State Marijuana Legislation – The Landscape After Attorney General Policy Shift

January 25, 2018|2:17 p.m.| ASTHO Staff

Earlier this month, Attorney General Jeff Sessions rescinded several Department of Justice (DOJ) memoranda which set guidance for the enforcement of federal marijuana prohibitions. In doing away with the Cole memo (adult-use marijuana), the Ogden memo (medical marijuana), and the Wilkinson memo (tribal issues), Sessions is leaving the federal investigation and prosecution of marijuana activities to the discretion of the various U.S. attorneys across the country. Since state and territorial health agencies are often legislatively delegated key roles and responsibilities in medical marijuana programs the reaction to the rescission is being closely watched by state public health.  

State and Territorial Health Agency Functions Under Medical Marijuana Laws Ring Chart

Federal and state lawmakers from states that allow medical and adult-use marijuana swiftly offered bipartisan reactions to the attorney general’s action. Additionally, on the same day as Session’s announcement, Oklahoma Gov. Mary Fallin announced a June date for her state’s medical marijuana ballot initiative and the Vermont House of Representatives passed a bill (H 511) allowing the adult-use of marijuana. Since the Vermont House’s action the bill passed the state senate and was signed into law by the governor on January 22, making it the first state to legislatively allow the adult-use of marijuana.

Statements issued by a number of U.S. attorneys in response to the announcement have generally focused on continuing efforts to ensure public safety and reduce drug-related violent crime. In a recent op-ed, Billy J. Williams, U.S. attorney for the District of Oregon, expressed concern over Oregon’s regulatory framework and the resources allocated to police marijuana and announced a convening of federal, state, local, and tribal law enforcement, public health organizations, and additional stakeholders to address these and other concerns.

Despite the fact that the previous DOJ guidance was rescinded, state medical marijuana programs remain safeguarded by the federal Rohrabacher-Blumenauer Amendment. This provision, first adopted in December 2014 as part of a federal spending bill, prohibits DOJ funds from being used to prevent the implementation of state medical marijuana programs. The Rohrabacher-Blumenauer Amendment was added to the May 2017 federal continuing resolution (see Sec. 537 of the Consolidated Appropriations Act, 2017) and remained part of the subsequent continuing resolutions including the latest one enacted on Jan. 22.

The overall impact of the U.S. attorney general’s actions is yet to be seen and states continue to implement, oversee, and enforce their marijuana regulatory systems. ASTHO is currently tracking proposed state legislation related to medical marijuana and such activity does not appear to have slowed. So far this year, bills have been introduced to establish state medical marijuana programs, add various qualifying conditions, reduce youth access to medical marijuana, allow the administration of medical marijuana in schools, allow combustible forms of medical marijuana, provide employment protections for registered medical marijuana patients, permit insurance reimbursement for medical marijuana products, and more.

Bills and resolutions to establish medical marijuana programs or allow the medical use of marijuana have already been introduced in Indiana (HB 1041, HB 1106, and SB 307), Mississippi (HB 391, SB 2261, SB 2571, and SB 2821), Nebraska (LB 622 and LR 293CA), Oklahoma (HB 2754 and SB 1120), South Carolina (H 3521), and Wisconsin (AB 482).

A bill in Arizona (HB 2064) prohibits the use of packaging and labeling that is attractive to minors. A bill in Hawaii (HB 48) instructs the department of health to adopt rules prohibiting marijuana products from being in shapes that are appealing to children. Bills in Florida (HB 1291 and SB 986) and Washington (HB 1060 and SB 5290) set out parameters and procedures for administering medical marijuana to students at school. Bills have been introduced in Florida (SB 726), New York (AB 6009 and SB 1087), and West Virginia (HB 4149) to remove the existing requirement that medical marijuana not be in a form that can be smoked.

Several states are considering bills to protect registered medical marijuana patients from employment discrimination and other adverse actions by employers. These states include Hawaii (HB 1010 and HB 1753), New Jersey (A 1838), New York (AB 4560), and Washington (HB 1094). A bill in Hawaii (SB 2216) allows the limited reimbursement of the costs of medical marijuana products by health insurers, HMOs, and other organizations. Another bill in Hawaii (SB 2488) creates a legislative working group to address issues surrounding insurance reimbursement of medical marijuana.

States with existing medical marijuana programs continue to consider additional qualifying conditions. Bill in Hawaii (SB 2407), Maryland (HB 268 and SB 181), and New York (AB 9016) seek to add opioid use disorder as a qualifying condition for medical marijuana. New Jersey (A 1808) and New York (AB 582) have bills to add dysmenorrhea (i.e., menstrual cramps) to the list of qualifying conditions. Bills in New York (AB 8598 and AB 8904) would remove the current list of qualifying conditions and allow the use of medical marijuana for a condition or symptom when a medical practitioner determines a patient would benefit.

Other proposed state legislation related to medical marijuana includes a Utah bill (HB 195) to create a “right to try” marijuana-based treatment for terminally ill patients, a bill in Washington (HB 2574) to allow delivery of marijuana to medical marijuana patients, and bills in New Hampshire (HB 427 and HB 1476) to allow the home cultivation of marijuana by qualifying patients and designated caregivers. Finally, bills in Hawaii would limit THC levels in manufactured medical marijuana products and require warning labels on packaging (HB 661), authorize the director of health to set maximum retail prices for medical marijuana (HB 662), and allow qualifying patients who are at or below the federal poverty level to receive medical marijuana from dispensaries without charge (SB 2631).

Links to all of these bills can be found under the Medical Marijuana tab of ASTHO’s online legislative tracking page.