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Leonardo Angiulo: Questions Remain About Medical Marijuana

Monday, November 19, 2012


Leonardo Angiulo, GoLocalWorcester Legal Expert

The legal use of medical marijuana has been the subject of debate in the Commonwealth for years. On November 6th of this year, a ballot initiative passed ending that debate when citizens decided medical marijuana should be legal in our state.  With an effective date of January 1, 2013, and a 120 day deadline for implementation of the terms, arguments over exactly how this law will work have just begun.  

At its core, the law is about easing suffering for people afflicted by a narrow category of debilitating medical conditions.  Section 2(C) of the initiative petition gives examples of eligible patients as those suffering from cancer, AIDS and glaucoma.  Some detractors of medical marijuana laws fear the law will be abused by twenty-somethings getting prescriptions for anxiety treatments at the local pot shop.  While there is always the potential for abuse, no one can argue that people suffering from multiple sclerosis are living with real pain.

Where we are right now, however, is the intersection of ideology and practical application.  In order to make Medical Marijuana a reality in Massachusetts, there will need to be both eligible patients and properly licensed distributors.  Within 120 days of January 1, 2013 the Massachusetts Department of Health is obligated to release official registration applications for the 35 non-profit medical marijuana dispensary licenses permitted by law for the first year. The law itself restricts the total to 5 dispensaries per county but also states that the official numbers may be modified if found to be insufficient to meet patient needs in the future.

Interestingly, not only does this proposed law permit the existence of dispensaries but section 9(B) also creates cultivation registrations. This essentially means that some of the marijuana dispensaries will be permitted to grow medicinal marijuana. This structure creates the potential for two distinct types of medical marijuana facilities:  a) those that grow, and b) those that only acquire from properly licensed cultivators.

Section 11 of the law also permits for individual cultivation permits in the event of hardship. Hardship, in this law, is specifically defined as a lack of available treatment centers within a reasonable distance of the patient's residence. While there is a 120 day deadline for this provision as well the law specifically states that until the department issues the required final regulations, the written recommendation of a physician shall constitute a limited cultivation registration.         

What is left unsaid is that with all this regulation there will necessarily be a new division of the Department of Health to deal with all of these licensing issues. Particular sections dealing with the creation, and revocation, of licenses means someone will have to make these decisions. From the point of view of a legal professional, this also means there will be civil litigation resulting from some of those decisions.  

The ballot initiative that will become the Massachusetts Medical Marijuana Law also included criminal penalties for fraudulent use of both patient and distributor licenses.  Section 14 describes two distinct criminal acts with different penalties for each.  The first offense described is fraudulent use of an individual's registration card or cultivation that carries misdemeanor penalties of 6 months in the house of correction or a $500 fine.  The second, and more serious, offense is when the fraudulent use results in the distribution, sale or trafficking of marijuana for non-medical use for profit.  Such offenses are defined as felonies punishable by up to 5 years in state prison or two and one half years in the house of correction.  These terms seem to be focused on people using legal access to marijuana for personal profit by selling to unlicensed individuals.             

Another important practical issue is how can distribution of marijuana occur, for any reason, when such actions are still illegal under federal law?  The answer is found in the Department of Justice's memorandum on investigations and prosecutions in states authorizing the medical use of marijuana. In October of 2009, the Attorney General released formal guidelines stating the department of justice will still investigate and prosecute marijuana distributions schemes.  The memo also made a distinction between those parties legally seeking medical marijuana under state law and illegal criminal enterprises.

Of note is the temporary nature of this announcement by the federal law enforcement authorities.  This is not an act of congress nor is it even an executive order by the President.  Instead, it is an internal guideline promulgated to ensure the effective use of resources.  Importantly, it gives certain indicators for how individual discretion should be exercised but in no way prevents investigation, or prosecution, of medical marijuana users, producers or dispensaries.

As mentioned earlier, there are 120 days from January 1, 2013 before the Commonwealth of Massachusetts will be releasing applications for licensing of Medical Marijuana dispensaries.  Between now and then there are a number of questions that will have to be answered.  It is, however, interesting to see just how quickly change can happen when voters make their intentions clear.   


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