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OREGON
MEDICAL MARIJUANA LAW REPORTER
Vol. I, Issue 1, Summer 2004
Statement of Purpose:
Ballot Measure 67, the Oregon
Medical Marijuana Act, was
COURT ORDERS HALT TO DEA RAIDS
approved by Oregon voters in On Dec. 16, 2003, the 9th Circuit Court of Appeals ruled that a
1998, making Oregon one of
four states to adopt such a law temporary injunction should be granted against DEA raids on medical
that year. Since that time the marijuana patients. The 9th Circuit based their decision on a finding that
program has operated with the “intrastate, noncommercial cultivation, possession and use of
relative success, but many legal marijuana for personal medical purposes” likely exceeds the Constitutional
issues remain ambiguous and reach of the commerce clause. The decision reversed a District Court
contested. The OMMLR was
created to address the legal ruling earlier this year which denied the requested injunction on the
issues faced by patients, grounds that plaintiffs, Angel McClary-Raich and Diane Monson, were
caregivers, doctors, public unlikely to succeed on their claim that the Controlled Substances Act is
officials and attorneys, in unconstitutional as applied to medical marijuana patients.
effectively implementing This case sets precedent for granting preliminary injunctions to other
Oregon’s Medical Marijuana
Program DEA targeted patients residing in 9th Circuit medical marijuana states.
Presently, an earlier denial of injunction in the WAMM case, Santa Cruz
The OMMLR is produced by v. Ashcroft, is being reconsidered in light of the Raich decision. However,
students at the University of the precedent is temporary, pending the outcome of Raich. A ruling in
Oregon School of Law. favor of appellants Raich and Monson will mean that the DEA can no
OMMLR is not associated with
or sponsored by the UO Law longer interfere in the non-commercial intrastate use of medical marijuana.
School, nor is the Law School A ruling in favor of the DEA will lift the present injunction and allow
in any way involved in its further prosecution of state medical marijuana patients by the federal
production. government.
Though the injunction currently stands the federal government sought
Disclaimer: The Oregon
Medical Marijuana Law to overturn the 9th Cir. ruling by requesting a hearing by the 9th Cir. en
Reporter is not engaged in banc (An en banc hearing means that eleven of the 9th Circuits fifteen
rendering legal or other judges will hear the case rather than the normal panel of three). This
professional advice, and request was denied Feb. 25, 2004. The government may still seek to have
assumes no responsibility for the decision overturned by appealing to the Supreme Court.
the statements and opinions
advanced by any of its writers Table of Contents
or contributors. The
information herein is subject to Book Review……......2
change without notice and is
Doctors’ Speech
not intended to be, nor should it
Protected.……………3
be considered, a substitute for
individualized legal advice SB 420………………6
rendered by a competent
attorney. If legal advice or Recipes……………...7
other expert assistance is Smoke w/o Fire……..8
required, the services of a
competent attorney or other 5 Year Overview……9
professional should be
News Briefs…………10
obtained.
OMMA2…………….11
State Overview……...12
William H. Knight Law School
1
Welcome!
Welcome to the first issue of OMMLR. The idea for the production of OMMLR sprung from the
realization that, while medical marijuana laws have been passed in Oregon and nine other states, few
people understand what is protected by the various medical marijuana laws. Many issues have not
been addressed by courts anywhere, such as whether a patient tenant is protected from eviction for
growing medical marijuana, and whether an employee can be fired for medical use of marijuana. We
hope to address the legal developments regarding medical marijuana around the country, but
specifically the legal issues that pertain to patients in the state of Oregon. We hope that OMMLR
will become an interactive community that will help facilitate relationships between patients,
attorneys, doctors, caregivers, and law enforcement. Our main goal however is to track legal
developments regarding medical marijuana as they occur, and further understanding of medical
marijuana law as it presently exists.
We encourage the submission of questions, letters, and editorials, but of course cannot promise that
we will be able to publish or answer everything that is submitted to us. Please send your questions or
comments to OMMLR@yahoo.com.
Book Review: “Prescription Pot”
By George McMahon & Christopher Largen
Prescription Pot, is a two hundred page book that explores the
experiences of George McMahon, an advocate and federal medical
marijuana patient. McMahon is one of seven patients allowed to use medical
marijuana under the federal Investigational New Drug Program (IND), which
was started in 1976 and eventually closed to new applicants in 1992 under
the first Bush Administration.
The book is a patch work of stories past and present that come together
nicely to give a brief insight into the life and struggles of a medical marijuana patient. While
the book is unrefined and at times loosely strung together, McMahon’s voice shines through
with personality and wit. The stories he has to tell are occasionally comedic, often surprising,
but always engaging. Of particular interest were the stories of McMahon’s encounter with law
enforcement officers as a federal patient. Several of these stories were surprisingly positive,
while others remind the reader of the predicament faced by an individual in McMahon’s
position, whose need for and use of marijuana, though sanctioned by the government, is still
considered immoral and criminal by society.
