- 28 December 2011
Did you hear? Marijuana is no longer Schedule 1 in Michigan! P2P is legal! Farmers Markets are 'legally compliant'! We need to reschedule Marijuana to Schedule 2-5!
How many posts have you seen on these subjects? Let's separate fact from myth and wishful thinking.
Marijuana is no longer Schedule 1:
Yes it is, federally and at the state level, no and's if's or but's. The law is on the books, has been since 1978, and is unchanged. What happened in ONE CASE is that an outstanding attorney made a case that marijuana no longer fit the definition of Schedule 1 and a judge agreed- for that one and only case (and it wasn't even a medical marijuana case). It is a local ruling, it is not binding on any other court, and it is subject to appeal. The argument used is 'repealed by implication'. An analogy would be a local ordinance requiring restaurants to set aside a non-smoking section was effectively repealed when an indoor smoking ban was enacted by the state. It is a weak, but valid, argument and the Michigan Supreme Court has ruled that it really can only be used when there is no other option to more definitively address the issue.
P2P is legal:
Again, this is a local decision out of Barry County (do you even know where that is? I do because I ran ambulance there in the 80's) by a judge in a single case, and it only applies to that case. Like the de-scheduling of marijuana, it is a move in the right direction, but it is a first step in a touchdown run, the goalpost is a LONG ways away and there are a lot of opposing players between you and the line. It too has no bearing on the rest of the state and is subject to appeal to the same court that ruled against P2P back in August. While it is encouraging, until it gets to a statewide court (COA or SC) it really doesn't mean that much in Tawas City or anywhere else.
The 'Legally Compliant Farmers Market'
There is ONE form of transfer that is clearly legal under the law, Caregiver to Designated Patient. There is special language in place to say that CG to DP is allowed, compensation is defined as the cost of producing the meds, and the transaction is specifically not a sale. There is no such language for ANY other form of transfer, and P2P for sale is clearly illegal under the McQueen decision. The concept of a Farmer's Market is great, one of my personal favorites, but just because I and others want it doesn't mean it is so. If you are exchanging anything of value for medication with anyone other than your designated patient you are at risk of arrest, period. Don't try and get cute by saying the meds are free, you are only charging for the jar; I am on your side and wouldn't buy that if I was on your jury- do you honestly think anyone else would?
Many of the problems we are causing ourselves (and Bill Schuette is right there to nail us on) come from wishful thinking and creative interpretation of the Act. We want to do something, and we try and figure out an argument that supports our position. We dwell on the difference between 'a' and 'their' when it comes to transferring meds, and many of the arguments seem valid. But the cold, hard reality is the courts generally don't side with our arguments (the two above are notable exceptions), and people end up arguing the case from a cell.'
A far better strategy is to see what they clearly ARE allowing, and build on that. That is why I put up the caregiver forums which are run by compassion clubs and seek to put caregivers with slots in touch with patients that need meds. Once a registry connection is made, we are playing clearly by the rules, and life is good. It also brings both patients and caregivers into the compassion club system, which brings education, political power, and resources to bear and makes the community stronger.
In closing, one final word about a favorite subject. How many times have you heard 'let's reschedule marijuana to Schedule 2-5'. This is a BAD idea. You can't grow vicodin in your basement, you need to get a PRESCRIPTION from a doctor and fill it at a PHARMACY. Schedule 2 marijuana would be no different. A better way of approaching it is to either remove it from the CSA (or put a minimum amount (not listed in grams or ounces) as a 'threshold' before federal action is taken) and leave it up to the states to regulate. Or make state/federal constitutional amendments allowing it's use. Other options such as lowest law enforcement priorities, decriminalization, etc are on the list, but further down.
These are non-legal opinions from someone that has observed what is going on and put a lot of thought into the safety of his patients, so take them for what they are. What you decide to do is up to you, but too often we hear what we want to hear, see in the Act what we want to see, and folks get in trouble. Instead, try and figure out what they say you can do, then build your compliance strategy around that and beat them at their own game.
I do this personally. Instead of approaching certifications from 'what is the minimum I have to do' (sign my name I guess), I try and think how the certification can be attacked by a prosecutor. Rather than defend myself and my patient (translate keep my patient out of jail, because I go home unless I commit fraud) by saying I didn't have to do something (like have records), I would rather show how I did everything the courts have mentioned, the medical board has mentioned, and other states are doing. I would rather not end my testimony with 'is that enough' when I could end it with 'why are you wasting our time?'.
PS, I'll put out another 'Assignment for the New Year' in a week or so. Last year's assignment- renew and get a friend or two certified, doubled the number of card holders in one year, we need to continue the trend.