BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1300
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          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