Where To Go?
Ours is a medical refugee family. Despite the frustrations of how medical cannabis programs have been implemented in the states that permit its usage, we were happy to at least have the option to relocate. The voters of Texas, where we had been living, overwhelmingly support medical cannabis usage. Unfortunately, the reactionary Texas legislature hasn’t yet bowed to public pressure, and it has a long way to go before it will even acknowledge that perhaps science has disproved the myths surrounding what many Texas legislators still consider the “devil’s weed.”
Over the last decade, several states have courageously decided to strike out on the path of legalizing cannabis for medical and recreational purposes, despite the federal government’s continued refusal to acknowledge either science or logic. Each state has taken a somewhat different approach to the rules associated with the cannabis trade, and each has chosen a somewhat different way to enforce those rules. For a medical cannabis user who can’t tolerate cold winters or high altitude, there are three states that provide a haven: California, Oregon and Washington.
Fortunately for our family, we have been residents of both California and Washington at various times in the past, so we are familiar with both states and the quirks of the state and local governments.
Ultimately, we chose Washington for economic and work reasons. As someone with a thirty-five year history in the software industry, it seemed appropriate to locate in the high-tech capital of the northwest. While we chose Washington for economic reasons, we spent time considering whether living just over the border in Oregon might not be a better idea given the differences between the states in cannabis legalization.
Oregon and Washington have both decided to use an existing bureaucracy – the state liquor control board – as the rule making and enforcement mechanism for cannabis legislation. For those of us who remember the fights in Washington between the grocery stores and the WLCB (and the condition of most state liquor stores), this was not a particularly encouraging development. That said, it had the effect of accelerating the implementation of legalization, as a regulatory agency with experience in managing a highly controlled market was readily available.
Confusing Laws Everywhere
As with most states that have legalized cannabis, the laws regulating cannabis can be opaque and are often under constant revision. If you’re not an attorney, making sense of what is allowed now versus what might be changed in the future (depending on the whim of the state’s legislature and the political climate) can be a major undertaking. It becomes even more of a challenge if you want to enter the business itself, with confusing and often conflicting requirements that appear to be, at times, randomly enforced depending on how local governments feels about cannabis in general. In both states, proposed rule changes are posted nearly every month, and while many of those rule changes are enacted, some are left on the cutting room floor. This leaves patients, health care providers, growers and retailers in limbo, often concerned that they might be sanctioned later for breaking some obscure “proposed” rule that hasn’t yet been published or clarified. This is of particular concern to those who are growing their own plants, or those who are members of a growing cooperative. For those who need large amounts of raw material (such as patients who are being treated for cancer), the quantity of plants
needed can be well in excess of what some ill-informed legislator or regulator might consider a “reasonable” amount.
As a general comparison, it is far easier to comprehend the rules around brewing one’s own beer than it is to determine how one becomes a medical cannabis patient, and subsequently how much cannabis one can possess, grow, or share. This is partly because cannabis is new ground for the state legislators, but also due to continued ignorance on the part of legislators about the science of cannabis. As a result, the rules tend to be a little uncertain and at least from a science-based perspective, somewhat pointless.
Oregon, in this regard, seems a lot less fearful about the consequences of a more relaxed set of rules (with some regional exceptions) than Washington.
In terms of being reasonably certain as to the rules, Washington is also a distant second to Oregon. Oregon’s legislature at least attempts to provide some tools to make it possible to discern the current state of affairs. There are not only clearly written question-and-answer documents, but there are tables of the various sections of the relevant laws with bill numbers and proposed changes listed next to each section. It’s a time-consuming process to go through all of this material, but at least the state attempts to lessen the burden, and everything is easily accessible on the Internet. There are even clear statements of what is required to get a medical usage card, what it costs, and what the physician must do. In contrast, Washington’s laws and proposed rules are a mishmash without any organization that could be reasonably interpreted by the average citizen. Upon first reading, the reaction many might have is that it will require the services of an attorney to give a reasonably clear summary of what is allowed. Washington does publish question-and-answer documents, but all too frequently the answers consist of a short comment, followed with a link to the text of a nearly incomprehensible RCW (Revised Code of Washington), which itself may reference several other RCW sections. Software developers often refer to “spaghetti code”, which is a computer program that is tangled and difficult to follow with often unintended or unforeseen behavior. The Washington RCW for medical cannabis is “spaghetti legislation.”
