BILL ANALYSIS Ó
AB 1300
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 1300 (Blumenfield) - As Amended: April 27, 2011
SUBJECT : Medical marijuana.
SUMMARY : Defines a medical marijuana (MM) cooperative or
collective and permits local governments to regulate MM
cooperatives and collectives, as specified. Specifically, this
bill :
1)Defines a "marijuana cooperative or collective" to mean a
location where qualified patients, persons with a valid
identification card, or their designated primary caregivers,
associate within this state in order to collectively or
cooperatively cultivate or dispense marijuana for medical
purposes to a person authorized to possess MM, as specified.
2)States that nothing in this bill prevents a city or other
local governing body from adopting and enforcing local
ordinances that regulate the location, operation, or
establishment of a MM cooperative or collective; from civilly
or criminally enforcing those local ordinances; and, from
enacting other laws consistent with the Medical Marijuana
Program (MMP), as specified.
EXISTING LAW :
1)Establishes the Compassionate Use Act, approved by voters as
Proposition 215 of 1996, to provide the right to obtain and
use marijuana for medical purposes where medical use is deemed
appropriate and has been recommended by a physician and
ensures that patients and their primary caregivers are not
subject to criminal prosecution or sanction. Protects
physicians from punishment for recommending marijuana to a
patient for medical purposes.
2)Prohibits 1) above from being construed to supersede
legislation prohibiting persons from engaging in conduct that
endangers others, or to condone the diversion of marijuana for
non-medical purposes.
3)Prohibits qualified patients, persons with valid
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identification cards, and the designated primary caregivers of
qualified patients and persons with identification cards, who
associate within the State of California in order to
collectively or cooperatively cultivate marijuana for medical
purposes, from being solely on the basis of that fact subject
to state criminal penalties under existing law.
4)Establishes the MMP within the Department of Public Health
(DPH) to provide a voluntary medical marijuana identification
card (MMIC) issuance and registry program for qualified
patients and their caregivers administered through a patient's
county of residence.
5)Prohibits any MM cooperative, collective, dispensary,
operator, establishment, or provider who possesses,
cultivates, or distributes MM, as specified, from being
located within 600 feet of a school.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL : According to the author, this bill
clarifies California's MM laws to protect the right of
communities to regulate dispensaries in a manner consistent
with the intent of the voters who authorized the use of
marijuana for medical purposes. The author states that
current law governing the MMP focuses on ensuring that
qualified patients can legally access MM but does not provide
a regulatory framework for dispensary operations. As a
result, the author maintains that this bill is needed to
clarify the authority of local governments to enact ordinances
affecting MM collectives or cooperatives because of the
frequency of lawsuits challenging their authority to regulate
land use, zoning, business licensure, and use permit
conditions as they affect the operations of these facilities.
The author notes that with MM sales expected to be $1.7
billion this year, a definition is needed to prevent abuses in
the MMP and to help ensure that patients may obtain and use MM
in a manner consistent with the will of the voters who
approved Proposition 215 and the MMP for the benefit of
patients and their caregivers.
2)BACKGROUND . The potential medicinal properties of marijuana
have been the subject of substantive research and heated
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debate. Currently, marijuana is classified under the Federal
Controlled Substances Act (FCSA) as a Schedule I controlled
substance, meaning it is considered to have no medicinal value
and high potential for abuse. According to the federal Food
and Drug Administration (FDA), an evaluation by several
federal agencies, including the FDA and the National Institute
on Drug Abuse, concluded that no sound scientific studies
supported medical use of marijuana for treatment in the U.S.
This finding conflicts with a review by the Institute of
Medicine (IOM), which stated that scientists have confirmed
that the cannabis plant contains active ingredients with
therapeutic potential for relieving pain, controlling nausea,
stimulating appetite, and decreasing ocular pressure. As a
result, the IOM concluded that further clinical research on
cannabinoid drugs and safe delivery systems was warranted. A
2008 position paper by the American College of Physicians
(ACP) in support of research into the therapeutic role of
marijuana states that a clear discord exists between the
scientific community and federal legal and regulatory agencies
over the medicinal value of marijuana, which impedes the
expansion of research. The ACP maintains that the concern
that marijuana is a "gateway" drug also hinders opportunities
to evaluate its potential therapeutic benefits. However, the
IOM review concluded that marijuana has not been proven to be
the cause or even the most serious predictor of serious drug
abuse. Additionally, the ACP points out that the data on
marijuana's role in illicit drug use progression only pertains
to its nonmedical use.
