Medical Marijuana Spurs Reconsideration of Apartment and Condo Smoking Ban in Santa Monica

Santa Monica is referred to as the People's Republic of Santa Monica, sometime jokingly and sometimes seriously, among Angelinos.

In this case it's because of a ban which would have designated the apartments of new tenants as non-smoking, and would have only designated the units as smoking if the tenant informed their landlord. Enforcement of the ban would have been left to neighbors, with fines starting at $100, then $200, then $300.

An existing law prohibiting smoking on private balconies, porches and decks within a 25-foot radius of doors, windows and vents was in effect before the current proposal. While it wouldn't be the first city in southern California to attempt to ban smoking in residences (Calabasas, a little further north on the 101, has a similar ban), its progressive politics hurdled head on into its, well, progressive politics.

Concern that medical marijuana users would have to report their use to their landlords prompted one member of the the Santa Monica City Council reconsider their vote, the L.A. Times reports.

While the measure initially passed 2-4 on its first reading, the ban ultimately failed with a vote of 4-2. The council instructed the city staff to rework the ban, but did not give a date when it could take up the issue again.

BREAKING: L.A. City Council OKs Plan to Close Dispensaries, Drafting Plan to Keep Some Open, Contradicts Itself

In an attempt to clarify medical marijuana laws in Los Angeles, its city council is shuttering all registered dispensaries, but muddied the waters by also approving of a plan instructing the city's staff to allow 170 of the storefronts to remain open, the L.A. Times reports.

Confused? You aren't the only one.

The vote to close the pot shops was unanimous among the 14 city council members. Two or three person collectives which could grow and distribute marijuana amongst themselves are approved under the new measure, but pro-access advocates testified that it took years of training and at least $5,000 to cultivate medical grade cannabis.

The 726 dispensaries that registered with the city will be sent letters instructing them to close their doors. If they don't they'll face legal action. Unless they're one of the 170 that are allowed to remain open.

Councilman Jose Huizar, who called for the total dispensary ban, did not support the vote to leave 170 dispensaries intact. He promised the ban would be enforced — but he also acknowledged the city may not have the resources to shut down every dispensary in the city.

I-502 Gets $1.25 Million Shot in the Arm

Washington's Initiative 502 just got a major boost — a contribution of $1.25 million, the Seattle Times reports.

Prior to the million dollar shot in the arm, supporters of the ballot measure to legalize the purchase and possession of up to an ounce of marijuana raised $1.7 million. I-502 campaign manager Alison Holcomb said $1 million of the new contributions will be used to buy TV ads in August.

The $1.25 million comes from the Drug Policy Alliance and, surprisingly, Progressive Insurance founder Peter Lewis. At least now we know why Flo is so amicable.

Though the measure was initially met with skepticism and support trailed in polls, is now at 55 percent for and 32 percent against, according to a Washington TV station.

Supporters credit voters with becoming educated about the regulations that the measure will put in place, such as prohibitions against sales to anyone under 21, as well as becoming more comfortable with the proposal.

I-502: Tax Revenue at the Expense of Affordable Patient Access

     Supporters of I-502 boast of projected state tax revenues of more than $500 million annually.  During tough economic times, this fiscal boost appears encouraging, but at what cost to medical cannabis patients?

     Patients currently pay sales tax on medical cannabis, despite the fact that “prescribed” medicines, like antibiotics, insulin and oxycodone, are exempt from sales tax.  I-502, unfortunately, goes a step further, and in addition to sales tax, imposes a 25% excise tax (“cannabis tax”) on every transaction involving cannabis.  Thus, tax is imposed on each wholesale purchase and every retail purchase of cannabis. This “pyramiding” of the cannabis tax is unlike sales tax, which is generally imposed only on the final retail transaction.   

     So why is this pyramiding of the tax so significant?  I-502 sets up a licensing structure for the production, processing, and sale of cannabis, resulting in potentially three transactions of cannabis from the grower to the patient: (1) grower à processor; (2) processor à retailer; (3) retailer à patient.  For example, assuming a gram of cannabis is priced at $5/gram by growers; $10/gram by processors; and $15/gram at retail, the total cannabis tax paid is $7.50.[*]  

Sale	Price per Gram	Cannabis Tax	Sales Tax
1stSale: Producer/Grower to à Processor	$5/gram	$1.25
2nd Sale: Processor à Retailer	$10/gram	$2.50
3rd Sale: Retailer à Consumer	$15/gram	$3.75	$1.78
Total Tax		$7.50	$1.78

Total State Tax = $9.28.  This total does not include other applicable state and local taxes, including business and occupation tax.

      Although I-502 moves in the right direction with regard to the decriminalization of cannabis, its taxing scheme is harmful to patients.  The 25% cannabis tax is ultimately passed on to patients by way of higher prices for medicine.  Washington voters passed laws permitting the medical use of cannabis out of compassion for the sick and disabled.  This taxing scheme flies in the face of that compassion.  At the very least, I-502 should have include tax relief for medical cannabis patients.   An open and honest discussion on the impact of this onerous taxing scheme on medical cannabis patients must join the discussion on the implications of I-502.