The Basic Needs
Those of us who are medical cannabis users have a number of unique requirements. First, we need high-quality products which are consistently available, and which have known characteristics. Like aspirin, one should always be able to find the same manufacturer’s product, and the ingredients should be consistent. Second, the cost has to be reasonable, which means that the taxes imposed on retail medical cannabis products should be lower than those imposed on recreational users (this includes taxes both at the retail level, and as part of the production chain). For many medical users who are on fixed incomes due to disability or age, excessive taxes can mean the difference between being able to afford treatment (since cannabis is not a medication that is normally covered by insurance) and being chronically ill (or in some cases, dying). Third, we need to be able to grow our own supply of cannabis if we can’t afford to purchase product, or if what we need isn’t readily available (the topic of the science of whole-plant versus single-compound medication and therefore the need for different strains is an entire discussion in itself). Fourth, we need the ability to join a cooperative growing operation or have someone designated as a supplier if we can’t grow anything ourselves due to housing restrictions or physical disability.
What Is Available
Given the requirements, it’s useful to take a look what each state, in summary, makes available to the medical patient. This is not an exhaustive exploration, and at this time, many of the laws – especially in Washington – are still in an uncertain state. However, for a person who is researching whether or not to live in Oregon or Washington as a medical patient, this is what the rules currently appear to be.
Medical Cards & Registration
In Oregon, one fills out an application for a medical registration card and pays annual fee, and one’s physician fills out a form specifying the condition being treated. Fees vary widely, depending on whether you are growing your own plants, growing plants for other people, and whether or not you are receiving Social Security or SNAP benefits, and whether you are a military veteran. A veteran growing his or her own plants, for example, pays $20. An average citizen growing their own plants would pay
$200. In Oregon, medical doctors licensed in the state of Oregon are the only kind of medical practitioner allowed to recommend the use of cannabis. This must be a general practitioner, not a naturopath, osteopath, physician’s assistant or nurse practitioner.
In Washington, the process of obtaining a medical authorization is more complex. The FAQ available on the Washington State website makes a brief description of the process, and then refers one to the actual law, which makes for difficult reading even after several cups of coffee and liberal use of a notepad. As with Oregon, you must obtain a written authorization from a doctor, but unlike Oregon your provider does not strictly have to be a general medical doctor. Naturopaths, osteopaths, physician’s assistants and registered nurse practitioners may also provide authorization. While the choice of providers is greater than in Oregon, the provider has quite a laundry list of compliance rules to follow. From the RCW as published on June 18, 2017, the provider must:
- Have a documented relationship with the patient, as a principal care provider or a specialist, relating to the diagnosis and ongoing treatment or monitoring of the patient’s terminal or debilitating medical condition;
- Complete an in-person physical examination of the patient;
- Document the terminal or debilitating medical condition of the patient in the patient’s medical record and that the patient may benefit from treatment of this condition or its symptoms with medical use of marijuana;
- Inform the patient of other options for treating the terminal or debilitating medical condition and documenting in the patient’s medical record that the patient has received this information;
- Document in the patient’s medical record other measures attempted to treat the terminal or debilitating medical condition that do not involve the medical use of marijuana; and
- Complete an authorization on forms developed by the department, in accordance with subsection (3) of this section.
Take a look in particular at item number 5: If this rule were ever litigated, the state could reasonably argue that unless the doctor tried all other options, the recommendation for medical cannabis was not legitimate. For people like myself who have bad reactions to typical methods of treatment (congestive heart failure from reactions to opiates), this could be a death sentence.
