Liquor Control Board recommendations threaten state’s medical marijuana system
In November 2012, Washington State voters passed Initiative 502, legalizing recreational marijuana use. Although I-502 proponents promised that it would not change the existing medical cannabis system, the state now aims to merge patients into the future recreational scheme.
Legislators are concerned about federal intervention with the recreational system unless they apply more regulations to the medical cannabis law passed fifteen years ago. This fear is based on an announcement made in August 2013 by U.S. District Attorney Jenny Durkan. She stated, “The continued operation and proliferation of unregulated, for-profit entities outside of the state’s regulatory and licensing scheme is not tenable and violates both state and federal law”. However, Durkan did not suggest specific changes.
The state is also worried that the new recreational industry will not be a profitable success unless it eliminates or envelops the competition of the medical cannabis market. Washington’s top recreational marijuana industry consultant, Mark Kleiman, was quoted in the Seattle Times saying “I don’t think the legal market state officials are imagining will be able to compete with the medical market if it remains as wide open as it currently is.”
The alterations to medical cannabis are based on a set of recommendations issued in October 2013 by the Washington State Liquor Control Board, in conjunction with the Departments of Health and Revenue. Several hundred patients protested the new guidelines at a public hearing for the Liquor Control Board in November 2013 before they were finally submitted to the legislature on January 1, 2014. The recommendations that most concern medical cannabis patients and activists include:
Tightly restricting access to medical cannabis authorizations.
Restricting and disciplining authorizing health care providers.
Creating a mandatory patient registry accessible to state agencies.
Redefining “intractable pain” and “debilitating.”
Reducing legal possession amounts from 24 ounces to 3 ounces.
Reducing legal patient grows from 15 plants to 6 plants (only 3 of which may be flowering, or “budding,” plants).
Eliminating collective gardens and medical cannabis “dispensaries”.
Implementing high excise taxes and cost mark-ups.
The January 2014 legislative session commenced with a whirlwind of over twenty bills relating to marijuana. Three contentious and similar bills have been designed to fit the medical system into the confines of the Liquor Control Board recommendations. Two of the bills, Senate bills 5887 and 6178, would alter I-502. SB 5887 is sponsored by Republican Senator Ann Rivers of the 18th District, and Democratic Senator Jeanne Kohl-Welles of the 36th District sponsors SB 6178. Any modifications to the 502 recreational legislation within the first two years of implementation require a two-thirds super majority to pass. Right now, both bills are awaiting a hearing by the Senate Ways and Means Committee, and they may be combined into a single entity as they progress.
The third piece of legislation, House bill 2149, does not require that super majority because it adds onto the Controlled Substance Act rather than amends subsections of 502. This leaves 2149 as the bill most likely to finally pass. HB 2149 is sponsored by Democratic Representative of the 34th District, Eileen Cody. It was passed by the House on February 14 and will proceed to the Senate for the final votes. The current legislative session ends on March 13.
Steve Sarich, executive director of the Cannabis Action Coalition, who also headed the No on I-502 campaign, feels that a final passing vote on 2149 would be devastating to the existing medical cannabis system. After the House vote passed 2149, Sarich stated, “Our cowardly legislators voted to effectively end medical cannabis here. Patients are in shock. If the Senate votes to pass this bill, Washington will be the first state to end medical cannabis.”
There was a bill that had much support from the medical cannabis community, but it never made it past it’s first reading on January 14, 2014. House bill 2233, also known as the Ric Smith Memorial Act, was created by the medical cannabis advocacy groups Sensible Washington and Americans for Safe Access, and sponsored by Democratic Representative Sherry Appleton. HB 2233 would have given patients arrest protection, further regulated authorizations from healthcare providers, created a voluntary instead of mandatory patient registry, kept patient possession limits at 24 ounces and 15 plants, more tightly regulated collective gardens, and legalized licensed medical dispensaries. The bill was assigned to the House Health Care and Wellness Committee, which is chaired by Representative Eileen Cody, sponsor of Senate bill 2149. No public hearing has been planned on HB 2233 and it remains inactive. Medical cannabis activists are disappointed that the bill did not gain more legislative support.
