Illinois Medical Marijuana: Clarity Will Have To Wait

As we gear up for Illinois’ legalization of medical marijuana we are confronting ambiguities and uncertainties about what Illinois’ medical marijuana regime will look like once it actually starts. Even what will constitute legal medical marijuana is not yet entirely clear.

Illinois’ new medical marijuana laws will require medical marijuana patients (1) have a bona-fide physician-patient relationship and (2) suffer from an approved debilitating medical condition. Both of these requirements will likely pose interpretation and enforcement problems.

Illinois rules prohibit the physician-patient relationship from consisting solely of a medical cannabis certification or a consultation solely to provide a patient with cannabis. In Illinois Medical Cannabis Laws. Expect Strict Enforcement we wrote of how the Illinois Department of Financial and Professional Regulation had filed a formal complaint against a physician for allegedly offering prospective patients pre-approval for medical marijuana. We saw this complaint as highlighting how Illinois is dead serious about enforcing its  “bona-fide physician-patient relationship” requirement. Illinois is not going to let its doctors be little more than marijuana supply conduits. That much is clear.

But what exactly will “bona-fide physician-patient relationship” really mean? What about a patient whose doctor refuses to authorize marijuana to anyone? If that patient seeks out a new doctor who immediately authorizes marijuana, will the state deem that new physician-patient relationship to be a bona fide one?

Illinois’ list of approved debilitating medical conditions is also ripe for interpretation and enforcement problems. Just by way of one example, the list sets forth “spinal cord disease” as a medical condition for which patients can receive and use marijuana. Will “spinal cord disease” include any sort of back pain? Speaking from our own experience in representing medical marijuana businesses in various other states, we can tell you that back pain is the condition big enough to drive a truck through simply because it can be difficult if not impossible to objectively measure.  Crains’ Chicago Business recently highlighted this issue and quoted a physician, Dr. William McDade, who notes (correctly we believe) that this condition will be the one most vulnerable to abuse. How does Illinois plan to handle it?

Though new laws are virtually always less than perfectly clear before real world testing, we can and should expect eventual clarity. In the meantime, the lawyers will benefit, but probably nobody else. Sorry.