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[*] Purchase and resale by an independent processor may be excluded, reducing the total cannabis tax paid to the state.

Forget What You Learned in School — Alcohol is the Real Gateway Drug

As anyone who's been through a DARE speech — and that's pretty much anyone who's gone to school in the United States — one of the first things they tell you about cannabis is that it's a "gateway drug." 

By that they mean one puff from a joint, pipe or vaporizer will condemn you to a life where you are not only at the mercy of mary jane, but harder drugs like heroin, cocaine and toad licking. Think "Reefer Madness," and those of you who've never sat through one of those presentations will understand.

It's taken as gospel among anti-drug crusaders, despite the fact we've have presidents who've admitted to smoking pot (regardless whether or not they actually inhaled), as have a sizable number of active and productive adults in the last 50 years.

A University of Florida study calls that orthodoxy of drug control into question. In fact, it's a legal substance (though not for minors) that they've discovered is more likely to lead them down the path of harder drugs.

Alcohol.

From a University of Florida press release about the study, to be published in the August issue of the Journal of School Health:

"In addition, the drug use documented found that substance use typically begins with the most socially acceptable drugs, such as alcohol and cigarettes, then proceeds to marijuana use and finally to other illegal, harder drugs. Moreover, the study showed that students who used alcohol exhibited a significantly greater likelihood — up to 16 times — of licit and illicit substance use."

Tacoma City Council Pro-Cannabis in Legislation, Newspaper Runs Anti-Pot Editorial

The Tacoma City Council plans to zone areas where marijuana would legally be sold, and it's a bold first step to bring sanity and a mature perspective to medical and recreational marijuana use.

You'd think the media would give credit to legislators who are forward thinking and who have the fortitude to stand up for individual rights. But you haven't read The News Tribune.

A plan to sanction areas where medical pot dispensaries can operate legally is poised to be approved. Additional plans call for collective gardens, where those with a green card (which The News Tribune characterizes as "easy to obtain") can buy marijuana.

Their editorial acknowledges there is a need for police to easily patrol areas where there are dispensaries, stating "there’s much to be said for creating a legal framework that would restrict medical marijuana locations and allow Tacoma police to better monitor them."

But The News Tribune perpetuates the notion that all dispensaries must be illegal. However, they do not recognize in their opinion piece is the money the city of Tacoma will save by effectively legalizing marijuana and giving those who are looking for pot a defined place to look for it.

The article also notes how the collectives and dispensaries will be located in economically depressed areas. However, it also fails to take into account the taxes and revenues that will be generated by cannabis-related businesses and the establishments around them.

This is a rare instance where politicians should be applauded for their foresight — however, The News Tribune's adherence to a status quo that's being increasingly challenged? Not so much.

Dispensaries Back in Business in L.A.? Not so Fast, Says Appeals Court — the Same One that Struck Down Dispensary Ban!

A day after a California appeals court threw out a dispensary ban in unincorporated Los Angeles County, a panel — from the same court — affirmed limits on the number of dispensaries in the city.

The previous decision by Los Angeles County Superior Court Judge Anthony Mohr overturned the bans on the basis of preemption. Mohr found that the state law medical marijuana allowed dispensaries to operate without criminal prosecution, despite officials charging owners and operators with misdemeanors.

However, Los Angeles Superior Court Judge Douglas Sortino, wrote the next day that there was no preemption, based on prior court decisions and laws passed after those cases.

Naturally, the Los Angeles City Attorney was relieved with the decision. Los Angeles Special Assistant City Attorney Jane Usher said: "We're tremendously gratified that the court of appeal understood the state's medical marijuana laws and how they apply to the city's ordinance. The court of appeal reversed the trial court on each and every ground."

But it might not be as clear as the city attorney hopes. Doug Galanter, a lawyer representing one of dispensaries involved in the case, said, "We think the justices got it wrong on the question of privacy rights and due process, because we do think that state law does confer certain rights that afford due process."

In other words, situation normal...you know the rest.

http://www.metnews.com/articles/2012/pot070612.htm 

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202561993785&slreturn=1

Collective in Israel Develops THC-Free Pot

An Israeli medical pot collective has developed a practically THC-free strain of the plant.

Medical marijuana is legal in Israel, and it's controlled by the country's Ministry of Health. Around 6,000 Israeli citizens are registered medical cannabis users. Tikkun Olam, which translates to Healing the World, grows pot and operates the country's only storefront dispensary.

Users of the Tikkun Olam's new strain of THC-free pot, known as CBD, told Public Radio International's "The World" that it does not have the same intoxicating effects of the drug. It allows patients who are taking pot for infections and nausea to smoke throughout the day without impairing their normal daily activities.

However, not all patients are able to use pot without THC. Pain patients and Parkinson's Disease sufferers, in particular, have noted that CBD does not alleviate their problems.

But even with the minimal amounts of THC in the plants, don't expect to see CBD at a collective or dispensary in the US anytime soon. Despite the fact that the federal government claims that cannabis is illegal because of THC, CDB will still be a banned import.