When asked about HB 2233 not progressing successfully, Kari Boiter, the Americans for Safe Access National Advocate of the Year, said, “We need a system designed specifically for medical cannabis that prioritizes the needs of patients. Recreational stores face many uncertainties and that is creating a lot of anxiety for patients who rely on cannabis to stay healthy. Patients need assurance that the medicine they use now will be available in the future. The bills currently active in the legislature do not provide the assurance that patients deserve.”
One of the major concerns of patients about bills 2149, 5887, and 6178 is a mandatory registry. The Liquor Control Board official recommendations and all three bills aiming to overhaul medical cannabis require that authorizing health care providers enter patients into a database with information available to the Department of Health, Department of Revenue, and law enforcement. Many complain that this puts patients’ privacy at risk and may violate federal HIPAA law. It appears unjust to make patient information available to law enforcement considering that marijuana is still classified as a schedule 1 substance at both the state and federal levels. In addition, requiring that medical professionals enter authorizations into the registry puts their careers at risk for the same reason. The bills claim that the registry will provide arrest protection for patients, yet simply being in the registry may be construed as probable cause for law enforcement. There is no mandatory registry proposed for future recreational users. Patients will not receive any rights or protections unless they are entered into the state registry.
Any of these pending bills would greatly limit access to medical cannabis authorizations. Many health providers, especially physicians, are unwilling to approve or supply medical cannabis authorizations due to the risk of legal action because cannabis is a schedule 1 substance. This may particularly affect military veterans who rely on the federal veterans’ healthcare system and Medicaid patients on Social Security Disability who are limited to certain providers. Healthcare professionals will also likely be wary of authorizing patients as they will be subject to the new authorization disciplinary board to be established by the Department of Health. In addition, physicians cannot legally advertise that they offer or approve cannabis authorization, so patients will have even greater difficulty finding an authorizing health care provider.
The new legislation would allow patients to be authorized for additional medical cannabis use only with special approval from their primary care physician, after which they would be monitored every three months. This special approval is highly unlikely to occur due to physicians already being overwhelmed with patients and paperwork, and not wanting to be at risk of state or federal legal action. In addition, frequent physician appointments are too costly for low-income and uninsured patients. This hardly seems in line with the Liquor Control Board recommendation, which states, “Authorization system should not place an undue burden on healthcare providers”.
House bill 2149 specifically states that patients must show documented proof from their primary care physician that they have tried at least twenty other medications or treatments in order to authorize additional amounts. Many patients have already tried every other method before risking the stigma and murky legality of medical cannabis.
John Novak is a medical cannabis patient who has suffered from epilepsy since he was a teen. He wrote a letter to all the Washington State legislators regarding HB 2149, and recalled his history of trying various therapies for decades until finally doctors gave him the final option of experimental brain surgery and he turned to cannabis.
He said, “Forcing me to re-trace my steps and document every alternative would be near impossible. Plus I refuse the alternative: experimental brain surgery to remove the pineal gland and a large area of the short term memory section in my brain. This is NOT a viable alternative to me, but this language would seem to mandate it” [regarding bill 2149].
Another medical cannabis patient, Gina Garcia, a military veteran, has been able to gradually stop taking seventeen various pharmaceutical drugs and is no longer bound to her home by illness, thanks to cannabis.
She stated, “I am able to be a functioning member of society and responsible for my own care…If I have to go back on pharmaceuticals, playing with my grandchildren will once again be hard, I won’t be able to leave my house, and I won’t be able to contribute to society financially or physically as I do now with cannabis. I will not go back on pharmaceuticals. They were killing me.”
The redefining of “debilitating” and “intractable pain” in order to be more stringent about authorizations is troubling to many chronic pain patients. How do you determine the severity of someone’s pain? There are various types of pain; muscle, joint, spine, and nerve pain each manifest differently. It is difficult to objectively assess something that is not clinically measurable.
At a House Finance Committee meeting in March 2013, Liquor Control Board Agency Director, Rick Garza, declared—without any basis of fact—that over 90% of cannabis currently obtained at medical “dispensaries” is used for recreational purposes. His comment enraged legitimate patients who rely on cannabis for relief. According to the U.S. Census Bureau, 73% of Americans with severe disabilities don’t use an assistive device such as a cane, walker or wheelchair that easily indicates an infirmity. Garza’s claim cannot be proven, especially since approximately 96% of chronic illnesses are invisible to the naked eye (and Garza is not a physician).
