BILL ANALYSIS �
SB 439
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Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
SB 439 (Steinberg and Leno) - As Amended: August 5, 2013
SENATE VOTE : 22-12
SUBJECT : Medical marijuana.
SUMMARY : Exempts medical-marijuana (MM) collectives and
cooperatives from criminal liability for possession,
cultivation, possession for sale, sale, transport, importation,
and furnishing marijuana, as well as, for maintaining a place,
or knowingly providing a place for selling or furnishing
marijuana. Clarifies Medical Board of California (MBC)
enforcement of MM recommendations, what constitutes
unprofessional conduct, and the bar on the corporate practice of
medicine (CPM). Specifically, this bill :
1)Exempts MM collectives and cooperatives from criminal
liability for possession, cultivation, possession for sale,
sale, transport, importation, and furnishing marijuana. Also
exempts collectives and cooperatives from criminal liability
for maintaining a place, or knowingly providing a place for
selling or furnishing marijuana.
2)Defines "collectives and cooperatives" as entities that
operate within the terms of the Compassionate use Act of 1996
(also known as Proposition 215) and organized in compliance
with the Guidelines for the Security and Non-Diversion of
Marijuana Grown for Medical Use, issued by Attorney General
(AG) Bill Lockyer in August 2008.
3)Authorizes a collective to be organized as any statutory
business entity permitted under California law.
4)Specifies that collectives and cooperatives include the
officers, members, and employees of those entities.
5)Clarifies that this bill does not prevent a local government
from adopting or enforcing local ordinances that regulate the
location, operation, or establishment of a MM collective or
cooperative.
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6)Clarifies what constitutes professional misconduct on the part
of a physician recommending marijuana to a patient for medical
purposes.
7)Clarifies that being employed by a cannabis clinic or
dispensary to provide recommendations for MM would constitute
CPM.
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
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 Medical Marijuana Program (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.
6)Authorizes MBC to ensure that physicians and surgeons
representing the greatest threat are identified and
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disciplined expeditiously.
7)Provides that prescribing dispensing, or furnishing dangerous
drugs without an appropriate prior examination and a medical
indication, constitutes unprofessional conduct on the part of
a physician.
8)Prohibits CPM.
FISCAL EFFECT : This bill, as amended has not been analyzed by a
fiscal committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author there is
currently no statewide oversight of the MM cooperatives or
collectives in California and this has caused issues with the
federal government and difficulties for local governments who
may or may not want to have MM dispensaries in their
communities. Patients and caregivers who obtain a state MMIC
from their county health department are protected from state
arrest and prosecution for possessing, transporting,
delivering, or cultivating marijuana. But, patients and
caregivers who engage in these activities remain liable for
federal arrest and prosecution, and those who operate
dispensaries face frequent federal enforcement actions.
2)BACKGROUND . The potential medicinal properties of marijuana
have been the subject of substantive research and heated
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
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(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 (SCOTUS) 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 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, SCOTUS 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.
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Currently, 56 of the state's 58 counties participate. DPH
reports that 6,194 cards have been issued in fiscal year (FY)
2012-13 (down from 7,801 in FY 2011-12), and the total number
of cards issued to date is 69,030. 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 AG issued guidelines for
the security and 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
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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, 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 193 cities
and 20 counties in California have all banned MM dispensaries.
An additional 72 cities and nine counties have imposed
moratoriums while another 44 cities and 10 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)SUPPORT . The American Civil Liberties Union of California
(ACLU) supports this bill because under existing law,
qualified patients, persons with a valid identification card,
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and primary care givers, are expressly exempted from criminal
prosecution solely based on the possession or use of MM.
(Health & Safety Code 11362.765 (a)). However, this section
does not specify that collective, cooperatives, or other
business entities operating in compliance with California law,
are not subject to prosecution for sale or distribution of MM,
often exposing these businesses to continued harassment by
local officials. The ACLU states that this bill makes clear
that collectives, cooperatives, or other lawfully operating
business entities and their employees are not to be exposed to
criminal penalties as a result of the sale or distribution of
MM.
California NORML supports this bill because the lack of
clarity in current law has been an ongoing cause of confusion
for collectives and law enforcement alike, resulting in
unnecessary litigation and conflict. In particular, federal
authorities have cited California's lack of statewide rules to
justify their disruptive and ill-targeted crackdown on some of
the state's most reputable, locally regulated collectives.
Sacramento Mayor, Kevin Johnson, supports this bill, stating
that it is critical that, 17 years after the passage of the
Compassionate Use Act, the California Legislature resolve some
of the biggest barriers to local implementation by
establishing guidelines for MM.
7)OPPOSITION . The California Narcotic Officers' Association
opposes this bill stating, there is a reason that over 200
cities have taken action to impose outright bans on marijuana
dispensaries - they create significant public safety and
quality of life problems in communities. Dispensaries have
marijuana with high Tetrahydrocannabinol (or THC, the
psychoactive component of marijuana) content and cash on their
premises (it's an all cash business). As such, they are
magnets for robberies - which not infrequently turn violent.
