JOYCE A. ROPER, SR. AAG AGRICULTURE & HEALTH DIVISION WASHINGTON ATTORNEY GENERAL’S OFFICE MEDICAL MARIJUANA: PRECURSOR FOR LEGALIZATION? 1 10/10/2014

WASHINGTON’S EXPERIENCE Ralph Seeley v. State, 132 Wn.2d 776 (1997) Initiative 692 approved November 3, 1998 Affirmative Defense for Possession  “Terminal or debilitating medical condition”  “Valid documentation” (not prescription)  “Sixty day supply” No mention of how to obtain medical marijuana 2 10/10/2014 Ralph Seeley, 49

“TERMINAL OR DEBILITATING” CONDITIONS Initiative 692:  Cancer, HIV, Multiple Sclerosis, Epilepsy or other seizure disorders, spasticity disorders  Intractable pain, unrelieved by standard medical treatments and medications  Glaucoma (acute or chronic), i.e. intraocular pressure unrelieved by standard treatments and medications, or  Any other medical conditions approved by the Medical Quality Assurance Commission (MQAC) 3 10/10/2014

ADDITIONAL CONDITIONS Conditions added by MQAC, then RCW 69.51A.010 in 2010  Crohn’s Disease with debilitating symptoms, unrelieved by standard treatments or medications  Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications  Diseases, including anorexia, resulting in nausea, vomiting, wasting (cachexia), appetite loss, cramping seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications Added by MQAC & Osteopathic Board after 2010 legislation  Chronic Renal Failure (Dialysis) – must disclose may impact transplant status 4 10/10/2014 3

CONDITIONS DENIED Insomnia and Post Traumatic Stress Disorder (June 2000) Bipolar or Chronic Depression (November 2000) Depression and Severe Anxiety (November 2004) Bipolar Disorder, Severe Depression and Anxiety-Related Disorders (Social Phobia) (February 2010) Alzheimer’s (August 2010) Neuropathic Pain (without the need of establishing that it cannot be relieved by standard medical treatments and medications) (August 2010) ADD & Obsessive Compulsive Disorder (March 2012) Tourette’s Syndrome (July 2012) 5 10/10/2014

“SIXTY DAY SUPPLY” Term replaced in 2011 legislation 15 cannabis plants and  24 ounces of useable cannabis, or  Cannabis product (edibles, ointments, etc.) than “could reasonably be produced” with no more than 24 oz. of useable cannabis, or  Combination of useable cannabis and cannabis product not exceeding “possession and processing” of no more than 24 oz. of useable cannabis A person who is a qualifying patient and a designated provider for another qualifying patient may possess no more than twice the above amounts 6 10/10/2014

MEDICAL PROFESSIONAL 10/10/ I-692: Washington licensed physician (M.D./D.O.) 2010 legislation: health care professional (HCP) = Washington licensed physician, physician assistant, naturopath, advanced registered nurse practitioner Significance of change Disciplinary cases

PATIENT-PHYSICIAN RELATIONSHIP 10/10/ Assumed, not specified prior to legislation specified:  Newly initiated or existing documented relationship  As a primary care provider or a specialist  Relating to the diagnosis and ongoing treatment or monitoring of the terminal or debilitating condition, and only after  Completing a physical examination as appropriate  Documenting the terminal or debilitating condition in the patient’s medical record and that the patient may benefit from cannabis  Informing the patient of other options for treatment  Documenting other treatment measures attempted

NEW LIMITATIONS ON HCP 10/10/ legislation authorized license disciplinary action if HCP  Examines or offers to examine a patient for the purpose of diagnosing a terminal or debilitating condition at a location where cannabis is produced, processed or dispensed  Has a business or practice consisting solely of authorizing the medical use of cannabis  Has a kick-back or steering arrangement with a licensed dispenser, producer or processor (licensing requirements vetoed)

COLLECTIVE GARDENS Defined as “qualifying patients sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use” Up to 10 patients participate in “a single collective garden at any time”  15 plants per patient or less up to a total of 45 plants  24 oz. useable cannabis per patient up to a total of 72 oz.  Copy of each patient’s valid documentation available on the premises at all times 10 4/22/2013

QUALIFYING PATIENTS’ PROTECTION Parental rights or residential time with children shall not be restricted solely due to medical use of cannabis, unless there are written findings supported by evidence that use has resulted in a long-term impairment that interferes with the performance of parenting functions under RCW May not be a sole disqualifying factor in determining suitability for an organ transplant, unless it is shown that use poses a significant risk of rejection or organ failure 11 10/10/2014 Timothy Garon, 56

