professor Cohen discussed is the availability of medical marijuana licenses in California and how easy it is to procure them. For example, doctors advertise their services to help patients procure these licenses online for $79, or if you mention the ad, you receive a $20 discount.[4] Professor Cohen’s issue with these services is that a clinic should revolve around a particular drug but should be about health and wellness. These doctors instead should advise their patients about treatment options and not just on how to procure a medical marijuana license.
Furthermore, in addition to licensing issues, Professor Cohen also discussed distribution issues because these drugs are not being supplied by a traditional pharmacy. She believes that this is also detrimental to the classification because pharmacists are regulated and licensed individuals who truly understand medications and their effects. Additionally, by using a traditional pharmacy, a patient’s files are kept on record so that the pharmacist knows what medication the patient is taking and any potential harmful interactions. But, Professor Cohen pointed out, if marijuana is distributed using traditional pharmacies, whole new issues become obvious because marijuana would be treated like other medication with dosages, quality control, instructions on use, etc. This traditional model does not comport with the current process of providing medical marijuana. Professor Cohen conceded that there is a need for more research on marijuana and that, while a long process to reverse, marijuana should be reclassified to allow more testing.
The next speaker was Robert Hoban. Mr. Hoban is a founding partner of Hoban & Feola, LLC. His firm represents hundreds of medical marijuana businesses statewide. In addition, he is personally involved in the medical marijuana issue because his mother was diagnosed with pancreatic cancer, and he saw first hand how medical marijuana helped improve her quality of life while she was fighting this disease.
Mr. Hoban discussed how this issue is fascinating and fun for lawyers. Usually when lawyers take on a case or have to argue a case there is a large amount of case law, positive or negative depending on the case. However, with medical marijuana, he has a blank slate and he gets to create the case law. He said that there are a number of legitimate and reasonable arguments to be made in favor of medical marijuana and he gets argue these issues as issues of first impression. These legal arguments are based on the constitutional amendment that the Colorado voters approved. He discussed how the plain language of this amendment allows for patients to have access to medical marijuana and how caregivers are given the right to prove this.
He also discussed several other issues that he faces on a regular basis. There are zoning issues involved with this industry, as demonstrated by the letters sent out to dispensaries from the federal government warning them that they were too close to schools. There are also landlord and tenant issues; landlords want to know what type of liability they may have and tenants want to know that they can safely stay in a storefront that they have rented. There are also credit card and banking issues because banks refuse to facilitate these accounts. Because they have nowhere to put the money, it is becoming a largely cash industry, which is dangerous for the dispensary owners and makes this industry harder to regulate and track.
The last speaker was George Thomson. Mr. Thomson is the Senior Director of Enforcement at the Colorado Department of Revenue. He serves as the Chief Compliance Officer for medical marijuana industries in Colorado. Mr. Thomson focused on the difficulties of regulating the industry and how the growth has forced his department to almost triple in size just over the last few years. Mr. Thomson emphasized how his division is not responsible for the issuing of individual cards or regulating the caregivers. Rather, his department focuses on the business filings and licensing for dispensary owners.
What makes Mr. Thomson’s job more complicated is that the state and local governments issue a variety of licenses, even to a single dispensary. In addition, because of the constantly changing landscape of medical marijuana, the local governments are constantly changing their rules. Another hurdle that Mr. Thomson faces is actually getting people to work for him. Ideally, he would have people with law enforcement backgrounds working with him, but these people are not interested. This problem highlights one of the central issues with medical marijuana in Colorado: people who have worked in law enforcement are aware that there is an inherent tension between the constitutional provisions at the state level and the federal government’s prohibition on this substance.
[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.
[2] 21 U.S.C. 321(g)(1) (2006) (defining “drugs”).
[3] See Cal. Health & Safety Code § 11362.5 (West 2012).
[4] See Open Medical Center, http://opencaremedicalcenter.com/node/56 (last visited Feb. 12, 2012).
Reader Comments