Medical marijuana: Maine learns lessons from Montana
With the strong support of voters in November 2009, Maine became one of just a handful of states that not only allow the cultivation and possession of marijuana for personal medical use but also make marijuana available in retail settings.
Nonprofit storefront dispensaries are preparing to open in eight Maine communities within the next few months, bringing medical grade marijuana to qualified patients throughout the state.
Maine’s program is rolling out in a limited way, thanks to rulemaking that imposed considerable constraint on the relatively wide-open language of the 2009 citizen’s initiative that created it. The eight dispensaries must meet strict requirements for security, hours of operation, patient education and public information regarding employees and board members.
While some proponents of medical marijuana — and of marijuana legalization in general — say the extensive rules developed for the new program tampers with the expressed will of the voters, the experience in other states suggests that a careful approach to medical marijuana is warranted.
In Maine, the location of each dispensary within its established region is subject to municipal zoning and other local ordinances. Patients must be under the personal care of the physician who recommends the use of marijuana for a qualifying medical condition, and must register with the state to obtain an ID card. Oversight of the program is funded through fees paid by patients, caregivers and dispensaries.
Maine’s pre-existing medical marijuana program, which allowed for a much less regulated agreement between patients, physicians and growers, will expire at midnight Jan. 1, 2011, when the new law takes effect.
Other states did not proceed so carefully in making medical marijuana available to residents.
Consider the case of Montana. Whereas Maine will open only eight nonprofit dispensaries, Montana’s 2005 law allowed an unchecked proliferation of growers and sellers of marijuana.
“We have had an explosion of dispensaries,” said Missoula Democrat Rep. Diane Sands of the Montana Legislature. “Hundreds and hundreds of them. They are literally on every corner, next to our schools. … It is completely out of control. And we have no idea how many there are, because there is no regulation.”
Like Maine’s program, Montana’s was created by citizen referendum. Unlike Maine’s, it was implemented as written, opening the door to a plethora of problems.
The watershed announcement
Sands heads up the Children, Families, Health, and Human Services Interim Committee, which spent last summer revisiting Montana’s medical marijuana program. Initially, public participation in the program was restrained, Sands said in a recent phone interview. For several years, individual patient enrollments increased gradually from 86 people when the program opened in March 2005 to about 4,000 in September 2009.
But in October 2009, U.S. Attorney General Eric Holder announced that the Obama administration would back off from prosecuting medical marijuana patients, a policy that many drug reform advocates interpreted as a first step toward overall legalization. Within two months of the announcement, the number of medical marijuana cardholders in Montana nearly doubled to 7,300. By March of 2010, 12,000 Montanans were carrying cards, and by June nearly 20,000. Currently, about 27,000 active cardholders are on the state’s registry, Sands said.
At the same time the cardholder applications started pouring in, she said, “dispensaries sprang up on every Main Street in Montana, in the cities and the little towns. Local populations and law enforcement blew a gasket.”
The Montana law does not differentiate between small-time growers who cultivate a few plants for a handful of patients and commercial-scale operations that serve many customers. Anyone who registers as a grower is simply designated a “caregiver.” Right now, there are nearly 4,000 caregivers registered in Montana. The law does not provide for background checks, state inspections, data collection or other basic oversight of these caregivers.
“Voters had envisioned a few cottage-type growers, where someone might grow a few plants for a parent who had cancer,” Sands said. “But that is not what happened.”
In addition to failing to regulate the size, location and operations of marijuana dispensaries, Sands said the Montana law allowed vague medical conditions to qualify a patient for participation and did not establish guidelines for the relationship between a patient and the physician who recommends the use of marijuana.
“Dispensaries brought physicians into hotels and set up a ‘clinic day’ for patients to come in,” Sands said. “The physician might spend seven or eight minutes with each patient and then give them a letter of recommendation — no physical exam, no medical history, no follow-up.”
Physicians also were using the online videoconferencing program Skype to evaluate patients they had never met and likely would never see again.
Patients were showing up at work stoned, Sands said, and using their state-issued ID card to pressure employers to allow them to smoke marijuana on the job. Patrons in bars, restaurants and other nonsmoking public places were lighting up for medical purposes, and the law was powerless to stop them.
The great majority of registered patients in Montana are young men between the ages of 18 and 30, most of them listing unspecified “pain” as the symptom for which they need the relief that only marijuana can offer.
“I think people just want to smoke dope,” Sands said. “This is not what was envisioned [in the citizen vote], but there is no language in the initiative for regulation.”
Clearly, Sands said, lawmakers needed to remedy the situation. But when her interim committee began its review of the medical marijuana program this summer, dispensary owners protested, claiming the state was interfering with the growth of a booming economic sector that was providing essential jobs and valuable medical services.
Sands doesn’t buy it.
“We don’t think the people of Montana passed this as an economic development issue,” she said dryly.
