BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:April 21, 2014 |Bill No:SB | | |1262 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Ted W. Lieu, Chair Bill No: SB 1262Author:Correa As Amended: April 21, 2014Fiscal: Yes SUBJECT: Medical marijuana: regulation of physicians, dispensaries, and cultivation sites. SUMMARY: Places certain practice restrictions and requirements on a physician and surgeon who recommends medical marijuana to a patient; requires medical marijuana dispensaries and cultivation facilities to be licensed by the California Department of Public Health; provides for enforcement of the licensing provisions by county health departments; specifies that nothing shall prevent a city or other local governing body from adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective. Existing law: 1)Licenses and regulates physicians and surgeons under the Medical Practice Act (Act) by the Medical Board of California (MBC) within the Department of Consumer Affairs (DCA). (Business and Professions Code (BPC) § 2000 et seq.) a) Provides that the MBC shall take action against a physician who is charged with unprofessional conduct, as specified. (BPC § 2234) b) Requires the MBC to prioritize its investigative and prosecutorial resources to ensure that physicians representing the greatest threat of harm are identified and disciplined expeditiously and includes in that prioritization list: "Repeated acts of clearly excessive prescribing, furnishing, or administering of controlled substances, or repeated acts of SB 1262 Page 2 prescribing, dispensing, or furnishing of controlled substances without a good faith prior examination of the patient and medical reason therefor." (BPC § 2220.05) 1)The Compassionate Use Act of 1996 (CUA), an initiative measure, prohibits prosecution for the possession or cultivation of marijuana of a patient or a patient's primary caregiver who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (Health and Safety Code (HSC) § 11362.5) 2)Declares that the purposes of the CUA are: a) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. b) To insure that patients and their primary caregivers, who obtain and use marijuana for medical purposes upon the recommendation of a physician, are not subject to criminal prosecution or sanction. c) To encourage the Federal and State governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. (HSC § 11362.5 (b) (1) (A) to (C)) 3)States that nothing in the CUA shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes. (HSC § 11362.5 (b) (2)) 4)Provides that, notwithstanding any other provision of law, no physician in California shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (HSC § 11362.5 (c)) 5)States existing law, relating to the possession and the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (HSC Section 11362.5 SB 1262 Page 3 (d)) 6)Defines "primary caregiver" for purposes of the CUA as the individual designated by a patient who has consistently assumed responsibility for the housing, health, or safety of that person. (HSC § 11362.5(e). 7)Requires the California Department of Public Health to establish and maintain a voluntary Medical Marijuana Program (Program) for qualified patients to apply for identification cards, and county health departments to issue identification cards to qualified patients and their caregivers. (HSC § 11362.7, et. seq.) 8)Provides that 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 cultivate marijuana for medical purposes, collectively or cooperatively, shall not, solely on that basis, be subject to state criminal sanctions for the possession, sale, transport, or other proscribed acts relating to marijuana. (HSC § 11362.775) 9)Makes it a misdemeanor offense to, among other things, fraudulently represent a medical condition or provide any material misinformation to a physician, health department designee, or to law enforcement, for the purpose or falsely obtaining an identification card; fraudulently use any person's identification card in order to acquire, possess, cultivate, transport, use, produce, or distribute marijuana; counterfeit, tamper with, or fraudulently produce an identification card; breach any confidentiality requirements pertaining to an identification card program. (HSC § 11362.81) 10)Requires a person who seeks an identification card to pay a fee and provide to the county health department the person's name, proof of residency, written doctor's recommendation, doctor's name and contact information, caregiver's name and duties, and patient's and caregiver's government issued photo identification card. (HSC § 11362.715 (a)) 11)Requires county health departments to issue serially numbered identification cards to patients and caregivers containing: a unique user identification number, an expiration date, the county health department's name and telephone number, photo identification of the cardholder, and a toll-free Department of Public Health telephone number enabling state and local law enforcement officers to immediately verify the card's validity. (HSC Section 11362.735 (a)) SB 1262 Page 4 12)Prohibits state or local law enforcement officers from refusing to accept an identification card unless the officer has reasonable cause to believe that the card is being used fraudulently or its information is false or fraudulent. (HSC § 11362.78) 13)Provides that qualified patients, persons with valid identification cards, and their designated primary caregivers who associate in order to collectively or cooperatively to cultivate marijuana are not subject to criminal liability on that basis. (HSC § 11362.775) 14)Prohibits medical marijuana dispensaries that possess, cultivate, or distribute medical marijuana from being located within a 600 foot radius of a school, and authorizes cities and counties to further restrict the locations