Limiting Medical Pot Concentrates Is Unconstitutional

A 19-year-old medical marijuana patient has filed a lawsuit seeking to block a new Colorado law limiting how much marijuana concentrate medical cannabis patients can buy, alleging the measure violates the state constitution. House Bill 1317, which passed the legislature with unanimous support from the state Senate and with the objections of only eight of 65 lawmakers in the state House, was signed by Gov. The measure limits how much concentrated cannabis medical marijuana patients can buy each day, and allows the state to track purchases to enforce that limit. The law also requires certain concentrate products, called dabs or shatter, to be packaged in single doses. Finally, the measure mandated that patients who are 18 to 20 years old must have the signatures of two doctors from separate practices before they can get a medical marijuana card. Although recreational marijuana is limited to people age 21 and older, people of all ages can get a medical card. The bill specifically adds regulations to purchases by medical, not recreational, consumers. Benjamin Wann, who uses cannabis-derived products to control his severe epilepsy, filed the lawsuit, arguing the measure would jeopardize his ability to access medically-necessary cannabis.

New requirements under House Bill 1317 would have a chilling effect on physicians’ willingness to continue making medical marijuana recommendations for patients, said Brad Wann, Benjamin’s father. He also has concerns about the way his teenage son’s medical marijuana purchases will be tracked. Although medical and recreational marijuana are legal in Colorado, pot remains illegal under federal law. This potentially means the federal government can file a subpoena and go after Ben’s data and know exactly how much marijuana Ben has purchased,” said Brad Wann, who lives in Douglas County with Benjamin. Polis, who is named as a defendant in the lawsuit, through a spokesman declined to comment, citing a norm not to discuss pending litigation. House Speaker Alec Garnett, a Denver Democrat and one of the bill’s prime sponsors, also declined to comment. The legal action was filed July 1 in Denver District Court. It claims that House Bill 1317 violates the protections of medical marijuana patients under the Colorado constitution and that the General Assembly, in passing the law, is making changes that can only be done through a constitutional amendment.

While the state constitution provides certain protections for medical marijuana patients, every right has limits, said Sam Kamin, a law professor at the University of Denver Sturm College of Law who teaches cannabis and criminal law. No constitutional right is absolute. There are always restrictions,” said Kamin. In Colorado, doctors recommend medical marijuana to patients; they don’t prescribe it. House Bill 1317 requires doctors to recommend a maximum THC potency for medical marijuana products and set a daily use limit if what the patient needs is higher than what’s allowed by law. The lawsuit argues those new provisions would make the “certifications” akin to a prescription. Because marijuana is a Schedule I drug with no federally-approved medical uses, the law could cause Colorado doctors to stop recommending medical marijuana for fear of losing their Drug Enforcement Administration licenses, according to the lawsuit. DEA certification is required for anyone who writes prescriptions for controlled substances. The complaint also alleges that state tracking of purchases is an unconstitutional violation of medical marijuana patients’ constitutional right to privacy. It would be irrefutable evidence that patients in Colorado have broken (federal) law … the state of Colorado is potentially setting up patients for criminal prosecution,” said Alex Buscher, an attorney representing Wann in the lawsuit. House Bill 1317 allows the state to use METRC, a software already used to track the production and sale of cannabis products, to enforce daily purchase limits by tracking the amount of marijuana concentrates patients buy each day. Staff at medical dispensaries would pull up those records using a patient’s medical marijuana card before making sales to ensure a person isn’t buying more than allowed. If a person is shown to have hit their daily limit for marijuana concentrate, they would not be allowed to make additional purchases that day.

The list of eligible conditions is more restrictive than in other states and does not include conditions like chronic pain, chronic anxiety, and glaucoma. But a special advisory board created under the bill would have the power to add to the list of conditions. The bill is intended to give “some compassionate care for specific ailments, to those people in North Carolina that need it, and to make them law-abiding citizens if they want to be,” said Sen. Bill Rabon, a Brunswick County Republican, bill sponsor and cancer survivor. There are currently 36 states that allow some form of medical marijuana use, including some deep red states like Oklahoma, Arkansas, and Louisiana. In about half of those 36 states, medical marijuana has been passed through a citizen-led ballot initiative. In North Carolina, however, the law does not allow citizen-led ballot initiatives, so any medical marijuana law must pass through the legislature.