Illinois Medical Cannabis Update

We are long overdue for an update on cannabis in the Land of Lincoln, so here’s a quick roundup.

Illinois marijuana. It's bad out there.
Illinois marijuana. It’s bad out there.

Paucity of patients: Illinois’ medical marijuana program was designed to be one of the most restrictive in the country, and now, two years into the program, it is clear that our legislators have made good on that promise. At the beginning of January, the Department of Public Heath reported that approximately 4,000 Illinois patients have been approved for a medical cannabis card. In November and December combined, the Health Department approved only 700 patients, which is discouraging because many had hoped that enrollment would spike after medical cannabis sales started on November 9.

As we’ve noted before, the major problem with Illinois’ medical cannabis program is that its list of qualifying conditions does not include chronic pain, which is what qualifies the vast majority of card holders in medical cannabis states. When we commented in June 2014 on Crain’s estimate that 75,000 to 100,000 patients would apply in the first year of the program, we were skeptical, but still optimistic. The real numbers are just a fraction of that: approximately 5,200 prospective patients have completed applications since September 2014. It is now clear that the lack of patients is rendering Illinois’s medical marijuana program downright dysfunctional. Just last week High Times reported that Illinois dispensary owners worry they may face bankruptcy unless they get more patients, and fast. (Of course, federal bankruptcy is not available to businesses dealing in cannabis; read here and here.) Forbes just published a similar doomsday piece. We don’t like to be Debbie Downers, but it’s getting increasingly difficult to stay optimistic about the marijuana industry in Illinois.

New Qualifying Conditions: Back in September we expressed our profound disappointment at the news that the head of the Department of Health (part of the not-very-cannabis-friendly Rauner administration that took office a year ago) would not be approving any of the eleven new conditions recommended by the Medical Cannabis Advisory Board for inclusion on Illinois’ list of qualifying conditions. This meant that patients suffering from osteoarthritis, migraines, and PTSD, among others, would have to go without legal cannabis.

But the statutorily-prescribed process for adding new conditions grinds on, Rauner’s apparent opposition notwithstanding. The Advisory Board is required to review requests to add conditions twice yearly, and is accepting petitions through the end of January. Meanwhile, the Department of Health’s final decision on the last round of petitions (many of the same medical conditions that were rejected in September) is due any day. When IDOH said no in September, Rauner issued his own statement, saying that the program was still too young to “evaluate” or “expand,” which, as we pointed out, was not a valid criterion for rejecting additional qualifying conditions. Now, four months later, sales have finally started, but the “industry” is so weak it’s hard to imagine the Governor taking a different view now.

Patients suffering from PTSD and other rejected conditions could try to sue Rauner and IDOH to try to force the issue, but the most likely outcome of such a suit would be that IDOH would issue a revised reasoning for the rejection, to which a court would likely defer. The best recourse seems to be heightened political pressure, but given that Illinois’ 2016 budget is nearly eight months overdue and Springfield has never been more dysfunctional, it seems likely this issue won’t get much attention. But who knows, maybe the Governor and IDOH will change their minds for the sake of veterans and the chronically ill to win some much-needed goodwill. We’ll be watching either way.

Reduced Possession Penalties: Last year legislators passed a bill that would have reduced small marijuana possession charges to a civil infraction, akin to a traffic ticket. Under HB218, possession of up to 15 grams of marijuana would have resulted in a fine of around $125, and such infractions would not have appeared on a person’s criminal history. HB218 also addressed DUID. Governor Rauner would not sign HB218 as drafted, issued an amendatory veto, and the bill was never passed into law. HB4357 has been introduced in the current legislative session with language essentially mirroring Rauner’s amendatory changes, has had its first reading in the House, and has now been referred to the Restorative Justice Committee. If passed, possession of up to 10 grams of cannabis would result in a fine of $100-$200. DUID is again addressed. We previously wrote of HB218’s support among law enforcement and Rauner’s expressed interest in cost-savings and criminal justice reform, so we remain hopeful this measure will become law and at least some good news on cannabis will flow from Illinois.