of medical marijuana collectives. (HSC § 11362.768) 15)Lists marijuana as a hallucinogenic substance in Schedule I of the California Uniform Controlled Substances Act. (HSC § 11054 (d)) This bill: 1)States legislative intent to the following: a) The broad authority granted by the California Constitution to cities and counties to determine, the appropriate uses of land within their borders, allows each city and county to determine whether or not a medical marijuana dispensary or other facility that makes medical marijuana available may operate within its borders. b) If, pursuant to this authority, a city or county determines that a dispensary or other facility that makes medical marijuana available may operate within its borders, then there is a need for the state to license and regulate these dispensaries and other facilities. A licensing requirement is not intended to preempt local ordinances regarding the sale and use of medical marijuana, including, but not limited to, security, signage, lighting, and inspections. c) The following elements are necessary to uphold important state goals: 1. Strict provisions to prevent the potential diversion of marijuana for recreational use. SB 1262 Page 5 2. An effective means of restricting access to medical marijuana by persons under 21 years of age. a) The act shall not be construed to promote or facilitate the non-medical, recreational possession, sale, or use of marijuana. Physician and Surgeon / Medical Board Provisions (MBC) 2)Prior to recommending medical marijuana to a patient, a physician and surgeon shall meet the following requirements: b) Have a doctor-patient relationship. c) Conduct an appropriate prior examination of the patient to establish that medical use of marijuana is appropriate. d) Consult with the patient as necessary and periodically review the treatment's efficacy. 3)Requires a physician recommending medical marijuana to do the following: e) Include a discussion of the side effects. f) Address in the recommendation what kind of marijuana to obtain, including high tetrahydrocannabinol (THC) levels, low THC levels, high cannabidiol (CBD) levels, low CBD levels, and explain the reason for recommending the particular strain. Also prohibits a physician and surgeon from recommending butane hash oil. g) Maintain records for individual patient supporting the decision to recommend medical marijuana. 4)Makes specified requirements for any recommendation for medical marijuana to a person under 21 years of age: h) The recommendation must be approved by a board certified pediatrician. i) The recommendation must be for high CBD marijuana. j) All recommendations must be for non-smoking delivery. 5) Makes it a crime (misdemeanor) for a physician who recommends SB 1262 Page 6 marijuana to a patient for a medical purpose to accept, solicit or offer any form of remuneration from or to a licensed facility if the physician or his or her immediate family has a financial interest as specified. 6) Requires MBC by January 1, 2016, to convene a task force of experts on the use of medical marijuana, to review and update as necessary physician guidelines for recommending medical marijuana to ensure the competent review in cases concerning the recommendation of marijuana for medical purposes. 7) Makes it unprofessional conduct (thus subject to disciplinary action by the MBC), for a physician to recommend marijuana to a patient for a medical purpose without an appropriate prior examination and a medical indication, or to recommend marijuana for non-medical purposes. California Department of Public Health (CDPH) Licensing Provisions 8) Requires the CDPH to license dispensing facilities and cultivation sites, and: a) Prohibits a person from selling or providing marijuana other than at a licensed dispensing facility. b) Prohibits a person from growing or processing marijuana other than at a licensed cultivation site. 1)Defines the following terms: a) "Licensed cultivation site" means a facility that grows or grows and processes marijuana for medical use and that is licensed, as specified. b) "Licensed dispensing facility" means a dispensary, mobile dispensary, marijuana processing facility, or other facility that provides marijuana for medical use that is licensed, as specified. c) "Minor" means a person who is under 21 years of age. 1)Prior to issuing a license to a dispensing facility or a cultivation site, CDPH must require from each proposed facility: SB 1262 Page 7 a) The name of the owner or owners and the address and telephone number of the proposed facility. b) A description of the scope of the proposed business. c) A certified copy of the local jurisdiction's approval to operate within its borders. d) A completed application required by CDPH. e) Payment of a fee, in an amount determined by CDPH, sufficient to cover but not exceed the actual costs of the administration of the licensing provisions. f) Any other information required by CDPH. 1)Requires CDPH, after consulting with outside entities, to establish standards for quality assurance testing of medical marijuana, to ensure protection against microbiological contaminants, and prohibits non-organic pesticide use in any marijuana cultivation site. 2)Imposes certain requirements and prohibitions upon a licensed dispensing facility, including: a) Prohibits acquiring, possessing, cultivating, delivering, transferring, transporting, or dispensing marijuana for any purpose other than those authorized by Article 2.5 (commencing with Section 11362.7) of Chapter 6 of Division 10. b) Prohibits acquiring marijuana plants or products except through the cultivation of marijuana by that facility, if the facility is a licensed cultivation site, or another licensed cultivation site. 1)Prohibits a licensed facility from issuing a marijuana product to any patient without first verifying that the recommending physician is licensed to practice medicine in California. 