California Appeals Courts Rule that Dispensary Bans are Illegal

A court decision has again thrown a monkey wrench into the agenda of anti-access groups by deciding the dispensary ban in the unincorporated areas of Los Angeles is a violation of the state law that legalizes medical cannabis.

Arguments against the establishment of dispensaries, such as storefronts and pot sales being in violation of the state medical marijuana laws, were swept away by a California Appeals Court, the Long Beach Post reports. The bans, the court wrote, relied on an "unduly" narrow interpretation of the law.

The ruling concurs with another appeals court in February that decided local governments could not ban dispensaries altogether. Like the recent ruling, it exempts patients and caregivers from criminal prosecution for taking part in legal medical activities and from nuisance abatement hearings — or negative secondary effects, such as supposed increases in crime around the dispensary.

"Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance," the February ruling read.

These decisions will no doubt force the Los Angeles City Council to reevaluate a proposal to close all the city's dispensaries.

California Supreme Court Declines to Hear Medical Pot Case, Sends Mixed Message

The Los Angeles District Attorney, City Attorney and Police Department are high-fiving each other over the decision of the California Supreme Court not to hear a case involving its prosecution of Organica, a dispensary.

Organica maintained that its operations were legal under the state law that allowed collectives. The city argued that selling pot — even to patients, in the case of Organica — still violated laws against distribution and prevailed.

Los Angeles has since moved to outlaw dispensaries wholesale. Never mind that other pharmaceuticals are sold for a profit, that collectives have been known to discount and sometimes give away cannabis to patients in financial distress, and the author of the state medical marijuana law allowed for sales.

However, Kris Hermes, Americans for Safe Access spokesman, told the L.A. Weekly the issue still isn't settled. Other decisions before the Supreme Court could affirm that Organica was in the right.

Federal Court Ruling May Change Probable Cause in Cannabis Cases

A recent federal district court ruling in Spokane is something every medical cannabis attorney, patient, provider and advocate needs to be aware of—not only in Washington State but throughout the entire Ninth Circuit. The ruling is also something of a victory for Washington's recently changed medical cannabis law, because for the first time a judge has ruled in a way that gives quasi arrest protection under the state medical cannabis law and has likely set an interesting precedent on probable cause and cannabis. And the ruling came from a federal court judge. It was also a bit of a slap to the US Attorney's Office in Eastern Washington.

Last November, Spokane County Sheriff's deputies thought they had sniffed out a large cannabis grow in Spokane based upon a deputy's observation of odor of growing cannabis and so they did what narcotics cops often do: They ran the plates on a car at the home and determined that it was someone who'd been convicted of growing in the past. They examined power bills. They visited the home, smelled cannabis odors and made entry and busted several people and, eventually, seized evidence from both that home and a separate storage facility. Then they turned the case over to federal officials in Spokane who indicted the alleged cannabis growers for manufacturing above 100 plants. If convicted, the alleged growers would each be staring at five years minimum in federal prison.

But, in a filing in May, their attorney Richard Wall argued that all of the evidence seized were the fruits of an illegal search and seizure, a violation of the 4^th Amendment. He argued this based upon the fact that, in his view, that Washington’s medical cannabis law had changed in 2011 from affirmative defense-only to something more akin to complete decriminalization of medical cannabis, even for growing, provided that people stayed within certain limits of possession. Here's the relevant language at RCW 69.51A.040:

The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law.

In his filing, Wall argued that since there was no evidence in the search warrant affidavit that the deputies had attempted to determine how many plants were present at the location and had made no attempt to determine if anyone at the residence was actually in compliance with the state medical cannabis law, then there was no legitimate probable cause for the search and that any evidence seized should be quashed. What's more, since these were local police and they had not been operating as federal officers or claiming violations of federal law in their search warrant affidavit, then again the evidence seized needed to be tossed out of court.

Wall argued:

In order to establish probable cause to believe that a person has committed or is committing the crime of unlawful use, possession, or manufacturing of marijuana under Washington law, it is not enough to merely show that the person used, possessed, or manufactured marijuana. Instead, probable cause can be established only by showing that such use, possession or manufacturing failed to comply with the terms and conditions of RCW 69.51A.

On May 31, a Senior US District Judge named William Nielsen issued an order accepting Wall's argument and quashing the evidence in the case. Judge Nielsen wrote:

Contrary to the Government's assertion, a state crime has not been committed simply by possessing or manufacturing marijuana in Washington. If the person complies with the medical marijuana statute, they have not committed a state crime....The Court find that the statute is clear on its face and that the medical marijuana exception and the general controlled substance statute must be read together in a manner that gives both effect....It is uncontested that while the affidavit supporting the warrant included evidence of a marijuana grow, there was no mention of them edical marijuana statute or an assertion that the grow violated the medical marijuana statute. This omission is fatal to the warrant as the warrant then does not show probable cause of a crime.

The judge invited the feds to file a reconsideration of its evidence, which the US Attorneys Office for Eastern Washington did, but without success.

