Drug War

Does the New Medical Marijuana Memo Signal Tolerance for Small Dispensaries?


The Newark Star-Ledger puts a positive spin on the Justice Department's new medical marijuana memo, saying it means "New Jersey's medical marijuana program is not likely to run afoul of federal law if its operation is kept small and controlled and doesn't allow growers to create 'industrial marijuana cultivation centers.'" Gov. Chris Christie, who since taking office has been dragging his feet on implementation of New Jersey's medical marijuana law (which was signed by his predecessor, Jon Corzine, after the election), lately has been citing the threat of federal prosecution as an excuse. Roseanne Scotti, New Jersey director of the Drug Policy Alliance, tells the Star-Ledger the memo shows there is no reason for further delay:

This is laying out explicitly who is at risk. If you are planning on growing tens of thousands of plants and making millions of dollars, you are going to be under the purview of federal law enforcement. That is not what is planned for New Jersey.

I would implore Governor Christie — beg Governor Christie — to move forward with this program with all possible speed. 

As much as I agree with Scotti that Christie should do his job, which includes executing laws passed by the state legislature, I can't share her sanguine view of the memo. The author, Deputy Attorney General James Cole, does express concern about large-scale, commercial operations:

Within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of  these planned facilities have revenue projections of  millions of  dollars based on the planned cultivation of  tens of  thousands of  cannabis plants.

But Cole never suggests that small-scale and/or noncommercial dispensaries will be tolerated. In fact, he explicitly repudiates the notion that the Obama administration's forbearance goes beyond "individuals with cancer or other serious illnesses who use marijuana as part of  a recommended treatment regimen consistent with applicable state law" and their "caregivers," defined as "individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana." 

Cole also says nothing to alleviate the concern, cited by Christie, that state employees could be prosecuted for licensing and regulating dispensaries. Instead he reinforces that fear, saying people "who knowingly facilitate" the distribution of medical marijuana "are in violation of  the Controlled Substances Act, regardless of  state law," and "are subject to federal enforcement action, including potential prosecution."

Does this mean the DEA will be raiding every dispensary, including small-scale, nonprofit ones? No. So far it has not raided any dispensaries that were explicitly authorized by state law (as opposed to dispensaries that operate in a legal gray area created by unclear rules for supplying medical marijuana in states such as California). And it has always focused on bigger, more profitable operations in drug cases, leaving the rest to the states. As the DOJ keeps emphasizing, the feds have limited resources, and enforcement of marijuana prohibition is handled mainly by the states. Furthermore, it is hard to see what legal theory could be used to prosecute state employees who oversee a dispensary system unless they directly grow, handle, or distribute marijuana. In any case, busting state-licensed dispensaries or hassling state regulators would create big political headaches for the Obama administration.

If I had to guess, I'd say these things probably won't happen. But the Cole memo offers no assurances on that score. Obstructionist governors such as Christie, Arizona's Jan Brewer, and Washington's Christine Gregoire, who claim to be worried about federal prosecution, can cite the new memo to back up their position. At the same time, governors who are braver or more sympathetic to medical marijuana, such as Vermont's Peter Shumlin or Delaware's Jack Markell, can use Scotti's interpretation of the memo to argue that the risk is small. In short, the Obama administration is so vague, evasive, inconsistent, and dishonest on this subject that you might as well ignore what it says.

[Thanks to Richard Cowan for the tip.]

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  1. Similar to the slow legal battle for same-sex marriage, medical marijuana will become socially acceptable by degree

  2. I find it interesting how this issue has revived debate about the 10th Amendment.

    It is the Federal government here that is standing in the doorway of the dispensary preventing cancer patients from entering.

    By the way Rather, I subscribed to your email list.

  3. Aren’t Federal raids on small timers the best thing that could happen (for those who want bad press for the drug war)?

    1. In other words, we should sacrifice some poor fellows in order to bring attention to our cause.

    2. As a patient of one of those small timers, fuck you.

  4. Posted July 1, 2011


    Ms. Cris Ericson explains why the Vermont
    Medical Marijuana Law should be amended
    to include people who suffer with HERPES:

    I went to the gynecologist at the women’s clinic
    in a Vermont town on June 29, 2011.

