As Washington begins to accept applications for the state’s first regulated recreational pot shops, cries of protest about its plans for medical marijuana are coming from unexpected quarters: the left. A year after voters put their state on track to become one of the only places in the world where marijuana can be legally owned and sold for purely recreational use, the state legislature still has to decide what to do with its rickety, fifteen-year-old medical-marijuana system. With the Department of Justice’s hawkish eyes trained on the state—determined to ensure that the drug, which is still illegal under federal law—remains under strict control, some bureaucrats and lawmakers are afraid that Washington’s unregulated medical-marijuana system could doom the whole experiment.
In October, a working group commissioned by the legislature recommended that lawmakers should fold regulation of medical marijuana into the new recreational system, with a tax break for patients but few other concessions, like a personal growing exception for medical use or separate stores for therapeutic weed. The new framework would also scale back pot patients’ existing privileges, reducing the amount of marijuana they can possess at a given time and cutting back on the diseases that qualify for a medical card. Patients, many of whom wanted the state to establish a separate regulatory system for therapeutic pot, were outraged. “People all over the world are watching and they’re about to see us wipe out medical marijuana,” says Kari Boiter, a medical-marijuana patient and activist. “What kind of message does that send to other states who are thinking about legalizing marijuana?”
The question facing Washington is one that will vex legalizers for years to come: Should medical marijuana be regulated differently than recreational weed? Advocates for pot’s therapeutic benefits certainly think so; some doctors even believe that researching marijuana’s medical benefits should be a higher priority than full legalization. In Colorado, which also legalized pot in 2012, medical dispensaries will remain separate from the new retail stores, although entrepreneurs can receive dual licenses and sell both kinds of marijuana under the same roof. But if Washington’s legislature, which will consider changes to the state’s medical-marijuana law when it convenes in January, follows the working group’s advice, patients will be expected to frequent the state-regulated stores—under the auspices of the Liquor Control Board—for medical pot, something that some feel is akin to filling a prescription at your local liquor store.
There’s no doubt that Washington’s legislature needs to do something—anything—to mend the state’s reputation as pot’s “Wild, Wild West.” Since 1998, when Washington became one of the first five states to legalize pot for medical use, the state’s medical-marijuana law has been a perennial headache for legislators and reform advocates alike. Unlike Colorado, which created a regulatory system for medical marijuana in 2009, Washington failed to establish any of the protections that, for the most part, kept federal agents out of other states’ hair. There was no registry for patients or physicians, making it impossible for the state to track who was getting medical marijuana and who was prescribing it. In 2011, in a bid to rein in its quasi-legal marijuana market, the Washington legislature passed a bipartisan bill, establishing a regulatory system for medical marijuana dispensaries and requiring patients to register with the state. But the governor, fearful that state employees responsible for issuing the dispensaries’ licenses would face repercussions from the feds, vetoed much of the bill, leaving “collective gardens”—unlicensed co-ops where patients would band together to grow large quantities of marijuana—as their primary source of pot. Quickly, gardens began to spring up next to each other, looking a lot like commercial grow operations. Just as swiftly, federal agents began raiding the collectives. Local police joined in on the crackdown, claiming that the co-ops were fronts for covert illegal businesses, and thus in violation of state law.
Earlier this year, when the Department of Justice released eight strict guidelines for states looking to legalize weed, Seattle-based U.S. Attorney Jenny Durkan declared that the state of medical marijuana in Washington was “untenable.” Her logic is hard to deny; If the medical market continues on its merry way unregulated, there is nothing to stop recreational users from frequenting the collective gardens and avoiding the state’s hefty tax on legal weed, creating a new black market.
But while medical marijuana advocates continue to insist that the solution lies in the 2011 law—a voluntary patient registry and state-regulated dispensaries—the working group begs to differ. Its conclusion: The state should nix the collective gardens, make it harder to get a medical marijuana card by making patients with “intractable pain” ineligible, create a mandatory patient registry, and disallow patients from growing marijuana at home.
