Momentum Swinging Against Medical Marijuana

After a decade of inroads for medical marijuana, momentum may be reversing course.

Medical marijuana dispensary
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Medical marijuana dispensary

During the past year, there’s been a growing federal push to undercut medical marijuana laws in states including Washington, Montana, California and Colorado.

A key turning point was a June 2011 Justice Department memothat prosecutors have used as ammunition to shut down dispensaries or jack up licensing fees.

The memo and subsequent enforcement have made it difficult for the small businesses to stay afloat, say advocates of legalized marijuana.

“There has been pushback,” says Robert Corry, a Denver-based attorney who specializes in marijuana laws.

Corry is advising some dispensary owners to close shop and operate on a small scale privately, as allowed by state law. It’s not worth the fees and hassles, he says.

He says roughly 50 Colorado dispensaries have already closed this year.

In one case of marijuana law enforcement, federal authorities raided dozens of Montana marijuana dispensaries in March 2011. That state’s once-thriving community of medical dispensaries has virtually disappeared, despite voter-approved medical marijuana use in 2004.

Two Takes on a Memo

Momentum swung decidedly against marijuana laws last June, when the U.S. Department of Justice issued a memo on medical marijuana stating that cultivating and selling marijuana are activities that violate the Controlled Substances Act, regardless of state law.

“States thought as long as they’re following state law they were not going to be targeted. But that hasn’t been the case,” says Morgan Fox, a spokesman for the Marijuana Policy Project.

Instead, the Drug Enforcement Administration and U.S. Attorney's office interpreted the Cole memo (named after the author James Cole, a deputy attorney general) as an open season to target medical marijuana dispensaries, advocates say.

Pushback From Colorado to Montana

U.S. Attorney John Walsh of Colorado
U.S. Attorney John Walsh of Colorado

The pushback and changes are visible in Colorado. U.S. Attorney John Walsh began shipping notices in January to medical marijuana dispensaries around the state. They had 45 days to close or face prosecution, according to the notices. New warnings were issued in March.

Walsh's target: dispensaries locatedwithin 1,000 feet of schools.

“The U.S. attorney has been engaging with local law enforcement to come up with a strategy to deal with the issue of marijuana, especially marijuana near schools, where children could easily have access to them,” says Jeff Dorschner, a spokesman for Walsh.

In the city of Denver and Denver County, there hasn't been a single reported incident of medical marijuana dispensaries selling to minors without authorization since they opened shop, according to Denver’s Office of the Manager of Safety, which tracks such data.

Attorney Corry says Colorado makes it extremely difficult for minors to purchase medical marijuana, including the requirement of documents from doctors and guardians.

“There are dozens of pages of rules including a mandatory camera in every facility, and mandatory tracking of every sale,” adds Brian Vicente, another attorney specializing in marijuana law in Colorado.

Tom Daubert, national marijuana advocate from Montana.
Tom Daubert | Facebook
Tom Daubert, national marijuana advocate from Montana.

In Montana, authorities have moved more aggressively.

Marijuana dispensaries were raided and shuttered last year. Federal officials swooped in even though dispensary owners already were cooperating with local police for inspections of storefronts and cultivation sites, says Fox of the Marijuana Policy Project.

Tom Daubert, who helped draft the 2004 voter-approved marijuana initiative in Montana, now faces a legal battle over a federal drug charge. He was co-owner of one of the raided dispensaries.

“There just seems to be a huge disparity among states” as to how marijuana laws are enforced, says Rebecca Richman Cohen, writer and director of “Code of the West,” a film that documented the Montana legislature’s crackdown on medical marijuana 2011.

Looking back on that tumultuous year, Cohen says both sides may been caught off guard by what the voter-approved medical marijuana law unleashed.

Demand for medical marijuana rose as dispensaries popped up. Giant billboards touted cannabis. Even those who supported the initiative grew uneasy about medical marijuana's growing visibility in the state. Soon, marijuana law and jurisdiction — already a gray legal area —escalated into an emotional, moral battle about the state's very future.

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Patient Impact

Despite the recent federal pushback against medical marijuana, several states are simultaneously considering additional legislation. Sixteen states and Washington, D.C., already allow some medical use of marijuana with a doctor’s authorization. Those 16 states are: Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Washington, and Vermont.

Meantime, patients seeking medical marijuana may have to travel further because of dispensary closures.

Medical studies have shown that marijuana works well to treat pain and muscle spasms among those suffering from Lou Gehrig's disease, says Dr. Greg Carter, a physician based in Washington state and co-author of “Medical Marijuana 101.”

Marijuana is also used to treat cancer, severe nausea, multiple sclerosis and chronic pain from such incidents as whiplash.

Montana resident Sarah Baugh has been using medical marijuana to successfully treat epilepsy, something traditional pharmaceuticals couldn't do.

Patients say medical-grade cannabis is difficult to cultivate at home, and that black market marijuana isn't as effective at treating illnesses.

Says Fox of the Marijuana Policy Project: “Whether they like to admit it or not, current federal actions are hurting individual patients and funding the criminals they are supposed to be targeting."