Medical cannabis patients with proper authorization can grow up to four plants in Washington state. If they sign up for the state’s medical cannabis registry, that number grows to 15. Patients also are allowed to possess a larger amount of cannabis than people without a licence.
Nevertheless, until the governor signs House Bill (HB) 1563, which passed both chambers of the Legislature this year, some of those patients can also be arrested for exercising those privileges. Patients who aren’t part of the state’s registry are subject to arrest in certain situations. Under the new law, any patient or designated provider who holds a valid medical authorization will not be subject to arrest. Patients have historically been protected by what is called an “affirmative defense,” which basically means that any charges brought against them will fail.
However, getting arrested is a pretty traumatic experience.
John Kingsbury, a medical cannabis patient who has spent decades advocating for patients’ rights in Washington, knows from experience. While not as famous as the Kettle Falls Five, a group of patients who were arrested for growing medical cannabis outside of Spokane in the early 2010s, Kingsbury has also been through it. As he sees it, arrest protection is long overdue.
“What the bill did was really modest. It basically said, ‘If you’re not breaking the law, then you can’t be arrested.’ It’s hard to imagine what’s more reasonable than that, right? That should have been from the get go, right? Innocent until proven guilty, that sort of thing,” he said.
While he’s never heard of a patient being arrested in King County, he said it was quite common in more conservative places like Grant, Pacific or Pierce counties. The people most commonly affected, he said, were typically chronically ill and low-income. Getting arrested, Kingsbury said, was actually the number one concern among patients that he surveyed, which surprised him.
“They felt like their patient status made them vulnerable. I thought for sure it would be the excise tax or ‘I’m having difficulty finding product’ or something like that,” he said.
Legislators agreed with Kingsbury and other advocates about the inherent injustice of subjecting patients to arrest, even ones typically unfriendly to cannabis, he said.
“That was very inspiring to me, because it caused me to really realize that we could change minds,” Kingsbury said.
Unfortunately, Kingsbury and his fellow advocates at the Cannabis Alliance, an industry lobbying group with a penchant for helping patients, were not able to pass the complementary bill to HB 1563. That bill, HB 1453, would have exempted registered patients from paying the state’s rather steep 37 percent cannabis excise tax. While that sounds like icing on the cake compared to arrest protection, it actually has a lot to do with reducing criminalization of patients, Kingsbury warned.
When the state merged its medical and legal cannabis systems in 2016, with Senate Bill 5052, it created a system within a system for medical cannabis patients, wherein they would take their proof of authorization to recreational stores to join a registry, allowing them to grow a larger number of plants, possess a larger amount of cannabis and avoid paying local sales taxes (approximately a 10 percent discount). Stores who could sign patients up would be required to employ budtenders with special training — “medical marijuana consultants” — and could advertise themselves as being “medically endorsed.” The bill also set up a special Department of Health (DOH) compliance program for medical products, which would be held to higher standards than everything else.
At the time, advocates argued that this system was a poor replacement for the existing (and tax-free) gray market, where patients could better afford the amounts and types of cannabis they needed. All it would do, they warned, was drive patients back into the black market. Years later, that’s exactly what it’s done, they say.
“Patients were promised access to trained and certified consultants, medical grade products that met Department of Health standards, and arrest protection. Eight years later, participation in the medical registry is below 10 thousand participants, only 4 brands produce medical grade cannabis, and less than 90 stores are capable of providing authorizations and are able to meet the requirements for being medically endorsed,” the Cannabis Alliance wrote in an April 18 press release, sent as a call to action before the end of the Legislative session.
Kingsbury noted that the Washington State Liquor and Cannabis Board’s (WSLCB) and DOH’s websites, while differing from one another, both list more than 200 medically endorsed stores. Those simply don’t exist, he said, making it hard for many patients to even sign up. According to his own research, which involved personally calling and visiting more than 250 stores, the state has gone from having 289 medically endorsed stores in 2017 to 87 this year.
While it’s great that we have arrest protection, he said, failing to pass the excise tax exemption, which advocates see as a fix-all for the flagging medical cannabis system, was fueling unregulated markets.
His research showed 17 unregulated “farmers markets” — as underground gatherings of patients and black market producers are called — in 2017. This year, he said, he found 32.
Medical cannabis patients often need truly massive dosages of cannabis on a daily basis — up to 1500 mg, in some cases — and find it difficult to source the amount and quality they need in the recreational market.
While patients could, in theory, grow their own, a lack of stores capable of signing people up for the registry really limits their ability to produce their own medicine, said Burl Bryson, executive director of the Cannabis Alliance. Even that isn’t an ideal solution for many, he added.
“For a lot of patients, especially the really sick ones, it’s not possible,” he said. “They’re strapped for cash and living in an apartment or a rental situation where they can’t grow. It’s not easy, it turns out, especially to grow the good quality weed and especially some of the lesser cannabinoids that some folks need. It’s nearly impossible to get that stuff. So yeah, they’re resorting to whatever means they can.”
Compounding the problem is that the lack of participation from patients creates something of a vicious cycle, with fewer and fewer suppliers offering products specific to medical use. Only one producer — Skagit Organics — makes DOH-compliant Rick Simpson Oil (RSO), a popular treatment among chronically ill cannabis patients. Matthew Friedlander, CEO of Skagit Organics, said that his product is in around 200 stores, but he is still one of only four producers or processors to offer DOH-compliant products statewide.
“If we saw that excise tax go away and patients start coming into the regulated market, then we would see more producers making medicine for patients,” said Bryson. “It’s not that much more onerous, frankly. It was pesticide and heavy metals testing, which is required now anyway, so it doesn’t require a whole bunch more work on the side of a producer or processor to get it done. But there’s just no market for it, because the patients aren’t there buying it.”
While plenty of people agree with him, his theory didn’t quite convince the powers that be this year.
“The industry is behind it. The people that we’re working with in the Washington legislature are behind it. It seems like the simplest thing to do and it’s about time to get it done. And yet it runs into this brick wall,” he lamented.
The bill, marked “Necessary to Implement the Budget,” died in the House Rules committee. While there are plenty of anti-cannabis legislators, Bryson said, it had no clear antagonist this time around. It came with a cost, of course, as with any tax exemption, but with the relatively limited number of medical cannabis patients in the state, it was only about $50,000 over two years.
What’s to be done? Just get back on the horse, he said:
“The end of the legislative session was just four days ago and we’re starting again right now.”
Tobias Coughlin-Bogue is the associate editor at Real Change.
Read more of the May 3-9, 2023 issue.