Other major concerns of patients include the proposed limits for possession and patient grows. The pending legislation would decrease the amount that patients could legally possess from 24 to 3 ounces of useable cannabis. Recreational users may possess up to 1 ounce of usable marijuana and cannot grow their own. House Bill 2149 would eliminate patient home grows in the year 2020, reducing the patient grow limits from 15 to 6 plants in the meantime. Only three plants may be in the vegetative state, along with three flowering or “budding” plants, reducing the amount of usable cannabis medical patients are allowed to harvest by 80%. This is an inadequate amount for most patients dealing with serious illnesses.
A crop of three plants is likely to produce no more than three ounces of useable cannabis. In addition, three plants per harvest with an approximate four month growing cycle may not provide enough finished product to last until the next harvest. Cannabis is dried and aged, or “cured”, before it is useable, adding a greater time gap between harvests. The existing medical cannabis system, under RCW 69.51A, states that patients have a right to possess a 60-day supply. However, the pending bills do not permit enough to last a patient that long.
Many of the sickest patients require high potency extracts and concentrates. They are known by names such as Rick Simpson oil, hash oil, wax, shatter, and dabs. They can be used in a variety of methods including ingested in infused food or capsules, vaporized and inhaled, or used topically. Extracts are the most potent form of cannabis, with cannabinoid levels as high as 80%. In comparison, marijuana flowers have maximum cannabinoid levels of approximately 20%. Dale Meltzer, owner of the medical cannabis collective Serious Medicine, offers a variety of extracts and concentrates for patients. He estimates that it takes approximately seven grams of plant material to make one gram of oil extract. A common average daily dose of oil extract for seriously ill patients is one gram or more, depending on the individual. Therefore, it could take approximately two ounces of cannabis to make just a week’s worth of oil extract for one patient. Under the pending legislation, patients will not be permitted to possess or grow enough cannabis to make the amount of extract that they need. In addition, making extracts is a laborious process that utilizes special equipment and can be dangerous because most solvents are flammable. Therefore, many patients are unable to make their own extracts and rely on medical dispensaries and collective gardens, which will be closed under the pending legislation.
Not only has I-502 made it impossible for patients to produce cannabis extracts independently, but they may wind up being banned from state stores as well. Washington Administrative Code 314-55-079 stipulates, “Marijuana extracts, such as hash, hash oil, shatter, and wax can be infused in products sold in a marijuana retail store”, but RCW 69.50.354 does not allow the sale of extracts that are not infused in products, “A marijuana extract does not meet the definition of a marijuana-infused product per RCW 69.50.101.” In a nutshell, this would allow for the sale of only extract-infused products, such as foods, but not hash or oil extracts. The Liquor Control Board is currently working on revising these definitions, and possession limits for extracts are written into their recommendations and the subsequent bills. However, there is still much to clarify about concentrates and extracts in the new recreational system, and as of now, won’t be available at recreational stores in their pure form.
Growing large numbers of plants or having access to a medical dispensary is essential for patients to create or obtain the oils, extracts, tinctures, edibles, salves, and other products that are used to treat various medical conditions. One of the most controversial aspects of the Liquor Control Board recommendations and the legislation built around them is the proposed shutdown of collective gardens and medical dispensaries. The LCB has stipulated that only licensed stores following 502 regulations may sell marijuana, and that collective gardens and dispensaries will be eliminated. Currently, collective gardens allow up to ten medical patients to grow up to forty-five plants, distributing the yield amongst them. Many patients do not have the space, physical capability, resources, or knowledge to grow on their own, and large numbers of low-income patients rely on collective gardens for affordable medication. For those unable to grow at all or participate in a collective grow, medical dispensaries are an essential access point for a variety of cannabis and cannabis products that are unlikely to be offered at state stores geared towards recreational use.
Patients’ needs are different from recreational users; certain strains of cannabis and cannabis products are useful for their specific symptoms. For example, the plant chemical compound CBD is a type of cannabinoid that has been shown to treat conditions such as seizures and inflammation, yet it does not provide the psychoactive high that recreational smokers will want to buy. 502 stores will not carry the high-CBD strains of cannabis that many patients seek. In addition, the regulations for recreational growers approve of only chemical nutrients and over two hundred pesticides. Medical patients often prefer organically-grown cannabis for health reasons, especially those with weakened immune systems. With medical cannabis shoved to the wayside and commercial growers streamlining to suit the masses, it seems unlikely that recreational stores will make patients a priority.