LIMITATIONS ON PATIENT PROTECTIONS Civil infraction to display in a manner or place open to the view of the general public No right to care as a covered benefit/health insurance No requirement to accommodate on-site medical use in any place of employment/drug-free workplace policies, school bus or grounds, youth center, correctional facility, or smoking in public place or hotel or motel DUI laws apply 12 10/10/2014

OVERSIGHT AND AUTHORITY No state agency oversees Locally enforced 2011 Legislation proposed DOH and WSDA licensing and oversight – sections vetoed 2011 Legislation changed “affirmative defense” to legalizing possession for patients who registered with DOH – registry section vetoed LCB oversight proposed in SSB 5887, 2013 session – failed at the close of session 13 10/10/2014

CURRENT STATE OF THE LAW 10/10/ Phone calls and letters: Inconsistent local enforcement Charlatans and chicanery  Unenforceable “contractual” arrangements/prepay plans  Inability to rely on consumer protection act, file a police complaint  Unreported crimes (assaults, rapes, burglaries)/vulnerable victims Fear, confusion, misinformation Anger and mistrust Pleas for clarity, understanding and protection

MEDICAL CANNABIS IN U.S. 18 states and the District of Columbia Laws vary from state to state on amounts, degrees of regulation, authorized medical conditions, patient registries, comity Compilation of state laws: e-Medical-Marijuana-Law-Table.pdf (current as of 6/23/2014) e-Medical-Marijuana-Law-Table.pdf 15 10/10/2014

WHAT’S NEXT? 16 10/10/2014

Legalized Recreational Marijuana in Washington WestPac Annual Meeting, AALL October 10, 2014 Bruce L. Turcott Assistant Attorney General Washington Attorney General’s Office 17

Legalized Possession Limited possession 21 & over 1 oz “useable” marijuana + 1 lb marijuana-infused product in solid form + 72 oz marijuana-infused product in liquid form + 7 g marijuana concentrate Consuming in view of general public prohibited DUI per se limit: 5 ng active THC / mL blood Effective Dec. 6,

Commercial Licensing Liquor Control Board licenses and regulates Producers Processors Retail stores (sell only marijuana, paraphernalia) Licenses limited to 3-month state residents Applies to all “members” of business entities FBI criminal background checks for members and financiers License application fee $250 Annual license fee $1,000 Taxes 25% excise tax on sales at each level Earmarked for public health research and education State budget has not assumed any revenue 19

Federal Response Department of Justice Memorandum to United States Attorneys (Aug. 2013) Applies to all states. 8 priorities “will continue to guide the Department’s enforcement of the CSA against marijuana-related conduct.” “If state enforcement efforts are not sufficiently robust to protect against the harms, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.” 20

Federal Priorities 1. Preventing the distribution of marijuana to minors 2. Preventing revenue from going to drug gangs 3. Preventing diversion of marijuana to other states 4. Preventing cover operations for trafficking other drugs 21

Federal Priorities 5. Preventing violence and use of firearms 6. Preventing drugged driving and adverse health effects 7. Preventing growing on public lands 8. Preventing marijuana possession or use on federal property 22

Minors 1000’ buffer from schools No marijuana business locations No advertising by licensees “in any form or through any medium whatsoever” within 1000’ No products, labeling, or advertising “especially appealing to children” Preapproval for all edible products, labeling, and packaging Child-resistant packaging 23

Security Product tracking Clone-to-sale traceability Every transaction entered in traceability system Facility security Alarm and video surveillance systems 8’ sight-obscuring fence for outdoor grows No firearms 24

Enforcement Compliance with rules = safe harbor WSLCB limited authority enforcement officers Enforce WSLCB licensing rules Refer unlicensed activity to local law enforcement No revenue earmarked for law enforcement 25

Supply and Demand 30-day application window Over 7,000 applications received Producer/processor licenses Number of licenses not limited One license per applicant; square footage limited First producer/processor licenses issued March producers as of Sept 30 (over 2,000 pending) Retail licenses Stores allocated to cities/counties = 334 statewide Lottery held to rank applicants for processing First retail store licenses issued July 7 62 approved as of Sept 30 26

Local Jurisdictions Several cities/counties banned marijuana businesses or imposed moratoriums Local authority I-502 does not preempt local jurisdictions from banning marijuana businesses, per formal AG Opinion WSLCB will issue licenses without regard to local bans - I-502 does not authorize denials based on local law 3 lawsuits filed by licensees against cities/counties with bans 27