To medical users, there are many problems with this approach. Insurance companies do not cover medical marijuana, leaving users to foot the bill and thus making taxes a central concern. Under the working group’s recommendations, qualified patients would be exempted from local and state sales tax, but advocates argue that would hardly save them from the built-in cost that would result from the hefty excise tax—25 percent at all three levels of production: growers, processors, and sellers. Many patients are understandably reluctant to add their names to a state-held list of people who are openly using a drug that’s illegal under federal law. Dramatically cutting the amount of marijuana that patients can possess at once is unfair, they say, not only because daily consumers have a higher tolerance, but because many medical users prefer to bake and juice their pot, requiring substantially more weed than the average recreational smoker could consume. Others object to the notion that lawmakers, not doctors, should be deciding which diseases merit patient status and which do not. Home growing, meanwhile, can be crucial for patients in rural areas, hours away from a state-run store.
Alison Holcomb, the director of the campaign to legalize marijuana, isn’t convinced that there needs to be a separate regulatory system for medical pot, but she agrees that a prohibition on home growing would be too draconian, especially while the state-licensed stores are still working out the kinks. “It’s very important for patients to be able to maintain control over producing their supply of medical cannabis,” she says. “Some strains of cannabis work better for some patients than for others. Given that the retail stores are new, we don’t know how long it will take for them obtain and maintain consistent supplies of various products.”
On the other hand, allowing home growing could open the door to a burgeoning illegal market. Mark Kleiman, a professor of public policy at the University of California-Los Angeles, points out that while marijuana remains illegal in other states, permitting patients to grow their own pot at home could create a loophole for black market commercial production. (Diversion to the illegal market is an even more serious concern in Colorado, where any adult—not just medical patients—is allowed to grow up to six marijuana plants for personal use.) Rather than allowing patients to cultivate their own weed, he says, the retail stores should offer home delivery.
The extent to which lawmakers will heed the working group’s advice will become clearer in January, when the legislature reconvenes. But the debate over how medical marijuana should be regulated is part of a larger narrative, in which therapeutic pot is a middle step in a journey toward legal marijuana for all adults. The idea of folding medical marijuana into a larger legal framework makes sense because we think of recreational marijuana as the natural extension of medical marijuana, but given that medical users and recreational users often have fundamentally different goals, this is a misleading paradigm. A cancer patient who uses marijuana to subdue nausea during chemotherapy doesn’t necessarily want to get high; in fact, that would defeat the purpose of taking the drug, which is to improve daily function.
Some doctors go so far as to suggest that medical research should precede full legalization. In their view, marijuana is similar to pharmaceutical drugs like morphine or codeine, relatives of heroin which have undeniable medical benefits but aren’t legal for recreational use because of their potential for abuse. “We need to separate out the medical issues from the recreational use and criminal justice issues,” says Igor Grant, a professor at the University of San Diego who navigated considerable red tape to perform a limited number of clinical trials on marijuana. “They’ve been wrapped together to the detriment of the medical aspect. The argument is always, do we want a bunch of teenagers addicted to marijuana. I’m often asked about dispensaries. To me, the way this has evolved is not good medicine.”
Most medical marijuana proponents don’t want to force a choice between legal medical and recreational pot. But they insist that any system that regulates marijuana for recreational use needs to carve out a niche market for medical users. The result of a framework that does not serve patients’ needs, according to Kari Boiter, will be a return to the black market. “One system is designed to discourage marijuana use, and the other is a health care approach that encourages using whatever makes you better,” Boiter says. “Regulating them the same way is not going to work. It’ll either place a burden on the patients or it’ll make too easy for recreational users.”
Holcomb is more optimistic about the state’s ability to consolidate medical and recreational marijuana into the same structure. “I don’t know why you need a separate set of bricks and mortar,” she says. “What we’re talking about here is the same plant material.” But she acknowledges that there will have to be more concessions for patients than the working group’s recommendations allow—and the ability to make changes, if the need arises. “The legislature really doesn’t have a choice about grappling with medical marijuana in 2014,” she says. “But they can do it in a way that allows the Liquor Control Board to tweak it later.”