Prescription Pot is only one of two books that share the experiences of federal IND
patients, and in that sense is a unique and rare look into the experience this program has held
and offered the handful of patients who have participated. The appendices of the book also
include the recent study on the long term effects of marijuana use on four of the IND patients,
which is reason enough to own this book.
This book is a good starting place for people unfamiliar with the subject of medical
marijuana, and provides an additional perspective on this controversial issue that everyone
(even those familiar with the issue) can benefit and learn from. Recommended.
2
Doctor& Patient Speech Protected
By Andrew J. Lopata
On October 14, 2003, the rights,6 it would not be wild basis that the federal policy
United States Supreme Court speculation to suggest that it violated the physicians’ and
denied certiorari in Walters v. would have affirmed this case. patients’ First Amendment
Conant.1 This left in force the In 1996, California rights of freedom of speech.
Ninth Circuit’s Conant v. voters adopted Proposition 215, Judge Kozinski, concurring,
Walters2 decision affirming a creating the Compassionate Use offered two additions to the
doctor’s First Amendment right Act of 1996, which allows majority opinion: 1) a
to recommend marijuana as a seriously ill patients to use discussion of the current state of
method of treatment to a marijuana as a treatment,7 if medical marijuana research and
patient. The court affirmed the recommended by a physician. expert opinion, and 2) an
district court order permanently A patient, or a patient’s primary alternate basis for the decision,
enjoining the government from: caregiver,8 who cultivates or namely that the federal
possesses marijuana in government is prohibited from
(i) revoking any physician class compliance with the Act is commanding a state to
member’s DEA registration exempt from certain other state administer or enforce a federal
merely because the doctor controlled substance statutes regulatory program.
makes a recommendation for that criminalize marijuana In affirming the district
the use of medical marijuana possession. The Conant court, the Ninth circuit’s
based on a sincere medical plaintiffs were patients who Conant majority also affirmed
judgment and (ii) from used marijuana for its medicinal the scope of the district court’s
initiating any investigation purposes and physicians who injunction, which prohibits
solely on that ground. The were challenging the federal federal agents from prosecuting
injunction should apply government’s multi-agency doctors unless they “in good
whether or not the doctor policy of revoking a physician’s faith believe that they have
anticipates that the patient will, license to prescribe controlled probable cause to charge under
in turn, use his or her substances if the physician the federal aiding and abetting
recommendation to obtain recommended marijuana as and/or conspiracy statutes.”10
marijuana in violation of treatment pursuant to California The Ninth circuit found that the
federal law.3 or Arizona’s medical marijuana government’s policy “strike[s]
laws.9 The United States at the core First Amendment
While Conant is not as District Court for the Northern interests of doctors and
dramatic a victory for medical District of California entered a patients,” namely, a physician’s
marijuana advocates as the preliminary injunction in 1997, need to “speak frankly and
recent Ninth Circuit decision in and a permanent injunction in openly to patients” and the
Raich v. Ashcroft,4 a physician’s 2000, prohibiting federal agents patient’s interest in trusting the
advice is a necessary from revoking a physician’s doctor so as to fully disclose all
component of any medical federal license to prescribe the information a physician
marijuana program.5 It is also controlled substances, based needs to know when diagnosing
important to remember that the solely on the physician’s and treating a patient.11
Supreme Court’s denial of cert. recommendation that a patient The court rejected the
is not an endorsement of the use marijuana as treatment for government’s argument that the
Ninth Circuit’s Conant holding. an illness. policy was similar to the federal
However, given the Supreme All three judges on the government’s abortion “gag
Court’s recent history of strong Ninth Circuit Conant panel rule” prohibiting doctors who
protection of First Amendment supported the outcome on the receive federal government
3
Doctor& Patient Speech Protected
Continued…
assistance from counseling recent medical literature and underwent several risky
patients about abortion services. government studies regarding surgeries in an attempt to
This gag rule was found to be the benefits of marijuana for correct her condition, but they
constitutionally permissible certain types of medical were unsuccessful and left her
because of its connection to conditions. He notes that (at the blind in one eye. In 1988, Ms.
federal funding.12 Here, the time of the opinion), nine states Musikka was arrested in
government was clearly had approved medical Florida and charged with
attempting to sanction a doctor marijuana laws, and that both cannabis possession. She
for giving medical advice based the Canadian and British challenged her conviction in the
on the content of the doctor’s governments have found that Florida Supreme Court, where
recommendation, which was not marijuana has appropriate she prevailed, becoming the
tied in any way to federal medical uses. Employing this first person in that state to
funding. As a content-based evidence, he notes that the establish a medical necessity
restriction, the court found that federal policy not only infringes defense for cannabis. Shortly
the policy did not meet the on the doctors’ and patients’ thereafter, the federal
“narrow specificity” required to free speech rights, but that it government enrolled Ms.
