A recent conversation among our cannabis lawyers about the increasing number of states with medical cannabis reciprocity (i.e., states that honor other state’s patient cards and allow out-of-state patients to purchase medical cannabis at their dispensaries) raised an interesting issue: at what point will the medical cannabis community need a national database to track such activity?
Please bear with us.
We fully realize how scary “national database” sounds in light of various Republican presidential candidates’ statements concerning a national database of Muslims in America. We are not advocating for anything that extreme, or for a database set up by the federal government. What we’re talking about is a database, or even just a way for states’ own tracking systems to interface with one another, that would ensure states, dispensaries, and patients are meeting their legal obligations.
Taking a step back, you recall that marijuana remains illegal under federal law, and that states with legal medical and/or recreational cannabis operate in a legal gray area. These states and their industry participants do their best to avoid federal interference by following the eight enforcement priorities spelled out in the 2013 Cole Memo. The gist of that memo is basically that states should establish tightly regulated industries within their borders and ensure that marijuana is not crossing state lines, is not being sold to minors, and is not diverted to the black market. But with reciprocity on the rise, the opportunities for transgressions of the Cole Memo are also growing, both intentional and inadvertent.
The reason these opportunities are growing is that each state’s record-keeping system that tracks patient (or adult recreational customer) purchases is an intrastate system, and is not designed to “talk” to systems in other states. Therefore, the mechanism that ensures that each patient/customer does not purchase more cannabis than legally allowed within statutorily-prescribed time periods does not work when the patient or customer goes across state lines. So, whether the patient/customer intends to or not, she may be purchasing more marijuana (and possibly more frequently) than allowed under her state’s law. She may also more easily exceed possession limits, which could even implicate criminal penalties. This poses a problem for the seriously ill patient who makes consistent and full use of her medical card and goes on vacation to a different MMJ state (and upon whom the onus falls to document his purchases) but also creates circumstances where those looking to game the system can travel back and forth between borders to maximize buying power and then casually sell the excess.
Of course most patients will follow the law, and the relatively high prices of cannabis in medical and retail shops may make diversion of product obtained this way economically infeasible. But the point is that the uneasy detente created by the Cole Memo is premised entirely on strictly policed intrastate cannabis markets and, on the medical side, patient rolls with a rigorous qualifying process. The fuzzier borders and sales become, the more scrutiny the industry as a whole will suffer, and that should worry everyone.
We appreciate how difficult it will be to get states to work together on this issue – after all, it can be difficult for states’ internal departments to talk to one another – never mind separate sovereignties. But the raw data, i.e., sales records, should already exist, which should facilitate creating a centralized database or system to share that information. Such cooperation isn’t unheard of – that is why organizations such as the National Governors’ Association exist. This is a big project, but as long as the state-federal conflict exists, it is a necessary one, and a state-driven solution will almost certainly be better than one imposed by the feds.
Stay tuned for an upcoming post delving into the varying reciprocity rules.