There are some other restrictions imposed on the physician as well, which have to do with combining businesses. From the RCW:
A health care professional shall not:
- Accept, solicit, or offer any form of pecuniary remuneration from or to a marijuana retailer, marijuana processor, or marijuana producer;
- Offer a discount or any other thing of value to a qualifying patient who is a customer of, or agrees to be a customer of, a particular marijuana retailer;
- Examine or offer to examine a patient for purposes of diagnosing a terminal or debilitating medical condition at a location where marijuana is produced, processed, or sold;
- Have a business or practice which consists primarily of authorizing the medical use of marijuana or authorize the medical use of marijuana at any location other than his or her practice’s permanent physical location;
- Except as provided in RCW 69.51A.280, sell, or provide at no charge, marijuana concentrates, marijuana-infused products, or usable [sic] marijuana to a qualifying patient or designated provider; or
- Hold an economic interest in an enterprise that produces, processes, or sells marijuana if the health care professional authorizes the medical use of marijuana.
In addition to the record keeping and physician requirements, Washington strictly limits the conditions that qualify for medical use of cannabis. Unfortunately, conditions such as PTSD are not considered as meeting those qualifications, despite the results of well-documented research in the field.
The state fees for a medical card in Washington are minimal; the state website states that there is a $1 fee for the production of the card itself. The state does not regulate what a physician or other health care provider charges to submit an application for you to obtain a card, and these fees will be determined by the provider.
Medical Cannabis Dispensaries
Medical cannabis dispensaries can supply cannabis only to registered medical cardholders. The state maintains a list of medical cannabis dispensaries, which is available on-line.
Medical-only cannabis dispensaries no longer exist as of the summer of 2016. Instead, a retail cannabis operation can become “medically endorsed”, meaning that there is “trained staff” available to answer questions and provide advice. There is a list of medically endorsed retail locations available on-line.
Home (Self) Grow
A patient may grow his or her own plants, or designate someone over the age of 21 as their grower. A patient may have up to six mature plants. However, thanks to recent legislation, Oregon growers must make sure that they are in compliance with – of all things – water usage laws.
A patient with a valid medical card may grow up to six plants, and can grow as many as fifteen if authorized by their medical practitioner. A patient may have a designated grower to grow these plants, but that person cannot be the designated grower for any other person. A household may not have more than fifteen plants unless that household has registered as a cooperative.
Subject to upcoming revisions, there is no “cooperative grow” provision in Oregon. Instead, a grower can be designated by a patient, and that grower can product cannabis for a number of patients (subject to certain limits). One upcoming rule change allows the patient to compensate the grower for labor costs.
There may be up to four patients or designated growers in a cooperative, with a maximum of sixty plants for all four patients. Note that a residence may also be a cooperative if there are multiple patients in a family, but the residence must be able to meet the restrictions imposed for location and other requirements applied to a cooperative. It’s unlikely that a majority of homes would qualify.
Patients with valid medical cards can purchase cannabis products free of sales tax and use tax.
Patients with valid medical cards can purchase certain cannabis products (up to certain limits) free of sales tax and use tax.
Up to twenty-four ounces of usable cannabis at any given time.
Washington has a rather detailed and specific set of possession limits. These are (according to RCW 69.51A.210):
Forty-eight ounces of marijuana-infused product in solid form; three ounces of usable marijuana; two hundred sixteen ounces of marijuana-infused product in liquid form; or twenty- one grams of marijuana concentrates. The qualifying patient or designated provider may also grow, in his or her domicile, up to six plants for the personal medical use of the qualifying patient and possess up to eight ounces of usable marijuana produced from his or her plants.
These amounts shall be specified on the recognition card that is issued to the qualifying patient or designated provider.
Affirmative Defense For DUI:
Cannabis has a far different intoxication profile than alcohol. Unfortunately, in most states where cannabis is legal, law enforcement has encouraged the use of a blood THC level as a way to define intoxication. This is both inaccurate and unscientific, as medical patients who are regular, heavy users of cannabis do not exhibit intoxication effects even at blood levels much higher than the DUI limits.
No special protections. Oregon uses a subjective field-sobriety test to determine if a blood test is necessary to determine actual intoxication. Some actually prefer the blood-level test, as it’s at least objective and not subject to abuse by law enforcement officials.