Public Health Quality assurance testing WSLCB accredited 3 rd party testing labs THC extraction Professionally certified closed loop systems Food safety WSDA/FDA/USDA food rules inapplicable – adulterated WSLCB rules for hazardous foods - may not be infused Edibles Limited to 10 mg THC per serving & 10 servings per product Scoring and labeling to indicate servings 28

Banking Challenges Deposits to banking system = money laundering Cash business = crime target USDOJ/FinCEN banking guidance (Feb. 2014) Authorizes filing special SARs Requires bank due diligence - customer complying WSLCB rules Banks waiting for guidance from federal regulators 29

Medical Marijuana Unregulated Only sales tax (but illegal to sell) Possess 24X as much w/authorization No age limit Challenge for legislature 30

Resources Initiative 502 Codified at: Chapter Revised Code of Washington Washington State Liquor Control Board Rules: Chapter Washington Administrative Code Website (FAQs, Listserv): liq.wa.gov/marijuanaliq.wa.gov/marijuana Licenses: liq.wa.gov/records/frequently-requested-listsliq.wa.gov/records/frequently-requested-lists Washington Attorney General’s Office Bruce Turcott, AAG: (360) 31

WASHINGTON’S POT LAWS GO TO COURT: LITIGATING LEGALIZATION IN THE EVERGREEN STATE JEFFREY EVEN, DEPUTY SOLICITOR GENERAL 32

LITIGATION SO FAR Cases relating to Washington’s marijuana laws at present include: Challenge to local ban of medical marijuana collective gardens (Cannabis Action Coalition v. City of Kent) Challengers to local bans of recreational marijuana businesses (MMH, LLC v. City of Kent, and others) Challenge to ban on advertising medical marijuana by physicians (Havsy v. State) Challenge to tax collections (Nickerson v. Insee) Challenge to... Whatever (West v. Holder) 33

LOCAL MEDICAL MARIJUANA BAN The City of Kent banned medical marijuana dispensaries and collective gardens at the local level Sued by medical marijuana activitists Issues relate to complex legislation that contained section vetoes by the governor, complicating analysis of act Court of Appeals upheld local authority to ban, holding that the city retains its traditional authority to regulate Washington Supreme Court considered earlier this week whether to grant review 34

LOCAL RECREATIONAL MARIJUANA BANS A number of Washington cities and counties have enacted ordinances banning, or imposing moratoriums against, marijuana-related businesses So far lawsuits filed against:  City of Fife  City of Wenatchee  Pierce County  City of Kennewick All of which has us embarking upon... 35

... A MAGICAL MYSTERY TOUR 36

TWO DIFFERENT KINDS OF CASES STATE AND FEDERAL ISSUES Plaintiffs are license applicants who challenge local bans City responds that ban is not preempted City then says, even if it is preempted, federal law preempts STATE ISSUES ONLY Plaintiffs are license applicants who challenge local bans City responds that ban is not preempted 37

ONE RULING TO DATE In the only ruling so far, the trial court agreed completely with the Attorney General (MMH, LLC v. City of Fife) Ruled that state law does not preempt local law With this conclusion, did not need to reach federal issues  (But the judge said he thinks there’s no federal preemption) Other cases are pending summary judgment motions this fall MMH has been appealed, with direct review sought in the Washington Supreme Court 38

BAN ON PHYSICIAN ADVERTISING Illustrates lack of relation between medical and recreational laws Medical marijuana law prohibits advertising by doctors  Doctor included information on web site  Ordered to remove it  Challenges ban Recreational marijuana laws restrict advertising, but do not ban it 39

TAX COLLECTION Marijuana related businesses are required to collect and remit certain state state taxes Medical subject to sales tax (but they’re not supposed to sell it) Recreational subject to 25% marijuana excise tax at all three levels + sales tax Plaintiff in Nickerson v. Inslee argued state couldn’t make him pay taxes because marijuana is illegal under federal law  Case quickly dismissed from federal court on jurisdictional grounds  But states can and do tax illegal activities 40

AND, WELL, WHATEVER Frequent pro se litigant sued the Governor, Chair of the Liquor Control Board, Eric Holder, and other federal officials in federal court in Washington, D.C. State parties dismissed for lack of personal jurisdiction Underlying theory involved National Environmental Protection Act and “Anti- Commandeering Doctrine” And, so yeah. 41