Louisiana passed two medical marijuana laws in 2016 signed by Governor Bell Edwards (D-Louisiana). These two laws were SB 271 and SB 180 both authored by Sen. Fred Mills (R- District 22). These two bills established Louisiana as the 25th state to establish a comprehensive medical marijuana program. Louisiana’s history with medical marijuana, however, provides insights into the struggle to reform a medical program once a state has passed it.
First in the Nation
While it is mostly a footnote in history now, Louisiana was actually the first state in the nation to pass a medical marijuana program back in 1978. Passed only eight years after President Nixon signed the Controlled Substances Act, Louisiana’s original medical marijuana program, authored by Sen. Tony Guarisco (D-Morgan City) and signed by Governor Edwin Edwards (D-Louisiana) allowed patients suffering from glaucoma and cancer to use medical marijuana.
Unfortunately, the 1978 law was crippled by bureaucratic inaction. The 1978 law required that the Department of Health and Human services (DHH) create the standards, regulations, and oversee distribution. Sadly, the department never took any steps to create the necessary regulations, and the law, while still in effect through the 1980s, was effectively void.
The primary issue with the 1978 law was that regulatory oversight, the key to creating a working program, was vested in a department with no firm start or end date. Further, the program created no legal protections for patients, distributors, or growers. Thus, while the law stood as symbolic reform, the practical effect was that nothing had changed.
A Second Chance
Louisiana saw its second chance at medical marijuana reform in 1991, when the legislature tried to amend the program. The legislature set a hard date of 1992 for the DHH to issue proper guidelines, and added new qualifying conditions such as spastic muscle movement.
The second round of reform resulted in guidelines, completed in 1994 issued by DHH. After some revisions, the regulations serve as the current framework for Louisiana’s medical system. However, a large issue was left unaddressed by the legislature which continued to hobble the program through the 2000s: namely, the regulations only dealt with how and who could use marijuana, not how or who it could be obtained from. Further, the regulations laid out by DHH in 1994 used a key word: “prescribe”.
The simple use of the word “prescribe” effectively crippled the program until 2016. Further, because of how the original 1992 legislation was written, the state would allow medical marijuana to be used, but actual legal protection for patients using the medicine was not included. This created an odd situation where the state had laws about who could possess marijuana and how they could obtain it, but wasn’t actually legal for anyone to possess it. The program also lacked any guidelines for who could grow and sell medical marijuana and lacked legal protections for them as well.
By 2015, the paradoxes of the Louisiana medical system had become apparent, and reform would have another chance. Sen. Fred Mills sponsored SB 143, which scrapped the previous 1991 law. The new law modeled itself on the previous 1991 law, however, this law mandated the establishment of ten dispensaries and one growing location.
The law was eventually signed by Governor Bobby Jindal (R-Louisiana) in mid-2015. While the law still used the word “prescribe”, the law finally created a complete framework for the use, sale and distribution of medical marijuana.
Make that Fourth Time’s the Charm
In mid-2016, the Louisiana legislature finally passed the compressive reform needed for the state medical marijuana program to function. SB 271 and 180 managed to fix what four decades of reforms couldn’t, it took out the word “prescribe”. SB 180 also provided legal protection for medical marijuana patents who could now use the medicine without fear of arrest. The program was further expanded to those with epilepsy, HIV/Aids, and other motor neuron disorders.
While the medical law in its current form is still in need of reform, the state finally has a functioning medical program.
What Can Texas Learn?
There is much that Texas can learn from Louisiana’s search for a functioning marijuana law, and much that it did learn. When Texas passed the Compassionate Use Act of 2015 authored by Sen. Kevin Eltife (R-Tyler) and Stephanie Klick (R-Fort Worth) many lessons were taken from Louisiana’s mistakes.
The program established firm dates by which the Department of Public Safety was to construct regulations and issue vendor and grower applications. The law further established a hard start date of September 2017, thus avoiding the same false start that sunk Louisiana’s first attempt at a medical program.
However, by including the word “prescribe”, Texas did not take the most important lesson from Louisiana’s struggle to craft a working program. The Compassionate Use Act of 2015 requires that doctors prescribe marijuana, something that proved fatal for Louisiana’s program for over twenty years. This wording is fatal because it requires doctors to violate federal laws regulating prescriptions. Because marijuana is a Schedule 1 drug according to the Controlled Substances Act, it has no accepted medical use and, by definition, doctors are prohibited from prescribing it.
Texas must take the lesson of Louisiana’s long struggle for marijuana law reform to heart and make the necessary changes to its medical marijuana program during the first part of the 2017 legislative session, or risk starting a program with no patients, no doctors, and no customers. It is clear by Louisiana’s example that the word “prescribe” has the effect of killing a functioning state medical marijuana program.
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