MEDICAL MARIJUANA AND THE LAW

The U.S. legal landscape surrounding "medical marijuana" is complex
and rapidly changing.

Fourteen states - California, Alaska, Oregon, Washington, Maine,
Hawaii, Colorado, Nevada, Vermont, Montana, Rhode Island, New Mexico,
Michigan, and most recently, New Jersey - have passed laws
eliminating criminal penalties for using marijuana for medical
purposes, and at least a dozen others are considering such
legislation.[1] Medical experts have also taken a fresh look at the
evidence regarding the therapeutic use of marijuana, [2], [3] and the
American Medical Association (AMA) recently adopted a resolution
urging review of marijuana as a Schedule I controlled substance,
noting it would support rescheduling if doing so would facilitate
research and development of cannabinoid-based medicine.

Criticizing the patchwork of state laws as inadequate to establish
clinical standards for marijuana use, the AMA has joined the
Institute of Medicine, the American College of Physicians, and
patient advocates in calling for changes in federal drug-enforcement
policies to establish evidence-based practices in this area.

States have led the medical marijuana movement largely because
federal policymakers have consistently rejected petitions to
authorize the prescription of marijuana as a Schedule II controlled
substance that has both a risk of abuse and accepted medical uses.
Restrictive federal law and, until recently, aggressive federal law
enforcement have hamstrung research and medical practice involving
marijuana. The federal Controlled Substances Act (CSA) classifies
marijuana as a Schedule I drug - one with a high potential for abuse
and "no currently accepted medical use" - and criminalizes the acts
of prescribing, dispensing, and possessing marijuana for any purpose.
Although physicians may recommend its use under First Amendment
protections of physician patient communications, as set forth in the
2002 federal appeals court decision Conant v. Walters, they violate
federal law if they prescribe or dispense marijuana and may be
charged with "aiding and abetting" violation of the federal law if
they advise patients about obtaining it. A 2005 Supreme Court
decision (Gonzales v. Raich) made clear that regardless of state
laws, federal law enforcement has the authority under the CSA to
arrest and prosecute physicians who prescribe or dispense marijuana
and patients who possess or cultivate it.

Nevertheless, in October 2009, the Department of Justice issued a
memorandum to U.S. Attorneys stating that federal resources should
not be used to prosecute persons whose actions comply with their
states' laws permitting medical use of marijuana.

This change in the Justice Department's prosecutorial stance paved
the way for states to implement new medical-marijuana laws, and
states are now attempting to design laws that balance concerns about
providing access for patients who can benefit from the drug with
concerns about its abuse and diversion.

Although the current state laws facilitate access, they do little to
advance the development of standards that address the potency,
quality, purity, dosing, packaging, and labeling of marijuana.

All the state laws allow patients to use and possess small quantities
of marijuana for medical purposes without being subject to state
criminal penalties.

They also allow a patient's "caregiver" - an adult who agrees to
assist with a patient's medical use of marijuana - to possess, but
not use, marijuana.

Most laws protect "qualifying" patients, who are variously defined as
those who have received a diagnosis of a debilitating medical
condition and have written documentation (or, in one case, an oral
recommendation) from their physician indicating that they might or
would "benefit from the medical use of marijuana" or that the
"potential benefits of medical use of marijuana would likely outweigh
the health risks." Definitions of "debilitating medical condition"
vary by state (see Table 1) but typically include HIV AIDS, cachexia,
cancer, glaucoma, epilepsy and other seizure disorders, severe
nausea, severe and chronic pain, muscle spasms from multiple
sclerosis or Crohn's disease, and other conditions. All but two
states allow additions to this list if approved by the state health department.

State laws do not regulate marijuana's quality or potency, and most
don't address ways of obtaining the drug. Virtually all permit
patients or caregivers to cultivate marijuana.

New Jersey's new law prohibits such cultivation but provides for the
establishment of alternative treatment centers that will "fill" a
physician's written instruction for a certain quantity of marijuana.

Most laws are silent on whether patients or their caregivers may buy
or sell marijuana or whether dispensaries are permitted (see Table
2). California permits dispensing through cooperatives or
collectives, but until recently most other states did not - a
situation that is changing with the enactment of some recent laws and
amendments.