withstand strict scrutiny to pass also infringes on a state’s Musikka in its medical cannabis
muster under the First (California in this instance) program and has provided her
13
Amendment. The only interest in legalizing marijuana with one and one-half pounds of
standard that the government for medicinal purposes.15 This herbal cannabis on a quarterly
could articulate for whether the interest is well illustrated in the basis ever since. Ms. Musikka
policy was violated, was based Appendix of the case, which and her physician believe that if
on the patient’s perception of consists of case stories of she were deprived of cannabis
the doctor’s “recommendation,” patients from the (very limited) she would go blind.16
which the court found would federal government medical
impermissibly chill speech marijuana program. Elvy Judge Kozinski invokes
between the doctor and patient, Musikka’s story is as federalism to argue that the
for fear of government compelling as any: federal government’s stifling of
sanction.14 The court’s First the state’s interest amounts to
Amendment rationale for its [She] was diagnosed with commandeering the State’s
decision is well-reasoned and glaucoma in 1975 at the age of officers to administer or enforce
supported by case law. This 36. She tried conventional a federal regulatory program.17
fact, along with the presence of medications to treat her Kozinski argues that the federal
some “respectable” interested condition, but could not tolerate policy is nothing more than an
groups involved in this case them. Reluctantly, in 1976, she attempt to repeal a state law. If
(state governments, doctors, and decided to try herbal cannabis doctors cannot recommend
seriously ill patients), may have at the advice of her physician. marijuana to patients who need
weighed in the minds of the The cannabis provided her it, no patient can fulfill the
Justices when deciding not to immediate relief, substantially requirements of the law. This
take this case. lowering her intraocular theory, as it is based on
Judge Kozinski’s pressure as no other medication federalism and “states’ rights,”
concurrence offers some had, with few side effects. . . . may have some appeal to the
valuable additions to the case Fearful of the legal conservatives on the Supreme
law relating to medical consequences of smoking Court. However, despite a
marijuana. First, he discusses cannabis, Ms. Musikka recent resurgence in the
4
Doctor& Patient Speech Protected
Continued…
application of the doctrine of federalism, versus their
federalism, the Supreme Court probable personal (and may benefit from the medical use of
has not been shy about applying political) antipathy towards marijuana”).
6
See e.g. Ashcroft v. Free Speech
preemption when there is a marijuana use. For the sake of Coalition, 535 U.S. 234 (2002)
conflict between federal and patients who truly need (striking down the federal law
state law.18 In this case, when marijuana as medicine, let us prohibiting so-called “virtual child-
there is no affirmative state hope that the Court majority pornography”); Thompson v. Western
action demanded by the does not act in the politically States Medical Ctr., 535 U.S. 357
(2002) (striking down a federal law
government policy, it is expedient manner it has restricting physicians and pharmacists
unlikely the Supreme Court demonstrated in the past.20 from advertising certain drugs).
would have applied the 7
Cal. Health & Safety Code § 11362.5
“commandeering” doctrine. Andrew J. Lopata is a recent graduate allows marijuana use for “the
At this point in the of the University of Oregon School of treatment of cancer, anorexia, AIDS,
Law and is currently clerking for the chronic pain, spasticity, glaucoma,
conflict between state medical arthritis, migraine, or any other illness
Honorable Judge Charles D. Carlson
marijuana laws and federal of the Circuit Court for Oregon, for which marijuana provides relief.”
government resistance to them, County of Lane. The views expressed
8
The Compassionate Use Act allows a
United States v. Oakland in this article are his alone and do not primary caregiver to possess and
Cannabis Buyers’ Coop.,19 reflect those of his employer. Nothing cultivate marijuana for a patient,
in this work should be construed as presumably since it would be difficult
clearly allows the federal or impossible for some patients to
legal advice. This work is licensed
government to prohibit the under the “Attribution 1.0” Creative cultivate their own marijuana.
delivery of marijuana, and Commons license, which can be found
9
Conant, 309 F.3d 629, 632 (9th Cir.
prosecute those engaging in at: 2002).
10
such activity. With the http://creativecommons.org/licenses/b Id. at 635.
11
y/1.0/legalcode. Id. at 636.
Supreme Court’s denial of cert. 12
Rust v. Sullivan, 500 U.S. 173
in Conant doctors, at least for 1 (1991).
124 S. Ct. 387 (2003).
now, are still free to recommend 2
309 F.3d 629 (9th Cir. 2002).
13
Conant, 309 F.3d at 639.
14
marijuana to patients who need 3
Id. at 634. 15
Id.
it, as a necessary step to comply 4
The Ninth Circuit held the federal Id. at 645.
16
Id. at 648-649.
with state law for using Controlled Substances Act (CSA) 17
Id. at 645, citing New York v.
marijuana for medical unconstitutional, as applied to patients
who grow their own marijuana for United States, 505 U.S. 144 (1992)
treatment. The next big court medicinal use (or have a “care-giver” (striking a federal law requiring states,
battle will likely be over the grow it for them), in compliance with under certain circumstances to take
holding in Raich v. Ashcroft; a state medical marijuana law (in this over the administration of and
responsibility for privately-owned
that Congress exceeded its case, California), 2003 WL 22962231
low-level radioactive waste sites), and
Commerce clause power and (9th Cir.).