2)Prohibits the distribution of any form of advertising for physician recommendation of medicinal marijuana unless the advertisement contains the following notice: "NOTICE TO CONSUMERS: The Compassionate Use Act of 1996 ensures that seriously ill Californians have the right to obtain and use marijuana for medical purposes where medical use is deemed SB 1262 Page 8 appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana. Physicians arrive at the decision to make this recommendation in accordance with accepted standards of medical responsibility and are licensed and regulated by the Medical Board of California. California law prohibits advertising that includes statements of bait, discount, premiums, gifts, or any statements of a similar nature." 3)Requires any advertising for physician recommendation for medicinal marijuana to meet the advertising requirements of the Medical Practice Act, and specifically prohibits fraudulent, deceitful, or misleading statements, including statements or advertisements of bait, discount, premiums, gifts, or any statements of a similar nature. 4) Requires implementing sufficient security measures to deter and prevent unauthorized entrance into areas containing marijuana and theft of marijuana at those facilities. The security measures shall include: limiting access to the facility to only registered qualifying patients, personal caregivers, and facility agents; preventing unauthorized individuals from remaining on the premises; establishing limited access areas accessible only to authorized facility personnel; and storing marijuana in a secure, locked safe or vault to prevent diversion, theft, and loss. 5)Requires a licensed facility to notify law enforcement within 24 hours after discovering discrepancies during the inventory, diversion, theft, loss, or any criminal activity involving the facility or a facility agent, any loss or unauthorized alteration of facility records, and any breach of security. 6)Requires a licensed cultivation site to weigh, inventory, and video, all medical marijuana to be transported prior to its leaving its origination location. Requires a licensed dispensing facility, within eight hours after arrival at the destination, to re-weigh, re-inventory, and video, all transported marijuana. Local Government Provisions 7)Provides for enforcement by the county health department, with oversight by the CDPH. 8)Authorizes an county enforcement officer to enter a facility during the facility's hours of operation and other reasonable times to: SB 1262 Page 9 a) Conduct inspections, issue citations, and secure samples, photographs, or other evidence at a licensed facility or at a facility suspected of being a dispensing facility or cultivation site. b) Obtain evidence, including documents, or copies of documents, including inventories, or any record, file, paper, process, invoice, video, or receipt in order to determine compliance with the chapter. 1)Requires a county enforcement officer to make a written report and furnish a copy to the facility owner upon the completion of an inspection or investigation. 2)Requires local governments, upon request by CDPH, to provide reports on the number and types of facilities operating within their jurisdiction. 3)Makes a facility license subject to the restrictions of the local jurisdiction in which the facility operates or proposes to operate. Specifies that even if a license has been granted by CDPH, a facility shall not operate in a local jurisdiction that prohibits the establishment of that type of business. 4)Makes violation of the licensing provisions punishable by a civil fine of up to $35,000 for each individual violation. 5)Specifies that nothing shall prevent a city or other local governing body from: a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective. b) The civil and criminal enforcement of those local ordinances. c) Enacting other laws consistent with the licensing provisions. FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by Legislative Counsel. COMMENTS: 1.Purpose. This bill is sponsored by California Police Chiefs SB 1262 Page 10 Association and League of California Cities (Sponsors) to establish a regulatory framework for medical marijuana that prioritizes public safety and local control. According to the Author, SB 1262 is aimed at setting tighter regulations on doctors who issue medical marijuana recommendations, including recommendations to minors. The bill would require all marijuana dispensing facilities and cultivations sites to be licensed by the Department of Public Health (DPH). Approval from local jurisdictions would be required as part of the state license. The Author states that the bill also upholds local governments' ability to ban medical marijuana dispensaries and all related facilities, sets uniform health and safety standards to be administered by counties with oversight by the DPH, and outlines security measures for all medical marijuana facilities. The Author writes, "While medical marijuana is legal in California, the industry is poorly regulated. Existing laws lack appropriate standards for medical marijuana recommendations, cultivation, processing and sales. SB 1262 will set needed health and safety standards, require licensing, protect local authority, and establish security measures for the sale of medical marijuana." 