3)PROPOSITION 215 . In November 1996, Californians voted in
favor of Proposition 215, the Compassionate Use Act, to ensure
the right of patients to obtain and use marijuana in
California to treat specified serious illnesses. Prop 215
protects physicians who appropriately recommend the use of
marijuana to patients for medical purposes from criminal
penalties; exempts qualified patients and their primary
caregivers from state drug laws prohibiting possession and
cultivation of marijuana; and, directs the state to implement
a plan for the safe and affordable distribution of marijuana.
The U.S. Supreme Court specifically ruled on whether Prop 215
could decriminalize the use of marijuana for medicinal
purposes. Gonzalez vs. Raich (2004) 125 S.Ct. 3195 held
California could not exempt marijuana for medicinal use from
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the criminal possession statute and based its ruling on the
idea that use of any commodity, be it wheat or marijuana, has
a substantial effect on the supply and demand in the national
market for that commodity and, as a result, falls within
interstate commerce. Additionally, the Court ruled that the
FCSA preempts any state attempt to decriminalize marijuana,
meaning that federal agencies may enforce federal law in
California, notwithstanding Proposition 215, but there is no
requirement that state law enforcement assist in enforcement.
4)MMP . The MMP was authorized through SB 420 (Vasconcellos),
Chapter 875, Statutes of 2003, to clarify provisions of Prop
215 and to create a MMIC program for medically qualified
patients and their caregivers. The MMP began in May 2005 with
three pilot counties and expanded statewide in August 2005.
Currently, 56 of the state's 58 counties participate. DPH
reports that 7,807 cards were issued in fiscal year 2010-11,
and the total number of cards issued to date is 52,549. The
MMP allows law enforcement and the public to verify the
validity of a qualified patient or caregiver's card as
authorization to possess, grow, transport, and/or use MM in
California through a database of authorized cardholders
available on DPH's Internet Website.
Only patients or their legal representatives may apply for a
card for themselves and/or their primary caregivers. The
patient, or applicant, is a person diagnosed with a serious
medical condition for which the medical use of marijuana is
appropriate, including AIDS; anorexia; arthritis; cancer;
chronic pain; glaucoma; migraine; spasms associated with
multiple sclerosis; epileptic seizures; severe nausea; and,
any other chronic or persistent medical condition that limits
the ability of the patient to conduct one or more major life
activities, or if not alleviated, may cause serious harm to
the patient's safety, physical, or mental health. When
submitting an application for the MMIC, patients are
responsible for providing proof of county residency, proof of
identity, and a copy of written documentation from their
physician stating that they have a serious medical condition
and that the medical use of marijuana is appropriate, and for
paying the requisite state and county administration fees.
The MMIC is valid for one year, with certain exceptions.
5)MM DISPENSARIES . In August 2008, the state Attorney General's
Office (AG) issued guidelines for the security and
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non-diversion of marijuana grown for medical use. The
guidelines state that although MM dispensaries have been
operating in California for years, dispensaries, as such, are
not recognized under the law and the only recognized group
entities are cooperatives and collectives that operate in
accordance with the MMP and the AG guidelines. According to
the guidelines, in order to operate legally, a collective or
cooperative must show evidence that it is operating according
to the following principles:
a) No individual or group may cultivate or distribute
marijuana in a manner that generates profit;
b) Collectives should obtain all applicable local
government permits and business license permits;
c) Collectives should maintain strict membership
requirements and enforce the requirements using thorough
applications and verification procedures;
d) Collectives should only possess and distribute marijuana
that has been cultivated by patient or primary caregiver
members;
e) Collectives must prohibit the sharing or sale of
marijuana to non-members;
f) Collectives must operate securely and take measures to
ensure the security of neighbors by taking care in the way
marijuana and cash are handled and documented; and,
g) Collectives must ensure that primary caregivers are
truly providing housing, health care, and other support
indicating a relationship with a patient.
According to a 2010 report by the League of California Cities
entitled "Medical Marijuana Facilities: Land Use Planning in a
Sea of Uncertainty," local governments throughout the state
continue to struggle with public policy issues regarding the
use, distribution, and regulation of marijuana. A number of
cities and counties are embroiled in litigation. Some are
engaged in philosophical debates involving the morality of
drug availability and use and others are simply concerned
about local land use controls. Some cities and counties have
permanently banned dispensary operations in their communities,
others have adopted temporary land use moratoria, and others,
such as the City of Los Angeles, have adopted regulations
permitting a limited number of dispensaries. Data from
Americans for Safe Access indicate that a total of 143 cities
and 12 counties in California have all banned MM dispensaries.