5
See e.g., A LASKA STAT. § Printz v. United States, 521 U.S. 898
the Controlled Substances Act 17.37.010(c)(1) (2001) (requiring a (1997) (striking a federal statute
is unconstitutional as applied to written statement “that the physician requiring local authorities to run back-
a patient (or a patient’s care- has concluded that the patient might ground checks on gun purchases).
18
See e.g. Geier v. American Honda
giver) who grows marijuana for benefit from the medical use of
Motor Co., Inc., 529 U.S. 861 (2000).
personal medicinal use, in marijuana”); ME. REV. STAT. ANN. tit. 19
22, § 2383-B(5) (2003) (requiring that 532 U.S.483 (2001).
compliance with a state law. If a physician has “advised” a patient
20
For the Court’s most famous
the Supreme Court accepts cert. that she might benefit from the example of political expediency, see
in Raich, it will likely test the medical use of marijuana); WASH. Bush v. Gore, 531 U.S. 98 (2000).
court’s conservative members’ REV. CODE § 69.51A.010(3) (2003)
commitment to the principles of (requiring that a patient “[h]as been
advised by that physician that they
5
Inner-Conflict in the Medical Marijuana Movement
Editorial by Kevin Feeney
While the movement for Medical Marijuana scored some major victories in 2003, including the
Supreme Courts refusal to hear Conant v. Walters and the 9th Circuit’s decision in Raich v. Ashcroft, the
movement continues to suffer from major divisions among supporters with conflicting political goals.
Nowhere is this division more apparent than in the varied response among medical marijuana supporters
to the passage of SB 420 in California.
The split response to this bill appears to arise out of conflicting political goals among medical marijuana
supporters; mainly those who want a functional medical marijuana law, and those who want outright
legalization. Advocates of legalization have long been a central source of support for patients, and have
used their influence to further their goals through the medical marijuana movement. While the support
of legalization advocates has been remarkable in advancing patient rights, their goals threaten
detrimental setbacks to patients when combined with the issue of medical marijuana.
Medical marijuana has long been accused of being a front for the legalization of marijuana. The patients
who benefit from marijuana realize the power of this attack and many want nothing to do with efforts to
legalize marijuana, especially if it will jeopardize their access to effective medicine. It is this conflict,
between patients who want a legitimate and functional medical marijuana law and advocates who see
patients as a sympathetic conduit to achieving outright legalization of marijuana, which lies at the heart
of the controversy over SB 420.
While SB 420 is not a perfect bill by any means, it is a step to practically advance patient protections,
and is also likely to further legitimize the medical use of marijuana nation-wide. The bill aims to protect
patients in two ways. First, by establishing a voluntary state registry, patients have the opportunity to
obtain a state recognized card certifying their legal use of marijuana. Patients who are questioned or
under investigation by law enforcement will easily be able to assuage law enforcement concerns about
illegal activity. In some counties of California local law enforcement has made it a policy to arrest all
marijuana users and let the courts decide who and who isn’t a legitimate patient. This policy has been
adopted because many patients don’t have any documentation of their status; all they need to become
legal is an oral recommendation from a physician, making it impossible for law enforcement to verify
the individual’s status in a timely manner. Where such policies aren’t in place, the legitimacy of
medical marijuana suffers because recreational users can claim their marijuana is for medicinal use
without repercussion.
Secondly, the law will assist patients by creating statewide guidelines as to plant and possession limits.
Currently the counties set their own guidelines as to what amount of plants and raw marijuana is
acceptable. Some counties are very liberal with their plant limits, yet some have created unworkable
limits. SB 420 addresses this problem by creating a minimum legal amount that must be recognized
state-wide, and by allowing individual counties to deviate upwards as they see fit.
Those who wish to see legalization take a very libertarian stance and espouse opposition to all
government involvement in medical marijuana, such as a state-wide registry program, as established by
SB 420. They argue that any government compilation of patient names will be used by law enforcement
to arrest and prosecute patients. In support of their argument they look to DEA raids that have occurred
on co-ops in California where documents containing patient information have been confiscated.
6
As a counter point it is interesting to note that five of the ten states that currently recognize some
protections for the medical use of marijuana have required patient registries. None of these five states
have had their patient lists used for purposes of arresting or harassing patients by federal or state law
enforcement. There has also been relatively little federal activity in these states, which perhaps suggests
that there is something unique to California’s law that has set it apart for federal raids and prosecutions.
These five states also lack the Medical Marijuana Recipes
major loop-holes that allow
recreational users to benefit While orally ingested marijuana is stronger than inhaled marijuana,
from their laws. Mainly, increasing the likelihood of patients having an adverse psychological
these states require reaction, many patients find relief without discomfort from marijuana
documentation of the when consumed in such a manner. It has the benefit of providing relief
individual’s medical for a longer period of time which may be useful in circumstances
condition and issue where patients will not be able to smoke for an extended period of
registration cards that allow time, for example when a patient is taking an overseas flight, or
law enforcement to quickly running errands around town. Oral consumption also avoids the health
verify an individual’s status. consequences of smoking. For these reasons OMMLR has decided to
This eliminates the risk of include a section where patients may share their recipes with one
recreational users free- another. If you have a recipe you would like to share please send it to
loading on a law that was OMMLR@yahoo.com. The following recipe was borrowed from
intended for the benefit of Jeanne Rose’s classic “Herbs & Things.”1
seriously ill people, a risk
that is addressed by SB 420. Dates & Figs Hashish
Each of these states also has Chop together ½ lb dates, ½ lb figs, and desired amount of hashish.
limits on the amount of Cook together in top of double boiler, slowly adding ½ cup
marijuana that can legally be Benedictine. Cook until soft and tender. Chill. Serve alone or over ice
possessed and grown. cream.
