The passage of Proposition 215 in California was a watershed victory for medical cannabis. Proposition 215 exempts patients and defined caregivers who possess or cultivate cannabis for medical treatment recommended by a physician from criminal laws which otherwise prohibit possession or cultivation of cannabis.

In May 2009, the United States Supreme Court declined to hear an appeal of a California state appellate ruling from 2008 that upheld Proposition 215 and concluded that California can decide whether to eliminate its own criminal penalties for medical cannabis regardless of federal law. The appellate court decision came in a lawsuit against Proposition 215 filed by San Diego and San Bernardino counties.

These counties objected to Proposition 215 on the grounds that it requires the counties to condone drug use that is illegal under federal law. The two counties also challenged a law that requires counties to issue identification cards to medical cannabis patients so these patients can identify themselves to law enforcement officials as legally entitled to possess small amounts of cannabis. [ San Francisco Chronicle, “Solano to allow medical cannabis ID cards,” June 24, 2009]

Proposition 215 also led to the lawsuit, People v. Kelly.  The Kelly case was decided in January 2010 by the California Supreme Court.  In the Kelly case, the Court held the state of California cannot, through the legislative process, impose a state limit on medical cannabis that is more restrictive than what is allowed under Proposition 215. The Kelly case also limits the extent to which California’s initiative process is protected against legislative tampering.

The language that appeared on the ballot stated:

Exempts patients and defined caregivers who possess or cultivate cannabis for medical treatment recommended by a physician from criminal laws which otherwise prohibit possession or cultivation of cannabis.

Provides that physicians who recommend the use of cannabis for medical treatment shall not be punished or denied any right or privilege for making such a recommendation.

Declares that the measure is not be construed to supersede prohibitions of conduct endangering others or to condone the diversion of cannabis for non-medical purposes.

In addition, Proposition 215 contains severability clause. The exact language of Proposition 215 added §11362.5 to the Health & Safety Code and is contained in Endnote [1].

Keeping Proposition 215’s Promise

Thus, the people of California choose to amend the state Constitution to preclude restrictions on access to their fellow citizens for medical use. All of which means that:

The cities, municipalities, and counties of California need to cease and desist immediately from any and all efforts to create local impediments to the local retail sale or delivery of medical cannabis to anyone in California, as it is an exercise in FUTILITY as ultimately any such legislation should be declared unconstitutional in California. 

The cities, municipalities, and counties of California need to cease and desist immediately from any and all efforts to impose local sales, gross receipts or license fees on medical cannabis as it is an exercise in FUTILITY as ultimately any such legislation should be declared unconstitutional in California. 

Not only are those efforts counter to the spirit and intent of both Proposition 215 and the California Constitution, but the Legislature could even do better. A couple of suggestions come to mind.

The Legislature could provide an exemption from the Cannabis Cultivation Tax [“CCT”] and the Cannabis Excise Tax [“CET”] for valid, medical use of cannabis in California. There is a system already in existence with county-issued medical cards that provides a tightly controlled registration system that eliminates much of the “lax controls” under the older physician referral system. Further, the California Legislature could look to New York and pick up on the

New York Bill Would Require Medical Marijuana Be Covered By Public Health Insurance – Public health insurance programs would be required to cover medical marijuana in New York if a new Assembly bill is enacted.

Cost is the primary barrier to patient access in New York’s medical marijuana program,” reads a memo attached to the legislation. “Medicaid, other public health plans, and commercial health insurance plans do not cover medical marijuana, forcing patients to pay out of pocket. Some patients begin treatment only to stop due to inability to pay, while others turn to the black market.”

For thousands of patients, medical marijuana is a safer and more effective medication than other drugs, especially opioids.”

The bill, filed on Monday by Assemblyman Richard Gottfried and 17 cosponsors, would add medical cannabis coverage to four publicly funded health programs—Medicaid, Child Health Plus, workers compensation and EPIC, as well as the largest publicly funded Essential Plan.

For Medicaid and Child Health Plus, there would presumably not be federal matching funds until the federal government changes its policies, but New York’s Medicaid and Child Health Plus programs have always covered people and services for which we do not receive the federal match,” the Assembly memo says.

The bill also clarifies that while commercial health insurance programs are not required to cover medical marijuana, they are free to do so. And it would allow state regulators to certify medical marijuana dispensaries as Medicaid providers solely for the purpose of dispensing cannabis.

California has a tremendous opportunity to both keep the promise of Proposition 215 and fulfill a commitment to its most vulnerable citizens who are least able to afford medical cannabis due to the imposition of taxes and efforts to impede access and delivery. It’s time to end the obstructionist behavior and do the right thing.

Keeping Proposition 215 [this link provides detailed background history] Promise

[1] §11362.5

(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.

(b)

(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

(e) For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

(Added November 5, 1996, by initiative Proposition 215, Sec. 1.)