A common challenge patients often experience when adult-use laws are adopted in their state is that legislative and regulatory improvements to medical cannabis programs are suspended while states pivot to organize adult-use models. As states continue to update laws regarding adult-use, it is imperative that they continue to prioritize policies that affect patients.
When medical cannabis laws were first written, they included very strict regulations in order to allow as few people into the programs as possible. Now that the environment has changed and after seeing the successes of the medical programs (i.e. how little disruption it is for the state, how overdose rates and driving accidents did not increase, and how much money it brings into the states), only now are legislators and regulators willing to allow adult-use programs into their states. However, because of the lessons learned from the medical programs, adult use programs are formed with less restrictions, regulations, and requirements than the already established medical programs. This leaves the medical programs more time consuming, restrictive and costly for patients, because patients have to pay for doctor visits, apply and pay and wait for their medical cannabis cards to be approved before they can access their medicine. This causes many patients to leave medical programs altogether and utilize the adult-use market instead.
When states are creating adult use programs, it is critical that they first acknowledge the unnecessary restrictions in the medical programs and make corrections to ensure that people who need cannabis for medical purposes have the same level of access–and priority of access–as those that consume it for recreational purposes.
As states continue to create and update laws regarding adult-use, it is critical that states continue to fix the following policy gaps that still exist in the medical programs first:
Patient Rights and Civil Protections
One of the most important indicators of a well-designed medical cannabis program is whether all patients who can benefit from medical cannabis can access this medicine without fear of losing their civil rights and protections. While some states have provided protections for patients, few have developed a comprehensive approach that addresses arrest protections, affirmative defense, child custody, employment, housing, driving, organ transplants, and reciprocity. Addressing these protections is important in facilitating equality between patients who use cannabis for treatment and those who may rely on FDA-approved over-the-counter and prescription products for their healthcare needs.
Many employees, despite having medical cannabis laws and programs in their states, are currently prohibited from using cannabis due to random drug testing. These patients often have to face the daily challenge of choosing between using the medicine they need to treat their health condition(s) or earning a paycheck they need to make a living. States should issue guidance that will allow those who are legally utilizing cannabis for medical purposes to obtain and maintain employment.
Access to Medicine
Patients utilizing state medical cannabis programs should be able to expect the same product diversity, affordability and reasonable access through both storefront and delivery options afforded to patients relying on medicine sold at pharmacies. States must ensure that patients have access to diverse forms of cannabis ranging from whole plant/flower to concentrates, oils, extracts and derived products including those that are edible, inhaled, topical, sublingual, and transdermal. The consistent availability of products, and diversity of those products, allows patients access to a full range of medicine and allows them to work with their physician to find the formulation, dosage and product type that best meets their needs.
Sufficient patient access to cannabis and cannabis-derived products should include more than authorizing a limited population of licensed retailers. Many states have failed to licence an adequate number of dispensary locations to serve their patient population. In some cases, the scarce population of licensed retailers is tied to specific regulations calling for a designated number of retail facilities (retail licensing caps). Another common policy challenge to licensing a sufficient number of retailers is pre-existing or new state laws that permit local governments to prohibit legal medical retail facilities. Often these laws are extended by the state to local governments to offer control over local zoning and land use policies, and local governments are using them inappropriately to deny legal patient access. While it is appropriate for local governments to make decisions about the configuration of their communities, it is completely inappropriate and discriminatory to use these powers to deny patients access to medicine that they need to treat their health conditions. States should collaborate with local governments and cannabis businesses to ensure that an ample population and distribution of storefront and delivery services are available to serve patients comparable to the number of state-authorized pharmacies and related services. States that fail to license enough retailers force patients to secure medicine from the unregulated market providers, who do not adhere to state-mandated product testing or labeling standards.
Furthermore, state requirements that all cannabis business licensees be vertically integrated can also lead to a scarcity of licensed retailers for patients to access, as these programs limit legal participation of all potential cannabis business operators thereby artificially shrinking the volume of potential retailers. These policy frameworks can produce a limited population of large, well-financed cannabis businesses that impose oligopoly practices on the supply of cannabis products and a limited number of retailers. Patients are often the victims of these policy regimes, and are forced to face high product costs, limited product availability and retail access.
Until individual insurance companies begin extending plans to subsidize the cost of cannabis medicine, states should establish and regularly assess affordability programs to help patients defray the costs of medical cannabis. When states approve cannabis for adult use, all medical sales should be exempt from sales tax or provided the same sales tax that states require for over-the-counter drugs. Programs should also permit home cultivation of cannabis to improve affordability.