2.Background. Since the approval of the CUA by voters in 1996, commonly known as Proposition 215, state law has allowed Californians access to marijuana for medical purposes, and prohibited punitive action against physicians for making medical marijuana recommendations. SB 420 (Vasconcellos, Chapter 875, Statutes of 2003), allowed patients and primary caregivers to cultivate marijuana for personal use and established in the CDPH a medical marijuana card program for patients to use on a voluntary basis. In the intervening 11 years, although there have been several legislative attempts, no broader, feasible regulatory structure has been established, and the implementation of the CUA has been marked by conflicting authorities, regulatory chaos, intermittent federal enforcement action, and a series of lawsuits which have tested the limits of the CUA, and focused on the extent of the authority of local government. The Author indicates that most attempts at medical marijuana legislation in California have been geared toward state pre-emption, and unsympathetic to the authority of local government. None have been health-based, despite the medical rationale that spawned the SB 1262 Page 11 CUA. None have sought to impose any health and safety standards, despite the fact that the regulatory structure they tried to establish would have exercised oversight over what is known to be a psychotropic substance. And finally, no legislation has squarely addressed the many public safety concerns triggered by such a regulatory scheme, according to the Author. 3.Compassionate Use Act of 1996. California voters passed the CUA in 1996. The CUA established the right of patients to obtain and use marijuana to treat specified illnesses and any other illness for which marijuana provides relief. Additionally, the CUA specifically protects physicians who recommend the use of marijuana to patients for medical purposes and exempts qualified patients and their primary caregivers from California drug laws prohibiting possession and cultivation of marijuana. The CUA is a broadly-framed law. It establishes the right of a patient to obtain medical marijuana pursuant to a physician's recommendation. The initiative then simply encourages the state and federal governments to "implement a plan for safe and affordable distribution of marijuana [to qualified patients]." It has been argued that very little has been done to implement the initiative. Instead of a comprehensive implementation plan, numerous uncoordinated bills have been introduced in the Legislature. Further, the courts have only provided a small measure of clarity and certainty in this area. 4.CDPH Medical Marijuana Program. The California Department of Public Health, Medical Marijuana Program (MMP) was specifically established by SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) to create a State-authorized medical marijuana identification card (MMIC), along with a registry database for verification of qualified patients and their primary caregivers. Participation by patients and primary caregivers in this identification card program is voluntary. The MMP Web-based registry allows law enforcement and the public to verify the validity of a qualified patient or primary caregiver's MMIC as authorization to possess, grow, transport, and/or use medical marijuana within California. A qualified patient or primary caregiver may possess no more than 8 ounces of dried marijuana per qualified patient (HSC § 11362.77). Under the MMP, a patient or qualified caregiver with a recommendation for medical marijuana from a licensed California physician can for a MMIC through the local County Public Health Department. Fees for the card registration vary from county to county and the card is valid for one year, after which the card must be renewed. A primary caregiver card will expire when the patient's card expires. SB 1262 Page 12 In order to apply for a MMP, a patient or qualified caregiver must reside in the county where they apply, present the physician recommendation for medical marijuana, and pay the fee required by the county. Upon issuance of the MMIC, the card is registered into an online database which law enforcement can use to verify whether a MMIC is valid. The MMP is a voluntary registration program. A patient or a qualified caregiver is not required to obtain a MMIC or to participate in the MMP in order to use medical marijuana upon the recommendation of a physician under the CUA. 5.California Attorney General's Compassionate Use Guidelines. In 2003, SB 420 additionally required the California Attorney General to adopt "guidelines to ensure the security and non-diversion of marijuana grown for medical use" (HSC § 11362.81 (d)). To fulfill this mandate, in August of 2008, the Attorney General published Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (California Attorney General. August 2008) (Guidelines). The Guidelines are intended to: (1) ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or illicit markets, (2) help law enforcement agencies perform their duties effectively and in accordance with California law, and (3) help patients and primary caregivers understand how they may cultivate, transport, possess, and use medical marijuana under California law. 6.Marijuana - A Schedule 1 Drug. Even though California voters enacted the CUA to permit the use of marijuana for medical purposes by persons deemed qualified by their physicians, marijuana still is an illegal drug both under federal and state law, and its use, possession, distribution, cultivation, or sale carries criminal penalties. Under California law, marijuana is listed as a hallucinogenic substance in Schedule I of the California Uniform Controlled Substances Act (HSC § 11054 (d)). Under federal law, possession of marijuana, even by medical users, continues to be a crime. The federal Controlled Substances Act specifies that, except as provided, it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance. (21 U.S.C. Sec. 841(a)) The only exception provided in the Controlled Substances Act for marijuana, a Schedule I drug, is for its use in government-controlled research projects. Thus far, calls to reclassify marijuana to remove it from the list of SB 1262 Page 13 Schedule I drugs have not resulted in any change in classification. Since marijuana is a Schedule I drug, the medical community is unable to do any substantive clinical trials, controlled studies or peer-reviewed research. Therefore, it is difficult, if not impossible, for a physician to make recommendations about what kind of marijuana to obtain (high THC, high CBD, low CBD) and explain the reason for recommending the particular strain of marijuana. A lack of evidence-based medicine further makes it difficult for a physician to evaluate the efficacy of a patient's course of treatment with medical marijuana. These are both elements of this bill which may well prove problematic within the field of the practice of medicine. 