Judge Nielsen's ruling is remarkable on a number of fronts: It's literally the first time I've ever seen a federal court judge allow and acknowledge the authority of a state medical cannabis statute, especially in pre-trial maneuvers; it's the first time I can remember a federal court judge saying he was bound to give a state medical cannabis law “effect;” it would appear that the common use of odor of cannabis as probable cause is now out the window in states with medical cannabis law, at least up until an officer has determined if someone is a medical cannabis patient in compliance with their state's medical cannabis law; power bills, another common probable cause tool, would be similarly effected.

In late June, the US Attorney's Office for Eastern Washington filed an appeal of Judge Nielsen's order with the Ninth Circuit Court of Appeals and asked for that a stay be placed on the order. While the Court of Appeals has not ruled yet on the case or the stay, the judge's order is on hold. It is quite likely that whatever appeal the feds file will be met with several opposing amicus briefs.

Unless Judge Nielsen's order is overturned by the Ninth Circuit Court of Appeals, it is a ruling that can be employed by medical cannabis patients and defense attorneys most especially in Washington State, but also in other Ninth Circuit states with medical cannabis laws (California, Hawaii, Oregon, Alaska, Nevada, Montana and Arizona).

California Assemblyman Ammiano's Bill to Regulate Medical Pot Stalled Until Next Legislative Session

California Assemblyman Tom Ammiano's attempt to bring order to the often chaotic patchwork of local laws governing marijuana came to a screeching halt.

Ammiano's bill would have required dispensaries to obtain state licenses in addition to local permits, pay a 2 percent tax, set up a state enforcement bureau for collectives, allowed one pot dispensary per 50,000 people and allowed localities to enact their own bans on dispensaries. However, the potential of cities banning dispensaries — which was inserted into the bill after a committee hearing — prompted the pro-medical marijuana group Americans for Safe Access to withdraw its support for the bill.

ASA spokesman Kris Hermes told the SF Weekly that there are more bans than cities with regulations and that the organization is now "reticent to continue supporting it." Dispensary owners also spoke out against the bill. "AB 2312 favors large-scale, wealthy collective operators over the small collectives providing true community benefit. While statewide guidelines need to be codified, AB 2312 in its current form is a bureaucratic monstrosity that creates more problems than it solves," medical pot activist Degé Coutee wrote.

The bill will return to committee hearings in the fall and may be picked up again in the 2013 session.

Motivations for the Postponement of L.A. Medical Marijuana Vote Unclear

Medical marijuana proponents in Los Angeles were granted a temporary reprieve with the postponement of a vote to shutter the city's dispensaries until July 24.

Several key members of the L.A. City Council were not in attendance, pushing the date of the vote back. KCBS/KCAL reports that KNX 1070′s John Brooks said the delay was the result of a deal in the works to keep non-profit, non-cash medical marijuana operations open.

However, the true motivations of the delay may be more sinister. The L.A. Weekly believes that the delay may be a tactic to put the issue out of the spotlight.

"But City Council delays like this are all too common on controversial and heavily opposed items. By constantly putting off a final vote, politicians are able to wear protesters down and whittle the crowd to a devoted (and often loony) few," the L.A. Weekly's Simone Wilson wrote.

Wilson quotes dispensary owner Matt Hammer saying, "I can't tell you how many times since 2006 that something was going to come before the council, and then we find out it's not going to happen."

Support for Legalized Marijuana in Washington State is High at 50 Percent to 32 Percent

A recent poll found support for Washington state's initiative to legalize marijuana, I-502, with an impressive 50 percent for and 37 percent against. The primary proponents of the measure are voters under 30, Republicans who represent party's libertarian wing and male voters, reported SeattlePI.com.

The poll, conducted by Public Policy Polling, supports the hopes of Washington Democrats for a larger than usual youth turnout — which usually votes Democratic.

Supporters of I-502 charge that Asian street and biker gangs from British Columbia as well as Mexican cartels are reaping untaxed profits while the marijuana trade is unregulated. The revenues from legalized pot will go to drug education and health programs.

Though support of the issue at this point is far from fringe, the Republican and Democratic candidates for governor expressed their opposition to the measure. This is despite support coming from former federal and local law enforcement officers.

Research Paper Questions Anti-Pot Assumptions Regarding High Schools Next to Dispensaries

Another study, and another piece of "conventional wisdom" about medical pot goes down the toilet

Two studies, one by think tank RAND Corporation and another by the University of California — Los Angeles found no correlation between increased criminal activity around dispensaries. (The RAND study was retracted by pressure from the L.A. City Council and the researchers in the UCLA study, strangely, seemed unconvinced by their own findings.)

Anti-marijuana forces have taken it for granted that areas where high schools and dispensaries co-exist leads to increased teen use, with anecdotal stories of students being high on medical-grade pot.

However, a new survey found that there is no statistical evidence that dispensaries in the area leads to increased use by teens, reports medicalxpress.com.

The study, titled "Medical Marijuana Laws and Teen Marijuana Use" for Germany's Institute for the Study of Labor, is co-authored by Daniel I. Rees, a professor of economics at the University of Colorado Denver, Benjamin Hansen, assistant professor of economics at the University of Oregon and D. Mark Anderson, assistant professor of economics at Montana State University. (An abstract of the working paper can be found here.)