The California Police Chiefs Association also opposes this
bill writing that there are many medical conditions for which
marijuana is contra-indicated. For example, articles in peer
reviewed medical publications have linked marijuana use to
mental health issues such as schizophrenia, psychosis,
depression, and anxiety. The California State Sheriffs'
Association opposes this bill because they are concerned that
the effect of this bill will be to expand the distribution of
marijuana without providing sufficient safeguards against
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abuse.
The League of California Cities opposes this bill and is
deeply concerned about any effort to limit local governments
from bringing nuisance abatement actions, which are an
indispensable tool of local land use authority. They state
that in certain instances, nuisance abatement actions
represent the only avenue available to locals to remedy or
remove threats to public health and safety.
8)RELATED LEGISLATION . AB 473 (Ammiano) would have created the
Division of Medical Marijuana Regulation and Enforcement in
order to regulate the cultivation, manufacture, testing,
transportation, distribution, and sale of MM. AB 473 failed
passage on the Assembly Floor.
9)PREVIOUS LEGISLATION .
a) AB 2312 (Ammiano), of the 2011-12 Legislative Session,
would have established the Medical Marijuana Regulation and
Control Act, authorizing local taxes on medical cannabis
and would have created a board to regulate the medical
cannabis industry. AB 2312 was referred to but never heard
by the Senate Committee on Business, Professions and
Economic Development.
b) SB 1182 (Leno) of 2012 provided that a cooperative or
collective and its operators and employees, operating
within the AG's guidelines was not subject to prosecution
for marijuana possession or commerce. SB 1182 failed
passage on the Senate Floor.
c) AB 1300 (Blumenfield), Chapter 196, Statutes of 2011,
allows a local government entity to enact an ordinance
regulating the location, operation, or establishment of a
MM cooperative or collective; authorizes local government
entity to enforce such ordinances through civil or criminal
remedies and actions; and authorizes a local government
entity to enact any ordinance that is consistent with the
MMP. AB 1300 did not directly regulate MM facilities.
d) SB 626 (Calderon), of the 2011-12 Legislative Session,
would have required the Board of Equalization (BOE) to
establish a nine-member task force to conduct a study to
determine ways to enhance collections of sales and use
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taxes on retail sales of marijuana and ensure proper
regulation of the cultivation, transportation, and
distribution of marijuana and marijuana products. SB 626
was held on the Senate Appropriations Committee's Suspense
File.
e) AB 390 (Ammiano), of the 2009-10 Legislative Session,
would have legalized the possession, sale, cultivation and
other conduct relating to marijuana and required the
California Department of Alcoholic Beverage Control to
administer and enforce the terms of legalized marijuana.
AB 390 passed the Assembly Public Safety Committee, but was
never heard by the Assembly Committee on Health.
f) SB 1098 (Migden), of the 2007-08 Legislative Session,
would have required the BOE to administer a tax amnesty
program, as specified, for MM dispensaries, as defined. SB
1098 was never voted on by the Senate Revenue and Taxation
Committee.
g) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
established the MMP Act, 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.
h) Proposition 215, of the November 1996 General Election,
prohibits prosecution for the possession and cultivation of
cannabis by a patient or a patient's primary caregiver with
a physician's written or oral recommendation or approval.
10)DOUBLE REFERRAL . This bill passed out of the Assembly Public
Safety Committee on June 18, 2013, with a vote of 5-1.
11)SUGGESTED AMENDMENTS . In order to better clarify that the
bar on CPM applies to physicians who are employed by cannabis
clinics and dispensaries the author may wish to consider the
following amendments:
a. On page 5, line 17 strike "including, but not
limited to, engaging in the practice"
b. On page 5, strike line 18,
c. On page 5, line 19 strike, "clinic or
dispensary,"
d. On page 5, between lines 21 and 22 insert:
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2265. Entering into an agreement with a cannabis
clinic or dispensary to provide recommendations for
medical marijuana in violation of Section 2264
constitutes unprofessional conduct.
REGISTERED SUPPORT / OPPOSITION :
Support
Kevin Johnson, Mayor, City of Sacramento
American Civil Liberties Union of California
California NORML
Crusaders for Patient's Rights
Greater Los Angeles Collective Alliance
Law Enforcement Against Prohibition
Marijuana Policy Project
Opposition
Patrick J. Kennedy, Member of Congress, Retired
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Fraternal Order of Police
California Narcotic Officers' Association
California Peace Officers Association
California Police Chiefs Association
California State Sheriffs' Association
City of Adelanto
City of Bakersfield
City of Clayton
City of Glendora
City of Highland
City of Ontario
City of Rancho Cucamonga
City of Rancho Mirage
City of South San Francisco
City of Upland
Inglewood Police Department
International Faith Based Coalition
Kevin A. Sabet, Drug Policy Advisor, Administration of President
Barak Obama, Retired
League of California Cities
Long Beach Police Officers Association
Los Angeles County District Attorney's Office
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
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Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Santa Barbara County Sheriff's Office
Analysis Prepared by : Lara Flynn / HEALTH / (916) 319-2097