7.U. S. Department of Justice Guidance Rewarding Marijuana Enforcement. In August of 2013, the U.S. Department of Justice (USDOJ) issued a memorandum titled "Guidance Regarding Marijuana Enforcement" to all U.S. Attorneys. The memorandum updated the prior guidance given by USDOJ regarding marijuana enforcement under the federal Controlled Substances Act, in light of state ballot initiatives that legalize marijuana under state laws and that provide for the possession and use of small amounts of marijuana. While affirming that marijuana is still, at the federal level, considered a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime, the memorandum outlines enforcement priorities that are particularly important to the federal government, including: preventing distribution to minors; preventing revenue from marijuana from going to criminal enterprises; preventing diversion to other states where marijuana is not legal under state law; preventing state-authorized marijuana from being a cover for trafficking in other illegal drugs or illegal activity; preventing violence in cultivating and distributing marijuana; preventing drugged driving and other public health problems from marijuana use; and preventing growing, possessing or using marijuana on public lands or on federal property The document clearly lays out the federal expectation for the states that have legalized marijuana, even if only for medical purposes, that they will develop a robust system of regulation and enforcement, and that such a system will reduce the likelihood of federal enforcement activity. 8.Local Control of Medical Marijuana Dispensaries. In 2013, the California Supreme Court in City of Riverside v. Inland Empire Patients, upheld that local governments have inherent zoning power. The issue in this case was whether California's medical marijuana SB 1262 Page 14 statutes preempt a local ban on facilities that distribute medical marijuana. The Court concluded they do not and upheld the City of Riverside's implementation of a ban on medical marijuana dispensaries and on any facility that is prohibited by federal or state law. 9.Related Legislation. AB 604 (Ammiano, 2013) creates a Division of Medical Cannabis Regulation and Enforcement within the Department of Alcoholic Beverage Control with exclusive power to register persons for the cultivation, manufacture, testing, transportation, storage, distribution, and sale of medical cannabis within the state subject to specified exemptions for a city or county. Provides that a commercial registrant and its employees regarding medical cannabis are not unlawful, as specified, and establishes requirements for the transportation of medical cannabis. Specifies that its provisions do not affect local zoning ordinances or laws of general application. Makes a physician recommending marijuana to patients without a good faith examination and medical reason to be unprofessional conduct and should be given priority for investigation and prosecution by the MBC. ( Status : Referred to Senate Public Safety Committee.) SB 439 (Steinberg, 2013) exempts medical-marijuana collectives and cooperatives from criminal liability for possession, cultivation, possession for sale, sale, transport, importation, and furnishing marijuana. Clarifies MBC enforcement of medical marijuana recommendations, what constitutes unprofessional conduct, and the bar on the corporate practice of medicine. (Status: Referred to Assembly Health Committee.) AB 473 (Ammiano, 2013) enacted the Medical Marijuana Regulation and Control Act, and create a Division of Medical Marijuana Regulation and Enforcement in the in the Department of Alcoholic Beverage Control to regulate the cultivation, manufacture, testing, transportation, distribution, and sale of medical marijuana. ( Status : This measure failed passage on the Assembly Floor.) AB 2312 (Ammiano, 2012) established a nine-member Board of Medical Marijuana Enforcement within the Department of Consumer Affairs to regulate the medical marijuana industry and to collect fees from medical marijuana businesses to be deposited into a new Medical Marijuana Fund. The bill would have authorized local taxes on medical marijuana up to 5%. ( Status : This bill died in Senate BP&ED.) AB 2465 (Campos, 2012) made medical marijuana patient and caregiver SB 1262 Page 15 identification cards mandatory, and required medical marijuana collectives to keep copies of members' identification cards. ( Status : This bill died without hearing in Assembly Public Safety Committee.) SB 1182 (Leno, 2012) provided that a cooperative or collective that operates within the Attorney General's (AG) shall not be subject to prosecution for marijuana possession or commerce, as specified; and provided that where such an entity operates within the AG's guidelines, the entity and its employees, officers and members shall not be subject to prosecution for marijuana commerce because the entity or its employees, officers, or members received compensation for actual expenses incurred in carrying out activities in compliance with the guidelines. ( Status : This bill died on Senate Floor.) SB 