Medical Cannabis in Washington – SB 5052 Break Down by Aaron Pelley
SB 5052 passed the house and, after one more committee, will be on the way to the Governor for a signature enacting this latest bill into law. What will the “new laws” be? If passed, they are sweeping. Up until now, we have not been able to provide much, as anything we may say would have been pure speculation and the versions of this bill have changed dramatically over the last few months.
Now that we have the passage of the bill we can lay out the changes in the law and create an easy to read interpretation of this new law. Short of Section Veto, below is what we have determined to have the most impact on patients. Keep in mind that this particular article is focused on Medical Marijuana laws and we have passed over the changes to Recreational laws. Many of these new laws are aimed to funnel medical cannabis into a recreational framework and allow a single marijuana protocol in the state of Washington. Below are the bill’s key points as it relates to patients and the new Medical Cannabis laws. You will see some added protections (if you are willing to be registered), some reduced possession and cultivation amounts, new criminal penalties and a much less “grey” law, as legislature has hammered out most provisions that have been used to create the “safe access” model over the last decade. Over the next few years there will most likely be adjustments, lawsuits and high court decisions that will shape the law and how it shall be interpreted.
The article has minimal commentary, critical or legal analysis and is just to serve as an informational tool to the most notable changes to the Medical Marijuana Law. Lets start with the first relevant sections in regards to general information, then we will look at sections that specifically apply to Health Care Professionals, then we will look at what this law changes for patients.
Update: The billi is on its way to the Govenor’s desk. His number is 360-902-4111.
Establishes “The Liquor and Cannabis Board to oversee all Cannabis activity in the State of Washington.
Recreational Can Now Be Medical
Establishes the ability of Recreational retail outlets to carry MMJ endorsements to act as “dispensaries” with compliance to the registry. These retailers will be the ones to enter you into the Authorization database (Registry)
Below .03 THC Can Be Sold Under MMJ Licensing
A marijuana retailer or a marijuana retailer holding a medical marijuana endorsement may sell products with a THC concentration of 0.3 percent or less. Marijuana retailers holding a medical marijuana endorsement may also provide these products at no cost to qualifying patients or designated providers.
Marijuana Scheduling, Department of Health and Criminal Penalties
Removes marijuana products identified by the Department of Health in rule as appropriate for sale to qualifying patients and designated providers in a retail outlet that holds a medical marijuana endorsement (medical grade marijuana substances) from classification as a Schedule I controlled substance. Prohibits the Pharmacy Quality Assurance Commission from making a finding that any such marijuana product has met the criteria to be considered a Schedule I controlled substance.
Establishes a class B felony to manufacture, deliver, or possess with intent to manufacture or deliver medical grade marijuana substances, except for activities associated with marijuana producers, marijuana processors, marijuana retailers, marijuana retailers with a medical marijuana endorsement, cooperatives, collective gardens, and personal grows by designated providers and qualifying patients.
Establishes a class C felony to possess medical grade marijuana substances, unless it is possessed by a designated provider or qualifying patient who obtained it from a licensed marijuana retailer, a retailer with a medical marijuana endorsement, a cooperative, a collective garden, or the designated provider or qualifying patient.
Under 21, Under the Right Circumstances
Qualifying patients between eighteen and twenty-one years of age with an authorization card may enter and remain on the premises of a retail outlet holding a medical marijuana endorsement and may purchase products for their personal medical use. Qualifying patients who are under the age of eighteen with an authorization card and who accompany their designated providers may enter and remain on the premises of a retail outlet holding a medical marijuana endorsement, but may not purchase products for their personal medical use.
House Cleaning Arrest Protections
The possession by a qualifying patient or designated provider of marijuana concentrates, useable marijuana, marijuana-infused products, or plants in accordance with chapter 69.51A RCW is not a violation of this section, this chapter, or any other provision of Washington state law.
Butane is Not Acceptable, Unless We Say So
Establishes that it is unlawful to extract cannabis with explosive solvents such as butane unless licensed to do so by the state.
Arrest Protection, Under These Circumstances
Establishes that as long as activities are in strict compliance with the law Qualifying patients shall not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law based solely on their medical use of marijuana.
This includes designated providers and health care professionals.
Defining A Qualifying Patient
Establishes what is a “qualifying patient” is and affirms that beginning July 1st, 2016 there will be a MMJ authorization database (registry) for a “qualifying Patient” A “qualifying patient” does not include those on court supervision if the agency deems it contrary to their supervision.
Defining A Debilitating Condition
Establishes what is a “terminal or debilitating condition” “Terminal or debilitating medical condition” means a condition severe enough to significantly interfere with the patient’s activities of daily living and ability to function, which can be objectively assessed and evaluated and limited to the following: Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; (b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; (c) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; (d) Crohn’s disease with debilitating symptoms unrelieved by standard treatments or medications; (e) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications;(f) Diseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications and Post Traumatic Stress Disorder (Traumatic Brain Injury was added as a qualifying condition in one of the final floor amendments).
