Last week the Illinois Department of Public Health was the first Illinois state agency to release draft rules for regulating patient access to medical cannabis. The rules are available here and DPH is accepting public comments through February 7 (more information available here).
The rule garnering the most attention right now is proposed § 946.230(c), which lists what patient applicants must do to qualify for medical cannabis in Illinois. Most of the requirements are relatively unsurprising. Cannabis patients must certify that they understand that possession and use of marijuana is still a federal crime, that they will keep their records up-to-date, that they will not transfer or re-sell their medical marijuana, that smoking in public is not allowed, etc. Certainly nothing earth shattering. But the kicker comes at the very end of the list:
(23) That the applicant understands that a qualifying patient or designated caregiver with a current Firearm Owners Identification Card or a Concealed Carry Weapons Permit who is approved for a registry identification card shall be in violation of and may not possess firearms under relevant state and federal law. As such, registered qualifying patients and designated caregivers are not eligible for a Firearm Owners Identification Card or a Firearm Concealed Carry License and may be subject to administrative proceedings by the Illinois State Police if they do not voluntarily surrender such card or license.
That’s right patients — you can have your medical cannabis, or you can have your Constitutional right to a firearm, but not both. This proposed provision has provoked discussion across the spectrum (read here), but as Eric Zorn’s opinion piece in the Tribune correctly points out, the rules released last week are only a draft.
My take on this is that state law enforcement and regulators, currently in the thick of implementing Illinois’ first-ever concealed gun carry laws, are a little jumpy. But what’s troubling is that this provision implicitly buys into the unsupported idea that there is a link between medical cannabis use and violence. For now, I’m moderately optimistic DPH will come to its senses and we won’t see this provision in the final rules this summer. But if we do, we can surely expect at least one lawsuit, supported no doubt by both cannabis and gun advocates.
There were also the following other items of note to be gleaned from DPH’s draft rules:
- Application dates. Patients with last names A-L may apply for their cannabis patient registry identification card from September 1, 2014, through October 31. Patients with last names M-Z may apply for their cards fromNovember 1 through December 31, 2014. After that, applications will be accepted on a rolling basis.
- Application fee. Cannabis patients applying for a registry ID card must pay $150 ($75 for those on disability).
- Petitions. DPH filled in the gaps in HB 0001’s provision for a petition process to add diseases to the list of qualifying conditions. The governor will appoint a nine-member advisory board to consider such petitions and make a recommendation to the DPH Director, who will then render the final decision.
- Grow your own marijuana. This was covered in HB 0001, but DPH reminds cannabis patients and caregivers that they may not legally grow or cultivate marijuana.
- Infused products. Of greatest interest to our dispensary and cultivator clients is §946.400, which subjects them to the Illinois Food, Drug, and Cosmetic Act. Preparation of infused products must be under the supervision of a certified food service sanitation manager. The draft rules largely mirror HB 0001’s labeling requirements, with the additional caveat that DPH may impose further labeling requirements, including potency measures.
The Department of Public Health had a somewhat easier task in writing and releasing its draft rules than the Department of Agriculture or the Department Financial and Professional Regulation since HB 0001 already largely defined the contours of patient access. On the other hand, the Departments of Agriculture and Financial and Professional Regulation will need to make many critical decisions, including additional requirements for a cannabis license, the potential locations for cannabis dispensaries (HB 0001 only specifies geographic dispersal), and the security, inventory and point of sale requirements for dispensaries, processors, and growers.
We both hope and expect that the Departments of Agriculture and Financial and Professional Regulation will be releasing their draft rules ahead of schedule, anticipating that there will be many who will want to comment on them. We will keep you posted when they do.