There are no special protections according to the RCW. The wording of the law is as follows:
No person shall be entitled to claim the protection from arrest and prosecution under RCW 69.51A.040 or the affirmative defense under RCW 69.51A.043 for engaging in the medical use of marijuana in a way that endangers the health or well-being of any person through the use of a motorized vehicle on a street, road, or highway, including violations of RCW 46.61.502 or 46.61.504, or equivalent local ordinances.
Note also that in Washington, blood tests are far more frequently used by law enforcement.
When comparing legislation and implementation, Oregon is on the whole friendlier to the medical cannabis patient than Washington; Washington’s rules are chaotic and restrictive by comparison. This is ironic given Oregon’s reputation in some circles as a bastion of anti-business rules and overly high taxes. In the aspect of medical cannabis at least, Oregon has a much better grasp on how to serve its electorate than Washington does. This isn’t to say Oregon is perfect: As in Washington, medical patients can be shut out of the system by a lack of dispensaries (which is in turn a symptom of poorly designed and implemented rules) or they are marginalized thanks to the new medical dispensary rules, which can make the cost of doing business extremely high for larger dispensaries. However, at least there IS a medical dispensary system in Oregon.
One of the more economically illiterate ideas enshrined in the Washington rules is the concept of a “medically endorsed” retail location. Patients often require obscure or low-volume product which is oriented towards providing a medical benefit rather than intoxication. However, retail operations are in business to make a profit, and low-volume products with low margins that don’t provide an intoxicating effect are unlikely to be made available as a result. The net effect is that patients cannot get the types of cannabis products required for treatment, which moots the entire point of a medical cannabis program. Medical cannabis in Washington is as attractive to some retailers as non-alcoholic wine is to some liquor retailers – that is, not at all.
Another troubling aspect of Washington’s laws is that new qualifying conditions cannot be added through a petition process. Instead, the legislature must add them as part of the law. This means that any expansion of the list will require years to obtain, and that expansion is subject to the whims of the legislature. The repercussions of such legislative arrangements are starkly demonstrated by the recent
push for legalization in Texas, where a majority of the legislators and the public supported medical cannabis in the most recent legislative session. However, since the chairman of the calendar committee was not a supporter, the bills submitted never made it to the floor for a vote. Unlike Washington, the citizens of Texas do not enjoy the ability to create legislation by initiative or proposition, leaving them without a way to move the process forward.
However, the most disquieting aspect of Washington’s medical cannabis access system is not the disorganization and the appearance of conflicting or incomprehensible rules, but rather the apparent disregard for the needs of patients and their suppliers by state regulators. Stories of corruption, graft and incompetence abound; this is in contrast to Oregon, where rule making and enforcement, though not perfect, appears to be more transparent than Washington. Washington State bureaucracies are being sued by former dispensary owners over the apparently arbitrary granting of licenses to those who have no experience in providing cannabis to medical patients, but who can afford the stiff application and license fees. In short, it is money that commands attention rather than professional knowledge and a willingness to help patients become well. State legislators are not unaware of this, but perhaps they need to be better informed and given a greater sense of urgency, and that’s where all of us can make a difference.
While our family is grateful to have found a place to live where we can be treated for our chronic illnesses, we believe there is much to be done still in creating an economically viable, yet patient- friendly medical cannabis program within Washington. To that end, I would encourage all readers to get politically active, and start participating in the process of getting the laws changed. Vote. Show up at city council meetings. Write letters. Call the offices of your elected officials and make your preferences (politely) known. Visit your legislator and develop a relationship with them. You may not agree with your representatives and senators in all matters, but they are your contact with state government. Patience, persuasion and a diplomatic approach can gain a great deal; passion doesn’t have to be confrontational. You may find that your legislator is merely misinformed or lacking the information necessary to understand the plight of the medical cannabis user. If that is in fact true, you can educate them and open their eyes, and as a result, make life a little better for everyone. That, in the final analysis, is what cannabis legalization is really all about.