Defining An Authorization
Beginning July 1, 2016, “authorization” means a form developed by the department that is completed and signed by a qualifying patient’s health care professional and printed on tamper- resistant paper. “Authorization card” means a card issued to qualifying patients and designated providers by a marijuana retailer with a medical marijuana endorsement that has entered them into the medical marijuana authorization database.
Defining A Plant
“Plant” means a marijuana plant having at least three distinguishable and distinct leaves, each leaf being at least three centimeters in diameter, and a readily observable root formation consisting of at least two separate and distinct roots, each being at least two centimeters in length. Multiple stalks emanating from the same root ball or root system is considered part of the same single plant.
The law amended to protect authorizing physicians. As long as the Health Care provider is in compliance with the chapter they are not subject to arrest, prosecution, or civil penalties. In order to authorize the use of MMJ the health care 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.
For a qualifying patient eighteen years of age or older, an authorization expires one year after its issuance. For a qualifying patient less than eighteen years of age, an authorization expires six months after its issuance. An authorization may be renewed upon completion of an in-person physical examination and compliance with the other requirements of of this subsection.
A Doctor Shall Not:
- 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 section 35 of this act, sell marijuana concentrates, marijuana-infused products, or useable marijuana to a qualifying patient or designated provider
New Forms for Authorization:
The department shall develop the form for the health care professional to use as an authorization for qualifying patients and designated providers. The form shall include the qualifying patient’s or designated provider’s name, address, and date of birth; the health care professional’s name, address, and license number; the amount and type of marijuana recommended for the qualifying patient; a telephone number where the authorization can be verified during normal business hours; the dates of issuance and expiration; and a statement that an authorization does not provide protection from arrest unless the qualifying patient or designated provider is also entered in the medical marijuana authorization database and holds an authorization card.
Until July 1, 2016, a health care professional who, within a single calendar month, authorizes the medical use of marijuana to more than thirty patients must report the number of authorizations issued.
The appropriate health professions disciplining authority may inspect or request patient records to confirm compliance with this section. The health care professional must provide access to or produce documents, records, or other items that are within his or her possession or control within twenty-one calendar days of service of a request by the health professions disciplining authority. If the twenty-one day calendar limit results in a hardship upon the health care professional, he or she may request, for good cause, an extension not to exceed thirty additional calendar days. Failure to produce the documents, records, or other items shall result in citations and fines issued consistent with RCW 18.130.230. Failure to otherwise comply with the requirements of this section shall be considered unprofessional conduct and subject to sanctions under chapter 18.130 RCW. 19 (6) After a health care professional authorizes a qualifying patient for the medical use of marijuana, he or she must discuss with the qualifying patient how to use marijuana and the types of products the qualifying patient should seek from a retail outlet.
A Health Care Professional may sell or donate topical, non-ingestible products that have a THC concentration of less then .3 percent to qualifying patients.
A health care provider may opine on the amount of cannabis a patient may use and document that in their authorization. If a Health Care Provider does not put forth specific amounts then the default is as follows:
To purchase At a Recreational store w/ MMJ endorsement
- 48 oz. Marijuana-infused product in solid form
- 3 oz. useable Marijuana
- 216 oz. of marijuana infused product in liquid form
- 21 grams of marijuana concentrates.
- 6 Cannabis plants
- Up to 8 ounces of useable cannabis produced from their plants
If the Health Care provider determines the needs of a patient exceed the “default limits” then they may document on the patients authorization the following limits:
- Up to 15 plants
- Up to 16 oz.
- This information must be entered into the database (registry)
If a qualifying patient or designated provider has an authorization but is not entered into the database then they may not receive a authorization card and may only purchase at a retail outlet with or without a MMJ endorsement and may only purchase recreational limit amounts. If the same patient chooses to grow in their home they may grow up to 4 plants and possess up to 6 oz. of useable cannabis.
Under 18 years Old
- If the parent participates and consents to the minors use of MMJ
- The parent acts as designated provider
- The minor may not grow plants or purchase at a recreational store with a MMJ endorsement, a provider must make all purchases and maintain the grow.
- Both the minor and parent acting as a designated provider must be entered into the database.
A health care professional who authorizes the medical use of marijuana by a minor must do so as part of the course of treatment of the minor’s terminal or debilitating medical condition. If authorizing a minor for the medical use of marijuana,
the health care professional must: Consult with other health care providers involved in the minor’s treatment, as medically indicated, before authorization or reauthorization of the medical use of marijuana; and Reexamine the minor at least once every six months or more frequently as medically indicated. The reexamination must: Determine that the minor continues to have a terminal or debilitating medical condition and that the condition benefits from the medical use of marijuana; and Include a follow-up discussion with the minor’s parent or guardian to ensure the parent or guardian continues to participate in the treatment of the minor
When Authorization Database Starts
The Authorization database will begin on July 1, 2016.
