HELENA - Key members of the 2011 Legislature are determined to impose new regulations on a medical marijuana industry that some believe has reeled out of control in the past year. Others are calling for outright repeal of the medical marijuana law enacted by a 2004 ballot measure, which 62 percent of Montanans approved, and one lawmaker wants to put the issue before voters again.
One legislator believes it's time to start taxing what he believes is an industry with annual revenues approaching $150 million. Another wants to require a three-physician panel to review a physician's recommendation that patients can use medical marijuana for "chronic pain," the most common condition for which a person is allowed to use the product.
At the very least, major changes are being proposed for a Montana medical marijuana industry that was often in the news, and frequently negatively, over the past year.
The number of people legally allowed to use medical marijuana in Montana was at about 4,000 in September 2009. Then the Obama administration recommended that federal prosecutors not pursue medical marijuana users and suppliers if they conformed to state law. Now the number of Montanans approved to use medical marijuana has skyrocketed to more than 26,000 at the end of last month.
At the same time, the business experienced many problems or growing pains, depending on your perspective. A medical marijuana shop was firebombed in Billings and a Kalispell-area man was murdered and his medical marijuana stolen.
Medical marijuana dispensaries rented hotels for traveling "cannabis clinics" where hundreds of people saw a doctor in person or over the Internet to obtain "green cards," allowing them to legally use the product. A reporter for the Billings Gazette obtained a green card in eight minutes.
"I think the public perception is this is totally out of control," said Rep. Diane Sands, D-Missoula, who headed a legislative committee that studied the issue and drafted some bills. "In my opinion, the choice is passing a bill that is probably too restrictive, but it needs to pass, because the other alternative is that it will be repealed completely and be made illegal."
Sands said the committee's intent "was to honor the fact that the majority of the public voted to allow limited use of medical marijuana for conditions where they thought it would provide some pain and relief or medical relief." The panel also wanted to provide additional regulation of the industry for health and public safety reasons and clarify the gray areas.
"The big bill is pretty substantial at this point," she said. The estimated $3 million required to regulate the industry would be paid for by licensing fees from the industry.
Gov. Brian Schweitzer said he's "absolutely convinced" a large number of Montanans with medical marijuana cards don't have legitimate medical needs and just want to smoke marijuana "quasi-legally." "What we need to do is create a system so that we have people who actually have a medical need for marijuana," he said in an interview. "There will be a bill that will make it to my desk that is going to sort of close the loopholes in this medical marijuana. It needs to be done. It think currently the law is, ‘smoke 'em if you got 'em.' "
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Tom Daubert, a leading advocate for the 2004 medical marijuana initiative, said he can't support the various proposals he's seen so far, but is confident a consensus can be reached at the Legislature.
When the state Board of Medical Examiners in November required physicians to conduct "hands-on" physical examinations of patients seeking medical marijuana authorization, that effectively stopped what Daubert called the "traveling cannabis clinics."
"In light of what the Board of Medical Examiners has already done, there is a risk of (the Legislature) overreacting to change aspects of the law that aren't broken in any significant way," said Daubert, a volunteer lobbyist for a medical marijuana support group who recently dissociated himself from a medical marijuana business.
"It's been a tragedy from my perspective on how this issue has become controversial as a result of a handful of opportunists grossly exploiting the law's gray areas and loopholes," Daubert said. "Even those who helped write and promote the law agree with law enforcement and local governments that too much of what we've seen was not envisioned, nor intended."
Rep. Gary MacLaren, R-Victor, who served on the legislative panel studying the issue, said the problem with the original initiative is that it was so loosely written. "You either repeal it or start over, or you can put some sideboards on it," he said. House Speaker-elect Mike Milburn, R-Cascade, is having a bill drafted to repeal the law. "I've had a tremendous amount of feedback from our schools, our cities, our law enforcement about the problems associated with it," Milburn said. "All of the solutions that have come up won't remedy the problem."
Sen. Jim Shockley, R-Victor, also has a repeal bill standing by if lawmakers can't put some adequate controls on the industry. "It hasn't worked out," said Shockley. "There's virtually no control now, whether you're for it or against it."
Daubert said repealing the law would be "as disastrous as doing nothing."
"It would be disastrous for patients who genuinely use and need the medicine," he said. "It would be disastrous for the taxpayers for the state to redefine 25,000 Montanans as criminals. It would be a law enforcement nightmare when budgets are tightened."
Rep. Keith Regier, R-Kalispell, said his bill will take whatever changes the 2011 Legislature makes to the medical marijuana law and put the entire issue before voters in the November 2012 election. Montanans could decide to accept the revised law or get rid of the medical marijuana law altogether. "I've had a lot of constituents that said the Medical Marijuana Act (as implemented) wasn't what they thought it was," Regier said. "They said, ‘It's not what I thought I voted for.' "
Sen. Dave Lewis, D-Helena, would slap a 10 percent tax on medical marijuana growers and has his own ideas how to regulate it. "My philosophy is it's a big industry, it's here, I don't think it's going to be repealed," he said. "In the meantime, we have to have some control of it."
Sen. Jeff Essmann, R-Billings, wants to tighten up the ability for people to be able to obtain a green card for "chronic pain" by requiring an independent three-physician panel to approve the original doctor's recommendation. More than 70 percent of the green-card recipients cite chronic pain as their reason. "What I heard from my constituents is that most of them thought they were voting for allowing someone that's terminally ill or that had untreatable pain to receive help, not that they were setting up a system for 21-year-old ski bums with shoulder pain to get a card from out-of-state physicians over the phone," Essmann said.
A nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
— John F. Kennedy
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