Most of the statutes also limit the amount of marijuana that patients
or caretakers can possess or cultivate, although the quantities
allowed are not derived from clinical trials or pegged to a medical
condition (see Table 2). The amounts range from 1 oz and 6 plants in
Alaska to 24 oz and 15 plants in Washington, an amount that
Washington considers to be a "60-day supply." California's original
medical-marijuana ballot initiative did not specify an allowed
quantity, instead permitting an amount reasonably related to the
patient's medical needs.

Subsequent legislation set limits, which apply to individuals who
register and thereby gain protection from arrest, but the California
Supreme Court recently struck down the limits as they apply to
unregistered patients who possess amounts of marijuana acceptable
under the original ballot initiative. Such patients can be arrested,
but if prosecuted can assert that the quantity they possess is
reasonably related to their needs.

Under the New Jersey law, physicians must provide patients with
written instructions specifying the amount of marijuana to be
dispensed by legally sanctioned treatment centers, but the maximum
amount for a 30-day period is 2 oz - making a "60-day supply" in New
Jersey just 4 oz, one sixth of that in Washington, a disparity that
underscores the absence of standards.

The laws also vary in terms of whether they establish a registry and
issue identification cards for qualifying patients.

Eleven of the 14 states have a registry, and Maine and New Jersey
will soon. In most states where patients have identification cards,
they are protected from arrest and prosecution. In some states,
however, registered patients with identification cards may be
arrested but can use the defense that they have a demonstrated
medical need for marijuana.

And in a few states, unregistered but "qualifying" patients who meet
other requirements of the law may also use this defense.

Missing from many state laws is a requirement that physicians
recommending medical marijuana to adult patients provide the
rudimentary disclosure of risks and benefits necessary for informed
consent, although such disclosure is generally required for patients
who are minors.

In Canada, the first country to decriminalize medical marijuana,
regulations require that physicians discuss the risks with their
patients, yet the lack of relevant clinical trials of smoked cannabis
makes it difficult for physicians to comply with the law. [4]

In states debating new legislation, policymakers are grappling with
questions that only scientific research can answer: For what
conditions does marijuana provide medicinal benefits?

Are there equally effective alternatives? What are the appropriate
doses for various conditions? How can states ensure quality and purity?

Although state laws represent a political response to patients
seeking relief from debilitating symptoms, they are inadequate to
advance effective treatment.

Medical experts emphasize the need to reclassify marijuana as a
Schedule II drug to facilitate rigorous scientific evaluation of the
potential therapeutic benefits of cannabinoids and to determine the
optimal dose and delivery route for conditions in which efficacy is
established.2 This research could provide the basis for regulation by
the Food and Drug Administration. Current roadblocks to conducting
clinical trials, however, make this more rational route of approval
unlikely and perpetuate the development of state laws that lack
consistency or consensus on basic features of an evidence-based
therapeutic program.

Reliance on state laws as the basis for access to medical marijuana
also leaves patients and physicians in a precarious legal position.
Although the current Justice Department may not prosecute patients if
they use marijuana in a manner consistent with their states' laws,
the federal law remains unchanged, and future administrations could
return to previous enforcement practices.

REFERENCES

1. ProCon.org. 14 Legal medical marijuana states: laws, fees and
possession limits. (Accessed April 1, 2010, at
http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881 .)

2. Taylor T. Supporting research into the therapeutic role of
marijuana. Position paper. New York: American College of Physicians,
2008. (Accessed April 1, 2010, at
http://proxychi.baremetal.com/csdp.org/research/medmarijuana.pdf .)

3. Use of cannabis for medicinal purposes, report 3 of the Council on
Science and Public Health (I-09). Chicago: American Medical
Association, 2009. (Accessed April 1, 2010, at
http://www.ama-assn.org/ama1/pub/upload/mm/443/csaph-report3-i09.pdf .)

4. Degenhardt L, Hall WD. The adverse effects of cannabinoids:
implications for use of medical marijuana. CMAJ 2008;178:1685-1686
http://www.cmaj.ca/cgi/content/full/178/13/1685?ijkey=a9f698545a15f0f4287220324f2e6a517d4b338a&keytype2=tf_ipsecsha