Disclosure of Database
New law sets forth the fact that the database is exempt from disclosure
New MMJ crimes
- Unlawful access to the authorization database
- Disclosure of any information in the database
- Designated providers sell, donate, or otherwise supply cannabis obtained or produced for the patient to others
- Qualifying patients sell, donate, or otherwise supply cannabis that was produced or obtained by the patient.
- A person who is guilty of any violation of this section is subject to a class C felony!!!! Maximum incarceration of 0-12 months and up to $10,000.00 fine and or both.
- Persons under 21 years of age are prohibited from Possessing, manufacturing, selling, or distributing marijuana, marijuana-infused products, or marijuana concentrates, regardless of THC concentration, unless person is a qualifying patient with a valid authorization.
Arrest Protections & Database
This section amends .040 to make the arrest protections subject to compliance with the authorization database.
- However, the section (1)(a) also allows a person to be both a qualifying patient and designated provider and have no more than twice the above-mentioned medical amounts.
- Submission of proof of authorization to law enforcement is mandatory.
- A designated provider must not serve as a designated provider to more than one qualifying patient within a 15-day period.
Not In the Database
A qualifying patient that chooses not to be a part of the Authorization database may only assert an affirmative defense (such as we have now) but only if they are in compliance with the chapter. However the burden is merely preponderance of evidence at trial.
If you are over limit the officer, in his discretion, may arrest and book the patient into jail.
The New Cooperatives
- No more than 4 qualifying patients or designated providers at a time.
- Cooperatives must not be located within 1 mile radius of a marijuana retailer.
- Location of Cooperative must be registered with LCB
- Meds grown through the cooperative must only go to patients in the static cooperative.
- If a patient leaves the cooperative then the cooperative must wait 60 days to sign up a new member.
- Cooperatives must grow only the amount of the four authorized patients are allowed to grow with a maximum of 60 plants.
- Possession is capped at no more than 72 ounces within the cooperative
- Patients can only be a part of one cooperative
- Must provide sweat equity in garden, no monetary participation
- Only one cooperative per parcel and must be in the domicile of pone of the members
- Possible requirements of “seed to sale” tracking and other safety requirements as the LCB sees fit
- Must submit to inspection for compliance
Multiple Patients in One Domicile
- Even if multiple patients and providers live in one housing no more than 15 plants can be grown unless registering as a cooperative.
- No production or Processing if any part of the process can be seen in plain view or readily smelled from a public place or the private property of another housing unit
- Cities, Towns, Counties, and other municipalities can create and enforce civil penalties.
Extractions for Patients
The LCB must come up with rules for non-combustible extraction for qualifying patients and designated providers
Possession of More Than Allowed
If a patient is in possession of more than allowed, either plant, dry weight, or infused products, the patient is entitled to an affirmative defense at trial by overcoming a preponderance of evidence that the amount is medically necessary for their medical use.
Law Enforcement may seize the overage allowing the patient to choose which plants to take or leave to become compliant with the limits set forth for the qualifying patient or designated provider.
Ongoing Exemption for Courts to Disallow MMJ Use for the Criminal Justice System
Nothing in this chapter allows a patient under supervision by a court, jail, probation department, or
department of corrections to participate in any medical use of marijuana contained in this chapter.
Ongoing Exemption for Everyone Else
- You cannot use insurance to pay for medical marijuana.
- Nothing in this chapter allows use at place of employment, school bus, school, hotel, and motel.
- However a school may permit use by a qualifying patient under 18 but the school is not bound to allow such use.
- No allowance of use on federal property.
- Nothing in this chapter allows use by one who is subject to the Washington code of military justice.
- Employers do not have to accommodate the use of Medical Marijuana
- No claim to protection of arrest or prosecution while engaging in the use of marijuana while operating a motorized vehicle
Collective Gardens (The Collective Garden Section is Stricken)
No more than 10 qualifying patients No members of the collective garden may be under the age of 21, they must choose a provider to participate in the collective garden for them No more than 15 plants per member up to 45 plants total No more than 24 ounces of useable cannabis per patient up to 72 ounces No useable marijuana from the collective garden may be sold, donated, or otherwise supplied to anyone outside the collective garden.
Designated Provider Revocation
A qualifying patient may revoke their designated provider at any time and may choose a new provider if necessary. This cancelation must be in writing, signed, and dated. This must e entered into the authorization database
The designated provider must then wait 15 days to take on a new patient.
The most recent version of the bill can be found here. This article focused on the changes that, in our view, will have the most impact on patients. If you are a medical cannabis patient, we strongly suggest you review the final bill and determine how it will impact you. If the final bill is signed into law, we will dive into the legal issues and potential pitfalls in posts that follow. In the meantime, feel free to contribute your thoughts on the changes in the comments.