BILL ANALYSIS SB 420 Page 1 Date of Hearing: July 1, 2003 Counsel: Kathleen Ragan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Mark Leno, Chair SB 420 (Vasconcellos) - As Amended: May 27, 2003 SUMMARY : Establishes a statewide, voluntary program for the issuance of identification cards to identify persons authorized to engage in the medical use of marijuana under the Compassionate Use Act of 1996. Specifically, this bill : 1)States that it is the intent of the Legislature to do all of the following: a) Clarify the scope of the act and facilitate the identification of qualified patients and their primary caregivers in order to avoid unnecessary arrests and provide needed guidance to law enforcement officers; b) Promote uniform application of the act among California counties; c) Collect data to ascertain the extent of serious medical conditions that are not being adequately relieved in order to plan for future research and resource allocation; and, d) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. 2)Provides that it is the intent of the Legislature to address additional issues not included within the act that must be resolved in order to promote the fair and orderly implementation of the act. 3)States that the Legislature finds and declares both of the following: a) A state identification card program will further the goals of the People and the Legislature; and, SB 420 Page 2 b) With respect to individuals, the identification system must be wholly voluntary and a patient entitled to the protections of the act need not possess an identification card in order to claim the protections of the act. 4)Defines "attending physician", "qualified patient", "primary caregiver", and "serious medical condition". 5)Defines "serious medical condition" as all of the following medical conditions: a) Acquired Immune Deficiency Syndrome (AIDS); b) Anorexia; c) Arthritis d) Cachexia; e) Cancer; f) Chronic Pain; g) Glaucoma; h) Migraine; i) Persistent muscle spasms including, but not limited to, spasms associated with multiple sclerosis; j) Seizures including, but not limited to, seizures associated with epilepsy; aa) Severe nausea; and, bb) Any other chronic or persistent medical symptom that either: i) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990. ii) May cause serious harm to the patient's safety or physical or mental health if not alleviated. SB 420 Page 3 6)Requires the Department of Health Services (DHS) to establish and maintain a voluntary program for the issuance of identification cards to qualified patients. 7)Provides that every county health department shall do all of the following; a) Provide applications to individuals seeking to join the identification card program; b) Receive and process applications, as specified; c) Maintain records of identification card programs; d) Utilize protocols developed by DHS, as specified; and, e) Issue identification cards to approved applicants and primary caregivers. 8)Requires DHS to develop all of the following; a) Protocols to implement the responsibilities to be used by county health departments including, but not limited to, protocols to confirm the accuracy of the information in an application and to protect the confidentiality of program records; b) Application forms to be issued to applicants; and, c) An identification card that identifies a person authorized to engage in the medical use of marijuana and an identification card that identifies the person's primary caregiver, if any. Specifies that the two identification cards shall be easily distinguishable from each other. 9)States that no person or designated primary caregiver with a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount approved by DHS unless there is reasonable cause to believe the card is false or has been obtained by means of fraud. 10)Provides that it shall not be necessary for a person to obtain an identification card in order to claim the protections of the Act. SB 420 Page 4 11)States that a person seeking an identification card shall pay a specified fee and provide all of the following information: a) Name and proof of residency within the county; b) Written documentation by the attending physician that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate; c) The name, address, telephone number, and California medical license number of the attending physician; d) The name and the duties of the primary caregiver; and, e) A government-issued photo identification card of the person and of the primary caregiver, if any. 12)States that within 30 days of receipt of an application for an identification card, a county health department shall do all of the following: a) Verify that the information in the application is accurate; b) Verify with the Medical or Osteopathic Board of California that the attending physician has a license in good standing; c) Contact the attending physician to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician's office records; d) Take a photograph or obtain an electronically transmissible image of the applicant and of the primary caregiver, if any; and, e) Approve or deny the application, as specified. 13)States that an identification card issued by the county health department shall be serially numbered and shall contain all of the following: SB 420 Page 5 a) A unique user identification number of the cardholder; b) The date of expiration of the identification card; c) The name and telephone number of the county health department that approved the application; d) A 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card; and, e) Photo identification of the cardholder. 