"This result is important given that the federal government has recently intensified its efforts to close medical marijuana dispensaries," Hansen said.

"In fact, the data often showed a negative relationship between legalization and marijuana use." Anderson added, "We are confident that marijuana use by teenagers does not increase when a state legalizes medical marijuana."

BREAKING: L.A. City Council May Vote on Dispensary Ban Friday

Degé Coutee, executive and program director for the Patient Advocacy Network, passes on an urgent notice to dispensaries and medical marijuana patients that AB 2312, which would shutter all dispensaries in Los Angeles, will likely be taken up by the Los Angeles City Council on Friday, June 22.

He urges interested parties to attend the council's regular meetings on Tuesday and Wednesday to speak when it takes two minute general public comments. If the proposed bill is placed on the agenda for Friday, public comments will not be heard.

Coutee urges patients in L.A. to contact their council members directly if they cannot attend the meetings. La Brea Collective will also be organizing speak outs during the Tuesday and Wednesday meetings.

Dr. Bonner's Magic Soaps Exec Stages Hemp Protest in D.C., Arrested

While you may know Dr. Bronner's Magic Soaps as whimsically-labelled castile cleaners, the company imports more than 20 tons of hemp oil a year from Canada. Due to current drug laws, hemp cannot be cultivated domestically for agricultural use — despite the fact that its low THC content renders it unusable for medical or recreational drug purposes.

David Bronner, president of Dr. Bronner's Magic Soaps, publicly processed and pressed 10 hemp plants for their oil within view of the White House. Bronner wanted to place a friendly beer bet with President Obama that the plants had as much drug value as poppy seeds on a bagel, theweedblog.com reported.

Bronner, who is affiliated with he pro-pot organization Vote Hemp, was arrested by Washington D.C. police. Vote Hemp sued the DEA in federal court in 2010 to allow domestic production of industrial hemp. They prevailed, but hemp production was never authorized. After seven months, they received the following platitude from the Office of Drug Control Policy:

America’s farmers deserve our Nation’s help and support to ensure rural America’s prosperity and vitality. Federal law prohibits human consumption, distribution, and possession of Schedule I controlled substances. Hemp and marijuana are part of the same species of cannabis plant. While most of the THC in cannabis plants is concentrated in the marijuana, all parts of the plant, including hemp, can contain THC, a Schedule I controlled substance. The administration will continue looking for innovative ways to support farmers across the country while balancing the need to protect public health and safety.

Over a hundred thousand dollars of hemp oil is imported into the US each year because of the laws. As a state senator in Illinois, President Obama voted for hemp cultivation twice.

Federal Judge Throws out Evidence in Medical Pot Case

A federal judge ruled against law enforcement in a Spokane case, prohibiting prosecutors from using evidence gathered sized during a sheriff's raid, The Spokesman-Review reports.

Attorney Richard Wall, who represents a man charged by a federal grand jury on drug charges, moved the evidence against him be suppressed because law enforcement did not take into consideration Washington state's new medical marijuana laws when obtaining the warrant.

Wall said, "In this case they simply just did what they'd always done."

Current medical marijuana laws in Washington allows the cultivation and distribution of marijuana if its in compliance of those laws.

Law enforcement, predictably, claims the ruling will tie their hands when they need to investigate drug cases. An anonymous "drug detective" said the difficulty of establishing whether or not a suspect was following medical marijuana laws would hamper their pot investigations.

Are City, State Employees At-Risk Over Medical Cannabis Laws?

Last year, as the Washington State Legislature pushed a medical cannabis reform bill through both chambers, the US Department of Justice was pushing on another track. The bill, SB 5073, contained provisions legalizing state licensed medical cannabis dispensaries and producers much along the lines of regulations passed in Colorado in 2010.  Apparently, DOJ was alarmed by what it saw in Colorado: state-licensed dispensaries popping up across the state and all under the purview of Colorado's Department of Revenue.  At the same time, loosely-regulated dispensaries were cropping up all over California (some regulated locally, some not).  All while cannabis remained on Schedule I of the Controlled Substances Act.  The feds had remained silent while Colorado enacted its new medical cannabis law and here was Washington set to go down the same path.

As 5073 cleared both the State Senate and State House, Governor Christine Gregoire wrote to the DOJ in Washington, D.C. seeking guidance as to the effect of the bill's implementation as regards federal law.  Someone—and to this day, no one knows who—put the Governor up to making this query.  Two days later, the two US Attorneys for Washington State responded in a letter and told Gov.Gregoire that the feds remained committed to vigorously enforcing the federal CSA on cannabis regardless of any state laws.  Most of their emphasis was upon potential prosecutions of licensees under the proposed state law.

But then came a new tack in what was about to become a wide-ranging federal push-back on medical cannabis: the feds threatened to prosecute state employees who would implement the program.At least that's how media reports at the time read the letter.  So it is instructive to review what the US Attorneys actually wrote in their joint letter:

State employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.

