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,
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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.
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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.
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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:
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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;
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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
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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.
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"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
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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
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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.
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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
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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
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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
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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
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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