14)States that an identification card shall be valid for one year and may be renewed annually upon verification of all new information. 15)Provides that DHS shall establish application and renewal fees that are sufficient to include the expenses incurred by DHS and by each county health department for administering the identification card program. 16)States that not less than one-half of the fees collected shall be made available to county health departments for reimbursement for costs incurred operating the program. 17)Provides that qualified patients, designated primary caregivers, and persons providing assistance to them in the administration of medical marijuana or in acquiring the skills necessary to cultivate or administer marijuana shall not, on that sole basis, be subject to criminal liability for the following: a) Possessing marijuana; b) Cultivating, processing, or harvesting of marijuana; c) Possessing marijuana for sale; d) Transporting, selling, importing, or giving away marijuana; e) Opening or maintaining a place for the purpose of selling, giving away or using marijuana; SB 420 Page 6 f) Renting, leasing or making available for use a building, room or space; and, g) Maintaining a building for the purpose of manufacturing, serving, storing, or using marijuana which is otherwise a nuisance subject to abatement, injunction, and damages. 18)Provides that DHS shall issue emergency regulations by July 1, 2004 to determine the appropriate amounts of marijuana for the qualified patient's own personal medical use. 19)States that qualified patients, persons with identification cards, and their primary caregivers may associate, within California, in order to collectively or cooperatively cultivate marijuana for medical purposes, and that such persons shall not be subject to state criminal sanctions under the specified laws listed above. 20)Requires DHS to adopt regulations no later than December 31, 2004 governing the operation of the above cooperatives. 21)Provides that the regulations relative to the cooperatives shall specify only the methods, procedures and criteria that the cultivation projects will employ to ensure the consistency of composition, non-contamination and non-diversion, of medical marijuana. 22)States that accommodation of any medical use of marijuana is not required in places of employment or in jails, correctional facilities, or other penal institutions. 23)Provides that penal institutions are not prohibited from allowing the use of marijuana for medical purposes under circumstances that will not endanger the health of other prisoners or the security of the facility. 24)States that the smoking of medical marijuana may not be done in specified circumstances, such as in places where smoking is prohibited by law; on a school bus or within 1,000 feet of a school or youth center; while in a motor vehicle; or while operating a boat. 25)Provides that no professional licensing board may impose a civil penalty or take other disciplinary action based solely SB 420 Page 7 on the fact that the licensee has performed acts as a designated primary caregiver. 26)Provides penalties for persons who fraudulently obtain, steal, or use an identification card. EXISTING LAW : 1)Prohibits the possession, cultivation, transportation, and sale of marijuana. (Health and Safety Code Sections 11357, 11358, 11359, and 11360.) 2)Authorizes a patient or the patient's primary caregiver to possess marijuana or cultivate marijuana for the patient's medical use upon the written or oral recommendation of a physician. (Health and Safety Code Section 11362.5.) 3)Authorizes the University of California to create a California Marijuana Research Program to determine the efficacy and safety of administering marijuana as part of medical treatment. (Health and Safety Code Section 11362.9.) 4)Existing federal law prohibits the possession, sale, and distribution of marijuana. (21 U.S.C. Section 841 et seq .) 5)Federal law lists marijuana as a Schedule I drug, deemed to have no accepted medical use. (21 U.S.C. Section 812.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "This bill establishes a voluntary registry identification card system for persons who are legitimate users of medical marijuana and their primary caregivers. The card immunizes the cardholder from arrest and prosecution for possession, transportation, and cultivation of marijuana for medicinal purposes. "Attorney General Bill Lockyer convened a task force to find a way to implement Proposition 215. This bill represents the work product of this task force. Proposition 215 urges California to work with the Federal Government to facilitate the safe and affordable distribution of medicinal marijuana. SB 420 Page 8 "Despite the voters' strong support of medicinal marijuana, the only efforts to provide access have been initiated by community organizations and local governments. The only response from the Federal Government so far has been to try to shut down the providers?Local providers have placed themselves at risk of civil and criminal prosecution by courageously pursuing a variety of distribution models. While the providers fill a vacuum created by local government inactivity, the government continues to avoid dealing with the distribution issue. "Eight other states have implemented laws similar to Proposition 215; Alaska, Colorado, Oregon, and Hawaii are among those states that have established a registry system for patients and caregivers." 