When we last checked in on the United States of America, it was comprised of 8 states and DC that had legalized adult-use and medical-use marijuana, another 20 states that had legalized medical-use marijuana, and another 14 that had legalized medical-use cannabidiol oil, leaving us just eight states – Alabama, Idaho, Indiana, Kansas, Louisiana, Nebraska, South Dakota, and West Virginia – that punish any person who has any form of marijuana for any reason.
Which one of the hateful eight will be the last US state to stand firm on what I call absolute marijuana prohibition? At the rate state legislatures are taking up the issue of medical-use marijuana, we may not have to wait long to find out.
How “Prescription” Has Doomed Alabama’s CBD Law
In March of 2014, Utah became the first state to pass a law allowing children with severe epilepsy to use a low-THC cannabidiol oil. Alabama was the second state to do so on April 1, 2014, and then a cascade of other states followed. Since then, Alabama is routinely considered among the so-called “CBD states” that allow parents to acquire cannabidiol oil somewhere out of state like Colorado and then bring it back without fear of prosecution.
But unlike the other states that allow CBD, Alabama’s law states that “a prescription for the possession or use of cannabidiol (CBD) as authorized by this act shall be provided exclusively by the UAB [University of Alabama at Birmingham] Department for a debilitating epileptic condition.”
“Prescription” is the word that killed medical marijuana laws in five states from 1979-1991. Doctors’ prescriptions fall under federal law and since marijuana is a Schedule I controlled substance, no physician can write such a prescription. That’s why the states that recognize medical-use marijuana and cannabidiol rely on the word “recommendation.”
So, no patient possessing CBD oil in Alabama is protected, because no doctor can possibly write such a prescription.
South Dakota Approves CBD Oil… If It Has A Bar Code
A similar mistake was made on March 17 when South Dakota’s governor signed a law that allows patients to possess CBD oil once it has been approved by the FDA. Of course, the FDA has not recognized CBD yet, so there is no FDA-approved CBD for patients to possess.
These kinds of laws don’t help anybody now, but they would allow in-state use of a prescribable cannabidiol product like GW Pharmaceuticals’ Epidiolex just as soon as it gets FDA approval.
Barely better than that are the laws in Mississippi, South Carolina, North Carolina, and Kentucky that say CBD oil can only be acquired through a study at a state university. That doesn’t help anybody that has brought the CBD oil in from Colorado, does it?
But South Dakota is one of the 24 states that have initiative power, so the people may decide this instead of the legislature. Activists have submitted proposals for both medical-use and adult-use marijuana and need only about 18,000 signatures to make the ballot. Maybe the third time will be the charm, as the state has voted down such proposals in 2006 and 2010.
In Louisiana, the Fourth and Fifth Times Are Not A Charm
In 1978, Louisiana passed a medical marijuana law, but failed to mandate that the state’s health department create a medical marijuana program, so it didn’t.
In 1991, Louisiana amended the medical marijuana law to order the health department to promugate rules. It was then they noticed they had made the mistake of using the word “prescription,” after Virginia, New Hampshire, Connecticut, and Wisconsin had all made the same mistake from 1979-1988.
In 2015, Louisiana then passed a new medical marijuana law that set up dispensaries and cultivation and declared that marijuana would only be available in non-smokable forms. But they didn’t fix the problem of the word “prescription,” rendering the new law dead on arrival
That’s when they realized that while they allowed doctors to recommend marijuana and universities to cultivate cannabis, they did nothing to protect patients, distributors, and cultivators from criminal prosecution.
So, in August, Louisiana passed another bill that protects the patients, leaving them no distributors or cultivators to provide for them without threat of prosecution.
At this rate, maybe Louisiana will finally pass workable medical cannabis legislation by, what, 2030?
Could West Virginia Be The Next Medical Marijuana State?
Meanwhile, over in West Virginia, the proposal to legalize medical marijuana in a state ravaged by the opiate epidemic is flying through the legislature. The bill passed the Senate and in a rare move, the House of Delegates voted yesterday 54-40-6 to move the bill straight to the floor for reading, bypassing the usual committee process. The House held its first reading this afternoon and has scheduled a second reading for Monday.
