Washington Legislators Mull Ban on Medical Marijuana Dispensaries, Competition for State-Licensed Pot Shops


A Greener Today

Last summer Mark Kleiman, the UCLA drug policy expert who has advised Washington state's marijuana regulators, told me "the legal market is going to have a hard time competing with the illegal market, but a particularly hard time competing with the untaxed, unregulated sort-of-legal market." He was referring to the hundreds of medical marijuana suppliers in Washington, which are not licensed by the state but operate under creative interpretations of a provision allowing patients to create "collective gardens." Yesterday the state House of Representatives took up the question of how to deal with these competitors. The leading proposal, reflected in a bill considered by the House Health and Wellness Committee, is to ban them.

Under H.B. 2149, introduced by Rep. Eileen Cody (D-West Seattle), patients would instead obtain marijuana at the same state-licensed stores that serve recreational consumers, which will be regulated by the Washington State Liquor Control Board. Those stores are expected to start opening this summer, and under Cody's bill they would be the only commercial providers of medical marijuana as of May 1, 2015, when the provision allowing collective gardens would be repealed. The bill would create a "patient recognition" system (don't call it a registry!) that would allow cardholders to buy up to three ounces at a time (as opposed to one ounce for recreational customers), avoid paying sales taxes (a privilege addressed in a separate bill), and claim immunity from arrest for possession or cultivation within the limits set by law. Currently there is no central record of qualified patients. Patients with doctor's recommendations have an affirmative defense against marijuana charges, meaning they can still be arrested, although not convicted. H.B. 2149 would eliminate that affirmative defense, effectively requiring qualified patients to register with the state if they want to be recognized as such.

Cody's bill, which tracks the final recommendations of the liquor control board pretty closely, would reduce the cap on possession of medical marijuana from 24 ounces to three (or up to eight if a health care professional documented an extraordinary need). It would continue to allow home cultivation for medical use while reducing the maximum number of plants from 15 to six (three of them flowering). The provision allowing home cultivation would expire on July 1, 2020, at which point the state-licensed stores would become the only legal source of medical marijuana unless the legislature decided, based on the results of a study mandated by the bill, that they were not adequately meeting patients' needs. The bill also would restrict the use of marijuana for relief of "intractable pain," which would have to be "objectively assessed and evaluated" and "of such severity as to significantly interfere with the patient's activities of daily living and ability to function." 

At yesterday's hearing, patients complained that the amount of home cultivation allowed would not be adequate for some people's medical needs; that their medicine would be subject to the new marijuana excise taxes (25 percent at each of three levels), although not the standard sales taxes (which total 9.5 percent in Seattle); and that the elimination of home cultivation in 2020 would leave them with no legal alternative if the marijuana sold by the state-licensed stores proved too expensive or ill-suited to their symptoms. "We are self-regulating," said Stephanie Viskovich of the Cannabis Action Coalition. "We have created a system that does work for us."

What works for patients, however, does not necessarily work for the state, which wants to maximize tax revenue and head off federal intervention by creating a tightly regulated system aimed at preventing diversion to minors and other states. Although the backers of I-502, Washington's legalization initiative, assured skeptics that the measure would not change the rules for medical marijuana, it was pretty much inevitable that legislators would once they absorbed the fiscal and political realities created by the new distribution system.

The legislature has until March 13, when its 2014 session ends, to approve a bill regulating medical marijuana. In addition to Cody's bill, the options include S.B. 6178, introduced yesterday by Sen. Jeanne Kohl-Welles (D-Seattle), a longtime champion of medical marijuana. Her bill, like Cody's, would eliminate "collective gardens" and create a "medical marijuana verification program." But according to her office's summary, that program would be voluntary; patients without state-issued cards would still have an affirmative defense. Kohl-Welles' bill also sets a higher limit on cultivation than Cody's bill does (10 plants vs. six) and allows possession of larger amounts (eight ounces vs. three, with higher quotas allowed by special permission). She would exempt medical marijuana from the 25 percent excise tax at the retail level but not the standard sales taxes.

"I feel reasonably optimistic that we'll get something through," says Kohl-Welles. "I anticipate most legislators will see the need to do something about medical marijuana. They won't want a totally unregulated system."