2)The United States General Accounting Office (GAO) Report : The GAO issued a report, "Marijuana: Early Experiences with Four States that Allow Use for Medicinal Purposes" (November 2002), at the request of Congressman Mark Souder, Chairman, Subcommittee on Criminal Justice, Drug Policy, and Human Resources, Committee on Government Reform. The GAO report examined the implementation of medical marijuana laws in four states: Oregon, Alaska, Hawaii, and California. Prior to issuing the report, GAO provided a draft copy to the United States Department of Justice (US DOJ) and included the US DOJ comments in the final report. Although the US DOJ said the GAO had fully described the current status of the programs in the states reviewed, the US DOJ stated that GAO failed to adequately address serious difficulties associated with the programs. "Specifically, the US DOJ commented that the report did not adequately address issues related to the: (a) inherent conflict between state laws permitting the use of marijuana and federal laws that do not; (b) potential for facilitating illegal trafficking; (c) impact of such laws on cooperation among federal state, and local law enforcement; and, (d) lack of data on the medicinal value of marijuana." The GAO report stated, "We disagree." (Emphasis added.) The GAO report indicates that the GAO interviewed officials from 37 selected federal, state, and local law enforcement organizations to obtain their views on the effect, if any, state medical marijuana laws had on their law enforcement SB 420 Page 9 activities. Officials representing 21 of these organizations indicated that medical marijuana laws had had little impact on their law enforcement activities. Some of the federal law enforcement officials interviewed by GAO indicated that the introduction of medical marijuana laws has had little impact on their operations. Of particular note, the GAO report stated, "During our review, none of the federal officials we spoke with provided information to support a statement that abuse of medical marijuana laws was routinely occurring in any of the states, including California." (Emphasis added.) The GAO report is #GAO-03-189 and is available on the GAO's website (www.gao.gov). 3)Medical Marijuana Statute Requirements in Other States : The medical marijuana statutes in Oregon, Hawaii, and Alaska establish state-administered registries with established requriements, and issue identification cards to certified registrants. (See Alaska Stat.Ann. 11.71.090, 17.37.010 to 17.37.080; Hawaii Rev. Stat. 329-121 to 329-128; and Oregon Rev. Stat. 475.300 to 475.346.) The following are some requirements: a) A completed application form, submitted by the applicant in Oregon and Alaska, and by a physician in Hawaii; b) A written physician documentation in specified formats; c) An annual renewal fee for registry card; and, d) Established registry verification procedures. Oregon, Alaska and Hawaii specify the permissible amounts of marijuana a patient and a designated caregiver may possess. For example, Oregon limits the patient and primary caregiver to no more than three mature plants, four immature plants, and one ounce of usable marijuana per each mature plant. Alaska allows not more than one ounce of marijuana in useable form and six marijuana plants (with no more than three mature and flowering plants producing usable marijuana at any one time. Hawaii defines an "adequate supply" as an amount that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the SB 420 Page 10 symptoms of the qualifying patient's debilitating medical condition, provided the adequate supply does not exceed three mature plants, four immature plants, and one ounce of usable marijuana per each mature plant. 4)Conflict with Federal Law : As indicated above, marijuana is classified as a Schedule I drug under federal law. In the US DOJ response to the GAO report, the Acting Assistant Attorney General stated, "The most fundamental problem with the draft GAO report is that it fails to emphasize the fact that there is no federally recognized medicinal use of marijuana and, thus, possession or use of this substance is a federal crime." Although federal policy does not currently recognize the medicinal use of marijuana, federal case law has left open the possibility of additional, future challenges to this policy (as discussed below). Moreover, the California Supreme Court has interpreted the Compassionate Use Act (Proposition 215) as a matter of state law not impacted by interpretation of federal laws. (See People v. Mower , infra.) 