The Fine Line Between Pot Fees and Pot Prices

As Brian Doherty noted yesterday, Los Angeles County District Attorney Steve Cooley, along with L.A. City Attorney Carmen Trutanich, is now maintaining that all medical marijuana dispensaries are illegal because they sell the drug over the counter. That interpretation of the law has sweeping implications, exposing virtually all of the 800 or so medical marijuana suppliers in L.A. to seizure and prosecution. But Cooley's position differs from those taken by other local officials and by California Attorney General Jerry Brown.

Under state law, patients are allowed to grow marijuana for themselves, or their "primary caregivers" can grow it for them. Last November the California Supreme Court rejected a legal fiction under which many dispensaries had been operating, whereby patients would designate the people selling them marijuana as their primary caregivers. The court said the person who grows marijuana for a patient has to be a bona fide caregiver who is substantially involved in his life and assists him in ways other than supplying the drug. That decision left the "patient collective" as the only legally viable model for dispensaries. Under the 2004 Medical Marijuana Program Act, patients may "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." In a dispensary that follows this model, the customers are members of the collective/cooperative, and the money they pay for marijuana is their contribution toward covering the operation's expenses. Cooley argues that such collectives are simply for-profit businesses in disguise. But he also seems to be saying that the only way a collective can be legal is if every member contributes time and effort, as opposed to money. That seems like an unreasonable expectation for patients who go to dispensaries precisely because they are not up to the task of growing marijuana for themselves and don't know anyone who is willing and able to do it for them.

Attorney General Brown, by contrast, agrees that medical marijuana suppliers should not be taking in money beyond what's necessary to cover their overhead and operating expenses, but he does not insist that every member of a collective roll up his sleeves and get to work. The guidelines (PDF) Brown issued in August 2008 say a collective should be nonprofit, should not purchase marijuana from illegal sources (effectively meaning the members have to grow their own supply), and should not provide marijuana to nonmembers. But in Brown's view, the marijuana may be "provided free to qualified patients…who are members of the collective or cooperative," "provided in exchange for services rendered to the entity," or "allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses." That last option is essentially the same as over-the-counter sales, although a collective could take the fees in advance as "dues" rather than taking them at the same time it hands over the marijuana. It's doubtful that rearranging the transaction that way would satisfy Cooley.

Cooley, Trutanich, and other Los Angeles officials (along with officials in cannabis-intolerant jurisdictions such as San Diego) are disturbed by the proliferation of marijuana dispensaries, which they believe are largely or mostly selling pot for recreational use. But since it is notoriously easy to obtain a doctor's recommendation for marijuana in California, even insisting that patients get their pot through genuine collectives (however those are defined) will not prevent people from getting high under the cover of taking their medicine. Yet restricting the ability of doctors to recommend marijuana, aside from violating their right to free speech, would prevent some bona fide patients from obtaining the medicine that relieves their pain, nausea, or other symptoms. The situation reminds me of a conversation I had back in 1993 with Lester Grinspoon, a leading expert on the therapeutic uses of cannabis (and author, with James Bakalar, of Marihuana: The Forbidden Medicine). Grinspoon had concluded that the only way to make marijuana available to all the patients who could benefit from it would be to legalize it generally. He foresaw what would happen if marijuana were legal for medical but not recreational use:

The problems connected with that are so vast that it will not work…. Everybody will be going to the doctor and saying, "Oh, I've got a backache, I've got this, I've got that." The doctors are not going to want to be gatekeepers.

In California, it's not the doctors so much as the cops and prosecutors who are complaining. But the freedom they fear may prove difficult to contain. When I interviewed him for that 1993 article, Richard Cowan, then director of the National Organization for Reform of Marijuana Laws, told me that allowing people to openly obtain and use marijuana for medical purposes would irrevocably change the dynamics of the debate:

The cat will be out of of the bag. That is going to totally change the dynamics of the issue….lf we get medical access, we're going to get legalization eventually. The narcocracy knows this; it's the reason they fight it so much.