Although cannabis is classified as medicine under Washington’s current set of medical cannabis laws, a stipulation was added to I-502 by the Liquor Control Board last October that makes it illegal to advertise marijuana as having any curative or therapeutic value. This effectively bars future recreational stores from discussing the therapeutic benefits of cannabis with patients. This will make it more difficult for patients to figure out which specific medicine is most appropriate for their ailment, if the stores even carry what they need.
The state is planning to license 334 recreational marijuana stores, a fraction of the medical dispensaries that currently operate in Washington State. The number of growers and stores is capped at a very low number compared to existing dispensaries and demand. Seattle alone had 274 dispensaries as of last May. The LCB has allotted just two recreational stores in Olympia, two in Lacey, and one in Tumwater. According to the Associated Press, the Liquor Control Board is currently only aiming for the recreational stores to reach 25% of the state’s entire marijuana market, including medical cannabis and illegal sales. BOTEC Analysis Corporation, the state’s marijuana industry consultant firm, estimates that just 50% of businesses granted recreational marijuana licenses will stay in business.
Adding to the problem, cities and counties have the right to place moratoriums on I-502 businesses. Currently 80 cities and counties are enforcing moratoriums temporarily banning state licensed marijuana businesses. These moratoriums will each last six months to a year, although there is no current guarantee that they cannot be renewed indefinitely. A few cities have taken the bold measure of outright banning 502 establishments, citing federal law.
State Attorney General Bob Ferguson is in favor of local jurisdictions getting to set these ordinances. On January 16 he stated, “[I-502] establishes a licensing and regulatory system for marijuana producers, processors and retailers in Washington state, it includes no clear indication that it was intended to pre-empt local authority to regulate such businesses.” This opinion, which carries no legal weight, nevertheless comes much to the dismay of the Liquor Control Board. The LCB has been granting recreational marijuana licenses regardless of local jurisdiction requirements, which is likely to result in legal battles over areas where state licensed marijuana suppliers are in violation of local jurisdictions. A legislative bill has also been introduced to overturn the city and county moratoriums. At least 1.5 million Washington residents will be impacted by these bans. Steve Sarich of the Cannabis Action Coalition estimates that the moratoriums will leave 85-90% of the state without access to legal marijuana.
In addition to severely limiting access to cannabis, the state will be significantly driving up marijuana prices. Recreational marijuana producers, processors, and retailers will each pay a 25% excise tax on wholesale sales. These three 25% taxes, along with the state and local sales and use taxes, will significantly raise the price of marijuana. Medical patients will have to pay the same retail tax as recreational users.
According to a statement by Americans for Safe Access, “As a botanical medicine recognized by the American Herbal Pharmacopoeia and in line with RCW 82.08.02831 and RCW 82.08.9252, medical cannabis should not be subject to excise, sales or use taxes.” They suggest using licensing fees to cover the cost of agency oversight and administrative overhead. Senator Kohl-Welles, sponsor of SB 6178, has said, “People will go to whatever is out there so they can get marijuana at a lower cost”.
In a recent article for the Northwest Leaf, Steve Sarich calculated that, “The current price of medication in Washington is approximately $180-$225 per ounce. We have recently seen the price of medication in Colorado rise to $500 an ounce with only a 15% excise tax. That is more than twice the price of medical cannabis here in Washington. With the new excise tax on recreational cannabis in the I-502 stores at 35%-60% higher than those of Colorado, prices here could easily top $700 per ounce. That’s more than 3 times the price patients are currently paying for their medication.”
While the federal government has warned Washington State we need sufficient regulation of both medical and recreational marijuana, they didn’t specify such drastic measures against vulnerable people with chronic illness and disabilities. Washington legislators are choosing recreational profit over care for patients. Executive Director of Americans for Safe Access, Steph Sherer, stated that, “Washington voters approved medical cannabis out of compassion, not because they wanted to generate revenue. Washington lawmakers have a duty to uphold the will of the voters, not just those who supported I-502, but also those who believe seriously ill patients should have access to medical cannabis.” With limited access to medicine, and increased costs, it is likely that state intervention will push many medical patients back to the underground economy.
Erin Palmer is an Olympia resident and occasional writer.
Jordan Beaudry has a pen in his pocket and a passion for social justice.