    I had received a note that the previous Gyn
    left the clinic.

    I am sitting in the examination room waiting.
    There is the slightest quick knock on the
    exam door and a very young man in a
    white exam coat enters and says,
    “Hi! I’m Dr. (X), are you ready for
    your torture today?”

    I am not amused.

    We have a long argument.
    I am not feeling well enough to have
    a pap smear or breast exam.
    He states that “his rules” are that
    he will not give me a re-fill of the
    herpes suppressant medicine I have
    been taking for years unless
    I submit to him giving me a
    pap smear and breast exam.

    I explain to him that if I have to suffer
    going without the herpes suppressant
    medicine that the medicine instructions
    in fine print state that the herpes will
    come back worse than ever before.

    He ups his ante and makes more
    demands, now he wants a colorectomy
    butt exam or whatever its called and a

    I tell him I am opposed to mamograms
    because of the radiation.

    We argue about that. I forget to tell
    him that when I had the last mamogram,
    I broke out with herpes blisters on my breasts.

    Somewhere in the arguments he agreed
    that herpes can break out anywhere in the
    body, but he called it herpes zosters.

    He’s wrong. I know. I’ve had all kinds of
    tests on open sores and they were herpes.

    Why hasn’t he read online computer medical
    records before seeing me? Aren’t doctors
    supposed to take 2 minutes and 2 seconds
    to do that?

    I explain to him that I have had, in the past,
    untreated herpes blisters that turned to
    open sores and then the open sores
    turned green with infection.

    He stated that he never met me before
    and that he has no evidence from
    seeing me now that I need a herpes suppressant

    This is total bull, he should have spent
    five minutes looking at online computer
    medical records of me for the past
    years, going back to 1995, all in Vermont.

    I told him I had a blood test for herpes in
    1999 in Vermont at a Hospital in Vermont
    l and I would gladly take
    another one.
    When herpes shows up in a blood test,
    you need to keep taking the suppressant

    I told him that if I end up with blisters and then
    open sores that turn infected close to my spine
    which I have had before, that I could end up
    with herpes encephalitis.

    He said that was a problem for a back doctor,
    not a gynecologist.

    I said that every time a doctor tells me to go
    to a different doctor, and treatment is
    interrupted, that I suffer too much.

    A general practitioner tells me to go to
    a Gyn, a Gyn tells me to see a
    Dermatologist for my back,
    and it goes round and round.
    I feel that refusing to refill
    a prescription that I have had from this
    clinic for two years is a threat to me of
    manslaughter (because it can turn into
    herpes encephalitis and death.)


    He said he was going to mark in the records
    that my appointment had been cancelled today.

    Isn’t that outright fraudulently
    altering medicaid and medicare records;
    and medicaid and medicare are federal records?

    The young doctor, trained in Mexico, tells me
    he refuses to have me as a patient.

    The State of Vermont
    takes Medicaid and Medicare dollars and puts
    them into their new socialized medicine plan
    called, “Green Mountain Care”. “Green Mountain
    Care” has three levels of care, platinum care,
    gold care and silver care, then for the common
    poor folks like me, just Green Mountain Care.
    So, if you read the new socialized medicine law,
    you will see about page 10, that there are three
    levels of care, and it is quite clear that the State
    of Vermont is taking money from the poor,
    the Medicaid money, to provide healthcare
    for the middle class and wealthy citizens
    of Vermont. In order to do this, they appear
    to be letting go of regular doctors who
    previously provided healthcare for the poor,
    and the state appears to be substituting them
    with medical doctors trained very cheaply,
    allegedly, in Mexico.

    I receive Medicaid and Medicare, and Vermont
    has 100% socialized medicine;
    can the doctor
    refuse treatment?

    This is one of the reasons I have been on Social Security
    Disability, because I can’t get a doctor to give
    me consistent medical treatment in Vermont.

    Every time I am taken off of herpes medicine because
    a doctor leaves a clinic, or for any reason I need a
    new doctor, I have moved a few times to different
    areas of Vermont, then they say that I can’t prove
    I have herpes (despite the blood test on record
    at a major hospital in Vermont and despite medical
    records on computer in Vermont), so I go without
    the suppressant medicine and then I get so sick
    with blisters and open sores that I cannot function
    and I cannot hold down a job.