Soon after, the Governor stated at a press conference that she would veto any portion of the bill that she felt put state employees at-risk.  This was an important statement for her to make, as the bill was already slated for a State Senate concurrence vote on the House version of the bill.  Gov.Gregoire was deluged with phone calls and emails asking her to ignore what many called a bluff by the feds.In the then 15-year history of medical cannabis in the US, not a single state or local official had been prosecuted or found liable for violating the CSA while implementing any provision of a state medical cannabis law.  Both Colorado and New Mexico had some form of state licensing of medical cannabis dispensers or growers at that time—and the feds had not threatened to go after either state or its employees or any local officials in those states.

Most prominently, Gov.Gregoire received a letter from Hugh Spitzer, a Seattle attorney and University of Washington School of Law professor.  Spitzer is also an expert on federal-state conflicts. He told the Governor she could safely ignore the US Attorneys' letter, because:

I am not aware of any situations in the last sixty years, and perhaps not since the Civil War, where state officials were personally prosecuted for carrying out ministerial functions under state law.

Spitzer is correct: since the Civil War, which was in the 1860s, the feds have not prosecuted a single state or local government employee for carrying out their duties under a state law of any kind where there was a conflict with federal law, despite America's deeply-contentious history of federal-state conflicts, especially during the Civil Rights era.

Gov. Gregoire ignored such advice and, on April 29, 2011, she vetoed significant portions of 5073, including sections of the bill creating state-licensed dispensaries and producers. She did leave intact, however, provisions creating collective gardens and allowing for local regulatory control.

Around the same time, US Attorneys in states with medical cannabis laws sent letters to the Governors of these states making similar threats.  In Maine and Vermont, officials there ignored the implied threats of prosecution and implemented state-licensed dispensaries, notably without any federal blow-back.  In Delaware, New Jersey and Rhode Island, Governors in those states put the brakes on state-licensing programs for a time before later allowing full or partial implementation of state-licensing programs (again, notably without federal interference).

Meanwhile, the State of Arizona was on the verge of implementing a voter-approved medical cannabis system that created state-licensed dispensaries.  The US Attorney there sent a letter to Gov. Jan Brewer and made threats similar to the Washington State letter.  Gov. Brewer, a conservative and no fan of medical cannabis, took the unusual step of having Arizona sue the federal government over its inability to begin state licensing of dispensaries (in an even more unusual step, the State claimed standing as both plaintiff and defendant).  The State claimed that it couldn't implement its medical cannabis program due to threats to prosecute state employees or others who worked to put the law into effect.

But that argument did not pass muster with a federal court judge. This past January, US District Court Judge Susan Bolton tossed out Arizona's lawsuit arguing that federal prosecutors had not threatened to prosecute state or local government employees for following state law. Specifically, the judge wrote:

Plaintiffs do not challenge any specific action taken by any defendant....Plaintiffs also do not describe any actions by state employees that were in violation of (the Controlled Substances Act) or any threat of prosecution for any reason by federal officials....These issues, as presented, are not appropriate for judicial review.

The short story of her ruling is that there is no threat to state or local employees from the feds and that Arizona and similar states are free to implement medical cannabis licensing systems.

The State of Arizona has not filed an appeal to this ruling, nor did it file an amended complaint, as the judge offered to allow.  Instead, Arizona has begun issuing licenses for medical cannabis dispensaries. Arizona is the Ninth Circuit of the Federal Courts system along with Washington State, so Judge Bolton's ruling does stand as a precedent in both states as well as other states in the Circuit with medical cannabis laws and state licensing programs.

The ruling also means that Gov. Gregoire was in error when she gave in to threats from Washington State's US Attorneys.

--

Philip Dawdy

With a Ban on Dispensaries Seemingly Imminent, L.A. City Council Displays a Dedication to 'Do-Nothing' Politics

Now that the pending Los Angeles dispensary ban has been heard by two committees, clouds are gathering over the medical marijuana industry in one of the most progressive cities in the country.

This is despite the passioned testimony that can only be described as pleas by the sick to do something to preserve their supply of medical marijuana. The L.A. Daily News reported Michael Olivares, who suffers from muscular dystrophy, telling the Los Angeles City Council's Public Safety Committee, "I am 28 years old and am 6-feet-1 and weigh 84 pounds. I almost died when I was 21 because of the drugs they had me on. The one plant that helps and keeps me alive is medical marijuana."

If Councilmen Jose Huizar and Mitch Englander have their way, all dispensaries in the city will be closed until the matter is resolved by the California Supreme Court — effectively kicking the can down the road, while denying those that need medical pot the most. According to their plan, those eligible for medical marijuana could still grow their own plants — though clearly, Olivares is not in any condition to cultivate pot. Also, learning to grow medical grade cannabis is a skill that takes years to learn.

An alternative by Councilmen Paul Koretz and Herb Wesson would leave 100 dispensaries open. Dispensaries that could service people like Olivares.

If anything Huizar and Englander's plan is the worst example of lawmaking and confirms the fears of Angelinos that their politicians are too scared, too entrenched in the status quo or just too uninterested to be bold and do the right thing.

