The Highs and Lows of the State Based Approach to Medical Cannabis

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In America, medical cannabis is an ever-changing legal landscape. With any major federal change likely a few years off, state policymakers have been busy creating unique, state-based programs to meet their residents’ needs. This piecemeal approach to cannabis reform has produced several very successful programs. It has also, inevitably, resulted in several barely functional ones.

 

Clearly, there are issues with the diversity and functionality of a state-by-state approach to legislation, but overall it’s an exciting era for medical cannabis in the US. Today, a majority of Americans support changes to the strict federal scheduling of the plant, and a majority of patients in the country have access (in some form).

 

Yet, access isn’t equal. Some states protect patient rights, have well-controlled seed to sale programs, and low barriers to access. Others struggle to provide even a basic functional system. The medical cannabis landscape in the country at the start of a new decade is anything but simple.

 

Medical Cannabis in the US: An Overview

 

Today,  33 states, three US territories, and the District of Columbia provide legal access to medical cannabis. Additionally, 13 states have created more restrictive legislation for CBD-only products. In these states, such as Tennessee and Wisconsin, patients typically require a recommendation from a physician. Finally, 14 states have opened up recreational, adult-use sales in conjunction with medicinal programs.

 

At the time of this writing, there were only four remaining holdouts across the continental US: South Dakota, Idaho, Nebraska, and Kansas. The South Dakota Secretary of State announced in early 2020 that both medical and recreational cannabis would reach the ballot in November under Constitutional Amendment A. In Idaho, the Idaho Cannabis Coalition is working on collecting signatures to push medical cannabis through in 2020. In Nebraska, a similar initiative is ongoing. The Governor of Kansas, Laura Kelly, is planning to push for medical cannabis access this year as well.

 

From one state to the next, the laws vary significantly, forming a colorful mosaic of programs. Patients in Alabama, for example, only have access to CBD, and only through the recommendation of a prescribing physician for specific ailments. On the other hand, in Colorado, both medical and recreational cannabis is legal, making it widely available for adults ages 21 and over.

 

Beyond the low THC to high THC differences, there are significant contrasts between how each program is structured. Most governments have a list of approved qualifying conditions, and most require patients to apply for what is commonly known as a medical marijuana card. These cards are in the form of a license, patient ID, or registry program, which have application fees and require a certifying doctor’s recommendation. As a reminder, physicians are not legally allowed to issue prescriptions in the country, because cannabis remains a Schedule I classified substance under the Controlled Substances Act.

 

Other variations include legal limits, dispensary programs, patient access via delivery, and at-home grow options. Because each state has developed its own set of policies, no two programs are alike. It means there is no equality between the rights of a medical patient on one side of the country and a patient on the other. It has created significant challenges for supply and demand, not to mention for out-of-state residents seeking refills.

 

Where Medical Cannabis Programs are Working 

 

With a diverse landscape of legislation across the country, some patients are reaping the benefits of easy access, high-quality products, and low bureaucratic barriers. States with well-controlled, well-run programs ensure a wide variety of patients have barrier-free access to safe products. These states also protect patient rights.

 

Using these parameters and more, Americans for Safe Access create a “State of the States” Annual Report. In 2019, they determined the top states for patients included Oregon, Illinois, California, Hawaii, Nevada, Michigan, Maine, and Massachusetts. 

 

What sets these states apart from the pack? Hawaii supports patients by allowing personal cultivation and collectives. The state does not limit THC levels and provides for a variety of products (edibles, dried, flower, concentrates). Furthermore, the program is straightforward and easy to navigate, and they have no supply issues.

 

Illinois tops the ranks as well, according to Americans for Safe Access, because they have strong patient and civil protections. They also have programs supportive of using medical cannabis in response to the opioid crisis. 

 

These state-based approaches are successful because they support patients in a variety of ways, have well-controlled but not-restrictive access, and protect patients’ rights. 

 

Where Medical Cannabis Programs are Struggling

 

Among the 36 states, territories, and districts with medical cannabis legislation, not all are well executed or even functional. For example, Texas may have passed both Senate Bill 339 in 2015 and the Texas Compassionate Use Act in 2019, but the state has run into significant issues implementing this legislation. The Texas Compassionate Use Act allows for medical cannabis as prescribed by a physician, yet a prescription is federally illegal under the CSA. The Act is flawed from the get-go and requires a correction (as was passed recently in Louisiana) to allow instead for physician recommendations. 

 

As per the 2019 Americans for Safe Access Report, “Passing a medical cannabis law is only the first step in a lengthy implementation process, and the level of forethought and advanced input from patients can make the difference between a well-designed program and one that is seriously flawed.”

 

Other states with problematic, uncontrolled, or flawed legislation include Iowa, Wisconsin, and virtually every state in the southeast, like Kentucky, Georgia, South Carolina, and Tennessee. In each case, there are significant barriers to entry, issues with the supply chain, or straight-up flawed legislation that did not efficiently plan out the medical cannabis market from seed to sale. In these states, patients are not able to get the medicine they need.

 

What to Expect Going Forward

 

2019 was a significant year in the US, for the sole reason that two separate and much-talked-about bills made their way through the House. The first was the Marijuana Opportunity Reinvestment and Expungement (MORE ) Act of 2019. It was introduced to the Senate on July 23, 2019, and aimed “to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes.” 

 

Although the House Judiciary Committee passed the bill in November 2019, and it may even pass a vote in the House majority run by Democrats, industry experts predict a quick death within the Senate. Its goals are beyond what the federal government seems comfortable discussing.

 

Analysts have higher expectations for the Secure and Fair Enforcement (SAFE) Act, which passed in the House on September 25, 2019. The SAFE Act strives “to create protections for depository institutions that provide financial services to cannabis-related legitimate businesses and service providers for such businesses, and for other purposes,” and made history as the first cannabis-related act to pass a vote in the House. 

 

In early 2020, neither of these bills is making headlines with other, more pressing news sweeping across the country. Yet, more Americans than ever before are supportive of medical cannabis. Even in the four states with zero access, initiatives are well underway to create programs that fully support the needs of in-state patients. 

 

Medical cannabis initiatives may not see any federal headway in 2020, but certainly states will continue to expand, improve, and calibrate their individual programs. Within the next few years, experts believe all states will legalize the plant in some form. With nearly all states supportive of some medical cannabis access, it’s only a matter of time before the federal government will respond.