Her committee has released a set of recommendations for the Legislature to consider when it reconvenes in January. The proposed changes include more stringent regulation of large-scale dispensaries, clinical requirements for the physicians who participate in the program, a tightened-up list of conditions that qualify for a marijuana recommendation, a five-patient limit for small-scale caregivers, and a cap on the amount of medical marijuana patients may possess.
The draft bill also encourages local governments to impose ordinances, zoning regulations and building codes that promote appropriate siting of dispensaries, and prohibits individuals on probation or parole from participating in the program.
Challenges in other states
Other states have their own cautionary tales.
Among the 15 states and the District of Columbia that have adopted medical marijuana laws, there is broad variety in the details. Some allow for distribution centers and others do not.
In some states, participating patients are required to pay a fee and obtain a photo identification, and some require only a physician’s letter of recommendation. Some programs track the names of physicians who will recommend marijuana for their patients and some do not, but no state makes public a list of participating doctors. Although state-sanctioned medical marijuana programs are becoming more common, each faces unique pitfalls, loopholes and other challenges.
In Colorado, for example, medical marijuana was incorporated into the state’s constitution in 2000, so making changes to its structure is especially challenging. Cardholder applications jumped after the 2009 non-prosecute announcement, rising tenfold from 4,720 in 2008 to 41,107 in 2009, and active enrollments for 2010 currently stand at about 116,000. Legislation took effect earlier this year to help local communities exercise oversight of proliferating dispensaries.
Efforts to measure and regulate the strength and quality of the marijuana sold in dispensaries are meeting with little success, since the drug is unrecognized by the Food and Drug Administration.
In Rhode Island, officials are currently processing a second round of applications for the opening of three “compassion centers” — dispensaries — after the first batch produced not even one acceptable proposal. As of the end of October, Rhode Island’s medical marijuana program, established in 2007, had registered 2,156 patients and 1,753 caregivers.
The New Jersey senate has nixed regulatory proposals from Gov. Chris Christie that would, among other things, limit the potency of marijuana sold at state dispensaries and require participating doctors to try to wean even terminal cancer patients off marijuana. The program is stalled, awaiting further rulemaking.
California is seeing a massive proliferation of dispensaries governed by a decentralized patchwork of county and municipal regulations. State-issued ID cards are voluntary in California — there are currently about 12,000 active ID cards on record — and a spokesman for the program said there is no way of tracking how many patients purchase medical marijuana using only a letter of recommendation from a physician.
Starting slow in Maine
The road to implementing Maine’s medical marijuana program has not been smooth, but administrator Catherine Cobb in the state Division of Licensing and Regulatory Services says the program is on track to go live and prepared to deal with any glitches as they arise.
Already, a growing facility in Frenchville is cultivating plants although the decision has not been made as to precisely where in the Aroostook region the medical-grade marijuana will be marketed.
A facility in Auburn expects to be growing plants within a few weeks and will sell at the same location. Six other dispensaries across the state are still working through the regulatory process but are expected to come on line soon, Cobb said.
The Jan. 1 expiration of Maine’s existing medical marijuana program is spurring a flood of last minute patient applications.
“We are getting hammered right now with applications because of the looming deadline,” Cobb said. As of Friday afternoon, 215 Maine residents had been issued patient ID cards identifying them as participants in the new medical marijuana program. An additional 173 applications were still pending, many held up due to incomplete information, Cobb said. “Caregivers” — individuals permitted to grow marijuana for up to five registered patients — numbered 28.
Maine’s law enforcement community is prepared for the new program to go live, said Penobscot County Sheriff Glenn Ross. While some local officers are still getting educated about the particulars of the new law, he said, most are “just kind of waiting to see how it will be.”
“It seems pretty well thought-out,” Ross said. “There may not be any problems. It could be like the [Hollywood Slots] casino; some people predicted there would be a lot of trouble, but that hasn’t happened.”
Maine physicians have been slow to endorse the new system, citing lack of scientific evidence that marijuana is medically effective as well as concerns about endorsing the use of an illegal substance. But Cobb said she was surprised to learn that 53 Maine physicians already have recommended marijuana for their patients in the new system.
“I didn’t expect to see that many for several more months,” she said. Cobb said she has fielded a number of calls from Maine doctors unfamiliar with the program seeking effective alternatives for their patients.
“It shows me that Maine physicians will be driving this program, not the patients,” she said.
Cobb noted that the law was enacted without any funding on the premise that it would pay for itself through application and registration fees. But the amount of work involved in getting the system up and running has been significant, she said, and she has welcomed the addition of two staffers in recent months.
In addition to working through the administrative logistics, Cobb said her Augusta office is fielding many phone calls and walk-in visits from would-be patients and caregivers, many of whom are unfamiliar with the application process.
“There is a lot of hand-holding with this program,” she said.
Cobb said that by and large, Mainers are being patient as the new system gets up and running.
“People are just waiting for the dispensaries to open,” she said.