129 (Leno, 2012) prohibited employment discrimination on the basis of a person's status as a qualified patient (medical marijuana user) or on the basis of the person's positive drug test for marijuana, provided the person is a qualified patient and the medical use of marijuana does not occur at the place of employment or during hours of employment. ( Status : This bill died on Senate Inactive File.) AB 1300 (Blumenfield, Chapter, 196, Statutes of 2011) provided that a local government may enact an ordinance regulating the location, operation or establishment of a medical marijuana cooperative or collective. Authorized a local government to enforce such ordinances through civil or criminal remedies and actions; and authorized the local government to enact any ordinance that is consistent with the Medical Marijuana Program, which is intended to implement the CUA. AB 1017 (Ammiano, 2011) made the cultivation of marijuana alternatively punishable as a misdemeanor with a penalty of imprisonment in a county jail for a period of not more than one year. ( Status : This bill failed passage on Assembly Floor.) AB 223 (Ammiano, 2011) provided that the CUA does not authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana within 600 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence or within a medical marijuana cooperative, collective, or dispensary. ( Status : This bill died in Assembly Public Safety Committee.) SB 1262 Page 16 SB 626 (Calderon, 2011) would require 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 taxes on retail sales of marijuana and ensure proper regulation of the cultivation, transportation, and distribution of marijuana and marijuana products. ( Status : This bill was held in Senate Appropriations Committee.) SB 847 (Correa, 2011) prohibited any medical marijuana entity that possesses, cultivates, or distributes medical marijuana from locating within 600 feet of a residential area unless a local ordinance has been adopted to specifically regulate the location of these entities in relation to residential use. ( Status : This bill was vetoed by Governor Brown.) AB 2650 (Buchanan, Chapter 603, Stats. 2010) prohibited operation or establishment of a medical marijuana cooperative, collective, dispensary or provider within 600 feet of a school; provided that ordinances adopted prior to January 1, 2011 regulating the location or establishment of such a medical marijuana entity shall not be preempted by the bill; authorized a local entity to only adopt an ordinance that restricts the location or establishment of a medical marijuana entity at a further distance than is restricted by the bill. SB 1098 (Migden, 2008) required the State Board of Equalization to administer a tax amnesty program, as specified, for medical marijuana dispensaries, as defined. ( Status : This bill died in Senate Revenue and Taxation Committee.) SB 529 (Migden, 2007) required the Board of Equalization to administer a tax amnesty program, as specified, for medical marijuana dispensaries. ( Status : This bill was gutted and amended to different subject.) SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) established the Medical Marijuana Program 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 CUA. 10.Arguments in Support. In sponsoring the bill, the League of California Cities writes that in 2013, the League and the California Police Chiefs Association "joined forces to defeat no fewer than four bills in the California Legislature that sought to regulate medical marijuana. We opposed each of the bills over concerns they would have preempted local control, ignored significant public SB 1262 Page 17 safety concerns, and failed to address important health and safety issues." The League states that SB 1262, "which has been carefully vetted with city attorneys, police chiefs, and the League's Public Safety Policy Committee, provides what California has lacked since the passage of Proposition 215 in 1996: a reasonable public safety and health-based approach to implementing this proposition in a state with great size and diversity." The California Police Chiefs Association argues that the bill establishes an improved regulatory structure to ensure that Proposition 215 works as originally envisioned to assist patients with legitimate medical needs, in a manner that works for law enforcement, city and county governments, local community organizations, and medical professionals. "As police chiefs and local government leaders, we believe it is time to address the flaws associated with Proposition 215 implementation in a responsible, realistic and health-based fashion while also protecting the needs of legitimate medical patients." A number of California cities and city police associations have written, voicing support for the bill, stating that previous legislation sought to pre-empt or undermine local control, only partially addressed the significant public safety concerns raised by medical marijuana, and failed to address important health and safety issues that are inevitably triggered by a regulatory process for any medicine. The supporters state that municipal governments, are on the front lines on this issue along with local police departments, and have to cope with the effects of the current chaotic regulatory structure for medical marijuana on a daily basis. These supporters believe that the bill puts a responsible regulatory structure in place that protects patient access while protecting local control and addressing public safety issues. International Faith Based Coalition (IFBC) states its strong support of the bill stating "The sad fact is that anyone who simply wants to get high can obtain a marijuana recommendation from a compliant doctor. Here in Sacramento the infamous 'Dr. Skype' was churning out medical recommendations in a 42 second time-frame. Those 42 