The bill would create a dispensary system complete with fifteen licensed growers, but would also be the first medical marijuana bill passed by a legislature in over a decade that allows all patients to cultivate their own cannabis plants. Combined with a qualifying condition list that includes the standard pain, nausea, seizures, spasms, cachexia, cancer, and HIV/AIDS as well as anxiety, PTSD, and hospice care, West Virginia could soon have the best medical marijuana law in the Eastern Time Zone.
Could Kansas Be The Next Cannabidiol State?
Kansas is hot on the heels of West Virginia to become the first state to pass a major marijuana reform in 2017. Their senate bill to legalize CBD oil passed out of its committee unanimously this month.
But this bill could also be a victim of vague language. The bill protects people from prosecution “for possessing, utilizing, dispensing or distributing any non-intoxicating cannabinoid medicine… pursuant to a physician recommendation,” but it doesn’t go on to define what a “non-intoxicating cannabinoid medicine” is.
It seems obvious that they are referring to low-THC cannabidiol oil, but how low in THC is “non-intoxicating?” What is obvious colloquially is not obvious under the law.
Technically, marijuana – seedless cannabis flowers dried and prepared for smoking – are non-intoxicating, because they contain scant amounts of actual THC. Go ahead, eat a raw bud and find out.
It’s the THC-A in marijuana that becomes the mind-altering THC when it is decarboxylated by flame or heat then inhaled as smoke or vapor or eaten in a prepared food or tincture. In other words, a bud isn’t intoxicating until it is used; possessing it alone doesn’t make it intoxicating.
You can bet that if this bill becomes law and an out-of-state medical marijuana patient driving through gets busted for marijuana, their defense attorney is going to argue that they were merely in possession of a non-intoxicating cannabinoid medicine pursuant to their physician’s recommendation. Whether they’re successful is another thing.
Could Indiana Beat Kansas To The Punch?
Unlike the Kansas measure, however, Indiana is specific in defining cannabidiol oil as that which contains less than 0.3 percent THC and no less than 5 percent cannabidiol.
Nebraska Bringing Up The Rear
Further behind the other states is Nebraska, where a medical marijuana bill was filed in the state’s single legislative body back in January. A hearing was held in mid-March and amendments to act were filed with the Judiciary Committee days later, where the bill currently sits.
The bill is similar to recent medical cannabinoid states that allow patients to use only extracts of cannabis in non-smoked forms of delivery. Possession and use of dried marijuana flowers and leaves would still be illegal. Obviously, patients will not be allowed to cultivate their own cannabis plants.
Only Idaho Steadfastly Refuses To Reform Marijuana Laws
While it’s still to be determined whether the some of the hateful eight will succeed in passing the reforms winding the way through their statehouses, we know for sure that Idaho will remain an island of prohibition in a sea of legalized western states, as its legislature concluded its 2017 session this week without even proposing any reforms to state marijuana laws.
Idaho is infamously the only state whose governor in 2015 vetoed a legislature-passed cannabidiol bill for epileptic kids. That followed a non-binding resolution approved by the Idaho Senate in 2013 that stated its opposition to “efforts to legalize marijuana for any purpose.”
In 2017, Idaho just couldn’t put its citizens at risk of some epileptic kids using a non-psychoactive form of cannabis that neighboring Utah and Wyoming allow. But they did find the time to pass a law to allow drivers (who are allowed to conceal carry a gun nearly everywhere without a permit, including motorcyclists who can legally ride without a helmet) to go 15 MPH faster than the speed limit to pass another vehicle on the up-to-80-MPH Idaho freeways
Any hope for reform in Idaho lies with the people, who have the power to pass citizen initiatives. Activists there are working on a medical marijuana proposal in 2018. Unfortunately, what they are proposing is a medical marijuana law that allows patients to possess two pounds of usable marijuana and caregivers to grow three dozen plants in one location at a time when even neighboring Washington and Oregon, with voting majorities that have supported medical marijuana for nearly two decades, are balking at such large limits.