With 2017 fast approaching and prospective state representatives competing for votes, a Texas sized problem remains unaddressed in the Texas medical marijuana program. In 2015, The Texas legislature passed Senate Bill 339 authored by Sen. Kevin Eltife (R-Tyler) and Stephanie Klick (R-Fort Worth).
SB 339, otherwise known as the Texas Compassionate Use Act, was a start on the road to marijuana reform for Texas. The bill was the first formal recognition from Texas that marijuana has medical use. The bill was inspired by Dr. Sanjay Gupta’s “weed” documentary series highlighting the efficacy of high CBD marijuana strains for treating epilepsy in children. With the combined efforts of medical activists and strong pressure from the Epilepsy Foundation, the bill passed in the waning days of the 2015 session and was signed by Governor Abbott.
Overview of The Compassionate Use Act
The 2015 Compassionate Use Act is notable for being a program that establishes the framework for a mostly functional, if limited medical marijuana program. The act establishes a regulatory structure overseen by the Department of Public Safety (DPS). DPS appears to have been chosen because the agency has the necessary lab space and equipment to monitor purity and quality.
The primary regulation overseen by DPS is the ratio of CBD to THC grown and dispensed by licensed growers and sellers. The act, as currently written, limits the ratio of 1:20 THC to CBD per milligram. This artificial ratio-limit was imposed by the legislature out of fear of non-medical use. Applications have already begun to be accepted, and the first awards for venders were slated for release in June 2016. The bill dictates that at least three growing locations and distributers be licensed by September of 2017. This hard start date is useful, as it helps avoid a false start in the medical program, an issue that has plagued many state medical programs such as Florida and New York. The establishment of intrastate cultivation and regulation sets the Texas medical marijuana program apart from many other limited state medical programs, such as Georgia or Alabama, which have only decriminalized the use of high CBD marijuana for those with intractable epilepsy, but have not established intrastate cultivation or sale, forcing patients to violate federal marijuana trafficking laws to obtain medicine.
Currently, DPS has begun issuing guidelines and accepting applications. These applications can be found on the Texas DPS website. However, it is important to note that application fees are high, and the start-up capital required are barriers for most people seeking to enter the market of growing and dispensing medical marijuana.
The act further dictates epilepsy as the only qualifying condition for access to the medical program. To qualify, someone must be diagnosed, and have exhausted every other medical option, including brain surgery. These guidelines make it very difficult for those with epilepsy to access the program. Further, barriers to access also artificially lower the number of people available for the program, undercutting any possible profitability of the new industry.
The Texas Size Flaws
The 2015 Compassionate Use Act, while a step for marijuana law reform in Texas, has a number of fatal flaws which undermine the very functioning of the law itself, and create an unprofitable and overregulated medical market.
Prescribe vs Recommend, why does it matter?
The primary fatal flaw of the 2015 Compassionate Use Act is one simple word, “prescription”.  Texas, is currently the only state that has a medical marijuana program that requires doctors to prescribe marijuana. In the twenty-six other medical marijuana states, doctors only recommend marijuana. In those states, recommendations are treated like quasi prescriptions for state regulation purposes, but remains protected speech as far as the federal government is concerned.
This disconnect between recommendation and prescription exists because marijuana is currently a Schedule I substance with no medical use. It is illegal under federal law for any doctor to prescribe Schedule I drugs because, by definition, these schedules have no medical use.
However, thanks to a 2002 9th circuit court of appeals decision in Walters v. Conant, which the Supreme Court declined to take up, doctors have been allowed to recommend marijuana to patients without fear of federal prosecution revoking their license. This decision has informed a majority of other federal circuits, all of which now contain states with medical marijuana programs.
The prescribe/recommend language is fatal to the program becoming a viable and functioning program, as evidenced by Louisiana’s long fight to reform their medical marijuana program that use to have the same “prescribe” wording. Thankfully, many activists in the medical, legal, and political fields are aware of this issue, and with the Texas legislature convening before the program is slated to begin in 2017, the flaw could be fixed with relative ease.
Big Pond with No Fish
The secondary flaw in the Texas medical program is purely economic. Texas is the second most populous state in the United States with a total population of 27 million+. Texas had an estimated epileptic population of 193,000 in 1997, and of those less than a quarter are classified as intractable. This creates a patient pool of only a few thousand.
This small pool of potential patients can be economically fatal to the Texas medical marijuana program because there are not enough people to make the program profitable. Combine this small pool of patients, with the high cost of licensing fees, and you end up with a program that may make medical marijuana legal, but practically impossible to obtain.
This economic stagnation is a hallmark of state medical programs such as Illinois and New Jersey where similar economic barriers combined with limited qualifying conditions have effectively killed their state medical marijuana programs.
What needs to change, and how likely that change is
The Texas Compassionate Use Act is a step forward for the state of Texas. It signals the waning days of marijuana prohibition in the Lone Star State. However, the program is far from ideal, and further reforms are required to have a fully functioning medical marijuana program. Thankfully, reform is likely and relatively simple. The Texas GOP recently adopted a new plank to their platform calling upon the legislature to expand and improve the Compassionate Use Act. The Texas Democratic party has long had medical marijuana as one of their planks as well, creating fertile ground for bipartisan reform. Finally, the Texas Marijuana Coalition of some twenty-five different marijuana activist groups has laid out the reform sought in 2017, mostly focusing on adding PTSD, cancer, and autism as qualifying conditions to the program. These conditions are widely agreed upon and mostly uncontroversial.
Written by Hunter White
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