Admittedly, these limits are 1 JEANNE ROSE, H ERBS & THINGS147 (The Putnam Publishing Group 1972).
exceedingly restrictive for a
vast number of the patients
that could benefit from these laws. The limits created by SB 420 are much more practical, allowing
patients to grow 6 mature and 12 immature plants at any given time. The plant limits, in states that have
had them, have served to legitimize the medical marijuana laws, assuring the public and government
officials that medical marijuana is not being used as a ruse for the legalization of marijuana. The federal
government never received such assurances from California prior to SB 420, and surely federal
investigations that have uncovered patients growing over 100 plants for their own “medical” use have
raised practical suspicions about the legitimacy of medical marijuana.
While legalization of marijuana and medical marijuana are both legitimate political goals, they remain
separate issues and benefit different groups of people. No doubt there are many people that support both
issues, including patients, but many people who would otherwise support the medical use of marijuana
for patients in need are not willing to support legalization of marijuana. SB 420 rightly separates the
issues of legalization from medical marijuana, and will further legitimize patients who benefit from its
use. This bill should be supported by all activists, and legalization advocates who feel it is a setback
should consider bringing a separate legalization initiative that does not compromise a patient’s access to
medical marijuana.
7
Smoke Without Fire
By Kevin Feeney
One of the on-going arguments against the use of medical marijuana is the effect that smoking
has on health. The DEA continues to argue that medical marijuana exists, and that it is called Marinol.
What the DEA doesn’t understand is that the different methods of delivery alter the therapeutic value of
the drug, and that marijuana contains other beneficial compounds besides THC, the main component of
Marinol.
Let me focus however on the differences between taking medical marijuana orally and taking it
through some mechanism of inhalation. First and foremost, one of the strongest therapeutic values of
marijuana is its use as an anti-nausea agent. Patients who have nausea problems, and who cannot hold
food down, also cannot hold down medications. Oral medications are rendered ineffective by the
continuous purging of a patients stomach from nausea. To treat this condition requires a form of
administration where an anti-nausea drug can become effective, allowing patients to hold down food and
medicine, before it is rejected by the body. By inhaling the medicine, as is done with medical
marijuana, the medicine becomes effective instantly and cannot be rejected by the body during the time
it takes to be processed orally because it does not have to pass through the patient’s stomach.
There is another reason why some form of inhalation of marijuana is needed for patients and that
is because marijuana acts differently when ingested orally. Orally taken THC or marijuana preparations
last two to three times longer, and require more of the drug to have an effect.21 While inhaling
marijuana delivers THC directly to the blood stream it must first pass through the liver when taken
orally. When passing through the liver THC is broken down into several metabolites, one of which is
11-hydroxy-THC, a more psycho-actively potent form of THC.22 While this same metabolite is also
produced when marijuana is inhaled, the amount of marijuana needed to be ingested by inhalation is far
less than when taken orally, and is generally not produced in psychoactive levels.23 Many patients
report that the psychoactive effects of Marinol are too intense to offer them any comfort or relief from
their symptoms. This is also one reason for its limited popularity among doctors.24
Fortunately, studies are being conducted with a different form of inhalation which significantly
diminishes the amount of toxins delivered into the lungs. In preliminary studies conducted by Chemic
Labs, vaporization of marijuana was shown to produce an inhalable vapor high in THC and cannabinoid
content while producing no noticeable level of a wide range
of toxins that are usually found in marijuana smoke.25 The
vaporizer used in this particular study was a volcano
vaporizer, which is available at (www.vapormed.de). There
are many other companies producing vaporizers, including
one in Portland, Oregon by the name of Vapie.com. You can
view their product at (www.vapie.com).
OMMLR is interested in hearing about patients experiences with
vaporizers and also with Marinol versus inhaled marijuana. Please
submit your experiences as an article or letter to OMMLR@yahoo.com
21
LYNN ZIMMER, PH.D & JOHN P. MORGAN, M.D., MARIJUANA MYTHS MARIJUANA FACTS 19 (Gotham City Printing, Inc.
1997).
22
Id.
23
Id.
24
Id. at 20.
25
Dale Gieringer, Vaporizer Research: An Update, MAPS, Spring 2003, at 11.
8
The Oregon Medical Marijuana Act: 5 year report card
By Rick Bayer, M.D.