5)Ninth Circuit Decision Protected Physician's Right to Discuss Medical Marijuana with Patients. The Court stated, "? the government may not initiate an investigation of a physician solely on the basis of a recommendation of marijuana within a bona fide doctor-patient relationship, unless the government in good faith believes that it has substantial evidence of criminal conduct. Because a doctor's recommendation does not itself constitute illegal conduct, the portion of the injunction barring investigations solely on that basis does not interfere with the Federal Government's ability to enforce its laws." [ Conant v. Walters , 309 F. 3d 629, 636 (2002).] It should be noted that this decision was based upon First Amendment grounds. In a concurring opinion in the Conant case, it was stated, "Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce. Cf. Oakland Cannabis Buyers' Coop ., 532 U.S. at 495 n.7 (reserving 'whether the Controlled Substances Act exceeds Congress' power under the Commerce Clause.' Federal efforts to regulate it considerably blur the distinction between what is national and what is local. But allowing the Federal Government, already nearing the outer limits of its power, to act through unwilling state officials would "obliterate the distinction" entirely. United States v. SB 420 Page 11 Lopez , 514 U.S. 549, 557, (1995)." The concurring opinion further stated, "It may well be, as our opinion holds, that interference with the rights of doctors to speak is sufficient to support the district court's injunction. Nevertheless, it remains a significant step for a court to enjoin the prosecution and even investigation of what federal officials believe may be a violation of federal law. See, e.g., Bresgal v. Brock , 843 F.2d 1163, 1171 (9th Circuit 1987); Jett v. Castaneda , 578 F.2d 842, 845 (9th Circuit 1978). In affirming the district court, I therefore find comfort in knowing that the interests of the patients, and those of the state, provide significant additional support for the district court's exercise of discretion." 6)The United States Supreme Court has held that marijuana cooperatives may not assert a medical necessity defense : In United States v. Oakland Cannabis Buyers' Cooperative 532 U.S. 483, (2001), the Court stated that, at least as to the Buyer's Cooperative, there was no "medical necessity" defense to the manufacture and distribution of marijuana under the Controlled Substances Act (CSA), 21 U.S.C. Section 801 et seq. However, as stated above, the Court did not reach the constitutional issue of whether the CSA is a proper exercise of the federal interstate commerce powers. In addition, Justice Stevens, in a concurring opinion, left open the possibility of a challenge to the CSA on the basis of states' rights. Stevens stressed the importance of "showing respect for the sovereign states that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a state have chosen to 'serve as a laboratory' in the trial of 'novel social and economic experiments without risk to the rest of the country'." (quoting New State Ice Co. v. Liebmann , 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting.) 7)The California Supreme Court has interpreted Proposition 215 as a state issue not affected by the United States Supreme Court's decision : In discussing the Oakland Cannabis Buyers' Cooperative case, the California Supreme Court has stated, "The [United States Supreme] Court's holding, which involves the interpretation of federal law, has no bearing on the SB 420 Page 12 questions before us, which involve state law alone." [ People v. Mower, 28 Cal. 4th 457, 465 (2002), interpreting California's medical marijuana act.] Other California courts have declined to extend the limited immunity provided by Proposition 215 to seriously ill patients and their primary caregivers to others cultivating or providing marijuana to patients and their caregivers, absent specific legislation. As the Court stated in People v. Galambos , 104 Cal. App. 4th 1147 (2002), regarding the concept of permitting sales to further medical marijuana use, "whether that concept has merit is not a decision for the judiciary. It is one the Legislature or the People by initiative are free to make." 8)Previous Legislation : SB 187 (Vasconcellos), of the 2001-02 Legislative Session, was similar to this bill and died on the Senate Unfinished Business File. AJR 13, Resolution Chapter 64, Statutes of 2003, urges the President and the Congress of the United States to take specified actions to ease restrictions on the use of cannabis for medicinal purposes. 9)Arguments in Support : According to background information supplied by the author, "We are duty bound to honor the will of Californians who passed Proposition 215 in 1996, which allows seriously ill patients to use marijuana to treat illnesses. Due to the vague guidelines, patients and physicians have been subject to needless arrest and prosecution. A statewide registry system will afford patients standardized and instant proof that they are legal users by state law. ...This is a win-win for every person involved because it provides statewide guidelines and clarity for law enforcement while protecting medical cannabis users. In addition, this bill requires the DHS, with input from medical experts and patients, to determine appropriate quantities for qualified users." The Office of the Mayor, City and County of San Francisco states, "San Francisco's Medical Cannabis User ID Program has been in operation since July 2000. More than 6,000 cards have been issued since that time and approximately 3,000 are currently active. From the beginning, this program has had strong support from the San Francisco District Attorney and SB 420 Page 13 could be used as a guide to establishing an effective statewide program." The President of the Board of Supervisors, County of San Mateo, writes, "Providing medical marijuana in a cost-effective and uniform manner that promotes the collection of data for research and future research allocation is a critical step in meeting the objectives