As Scott Stenholm, a staffer on "Real Time with Bill Maher" wrote, "The resistance by some politicians to accept the decriminalization of marijuana (at the very least the medical kind) is a testament to the lack of insight and education in our leaders that gives them such a bad reputation in this age of 'do-nothing' politics."

Reuters Examines Fed's Assault on Medical Marijuana, Finds it is an Unpopular Policy

Reuters posted an analysis of the federal government's efforts to shut down medical marijuana dispensaries through coercive "landlord letters" and threats to financial institutions.

Interestingly, the article comes to the conclusion that the U.S. Attorneys — particularly in California, which has been identified as "the number-one marijuana producing state in the country" — is pursuing action through the civil courts rather than the criminal courts because of the change of attitude regarding medical marijuana.

"Rather than try and get these criminal convictions, which they know the public does not support and which will only make an unpopular enforcement effort even more unpopular, they’re taking the softest route possible and that is definitely the administrative civil justice route of trying to get these landlords scared enough to stop that commerce from happening," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws (NORML).

While the landlord letters work because property owners are unwilling to spend the hundreds of thousands of dollars to defend a single tenant, the dispensaries will move next door and the process will repeat.

While banks have also been threatened with seizure of assets if they work with dispensaries, owners have gotten around this by using personal accounts, using business fronts to open accounts or just moving to a cash-only model of business.

If federal prosecutors won't try "criminals" as such, are they really enforcing the law, or bullying legitimate businesses?

Another Study Finds Dispensaries do not Impact Area Crime

Despite the factors that would lead one to believe that medical marijuana dispensaries breed lawbreaking, yet another study raised questions with regards to the link between crime and the establishments, the L.A. Times reports.

Nancy Kepple and Bridget Freisthler from UCLA's Luskin School of Public Affairs published a study in the July issue of Journal of Studies on Alcohol and Drugs. The pair studied Sacramento in 2009, mapping all 40 dispensaries in the city.

While traditional factors — such as unemployment, commercial zoning and a high proportion of young adults — correlated with higher crime rates, pot shops did not. Kepple and Freisthler seem to not want to believe the findings of their own data.

They stated: "the density of medical marijuana dispensaries may not be associated with neighborhood-level crime rates."

This is not the first time a report with findings contrary to the conventional wisdom that medical marijuana shops equal rampant crime. A report drafted by the RAND Corporation, a think tank that tackles issues as far ranging as international policy, retracted a report that studied Los Angeles dispensaries in Oct. 2011 with similar conclusions.

Like all wars, one of the casualties in the drug war is truth.

I-502's DUI Provision: A Look At The Facts And FAQs

One of the most controversial provisions of New Approach Washington’s I-502 is its per se DUI limit of 5 nanograms of active THC metabolite per milliliter of blood. It's a limit that some critics have dubbed “unscientific” and “draconian.” Others claim that it is not a measure of impairment and would threaten the driving rights of every medical cannabis patient in Washington State.

These are serious criticisms. So how does New Approach Washington defend its 5 nanogram provision?

When 502 was filed with the Secretary of State's office in June 2011, the New Approach Washington website listed one study to justify the 5 nanogram limit. It was a meta-study (or survey) of many dozens of currently existing studies and was authored by Grotenhermen, Leson and others. Here's what NAW said of the study at the time:

A meta-analysis of 90 experimental studies of the impact of smoked and oral marijuana on driving, and comparison with the results of a meta-analysis on alcohol and driving, suggest that a THC concentration of 5 ng/mL whole blood corresponds approximately to 0.08 BAC.

What did the study itself say? It's a lengthy study and it made many interesting observations, including this telling one:

The crash risk apparently begins to exceed that of sober drivers as THC concentrations in whole blood reach 5–10 ng/mL (corresponding to about 10–20 ng/mL in blood serum or plasma). Because recent studies involved only a few drivers with THC concentrations in that critical range, a reliable assessment of the associated crash risk is still lacking.

Translation: scientists think there's some statistical noise between active THC concentrations of 5 to 10 nanograms, but there's not enough evidence to reach firm conclusions. It's telling that NAW no longer includes the claim that the above study asserts that 5 nanograms “corresponds approximately to 0.08 BAC” on its DUI FAQ sheet.

Instead, NAW now uses the same Grotenhermen study to back its assertion on its FAQ sheet that “THC impairs driving skills, and the impairment can last for a few hours after smoking or consuming marijuana.” This, despite the fact that the same exact study states, as I quoted above, “a reliable assessment of the associated crash risk is still lacking.”

NAW's DUI FAQ sheet now leans heavily upon yet another meta-study from which the 502 group plucks a graph showing that automobile crash risk begins to double at 5 nanograms of active THC metabolite. But in using this graph, NAW is being deceptive.

The 5 ngs doubles crash risk figure touted by NAW is taken from crash data gathered in Australia. A graph of the data is reproduced on NAW's DUI FAQ sheet and the group claims “Studies of marijuana use and driving suggest that THC levels exceeding 5 ng/mL are associated with increased risk of accidents.”