Reprinted with permission of Alternatives Magazine (www.Alternativesmagazine.com )
Cannabis or marijuana has been an of mmj patients are higher than records legislative gambit seeking to overturn the
important and effective herbal medical show. The estimated revenue per will of the people is unethical. As
therapy for thousands of years. In our life biennium to the OMMP from patient affirmed by the American Society of
and times, we now call it medical marijuana permit fees tops $1 million now. This Addiction Medicine (noted above), sick
(mmj), and federal prohibition laws make it pays for the administration of OMMP, persons should never be prohibited from
very dangerous to prescribe, produce or use. which has never cost taxpayers a dime. receiving adequate pain and symptom
But this is slowly changing. State medical Recently, OMMP announced fee control. People caught with illegal
marijuana laws granting limited access to reductions. quantities of prescription drugs (e.g. Rush
the herb and safety from police interference The most commonly reported Limbaugh) are still legally eligible to
now cover about 20% of all Americans. The debilitating condition reported in receive pain control in their future, so why
first state to remove criminal penalties applications to the OMMP is severe the discrimination? There is never a valid
within limits for mmj use was California in pain. (It must be noted here that in reason to revoke, suspend, or deny an
1996. Oregon voters passed the Oregon 1997, the American Society of OMMP permit to a patient, regardless of
Medical Marijuana Act (OMMA) in 1998. Addiction Medicine affirmed that record, when his/her physician says it
The Oregon Medical Marijuana physicians are obligated to relieve pain might help.
Program (OMMP), a part of the Oregon and suffering of their patients, including There are other challenges rising. For
Department of Human Services (DHS), was those with concurrent addictive instance, even though the OMMA was
created to administer the OMMA. If a disorders.) Yet of the approximately written so each patient can have his/her
patient has a debilitating condition, as 9000 MD/Dos who engage in active own garden of 3 mature and 4 immature
defined in the OMMA, that patient applies clinical practice in Oregon, only a plants, LE seeks change so there would be
by having his/her physician certify the fraction of them routinely serve patients no more than one garden per address. This
qualifying condition and that mmj “might with terminal and chronic illness and, as would mean spouses and roommates
help”. (For more information, go to the noted above, only 1200 participate in could not each be patients and grow a
website, www.omma1998.org. This site has OMMA. Only a minority routinely garden together. Naturally, patient
a link to DHS OMMP.) prescribes opioids and other scheduled advocates oppose these efforts by LE and
Debilitating conditions include cancer, drugs for chronic pain. DHS. Recently, Democratic Senator Bill
glaucoma, HIV infection, or symptoms of In spite of glowing data at the 5- Morrisette asked DHS to chair a
wasting (cachexia), severe pain, severe year mark, the OMMA still faces legislative advisory committee to see if
nausea, seizures, or persistent muscle opposition, particularly from law there is consensus among proponents and
spasms, including but not limited to spasms enforcement and politicians. Some of opponents about the OMMA that can be
caused by multiple sclerosis. OMMP issues the most entrenched opposition comes presented to the 2005 Oregon legislative
a one-year permit to qualified applicants from the administrators of OMMP session. An Oregon poll showed over 76%
who pay the permit fee. Registered patients itself. While OMMP management has of Oregonians support “seriously ill
and caregivers then enjoy limited exceptions consistently failed to issue permits patients to use and grow their own
from certain areas of Oregon criminal law or within 30 days (as required by law), medical marijuana with the approval of
are “decriminalized” within limits if there is they always seem to have time to work their physician”. A new mmj ballot
a valid permit. for changes in the OMMA that would initiative, the OMMA2 is collecting
Successes of the OMMA are numerous. decrease patient access to pain and signatures
At the end of 2003, there were over 10,000 symptom management. OMMP also is (www.voterpower.org/news/init_toc.html)
patient and caregiver cardholders registered attempting to become more involved in for the 2004 ballot.
with the OMMP. Applications continue to the practice of medicine while seeking Ten states: Oregon, Washington,
rise as more Oregonians learn about the to increase the reporting burden on California, Alaska, Arizona, Colorado,
OMMA. Over 1200 Oregon physicians physicians without proof of improving Hawaii, Maine, Nevada, and Maryland
participate in the OMMP—an encouraging public health. Finally, spending now have medical marijuana legislation.