of the Compassionate Use Act. Since the late 1990's, San Mateo County has worked to research the efficacy of medical marijuana. The County's efforts include working with the Food and Drug Administration to research the use of medical marijuana to relieve chronic pain and suffering as well as AIDS-related wasting. Recognizing the need for consistent application of the Act as well as the assurance that the state will reimburse counties for the costs incurred in administering the program, I believe this bill would benefit the residents of San Mateo County." According to the California Medical Association (CMA), this bill "is an agreement developed by the California Attorney General Task Force, comprised of representatives of key stakeholder groups including patients, patient advocates, law enforcement, and medical professionals. Voter enactment of Proposition 215 has been followed by a degree of confusion and conflict between various stakeholders, resulting in wasted government resources and needless harm to many patients. This bill takes a considered and rational approach toward ending that confusion and conflict by allowing the DHS to establish guidelines for the appropriate use of medical marijuana, as well as a voluntary registry program to issue identification cards for qualified patients. "A voluntary registry program will afford patients standardized proof of their physician-recommended use of medicinal marijuana. Such a system would also enable law enforcement officials to easily distinguish between legitimate and illicit users of the drug; and the system would reduce unnecessary criminal investigation of patients and the seizure of their medicine." 10)Arguments in Opposition : The California Narcotic Officers' Association (CNOA) states that CNOA has two general areas of concern: one related to the quantification of the acceptable levels of medical marijuana and the second related to the voluntary nature of the registration card. CNOA states that SB 420 Page 14 directing the DHS to determine the appropriate amounts of marijuana for a qualified patient's personal use may result in undue complexity. CNOA states, "For example, are the appropriate amounts of marijuana different depending on the illness or symptoms of the individual? How might regulations allow for quantitative variance based on those different illnesses?" CNOA further states, "CNOA strongly believes that the registration system must be a doctor-driven, mandatory system. This is important so that diversion of marijuana into illicit markets is minimized. It is also important so that law enforcement may know with certainty the identities of the patients and caregivers. CNOA believes that the best approach is for the doctor to notify their county health department whenever they make a determination of medical appropriateness for a specific patient. The doctor would also notify the county health department of the identity of the patient's caregiver. "After making a determination of the authenticity of the doctor in question, the county health department could simply purge all records identifying the specific doctors and could forward the names of the patients and caregivers to the DHS or the DOJ (the specific state agency is unimportant to CNOA). The names of the patients and the caregivers would be accessible by law enforcement via an 800 number. This 800 number would enable law enforcement, upon finding a person in possession of marijuana, to simply make a call to determine whether or not the person was a patient or caregiver pursuant to Proposition 215. This type of certainty would ensure that no one who is a Proposition 215 patient or caregiver would ever be arrested or cited again." According to the California Conference of Local Health Officials, establishing and operating a registry system for medical marijuana is not a public health function and public health departments should not be diverted from their primary core public health functions in order to do this. As stated in their opposition letter, "responsibility for this program has been assigned to the wrong level of government." The Recovery California Coalition states that there is no medical benefit for the use of marijuana that cannot be achieved through other methods such as marinol. The Coalition SB 420 Page 15 further states that since federal law supersedes state law, with the exception for qualified research projects, "we must reverse our previous position and oppose this bill." A private citizen states that any registration will inevitably be used against patients, "as the Drug Enforcement Agency will surely argue federal law to seize these files . . ." REGISTERED SUPPORT / OPPOSITION : Support Americans for Medical Rights Attorney General Bill Lockyer Being Alive Los Angeles, Inc. California Medical Association California NORML (National Organization for the Reform of Marijuana Laws California Nurses Association City and County of San Francisco County of San Mateo Drug Policy Alliance Network Friends Committee on Legislation in California Marijuana Policy Project San Francisco AIDS Foundation Santa Barbara Patient / Doctor Coalition 451 Private Citizens Opposition California Conference of Local Health Officials California Narcotic Officers' Association Campaign for California Families Committee on Moral Concerns Recovery California Coalition 1 Private Citizen Analysis Prepared by : Kathleen Ragan / PUB. S. / (916) 319-3744