Articles Posted in Medical Marijuana

Today marks the 12th anniversary of the decision in Gonzales v. Raich, a decision whose repercussions still resonate across the legal marijuana market. Following precedent, the Supreme Court held that the Commerce Clause[1] of the Constitution allowed for the federal government to criminalize the private cultivation of marijuana, even if that cultivation was in compliance with state law.

The Case

The facts of the case demonstrate federalism at work. In 1996, California ratified proposition 215 otherwise known as “The Compassionate Use act of 1996”. This act legalized the use, sale and cultivation of medical marijuana with a recommendation from a doctor. California had become the third state to legalize medical marijuana, and the first to legalize it via referendum.

Louisiana passed two medical marijuana laws in 2016 signed by Governor Bell Edwards (D-Louisiana). These two laws were SB 271[1] and SB 180[2] 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.

iStock_000009135835_ExtraSmallOn May 16th, 2016, the Texas GOP signaled a profound change of stance with regard to marijuana laws in Texas. Thanks to the dedicated work of many activists within the Republican Party, the State GOP adopted two resolutions with profound implications for the future of marijuana law in the Lone Star State.


The first resolution is the most straightforward, and the least controversial step in marijuana law reform. The plank was adopted with 71% of those in favor. The resolution reads as such:

End Prohibition - Legalize Marijuana
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).[1]

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

iStock_000011009457_ExtraSmallIn 2015, Governor Greg Abbott signed into law SB 339 known as the Texas Compassionate Use Act. The bill authorizes DPS to implement a dispensary program to include a registry of physicians who are authorized to prescribe low levels of THC cannabis, and their patients who are receiving the medication. The online Compassionate Use Registry is expected to begin development in July 2016. DPS will also provide licenses to dispensaries for regulated cultivation, operation, and dispensation of cannabis. Acceptance of licensing applications begin in June 2017, and at least three dispensaries can receive a license by September 2017.  There is no limit to the number of distributors who can receive a license.

The program is strictly limited to qualified patients, regardless of age, diagnosed with intractable epilepsy. This means that a patient must be a permanent resident of Texas, and have tried at least two FDA-approved medications in the past that have not alleviated seizures. The law also requires that two physicians determine  that the medical use of prescribed, low-THC cannabis will benefit the patient. Low-THC is defined as marijuana that contains 10% or more cannabidiol (CBD, a non-psychoactive compound in cannabis) and no more than .5% of tetrahydrocannabinol (THC, the psychoactive compound in cannabis). The availability of cannabis will be in the form of oils so smoking cannabis will remain illegal under state and federal law. Neither DPS nor another State agency will regulate the cost of cannabis which means prices will be based on a market-based system. For more FAQs, see DPS’s website.

Although this is a historical step for Texas, implementation of the program could delay if medical doctors shy away from prescribing medical marijuana or are slow to implement guidelines in their practice. More Texans will need access to medical marijuana if the legislature wants to help other citizens who want to use cannabis for health reasons. Research has shown that cannabidiol can alleviate the ailments of those suffering from arthritis, anxiety, depression, and PTSD.

iStock_000013348762_ExtraSmall.jpgA strong majority of Texans support marijuana legalization according to public policy polling, which revealed Texan support at 58%. With some grass roots indications that Texas is ready to legalize marijuana, many question how legalization could affect the overall public heath of Texas residents. With alcohol abuse and its devastating consequences remaining a major issue in Texas, some people worry marijuana could add to the problem. Researchers have long been trying to figure out whether marijuana legalization would lead to more alcohol consumption (if the drugs are complementary) or if legalization would actually reduce alcohol use (if marijuana is a substitute for alcohol). Finally, there seems to be an answer. It is thought that marijuana use usually replaces alcohol use, and since marijuana is far safer than alcohol, marijuana legalization would lead to a net gain in public health benefits due to less alcohol consumption.

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As the U.S. drastically changes the national health care system through the implementation of Obamacare, our neighbors to the north are also overhauling key aspects of their health care structure. In an attempt to move existing medical marijuana market from individual grower or total-government control into the hands of private enterprise, Canada recently launched a marijuana free market estimated to be worth $1.6 billon yearly. The new market will open the doors to legalized international marijuana trade since Canada will allow marijuana imports from countries like the Netherlands. The Canadian government will not directly interfere with prices of marijuana and the marijuana will be priced at whatever amount the market can bear. Initially, medical marijuana consumers will likely see a price bump in marijuana; however experts estimate that with time the marijuana prices will decline as a result of competition between marijuana businesses. In fact, medical marijuana under the new system is projected to fall to $3 a gram. Patients needing access to medical marijuana, even patients that were approved under Canada’s prior medical marijuana system, must have a medical professional prescribe medical marijuana to the patients through the use of a government-approved form. Canada hopes to be able to serve half a million patients by 2024.

Canada’s greater embrace of medical marijuana comes at a time of increasing support for medical marijuana across the world, especially from the U.S. One of the U.S.’s most trusted medical authorities, CNN’s chief medical expert, and past candidate for U.S. Surgeon General, Dr. Sanjay Gupta, has recently voiced strong support of medical marijuana. Dr. Gupta even apologized for being wrong regarding his past opposition to medical marijuana. Forty percent of U.S. states have passed medical marijuana laws, despite conflicts with federal law that classifies marijuana as one of the most dangerous drugs with no medical benefits. The American Medical Association has supported a change to this federal classification to allow for better research into the medical properties of marijuana.

Canada’s move highlights the fact that the U.S. is the only major country in North America that has not reformed marijuana laws on a federal level. With Mexico’s federal government decriminalizing small amounts of marijuana in 2009, Canada’s federal government legalizing medical marijuana in 2001 and now expanding the medical marijuana system, the U.S. federal government lags behind in terms of continent-wide reform.

iStock_000002633881XSmall.jpgAs shown by the results in two recent Texas criminal cases, Texas residents charged with marijuana possession may successfully argue medical necessity as a defense at trial or pre-trail. In addition to Texas judges showing some favor to a medical defense, State Representative Eliot Naishtat has also championed such a medical defense as indicated by his sponsorship of a proposed law in the 2011 Texas Legislative Session which would allow patients to use an “affirmative defense” against charges of possessing marijuana. In the current legislative session, Rep. Naishtat may reintroduce the bill favoring a medical marijuana defense.
If the bill is successfully introduced and passed, the Texas Legislature would rightfully respect Texas’ traditional libertarian ideal of promoting individual liberty against an overreaching federal government–a federal government that disallows any medical use of Marijuana. Also, if Texas legalizes medical marijuana, Texas would proudly join every other state that borders Mexico as a state that has some form of medical marijuana law. In my judgment, each of our fellow border-states has passed medical marijuana laws partly because such a close proximity to Mexico has given the states first-hand knowledge of the ineffectual and often deadly results that a total criminalization of Marijuana creates. Other border-states have realized that by taking new approaches to marijuana policy, including creating a legal market for patients, they would undercut a thriving black market on both sides of the border. It is high time Texas realizes the same.
By contacting Rep. Naishtat’s Office, you can voice your support for the reintroduction of Medical Marijuana Bill. Until such a law provides some clarity for criminal defendants, a case involving marijuana remains a complicated area for individuals charged with possession.
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