Is the Era of De Facto Legalization Over in California?

After a summer hiatus, we are back at the Drug Law and Policy Blog. I have a team of students who is going to help me cover the latest from the world of California marijuana regulation, but we’re going to start by walking through some of the huge changes wrought by a trio of bills: AB 266, SB 643, and AB 243, which, almost 20 years after the Compassionate Use Act (CUA) ballot initiative (also known as Prop 215), provide for statewide regulation of medical cannabis.

California has been described as having de facto adult-use legalization because it is so easy for people to get medical recommendations for marijuana use. Indeed, I have often heard in conversation with folks around the state that the reason the prior legalization initiative, Prop 19, failed—and why any future proposition might fail—is that the existing system worked well for everyone involved: people who wanted marijuana could easily get it. (This ignores other things that consumers might want, such as reliable testing and safety of products, many of which are covered in this new set of regulations.) Did the recent legislation change anything?

Nothing has changed about the qualifying conditions eligible for marijuana, which are set by the CUA and are quite broad. Instead, in this post I’ll focus on the other ways in which the medical market might constrict: regulating doctors who issue the regulations, regulations which are laid out in SB 643.

There are a number of “plain vanilla” regulations of the doctors who write recommendations, including requirements for disclaimers in advertising and prohibitions on doctors having any financial arrangements with licensees (punishable by up to a year in jail). There is a requirement that the recommender be the patient’s “attending physician”, but the definition of attending physician is given a particular meaning in Health and Safety Code 11362.7, and merely refers to a medical doctor or osteopath who has “taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient” (emphasis added) before issuing the recommendation.  As long as there is an examination, then, and there is some responsibility for some part of the person’s medical care, a doctor can issue a recommendation.  (Of course, a more restrictive definition of “attending physician” or what it means to “take responsibility” for an aspect of a patient’s care could limit the pool of those who could write recommendations, but the rest of this post will focus on different language, since the new legislation adopts these definitions without necessarily changing them.)

The two new limitations on recommendations, as I see them, come from changes to the Business and Professions Code § 2220.05, which establishes the “investigative and prosecutorial resources” of the Medical Board of California. Here, SB 643 made investigations and prosecutions of doctors who engage in “[r]epeated acts of clearly excessive recommending of cannabis to patients for medical purposes, or repeated acts of recommending cannabis to patients for medical purposes without a good faith prior examination of the patient and a medical reason for the recommendation” the fourth-highest priority for the Medical Board, just above sexual misconduct with a patient and just below a more generic prohibition against excessive prescribing of controlled substances. Of course, we don’t necessarily know just from the statutory language what a “clearly excessive” number of recommendations might be, nor is it clear either what a “good faith examination” of the patient is nor how many bad faith examinations constituted “repeated acts.” Nevertheless, there are some limits here.

Elsewhere in the bill there is a requirement for the Medical Board of California, in concert with the (newly established) Center for Medical Cannabis Research, to work on “developing and adopting medical guidelines for the appropriate administration and use of medical cannabis.” If one reads “administration and use of cannabis” to include the decision whether or not to recommend usage at all, this might provide some clearer guidance to doctors—and the Medical Board—about who is engaged in unprofessional (and license threatening) conduct.

So why would this matter? California’s medical marijuana industry is so large, in part, because the number of “patients” who can buy medical marijuana is so large. If the state begins to crack down on a few doctors who provide a large number of recommendations (and I don’t have any reliable information about how many doctors, if any, there are, nor about how many recommendations they provide), then we might see the size of the medical marijuana market start to shrink. One of the reasons I’ve been less than sanguine about the prospects for the electoral prospects of ballot initiatives to allow adult use in California is that, for many market participants, medical marijuana ain’t broke, so it doesn’t need fixing. Starting to distinguish between overly permissive doctors and those with some kind of established relationship with their patients might change the economics of the established medical marijuana market, and, with it, the electoral calculus as well. But it will all depend on how the statutory language is interpreted and on how effective enforcement activity is.

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