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 AB 1300 Page 2 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 AB 1300 Page 3 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 AB 1300 Page 4 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 AB 1300 Page 5 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 AB 1300 Page 6 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 AB 1300 Page 7 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 AB 1300 Page 8 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