As adult-use programs bring in funds from states, the revenue should be used to create programs that help save patients money and create educational programs for doctors and patients. In addition, states should consider strategies to reduce costs to patients such as permitting multi-year registrations and ongoing registrations for patients with terminal conditions. States should also permit patients to utilize telehealth for physician evaluations and provide digital portals for patient registration in lieu of in-person registration requirements.
While states often initiate reforms to their cannabis policies to extend safe and legal access to patients, these programs seldom include comprehensive features to serve children or appropriately consider how the parents of children relying on cannabis will navigate such systems. Common challenges experienced by families with children requiring cannabis for treatment include:
- States authorizing medical cannabis use by pediatric patients, but failing to enable these patients to utilize cannabis treatment while on school grounds.
- States authorizing medical cannabis use by pediatric patients, but not allowing for storage of cannabis for these patients on school grounds.
In these instances, parents must leave their place of employment when their child needs treatment administered to travel to their children’s school, transport their children 1000 feet from school campus to administer medication, and then take their child back to school and return to work. Much more consideration must be provided regarding how pediatric access operates in practice to address these challenges, and state medical cannabis regulators should work more closely with the state’s department of education and local education agencies to ensure program functionality.
Ease of Navigation & Functionality
ASA encourages states to organize medical cannabis programs from the perspective of the end user – the patient. State cannabis regulatory bodies should also include patients and medical professionals in their decision-making processes and transform patient recommendations into regulatory policy and legislative proposals to ensure the state medical cannabis programs continue to make improvements that better serve patients. In addition, states should permit cannabis to be used for any qualifying condition per the recommendation of a physician rather than a limited list of conditions.
ASA also recommends that states permit maximum flexibility regarding locations where patients are permitted to use medical cannabis to include homes, apartments, senior living facilities, schools (under appropriate supervision), hospices, college campuses and hospitals.
Moreover, states should work to optimize their approach to regulating and taxing cannabis businesses in the medical cannabis supply chain. Business should be provided incentives, such as tax breaks, for producing products for the medical market. Unnecessary regulations pass costs from licensed cannabis businesses on to patients and can lead to supply shortages that compromise patient health. When states begin rolling out their adult-use program, they are often faced with medical product supply shortages, putting patients at risk of not having access to medicine they need. In states where retailers must choose between operating a medical or adult-use business, many opt to open adult-use facilities anticipating sales to a larger market of consumers. States should allow for co-location of medical and adult-use dispensaries, which would allow retailers to serve both markets equally, while maintaining specific medical priorities such as medical grade products and staff capable of advising patients on appropriate products for treatment.
States should also consider authorizing state funded medical cannabis research and/or creating a medical cannabis research license as well as allowing industry-specific research.
Consumer Safety & Provider Requirements
Central to patient safety is consistent oversight related to cannabis business staff training, facility conditions and protocols, appropriate product testing and labeling, and requirements that staff trained in cannabis medicine applications are available to consult with patients on medical cannabis products available. States should also work with practitioners and medical cannabis businesses to develop products designed to address patient specific health challenges.
States should permit consumers to submit their products for testing, in addition to any required/mandatory testing that the product should have undergone. This includes anything they have grown or purchased (via the Internet or recreational/ medical dispensaries) to verify formulations, potency, and safety. Independent laboratory analysis, and access to testing labs, is critical in maintaining patient safety. State programs must also work to understand the gaps in cannabis product safety and allow scientists to conduct research on not only the medical properties of the cannabinoids and terpenes, but also research the contaminants present to understand their impact on patient health the same way that pharmaceutical products, nutraceutical products, and food/agricultural products have been evaluated. This will allow contaminant testing to become more meaningful and set action limits that can be expected to reasonably protect patients from exposure that could be deleterious to their health.
To ensure oversight of cannabis production, states should implement certification or accreditation requirements for cultivators, manufacturers, and testing labs. Currently, most states only require laboratories to be accredited to the ISO 17025 standard, however, there are no certification or accreditation requirements for cultivators and manufacturers that identify best practices such as ASA’s Patient Focused Certification (PFC) program, Good Agricultural (Collection) Practices (GACP), or Good Manufacturing Practices (GMP).
ASA’s PFC Certification program certifies cannabis and hemp businesses to the PFC Standard in the areas of Cultivation and Processing; Manufacturing, Packaging, Labeling and Holding; Distribution and Dispensary; and Laboratory Operations. The PFC Standard was developed based upon the AHPA Recommendations for Regulators and AHP Cannabis monograph, and was created to provide a consistent standard to cannabis and hemp cultivation and production and give consumers a recognizable brand signifying a thorough quality review of the product and processes to create that product.
ASA is encouraged by the fact that many lawmakers and regulators review our State of the States report to assess their medical cannabis programs across the country, and urges all policy makers to continue this practice to further develop and improve their medical cannabis programs.