An additional 103 cities and 15 counties have imposed
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moratoriums while another 42 cities and nine counties have
passed ordinances to regulate them.
In October 2009, the U.S. Department of Justice (DOJ) issued a
memo announcing that it would no longer raid MM dispensaries
that are established legally under state law. Specifically,
the memo indicated that the prosecution of significant
traffickers of illegal drugs and the disruption of illegal
drug manufacturing and trafficking networks remained a core
priority in the DOJ's efforts against narcotics and dangerous
drugs, and that the DOJ's investigative and prosecutorial
resources should be concentrated on these objectives.
6)RELATED LEGISLATION .
a) AB 223 (Ammiano) establishes a comprehensive and
multidisciplinary commission that is empowered to address
issues regarding the legality and implementation of the
Compassionate Use Act of 1996 and the state's medical
marijuana law. AB 223 is a two-year bill in the Assembly
Public Safety Committee.
b) SB 847 (Correa) prohibits any MM cooperative,
collective, dispensary, operator, establishment, or
provider who possesses, cultivates, or distributes MM from
locating within a 600-foot radius of a residential zone or
residential use. SB 847 is pending in the Senate Rules
Committee.
7)PRIOR LEGISLATION .
a) AB 390 (Ammiano) of 2010 would have legalized the
possession, sale, cultivation, and other conduct relating
to marijuana by persons over the age of 21. AB 390 was
referred to the Assembly Health Committee but was not set
for a hearing.
b) AB 2650 (Buchanan), Chapter 603, Statutes of 2010,
prohibits operation or establishment of a MM cooperative,
collective, dispensary, or provider within 600 feet of a
school.
c) SJR 14 (Leno) of 2009 would have called on the President
and Congress to take specified actions relating to the use
of marijuana for medical purposes. SJR 14 failed passage
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on the Assembly floor.
d) AB 2743 (Saldana) of 2008 would have stated that it is
the policy of the State of California that its agencies and
agents not cooperate in federal raids and prosecutions for
marijuana related offenses if the target is a qualified
patient. AB 2743 was moved to the Inactive File on the
Assembly Floor.
e) SJR 20 (Migden) of 2008 would have urged the President
and Congress to enact legislation requiring the Drug
Enforcement Administration and other federal agencies to
respect a state's compassionate use laws regarding MM. SJR
20 was referred to the Assembly Public Safety Committee but
was not set for a hearing.
f) SB 1494 (Vasconcellos) of 2004 would have removed the
limitation on the amount of marijuana a qualified patient,
person with a MMIC, or primary caregiver can possess for
medical use. SB 1494 was vetoed by Governor Schwarzenegger
because it would create uncertainty in this area of the law
thereby making it more difficult for law enforcement to
determine when a person was in possession of marijuana for
medicinal purposes pursuant to Prop 215.
g) SB 420 creates the MMP for patients authorized to engage
in the medical use of marijuana and their caregivers.
h) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999,
authorizes the University of California to establish a
California Marijuana Research Program.
8)SUPPORT IF AMENDED . Crusaders for Patients Rights supports
this bill if it is amended to clarify that a patient needs a
physician's recommendation to be legally qualified to access
MM in California.
9)SUPPORT . Americans for Safe Access writes in support that
this bill properly defines MM collectives and cooperatives in
a manner that will enable local governments to establish
sensible regulations for these facilities to reduce crime and
complaints while preserving community-based access to medicine
for legal patients. Drug Policy Alliance supports this bill
because it establishes a definition that acknowledges the
essential role that these facilities play in dispensing MM to
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qualified patients who are unable to grow it themselves.
10)DOUBLE REFERRAL . This bill is double referred. It was heard
in the Assembly Public Safety Committee on April 26, 2011, and
passed out on a 4-2 vote.
11)POLICY COMMENT . This bill specifies that local government
entities may adopt local ordinances that regulate the
location, operation, or establishment of MM cooperatives or
collectives. This restriction could be used to completely
eliminate MM dispensaries. In that case, the prohibition may
be viewed by courts, pursuant to existing case law, as
"substantially restricting" access to MM and, consequently,
this bill, if enacted, may be invalidated as unconstitutional.
REGISTERED SUPPORT / OPPOSITION :
Support
Americans for Safe Access
Drug Policy Alliance
Opposition
None on file.
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097