NOTE: The force was with us on this story. Four days after our op-ed was published (scroll down for that), the Honolulu Star-Advertiser ran the following editorial reiterating our very positions and indeed going further into the matter. “Bravo!” to all who somehow assisted in seeing this important public policy issue aired. – Scott Foster
February 22, 2016
Stop confusing ground rules for pot dispensaries
As Hawaii gets close to opening its first medical marijuana dispensaries — some 16 years after medical cannabis was legalized — one might expect that the major issues have been worked out.
Not so. Even as the state Department of Health labors under a fast-approaching April 15 deadline to approve eight applications for dispensary permits, the Legislature is busy, too — trying to change the rules under which the Health Department is working.
It’s the legislative equivalent of trying to change the tires on a car while it’s speeding down the freeway — in other words, a bad idea.
There are dozens of bills related to marijuana in the Legislature this session. Some of the provisions in those bills would loosen the requirements imposed by last year’s Act 241, as implemented by the Health Department through its administrative rules.
House Bill 2707, for example, would allow not just doctors, but advance practice registered nurses to certify patients for medical marijuana. It would allow cannabis samples to be transported interisland for testing. It would create a 15-member Medical Marijuana Advisory Commission that would report annually to the Legislature on how the program is working. It would authorize the use of paraphernalia like vape pens and pipes. It would allow dispensaries to sell marijuana cigarettes, which the DOH has opposed on health grounds.
Senate Bill 2523 would override DOH rules by allowing marijuana to be grown in greenhouses, shade houses and open-air growing centers, rather than in enclosed indoor facilities that would require powerful grow lamps.
There’s nothing wrong with improving on the medical marijuana law, and some of these changes make sense. Registered nurses already authorized to prescribe prescription drugs should be allowed to do the same for prescription medical marijuana. Also, greenhouses and similar setups can be a reasonable alternative to indoor facilities, given Hawaii’s fair climate and high electricity costs — as long as the bill is strengthened to adequately specify the minimum security standards to guard against theft.
Even so, the dispensing of medical marijuana in Hawaii represents a major change in the state’s health landscape. The Health Department’s rules may prove overly cautious and in need of reform. But the department is obliged to place the health and safety of Hawaii’s citizens over the promotion of the medical marijuana business. To change the rules even before they’ve been tested would be unwise.
There is good reason for a cautious approach. A 2013 Justice Department memo, cited in SB 2707, noted that states are expected to strictly control the cultivation and distribution of legal marijuana “to prevent diversion of marijuana outside of the regulated system.” Failure to do so could result in the federal government challenging “the regulatory structure itself.”
Changing the law also raises the question of whether those who applied for dispensary licenses would gain an unfair advantage, as the deadline to apply has closed. Some potential applicants may not have applied because they were unable or unwilling to follow the current, stricter rules.
The integrity of the dispensary selection process has already been tested by the Health Department’s resistance to identifying those who will choose the permittees. Thankfully, the department was pressured into changing its mind. Now it should be allowed to get the dispensaries online as planned without further complications or, more important, without further delays.
Original story on line behind a pay wall HERE
February 18, 2016
Pot dispensary permit process needs to be reopened
By Scott Foster
Several bills now moving through the Legislature seek to amend the medical marijuana law and the Department of Health’s (DOH) interim administrative rules: House Bill 2707, an omnibus bill; HB 1808 on greenhouses; HB 2708 on background checks; Senate Bill 2176 on oversight committees; SB 2581, another omnibus bill; SB 2175 to add one license and regarding felonies; and SB 2581 on growing opportunities.
Some provisions would laudably remove restrictions on the use of greenhouses, shade houses or field growing — as long as they are enclosed by fencing, blocked from public view and have adequate security measures. Others would wisely modify criminal background checks for patients and caregivers and decriminalize marijuana from Felony B and C categories.
While many of the proposed changes would be reasonable and beneficial to Hawaii’s fledgling medical marijuana industry, the problem is that they come after the dispensary application deadline — and any modification to current law will be a “bait and switch” of the provisions governing this new industry and could only benefit the eight “winning” licensees who have already submitted applications.
The equitable way to handle the entire process is to reopen the application period before the April 15 permits-awarding date — and extend the application deadline until after the legislative session, May 5. This would afford changes in current legislation that become effective upon passage to be fairly applied to all — both current and any new dispensary applicants.
It would allow current applicants to amend their applications according to new legislative provisions, and allow others to apply under whatever new laws and rules emerge. This would level the playing field for all concerned.
Further, reopening the application period would give the DOH the time it needs to hone its medical marijuana card-issuing skills, expedite the process for patients, and assemble a fair and adequate application review panel.
Which leads us to the most controversial matter at hand: the applicant selection process — or lack thereof.
On Oct. 22, 2015, a joint House and Senate Health Committee informational briefing took place “to discuss best practices and identify areas of further policy development related to medical marijuana dispensaries.” There were three invited mainland witnesses attending, all professionals in the field who have advised numerous established mainland dispensary programs.
Robert Morgan, former project coordinator for the Illinois Medical Cannabis Pilot Program, warned the joint committee that unless a “blind” selection process was utilized, “there will be lawsuits.” While several key legislators nodded their heads, seemingly in agreement, Morgan’s advice has not been heeded.
This is not rocket science. First, there must be a “blind” process utilized to qualify all of the dispensary applicants. Then, a lottery should be held in full public view with someone drawing the eight “winners” out of the proverbial hat. This process would ensure that insider favoritism does not play a role in the selection of the eight awardees.
Hawaii’s medical marijuana program has come a long way since I helped work to see the original bill passed in 2000, and it deserves better treatment. This is not the time for anyone to be making uninformed decisions on matters with which they have no experience or expertise.
The only logical way to proceed is to reopen the application period and to insist that the DOH utilize this time to revisit the entire program, rules and all.
To do otherwise is folly.
Scott Foster is the longtime volunteer communications director for Hawaii Advocates for Consumer Rights. He worked with the Drug Policy Forum of Hawaii to pass the state’s medical marijuana law in 2000.