Medical marijuana now legal, but rules and enforcement unclear

The new law allows non-profit dispensaries, or in some cases individuals, to cultivate marijuana for medical use. — Photo courtesy of DEA

Some Island police departments are formulating policies and trying to clarify enforcement requirements of the new state law that allows use of marijuana to treat debilitating medical conditions.

Massachusetts voters approved the use of medical marijuana in a statewide ballot referendum question in November. The law took effect January 1, but it could be months before the Massachusetts Department of Public Health (DPH) fashions regulations and licensing procedures.

Until then, the law requires only a note from a doctor for use of medical marijuana.

Police are concerned that recreational marijuana users will take advantage of the new law to abuse the drug, and they are also wary that the medical marijuana law might make the drug more acceptable, which could lead to abuse. They are also concerned that enforcement of the new law leaves them with few practical tools to prevent abuse.

“If they show us something [a note] that looks authentic, we would probably have to send them on their way,” Oak Bluffs police Lieutenant Tim Williamson said. “If it looks bogus, I imagine we would cite them with a civil fine. If they show up at a court hearing and show a magistrate a legitimate prescription, the case would probably be thrown out.”

Under a separate law decriminalizing marijuana that took effect in 2009, the maximum penalty for possession of less than an ounce of the drug for personal use is a $100 civil fine, similar to a speeding ticket.

Edgartown police Chief Tony Bettencourt is concerned that the new law took effect long before state or local authorities could evaluate its likely effects, or decide the best way to enforce it. “We are in the process of getting a policy together,” he said. “These things happen quickly, and we’ve had to scramble.”

Cause and effect

While local police departments and health advocates accept that a clear majority of Massachusetts voters favor the use of medical marijuana, they have many questions about their ability to enforce it, or manage the impact of medical marijuana dispensaries.

Theresa Manning, executive director of the Dukes County Health Council Youth Task Force (YTF) said her organization opposed passage of the law, but they knew supporters were likely to prevail.

Now that the law has taken effect, the YTF will focus on working with local towns which may consider zoning or health bylaws to regulate dispensaries.

Last week, the group asked each town’s selectmen and the Dukes County Commission to send a letter to Governor Deval Patrick urging him to delay implementation for at least six months, to give towns time to explore new bylaws.

“Our concern now, and always has been, is about access for kids,” Ms. Manning said. “We certainly are concerned about what medical marijuana has done in other communities.”

Critics of the medical marijuana laws in California and other states say the use of marijuana for medical treatment has become little more than a pretense, with hundreds of dispensaries operating like supermarkets with sales, student discounts, and products ranging from marijuana candy to marijuana ice cream.

Ms. Manning said that surveys of Martha’s Vineyard school students reveal that while the underage use of alcohol is decreasing, marijuana use is on the rise.

“Fewer and fewer kids feel like it’s bad for you,” she said. “When you put it under the guise of medicine, that it’s good for you, that’s of great concern.”

“Kids don’t wake up one day and decide to snort a line of cocaine, or stick a needle in their arm,” Lt. Williamson said. “I’m not saying everybody that uses marijuana graduates to harder drugs. But I think if you talk to anybody that has a drug addiction, they will tell you at some point, marijuana was in there somewhere.”

What it does

Question Three on the November state ballot won approval from 63 percent of Massachusetts voters.

The new law eliminates civil and criminal penalties for the medical use of marijuana by qualifying patients. The ballot question summary, written by the state attorney general, explained a qualified patient as someone diagnosed with a debilitating medical condition. It lists examples of such conditions as cancer, aids, hepatitis C, Crohn’s disease, Parkinson’s disease, ALS, or multiple sclerosis.

The law requires a written certification from a doctor who has a real physician-patient relationship, and it allows patients to possess up to a 60-day supply of marijuana.

It provides for nonprofit treatment centers to grow, process, and sell marijuana to patients or their caregivers. Under the new law, if a patient has a medical, financial, or transportation hardship that limits access to treatment centers, he or she can get a license to grow a 60-day supply of marijuana in a closed, locked facility.

Up to 35 treatment centers could be established throughout the state. Each county must have one treatment center, but can have no more than five.

What it does not do

The state medical marijuana law does not provide immunity under federal law. Nor does it obstruct enforcement of federal law.

It is still a federal crime to possess marijuana. There is no exception for medical use, and federal authorities do not recognize any legitimate medical treatment. People who use medical marijuana in Massachusetts and other states that have legalized the drug or allowed medical use are breaking federal law.

The federal government has sent mixed signals on enforcement of the federal law. In 2009, the U.S. Attorney General issued a memorandum to U.S. Attorneys in states where medical marijuana is legal, advising them they could exercise prosecutorial discretion to refrain from enforcing the federal law if medical marijuana is being used on advice from a doctor and users are complying with all applicable state law.

In 2011, federal law enforcement officers began a systematic, aggressive crackdown on medical marijuana dispensaries in California. At a congressional hearing, Attorney General Eric Holder said the federal government took action because large dispensaries were evading state laws and going beyond what the state law authorized.

The federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued a memorandum in 2011 that made it clear that it is illegal for a medical marijuana user to purchase, possess, or use firearms or ammunition. The memo also warns that it is illegal to sell firearms or ammunition if the seller has a reasonable cause to believe the buyer uses medical marijuana.

The state law also does not prevent employers from firing workers for using medical marijuana, on or off the job, even if they comply with state law.

It does not allow operation of a vehicle, boat, or aircraft under the influence of medical marijuana, and it does not require any local government to allow use of the drug in public.

It does not require health insurers to reimburse patients for the cost of medical marijuana.