Decision from the Washington Supreme Court
A May 2015 decision by the Washington Supreme Court has clarified that Chapter 69.51A RCW doesn’t legalize the medical use of marijuana. It only provides qualified patients holding a valid recommendation and their designated providers with an affirmative defense to criminal prosecution (State of Washington v. William Michael Reis.)
Marijuana: Medical Marijuana
Note: I-502 does not address medical marijuana. The state does not currently license or regulate medical marijuana outlets. I-502 does not change how or where they operate.
Medical Marijuana (Cannabis)
On April 24, 2015, Gov. Inslee signed 2SSB 5052, the Cannabis Patient Protection Act. This act creates licensing and regulation of all marijuana producers, processors and retail stores under the oversight of the renamed Washington State Liquor and Cannabis Board (LCB). It also directs the Department of Health to complete tasks that include:
- Contracting with a third party to create and administer a medical marijuana authorization database;
- Adopting rules relating to the operation of the database;
- Adopting rules regarding products sold to patients and their designated providers;
- Consulting with the LCB about requirements for a retail store to get a medical marijuana endorsement;
- Creating a medical marijuana consultant certification program;
- Developing and approving continuing education for healthcare practitioners who authorize the medical use of marijuana; and
- Making recommendations to the legislature about establishing medical marijuana specialty clinics.
The act will take effect in three stages. Below are some of the significant changes.
Effective April 24, 2015:
- The department must begin work to establish the database.
- No person under the age of 21 may participate in a collective garden or receive marijuana that is produced, processed, transported or delivered through a collective garden. A valid designated provider age 21 or older may participate in a collective garden on behalf of the patient.
- The LCB may conduct controlled purchases from licensed retailers and collective gardens to ensure they’re not providing marijuana to people under the age of 21.
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Effective July 24, 2015:
- Post-traumatic stress disorder and traumatic brain injury are added as qualifying conditions.
- A qualifying condition must be severe enough to significantly interfere with the patient’s activities of daily living and ability to function, which can be objectively assessed and evaluated.
- All new authorizations must be written on a form developed by the department and printed on tamper-resistant paper.
- Patient examinations and re-examinations must be performed in person at the healthcare practitioner’s permanent business location.
- Healthcare practitioners who write more than 30 authorizations per month must report the number to the department.
- Healthcare practitioners cannot have a practice that consists primarily of authorizing the medical use of marijuana.
- No more than 15 plants may be grown in a single housing unit even if multiple patients or designated providers reside there.
- Butane extraction is prohibited unless the person is a processor licensed by the LCB.
Effective July 1, 2016:
- All marijuana producers, processors and retail stores must be licensed by the LCB.
- All marijuana and marijuana products must be tested for safety and THC/CBD levels, accurately labeled, and sold in child-resistant packaging.
- Licensed retail stores may apply for and get a medical marijuana endorsement.
- All authorizations must be written on a form developed by the department and printed on tamper-resistant paper. All other forms of documentation are no longer valid.
- Patients under 18 years of age must have permission from a parent or guardian, and must participate in treatment.
- The database becomes operational.
- Patients and designated providers may be entered into the database by presenting their authorization to a licensed retail store with a medical marijuana endorsement.
- Possession amounts change depending on whether the patient or designated provider is entered into the database:
- Entered: May purchase up to three times the current limits at licensed retail store with a medical marijuana endorsement and may possess six plants and eight ounces of useable marijuana; healthcare practitioner may authorize additional plants to a maximum of 15; purchases at retail stores with a medical marijuana endorsement are not subject to sales tax; provides arrest protection.
- Not entered: Patient or designated provider can be arrested but has an affirmative defense to criminal prosecution for possession of up to four plants and six ounces of useable marijuana; may not participate in cooperatives; purchases at retail stores limited to amounts for all adults and are subject to sales tax.
- Up to four patients and designated providers may form a cooperative at the residence of one of the members and may grow the total authorized amount for the four members. Cooperatives must be registered with the LCB.
- A healthcare practitioner may sell or donate to patients topical products that have less than 0.3 percent THC.
- Collective gardens under the old law are no longer allowed. New language allows for cooperatives with specific restrictions.
Civil Law Provision
Can you still be drug tested now that marijuana is legal?
I-502 does not address the topic of drug testing but it is our understanding that employers may still conduct drug testing at their discretion. Since marijuana is illegal under federal law institutions that receive federal funds will still be subject to mandated testing. Organizations such as the NFL and NBA have issued statements that marijuana consumption is a violation of their conduct policy and they intend to continue testing for it.
What about industrial hemp? Does this create a new market for hemp products?
No. I-502 is focused on legalizing the recreational use of marijuana. I-502 modifies the definition of “marijuana” to include only cannabis greater than 0.3 percent THC concentration. Cannabis under this limit – industrial hemp – is not treated as recreational “marijuana.”