    It is also important to note that the Vermont Board
    of Medical Practice wrongfully took away one doctor’s
    license and disrupted my medical treatment that way
    in 2009.

    I complained to the D.O.J. that I believed the actions
    of the Vermont Board of Medical Practice were
    instigated by a former Vermont
    official was running against me for political office,
    and that I believed that I was being
    deprived of medication in order to thwart and disrupt
    my political campaign.

    The D.O.J. did not respond.

    Am I being continually attacked because I am
    a perennial political candidate in favor of expanding
    the Vermont medical marijuana law to include
    Herpes, and in favor of making medical marijuana
    legal under federal law?


  5. Yeah, I feel much better about the fact that as long as I stick to some arbitrarily-designated “small” dispensaries to get the most effective treatment in existence for my ulcers, I probably won’t be murdered by federal storm troopers. Unless they’re bored. Or the asshole with the mustache changes his mind again. So happy to have that clarified.

  6. Bear in mind that the Star-Ledger is anti-Christie, is using the marijuana issue to bash him, and as recently as three weeks ago was re-hashing the now-discredited allegation that Eric Holder had “ordered” that medical marijuana be left alone. They have little credibility on this issue (among others).

    1. And exactly where in the most recent memo does it say that “small” dispensaries are acceptable?

  7. Open letter to Roseanne Scotti:

    Instead of begging and imploring Christie, who was always skeptical about this program anyway, what about begging and imploring your man Barack Obama to keep his promise on this issue?

    Better yet, why not beg and implore him to support the bill introduced by Barney Frank and Ron Paul, which would remove all doubt about medical marijuana in the states that choose to allow it? Then we would no longer need to putz around with DOJ memos, trying to find supposedly “explicit” directives permitting medical marijuana and running the risk that they will be later “clarified” to jam those who thought they were acting lawfully.

    Of course, this would entail putting the Man Who Stands Astride the World Like a God on the hot seat in the run-up to his re-election. Guess we can’t have that.

  8. This is a big fat no. The only thing that helps any of the dispensaries is that more state, like Arizona, are coming online or will. There are only so many DEA pigs to run around causing havoc. The Arizona law limits caregivers to about 60 plants at a time. I think in the near future, these small scale grow yards are gonna blossom like mushrooms.

  9. In short, the Obama administration is so vague, evasive, inconsistent, and dishonest on this subject that you might as well ignore what it says.

    Same as it ever was. Really, you could just remove the words “on this subject” and you have a pretty concise description of the current administration.

  10. Obama is a dick for prohibiting cancer patients from getting their medicine. Christie is a pussy for caving into Obama.

  11. “small and controlled”? How can that be done in NJ given there will be only 6 distribution centers and no home cultivation. To best provide controls and insure safe medicine the grows necessarily need to be consolidated into only a few grow centers.

    Also how can that work in CO when dispensaries are expected to grow 70% of their own medicines with 2000 patient/members. Looks like the feds are favoring the chaos like in CA with little quality control and occasionally a dispensary is targeted by a fed crack down.

    Rescheduling this proven medicine from Sch 1 to Sch 3 makes perfect sense. How can the feds deny there is no medical efficacy for MMJ and keep Cannabis as a Sch1 controlled substance. Until rescheduling the feds can not provide any support for the MMJ industry or cannabis as medicine.

    1. Excellent point Stan. Add in that in NJ, the alternative treatment centers must cultivate the marijuana as well as distribute it. With only six cultivation centers for the entire system, it seems that they will fall on the “large scale” end of the divide.

      Also, I take judicial notice of the fact that this most recent memo made reference to laws that were passed after the original Odgen memo was released, and suggested that these states misunderstood the scope of the Ogden memo. New Jersey was one of those states.

  12. Nice blog is it…..

  13. “So far it has not raided any dispensaries that were explicitly authorized by state law (as opposed to dispensaries that operate in a legal gray area created by unclear rules for supplying medical marijuana in states such as California)”

    This is a false statement.

    1. And even if it were not false, if the standard is supposed to be compliance with state law—shouldn’t California first resolve the gray area take enforcement action before the Feds take it upon themselves to decide that these facilities violated state law?

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