Thursday, May 26, 2011

Grow your own

Posted on Thu, May 26, 2011 at 4:00 AM

There has been much media coverage lately of the legal challenge to Senate Bill 423, the new Montana Marijuana Act recently enacted with strong bipartisan support of 113 of 150 Montana legislators. A legal action was filed by the highly paid hired gun of the millionaire marijuana growers to prevent them from losing their very profitable business model on July 1. A variety of claims have been circulated by those wishing to retain the “Wild West” situation developed under the ambiguous language found in the original act, which set up a system for people to access a product that is still illegal under federal law. It is time to debunk those claims.

First, the proponents for retaining the current mess argue that eliminating the storefront model, which allowed a “caregiver” to provide marijuana to hundreds of registered cardholders, will effectively eliminate all access to the product, as the cardholders will be forced to grow their own, which they are alleged to be incapable of, or be aided by a provider that is limited to a maximum of three cardholders, the “small provider” model.

Of the 14 states that have approved the use of marijuana by chronically sick or terminally ill people, five states, including Alaska, Nevada, New Jersey, Vermont, and Washington, currently use the small provider model. I am not aware of any evidence that shows that the model used in these other states has denied access to the truly ill.

SB 423 does not prohibit a cardholder who grows their own from paying for assistance so long as the advisor is not a registered marijuana provider, and the advice does not include the act of “cultivation” prohibited by other criminal laws. The point of prohibiting compensation to registered providers was to divorce the cash from the privilege of transporting marijuana around the community, for obvious reasons. Reasonable access and assistance is still permitted.

There is no constitutional right to access marijuana, although the plaintiffs’ pleadings can be read to make that reach. If the court finds that unregulated access to marijuana is required by the Montana Constitution under the “pursuit of life’s necessities” provision it contains, we may soon see similar claims for other controlled substances such as methamphetamine, cocaine, and improperly used prescription drugs. After all, the argument will go, whose job is it to decide what is medicine and for whom?

As of May 1, a group of 33 doctors in Montana have certified 28,959 patients, or an average of 877 each. Therefore, SB 423 prohibits financial relationships between doctors and marijuana growers and requires the Board of Medical Examiners to review whether doctors certifying more than 25 patients a year are following the board’s adopted protocols. There can be no interference in a doctor patient relationship if a valid relationship does not exist.

SB 423 dismantles the “Montana Cannabis Industry” but preserves reasonable access for legitimate cardholders to a substance that, I must remind everyone, remains illegal to possess and distribute under federal law.

Jeff Essman

Senate Majority Leader

Billings

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