seconds included a 'consultation' conducted on Skype. Unhappily, the "Dr. Skype" example is not an isolated one, as this practice of recommendations for everyone pervades the state." The IFBC writes that requiring the existence of a bona-fide doctor-patient relationship in order to issue a medical marijuana recommendation assures that people who need to obtain a recommendation for SB 1262 Page 18 legitimate medical purposes may obtain one, while eliminating the deplorable practices that have been taking place. The Association For Los Angeles Deputy Sheriffs ; Association Of Orange County Deputy Sheriffs ; California Fraternal Order Of Police ; California Police Chiefs Association ; Long Beach Police Officers Association ; Los Angeles County Professional Peace Officers Association ; Los Angeles Police Protective League ; Riverside Sheriffs Association ; Sacramento County Deputy Sheriffs Association ; Santa Ana Police Officers Association write in support that what voters did not have in mind is what we have today: A state of affairs where medical marijuana recommendation fraud is so rampant that virtually anyone in California may obtain a recommendation to use marijuana. 11.Arguments in Opposition. Butte County opposes the bill, stating that the bill would specifically assign enforcement responsibilities on county health departments, and argues that this assignment of enforcement responsibilities weakens local control. 12.Oppose Unless Amended. California Medical Association (CMA) opposes the bill unless amended, stating that generally speaking, the issues of inappropriate recommendations of medical marijuana stem from a lack of enforcement of existing and widely accepted community standards of care involving medical marijuana. CMA states that it has been working with the Author and recommends amendments to make enforcement of the medicinal marijuana recommendations an enforcement priority of the MBC, and in addition recommends six other consumer protections that would make a meaningful impact on inappropriate recommendations. CMA states that several provisions of the bill could subject physicians to federal enforcement action due to the Schedule I federal classification of marijuana. The bill would require physicians to include in the recommendation the type and strength of marijuana to use, despite the fact that this information is generally not available due to the federal Schedule I designation. CMA states that the bill would create additional and significant hurdles for children who suffer from epilepsy, seizures, and other neurological conditions, despite promising outcomes that have been reported. California National Organization for the Reform of Marijuana Laws (Cal NORML) strongly opposes the bill unless it is amended. Cal NORML contends the bill restricts recommendations to a patient's primary care physician or a physician referred by his or her primary care physician. Committee staff notes that the Author has removed this provision in the latest amendments. Cal NORML believes the bill SB 1262 Page 19 restricts a physician's right to recommend contrary to the CUA. The bill would further restrict recommendations for minors to pediatricians only. Cal NORML recommends the bill be amended to provide for separately regulates processing facilities, and that the physician referral restrictions be removed from the bill. Law Enforcement Against Prohibition (LEAP) opposes SB1262's provisions restricting physician recommendations, and has taken an oppose unless amended position on the bill. At the same time LEAP regards the remainder of the bill as a first step towards legal regulation, in keeping with the CUA, for a system of safe and affordable distribution of marijuana to all patients in medical need. Yolo County Board of Supervisors opposes the bill unless amended, and writes that while the County welcomes more regulation of the medical marijuana industry, it cannot support the bill as written, since the bill currently imposes a state-mandated local program by designating county health departments as the enforcement agencies for medical marijuana dispensary licensing. "County health departments do not have the funding, staff, or expertise to act as the enforcement agencies for medical marijuana dispensary licensing." Americans for Safe Access (ASA) , recommends amendments to ensure that the interests of legal medical marijuana patients are respected, including: establishing incentives for local jurisdictions that choose to regulate medical marijuana cultivation, processing, provision, and testing; providing sliding scale licensing fees to protect smaller cooperative patient cultivation; including language to ensure that cooperatives and collectives qualified to operate under Measure D, in Los Angeles in 2013, and other similar local ordinances will also be qualified under the bill; significantly revising the provisions for doctors who recommend medical marijuana to ensure that the bill does not inadvertently choke off access to medicine for legitimate patients. Greater Los Angeles Collective Alliance (GLACA) states that changes need to be made to the bill to reflect the realities of how those who use medical cannabis obtain recommendations from doctors. CLACA states: "Without these changes, you will have cut off access to medical cannabis for the sickest and most vulnerable of the population; those with terminal illnesses who have been thrown into poverty as their disease progressed." Rural County Representatives of California (RCRC) has an oppose unless amended position and states that the issue of marijuana cultivation is of particular focus to RCRC's member counties, and in the absence SB 1262 Page 20 of state policies, a number of counties have adopted ordinances banning dispensaries and restricting/banning growing marijuana. RCRC states that the bill takes a completely different perspective than RCRC's policies which advocates a strong regulatory scheme at the state level which is administered by a state agency. Although local agencies must retain their police power, particularly over land use, counties expect to have minimal involvement in the administration of the state's medical marijuana regulatory scheme. RCRC states that the bill as drafted places new requirements on a number of county entities (environmental health, agricultural commissioners, sheriff's departments) to perform a number of regulatory activities. The resulting new responsibilities would require a dramatic restructuring to limit a county's role and responsibilities and place the day-to-day regulation of medical marijuana with the State of California. 