number, but more would be better, given the patients’ money without adequate The conflict between state and federal
need. There are many who suffer from benefit to patients is a recurring laws has spawned a series of court fights
debilitating conditions who cannot find a irritation. and federal bills concerning questions of
doctor to help them because they live in In the 2003 Oregon Legislative states’ rights, medical necessity, and drug
areas where no physician participates in the Session, Law Enforcement (LE) and policy enforcement. A federal bill to cut
OMMP. DHS collaborated to pass House Bill funding to federal drug enforcement
It is gratifying to realize how the 2939 in the Republican-controlled authorities for raiding facilities where
OMMA has helped many suffering House, but fortunately it was stopped marijuana is grown or distributed for
Oregonians. Because of confidentiality in the split Senate. It would have purported medical use was defeated partly
concerns or costs, not all mmj patients permanently denied an OMMP permit to because of the anti-mmj stance of local
register with OMMP, so the actual numbers anyone with a drug crime. This sort of Continued on page 10
9
In The News
Colorado Confrontation decision and instead is seeking to Continued from page 9
On January 7th, eight Colorado law have it blocked in Federal Court. prohibitionist and Democratic
enforcement officers and a DEA Congressman David Wu, of Oregon. He
agent were charged with contempt of Leveque Suspended was quoted in the Los Angeles Times as
court for refusing to return 2 ounces Dr. Leveque, an Oregon doctor saying the “use of marijuana is
of marijuana to a state registered who has approved several medically unnecessary and prone to
abuse.” Of course, Wu has no medical
patient. On Jan. 24th, federal thousand patients for credibility, but remains an obstacle to
prosecutors filed a motion to remove participation in the Oregon adequate pain management among sick
the case to Federal Court. The Medical Marijuana Program, had and dying Oregonians.
Federal Court must apply state law, his license suspended by the Outside of federal raids orchestrated
which recognizes the use of medical Board of Medical Directors on by the Bush/Ashcroft administration
and legislative failures described above,
marijuana by qualified patients, March 4, 2004. Because of his recent court rulings have been more
when deciding whether or not to suspension 500 patient favorable to mmj. The US 9th Circuit
uphold the charge of contempt. applications have been declared Court of Appeals held that the federal
void. It remains unclear why the Controlled Substances Act (CSA)
Probationer Allowed to Smoke in Board decided to suspend doesn’t necessarily dominate state laws.
This means the state mmj laws in the
Oregon Leveque’s license. 9th Circuit (including Oregon) are
On Feb. 3rd, in a case argued by federally valid for the moment, but that
attorney Brian Michaels, the Oregon Hemp Foods Stay on Shelf ruling may be appealed to the US
Court of Appeals allowed a motion On Feb. 6th, the 9th Circuit Court Supreme court. The US Supreme Court
to stay enforcement of a of Appeals struck down a DEA decided not to hear appeals of a 9th
Circuit ruling that rejected the US
probationary condition requiring a administrative ruling that made Justice Department’s claim the CSA
patient to turn in his medical hemp foods illegal. The court empowered the feds to revoke the
marijuana card for the duration of found in HIA v. DEA that the narcotics prescribing licenses of doctors
probation, and forgo using medicine administrative rule was in direct who recommended marijuana. This
for the same period. The court found contradiction to the Controlled preserves freedom of speech for doctors
and patients—for now.
that the condition was likely to cause Substances Act of 1970 which Things have progressed since a
“irreparable harm” and that the specifically exempts hemp seed small group of us wrote the OMMA and
appellant was likely to succeed on and hemp seed oil from the pursued the political campaign that
his appeal of criminal charges. definition of marijuana and the resulted in the November 1998 victory.
jurisdiction of the DEA. The Over the last 5 years, many patients
have benefited from the OMMA.
Employment Problems for ruling concludes a 2 ½ year court Oregon taxpayers have saved money
Patients battle between the DEA and the through less marijuana prosecutions and
Medical Marijuana patient John Hemp Food Industry which because of a completely patient-funded
Thomas was fired from his job at severely setback the hemp food OMMP. Most importantly, we are a
Freightliner last year after failing to market. Hemp food is known for little closer to a world where pain and
symptom management of chronic and
pass a drug test. Thomas’ union its extraordinary nutritional value terminally ill persons can make
filed a grievance against Freightliner due to high levels of protein and progress without the heartless bludgeon
for their treatment of Thomas, which essential fatty acids, including of reefer-madness era prohibition.
led the parties to agree to arbitrate omega-3 and omega-6. Recipes
the matter. On Aug. 8 of last year, for cooking with hemp are Rick Bayer, MD is board-certified in
internal medicine, a fellow in the
the arbitrator Carlton Snow decided available in “The Hemp American College of Physicians, and
in Thomas favor and called for his Cookbook,” by Oregon resident practiced in Lake Oswego for many
reinstatement as well as back pay for Todd Dalotto, and in “The years. Co-author of Is Marijuana the
lost work time. Freightliner has Galaxy Hemp Cookbook,” by Right Medicine For You? A Factual
refused to follow the arbiter’s Denis Cicero. Guide to Medical Uses of Marijuana, he
was also chief petitioner for the Oregon
Medical Marijuana Act in 1998, and
manages www.omma1998.org that
includes a medical cannabis/marijuana
10 bibliography.