Why would data from Australian drivers be used to impose DUI limits on American drivers? I don't even have a guess, but it does strike me as highly unusual to impose driving standards on an American state based upon crash results from an entirely different country with different driving standards—in Oz, they drive on the other side of the road, after all—and what is likely to be a different driving culture.

Besides, this same meta-study—which examines a dizzying range of studies—also points to many studies that show no link (or weak links) between cannabis use and accidents. NAW simply chose to pick one single study from one single section of the meta-study to buttress its case for 5 nanograms. Picking evidence in this fashion is not a good way to set public policy, especially when one of the final points of the study is this:

Overall, though, case-control and culpability studies have been inconclusive, a determination reached by several other recent reviewers. Similar disagreement has never existed in the literature on alcohol use and crash risk.

(BTW, an interesting fact that I ran across recently is that a Canadian study finds a 70 percent increase--so almost a doubling of crash risk--in the risk of traffic accidents when it is raining. Do we automatically hand drivers a DUI for driving in the rain? Do we call them impaired because they are driving in the rain? Of course not.)

NAW also uses one other study to support its 5 nanogram limit. It's a study by a National Institute on Drug Abuse researcher named Erin Karschner. In it, 25 chronic daily cannabis users were put into a locked facility and abstained from cannabis use for seven days. Their blood levels were taken at regular intervals to measure for active THC metabolite among other things. NAW uses this study to assert that “Even heavy marijuana users like medical marijuana patients should have their THC levels drop below

5 ng/mL if they wait a few hours before driving.”

But that's not an accurate representation of what the study concluded. Here's what Karschner wrote:

Substantial whole blood THC concentrations persist multiple days after drug discontinuation in heavy chronic cannabis users. It is currently unknown whether neurocognitive impairment occurs with low blood THC concentrations, and whether return to normal performance, as previously documented following extended cannabis abstinence, is accompanied by removal of residual THC in brain.

And here's another finding from the study that NAW fails to mention and it's something that should make most frequent cannabis users feel real concern:

For the first time to our knowledge, negative whole blood specimens were found interspersed between positive samples.

In other words, some of the study subjects would test positive for THC metabolite on admission to the study and then test negative a bit later—only to test positive again after that. Regardless of the reason for such fluctuations or at what nanogram level they occur, how can NAW claim measuring active THC metabolite is an appropriate measure of anything, much less impairment, when its presence varies so widely? Would jurors believe a prosecutor who said a set of fingerprints matched a suspect one day, but then didn't the next day, until they were tested a third time when they again matched? Probably not.

And, in case you were wondering, that positive-negative fluctuation has been confirmed by a second study, one I'll soon discuss.

It is clear from a hard look at NAW's defense of its 5 nanogram limit that it is playing loose with the facts and cherry-picking studies in order to justify this provision. Is that any way to appropriately set public policy?

I-502: Tax Revenue at the Expense of Affordable Patient Access

     Supporters of I-502 boast of projected state tax revenues of more than $500 million annually.  During tough economic times, this fiscal boost appears encouraging, but at what cost to medical cannabis patients?

     Patients currently pay sales tax on medical cannabis, despite the fact that “prescribed” medicines, like antibiotics, insulin and oxycodone, are exempt from sales tax.  I-502, unfortunately, goes a step further, and in addition to sales tax, imposes a 25% excise tax (“cannabis tax”) on every transaction involving cannabis.  Thus, tax is imposed on each wholesale purchase and every retail purchase of cannabis. This “pyramiding” of the cannabis tax is unlike sales tax, which is generally imposed only on the final retail transaction.   

So why is this pyramiding of the tax so significant?  I-502 sets up a licensing structure for the production, processing, and sale of cannabis, resulting in potentially three transactions of cannabis from the grower to the patient: (1) grower à processor; (2) processor à retailer; (3) retailer à patient.  For example, assuming a gram of cannabis is priced at $5/gram by growers; $10/gram by processors; and $15/gram at retail, the total cannabis tax paid is $7.50.[*]  

Sale	Price per Gram	Cannabis Tax	Sales Tax
1stSale: Producer/Grower to à Processor	$5/gram	$1.25
2nd Sale: Processor à Retailer	$10/gram	$2.50
3rd Sale: Retailer à Consumer	$15/gram	$3.75	$1.78
Total Tax		$7.75	$1.43

Total State Tax = $8.93.  This total does not include other applicable state and local taxes, including business and occupation tax.

      Although I-502 moves in the right direction with regard to the decriminalization of cannabis, its taxing scheme is harmful to patients.  The 25% cannabis tax is ultimately passed on to patients by way of higher prices for medicine.  Washington voters passed laws permitting the medical use of cannabis out of compassion for the sick and disabled.  This taxing scheme flies in the face of that compassion.  At the very least, I-502 should have include tax relief for medical cannabis patients.   An open and honest discussion on the impact of this onerous taxing scheme on medical cannabis patients must join the discussion on the implications of I-502.

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[*] Purchase and resale by an independent processor may be excluded, reducing the total cannabis tax paid to the state.