13.Policy Issues. Several policy concerns are noted in regard to this bill which the Author and Sponsors should address in the event that the bill moves forward. a. Apparent lack of enforcement. In stating the need for the bill, proponents have raised a number of anecdotal accounts of problems with physicians making recommendations for patients to use medical marijuana. These range from the so called "Dr. Skype" in Sacramento who spent an average of 42 seconds meeting with a patient over an Internet video connection before recommending medical marijuana, to advertising for physician referrals by bikini-clad roller skaters on beach boardwalks, to guarantees in advertising that "you will get a marijuana card or your money back," to handing out discount cards at hemp festivals, to doctors who will recommend medical marijuana for virtually any medical condition alleged by a patient with little or no verification by the physician. It appears that these cases are not only egregious but are also currently in violation of the standard of care for a physician under the law. This appears to be an argument that there is a current lack of enforcement by state regulatory agencies, in particularly by the MBC. b. Pediatrician referrals for persons under 21. The bill requires medical marijuana referrals for persons under 21 years of age to be made by board certified pediatricians. Typically pediatricians see children only up to 18 years of age. Thus, the bill leaves a gap in who can recommend medical marijuana for persons between 18 and 21 years old. c. Physician recommendations for specific strains of medical SB 1262 Page 21 marijuana. The bill requires a physician recommendation to address what kind of marijuana to obtain, including high THC levels, low THC levels, high CBD levels, low CBD levels, and explain the reason for recommending the particular strain of marijuana, and prohibits a physician from recommending butane hash oil. Since there is an admitted paucity of clinical data and empirical studies regarding specific uses and types of applications of medical marijuana, these requirements may be misplaced. The Committee may wish the Author or Sponsors to address this issue. d. Criminal background checks. Admittedly, the emergence of medical marijuana has a strong likelihood of attracting a criminal element to the cultivation, processing or dispensary components of the regulated practice. However, it does not appear that there are any provisions for criminal background checks by the CDPH in licensing dispensaries or cultivation facilities or by their employees or agents. e. Enforcement and licensing. The bill requires dispensaries and cultivation facilities to be licensed by CDPH, and provides for enforcement of the licensing provisions to be carried out by county health departments. This arrangement appears to create a disconnect between the licensing and enforcement agencies, and increases the likelihood of the agencies moving in divergent directions. The Committee may wish the Author or Sponsors to discuss how these issues might best be addressed in the bill. NOTE : Double-referral to Health Committee (Second). Any amendments to this bill should be made in Senate Health Committee. SUPPORT AND OPPOSITION: Support : California Police Chiefs Association (Sponsor) League of California Cities (Sponsor) Association for Los Angeles Deputy Sheriffs Association of Orange County Deputy Sheriffs California Association of Code Enforcement Officers California Fraternal Order of Police City of Adelanto City of Beaumont City of Canyon Lake City of Chowchilla SB 1262 Page 22 City of Covina City of Encinitas City of Etna City of Fortuna City of Gardena City of Glendora City of Hemet City of Highland City of La Palma City of Lathrop City of Lodi City of Merced City of Norwalk City of Rancho Cordova City of Rancho Cucamonga City of Rancho Mirage City of Rosemead City of Sacramento City of San Carlos City of Woodland Covina Police Department El Monte, South El Monte Chamber of Commerce International Faith Based Coalition Long Beach Police Officers Association Los Angeles County Police Professional Peace Officers Association Los Angeles Police Protective League Mammoth Lakes Police Department Riverside Sheriffs Association Sacramento County Deputy Sheriffs Association San Diego County District Attorney San Diego District Attorney Santa Ana Police Officers Association Smart Approaches to Marijuana (Project SAM) Town of Colma Police Department Town of Danville Support if Amended : Patient Advocacy Network Opposition : Butte County Board of Supervisors Oppose Unless Amended : SB 1262 Page 23 American Academy of Cannabinoid Medicine Americans for Safe Access California Medical Association California National Organization for Reform of Marijuana Laws (oppose unless amended) California National Organization for the Reform of Marijuana Laws (Cal NORML) Drug Policy Alliance Law Enforcement Against Prohibition Rural County Representatives of California The Greater Los Angeles Collective Alliance Yolo County Consultant:G. V. Ayers