Reformers Return to the Initiative Process Leland R. Berger
Attorney at Law
When voters go the ballot box this fall they may have an opportunity to Representing medical cannabis
amend Oregon’s medical marijuana law. The Oregon Medical patients and caregivers
Marijuana Act 2 (OMMA2), a ballot initiative filed with the state early statewide
last year, is a response by patients to what they see as failures with the
current law. 3527 NE 15th Ave., #103
Portland, OR 97212-2356
503-287-4688 (voice)
One common complaint among patients is that obtaining marijuana for 503-287-6938 (fax)
medical use remains an elusive endeavor. Many patients are physically 503-504-4298 (cell)
unable to grow their own medicine and finding caregivers skilled in lelandberger@comcast.net
plant care has proved difficult. Many patients will lose plants to disease,
pests, or poor care, which leaves them without medicine due to the
severely restrictive plant limit imposed by Oregon’s Medical Marijuana
Act. Patients who have found skilled caregivers have occasionally
found themselves being taken advantage of by unscrupulous caregivers
and discover that medicine they should be receiving is being diverted to
the black market. The more fortunate patients who find caregivers who
are both skilled and trustworthy nevertheless find themselves waiting at
least four months till the plants are harvestable to gain access to their
medicine.
OMMA2 aims to fix these complaints by creating dispensaries that can
provide medicine to patients while their plants mature, and for patients
who are unable to grow themselves, or unable to find an appropriate
caregiver. OMMA2 also increases the possession limit to account for
patients who grow outdoors and can only harvest one crop per year, and
also accounts for the likelihood of losing some plants. Under OMMA2
the plant limit will be raised from seven to ten, and the possession limit
will be raised from three ounces to one pound.
If passed, OMMA2 will also; reduce the cost of registering with the state
program, allow marijuana to be recommended by nurse practitioners or
naturopathic doctors, allow caregiver compensation, and allow the
Health Department to conduct scientific research into the medical
efficacy of marijuana.
OMMA2 was filed by the Life with Dignity Committee Feb. 14, 2003, and must collect some 100,000
signatures by July 2nd, 2004, to qualify for the ballot. Signature gatherers have already garnered over
62,000 signatures. For more information, please visit (www.voterpower.org).
OMMLR would like to thank Living Tree Paper for donating the paper for this
publication. The reporter you hold in your hand is printed on Living Tree Paper’s
“Vanguard Recycled Plus” paper, which is made up of 10% hemp/flax and 90%
consumer waste. Please visit Living Tree Paper at www.livingtreepaper.com for
your eco-friendly paper needs.
11
State Program Overview
Alaska1 2 Plant Limits: 3M, 4IM
Passed: 1998 Possession Limits: 3oz
Patient Registry: Yes
Fee: $25 Maine9
Registered Patients: 205 Passed: 1999
Participating Doctors: 110 Patient Registry: No
Plant Limits: 3M, 3IM Plant Limits: 3M, 3IM
Possession Limits: 1oz Possession Limits: 2.5oz
Arizona3 Maryland10
Passed: 1996 Passed by state legislature: 2003
Patient Registry: No Patient Registry: No
Non-Functional Only Allows Med. Mj Defense
-requires illegal prescription Max Penalty: $100
California4 Nevada11 12
Passed: 1996 Passed: 2000
Patient Registry: Voluntary Patient Registry: Yes
Plant Limits: 6M, 12IM Fee: $200
Possession Limits: 8oz Registered Patients: 350
Participating Doctors: 165
Colorado5 6 Plant Limits: 3M, 4IM
Passed: 2000 Possession Limits: 1oz
Patient Registry: Yes
Fee: $140 Oregon13 14
Registered Patients: 309 Passed: 1998
Participating Doctors: 226 Patient Registry: Yes
Plant Limits: 3M, 3IM Fee: $150
Possession Limits: 2oz Registered Patients: 7,582
Participating Doctors: 1,281
Hawaii7 8 Plant Limits: 3M, 4IM
Passed by state legislature: 2000 Possession Limits: 3oz
Patient Registry: Yes
Fee: $25 Washington15
Registered Patients: 1,039 Passed: 1998
Participating Doctors: 79 Patient Registry: No
Plant Limits: 60 day supply
1
Possession Limits: 60 day supply
ALASKA STAT. § 11.71.090, 17.37.010 (2001).
2
Telephone Interview with Phillip Mitchell, Alaska Dept. of
Health & Social Services (Feb. 18, 2004). 9
ME. REV. STAT. ANN. tit. 22, § 2383-B (2003).
3
ARIZ. REV. STAT. § 13-3412.01 (2004). 10
MD. A NN. CODE. § 5-601 (2003).
4
CAL. HEALTH & SAFETY CODE § 11362.5 11
NEV. REV. STAT. § 453A (2001).
(2003). 12
Telephone Interview with Jennifer Bartlett, Nevada State
5
COLO. CONST. amend. XX. Dept. of Agriculture (Feb. 25, 2004).
6 13
E-mail from Debra Tuenge, Col. Dep’t of Pub. Health & OR. REV. STAT. § 475.300 (2003).
Env’t, to Kevin Feeney (Feb. 19, 2004). 14
Oregon Medical Marijuana Program Statistics (visited
7
HAW. REV. STAT. § 329-121 (2003). March 12, 2004)
8 <http://www.dhs.state.or.us/publichealth/mm/data.cfm>.
Helen Altonn, 1,039 Register for Isle Pot Use, Honolulu
15
Star-Bulletin, Oct. 13, 2003. WASH. REV. CODE. § 69.51A.010 (2003).
12
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