HOW PROP. 64 WILL DESTROY PROP. 215 PATIENTS’ RIGHTS

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HOW PROP. 64 WILL DESTROY PROP. 215 PATIENTS’ RIGHTS
I thought for decades that legalization meant that we would all keep doing what we were doing without fear of arrest or prosecution. I failed to grasp that the powers that be would see it as just another angle [from] which to gain control and hand opportunity to the wealthiest, most ruthless, [and] most connected…”
– Vivian McPeak, Executive Director, Seattle Hempfest
 
Since its inception, Prop. 64 proponents have claimed that the initiative will have no impact on patients who rely on Prop. 215 to cultivate cannabis to serve their medical needs. But when pressed for proof that this is the case, supporters respond either with false and misleading information, or offer only their opinions and Prop. 64’s “intentions.” However, an initiative’s “intentions” are not what will be codified into law; only the text is. And according to the text itself, Prop. 64 will absolutely – and irreversibly – destroy patients’ most hard-won right: the right to cultivate as much cannabis as required for their particular ailments. Letting the text speak for itself, this article presents what patients and other cannabis supporters have long been waiting for: definitive proof of exactly where and how Prop. 64 will affect patients’ rights.

For 20 years, seriously ill patients have been allowed to avoid costly prescription medications – and the debilitating and often fatal side effects that accompany them – by treating themselves with cannabis. Today, some 2 million patients enjoy the right to grow as much cannabis as they need – literally an unlimited amount, as upheld by the Supreme Court in the People v. Kelly ruling – for any condition “for which marijuana provides relief.” And under California law as it is written today, anyone can become a patient, and no one has to lie to do it, thanks to the deliberately liberal wording of Prop. 215.

“The key phrase is, ‘or any other illness for which cannabis provides relief,’” says Dennis Peron, co-author of Prop. 215 and widely considered the father of the legalization movement. “We specifically wrote it that way to give literally everyone in the state the opportunity to legally access and cultivate as much cannabis as they need to feel good.” Under Prop. 64, however, “unlimited” would drop to six (6) plants, which is nowhere near enough to treat many of the most serious ailments – like the epileptic seizures in children that caused CNN medical correspondent Sanjay Gupta to do an about-face in support of medical marijuana in 2013.

Not only does Prop. 64 fail to protect patients’ right to cultivate as much medicine as they need, it outright repeals it. And it does so using language so deceptive, even those who actually manage to read through the obtusely worded, 62-page initiative are not likely to notice. (Even I thought it protected patients’ cultivation rights the first few times I read it, and I had read it looking for proof that it didn’t.)

In a nutshell, Prop. 64 is extremely – and deliberately – convoluted, written to create the appearance of protection for patients, but in actuality, destroying them. For example – and this language is often quoted by Prop. 64 promoters out of context – one section says: “Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996 [Prop. 215].” Based on that sentence, it almost sounds like Prop. 64 leaves Prop. 215 intact. But context is everything. Look closely. That sentence does not say, “Nothing in this initiative shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996”; it says, “Nothing in this section…” And the section where this disclaimer appears is 11362.3 – a section that refers only to where persons may use and possess – not cultivate:

11362.3 
(a) Nothing in Section 11362.1 shall be construed to permit any person to:
(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.
(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.
…etc.

 This section goes on to list a total of eight items, all related to consumption – in public, in cars, on boats, etc. At the end of that section, the disclaimer is found:


(f) Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996.

To reiterate, this protected section, 11362.3, only covers the rights to consume and possess. So the restrictions on smoking in public, for example, would not apply to patients, who currently may legally consume anywhere tobacco smoking is allowed. Duly noted. Now let’s get to the cultivation section.

11362.1
(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants…

And here is where proponents of Prop. 64 make the misguided claim that patients would be exempt from this six-plant cultivation limit:

11362.45 
Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: …(i) Laws pertaining to the Compassionate Use Act of 1996.

But they are wrong. This part is crucial: Despite what appears to be a blanket exemption for patients, Section 11362.1 is itself governed by, or “subject to,” another section – 11362.2 – “notwithstanding [regardless of] any other provision of law.” This is the deception. This is the section that overrides and ultimately governs 11362.1 (and by extension, Prop. 215). It can be read as: “Regardless of any other provision of law” — and that includes Prop. 215 — :

11362.2
(a) Personal cultivation of marijuana under paragraph (3) of subdivision (a) of Section 11362.1 is subject to the following restrictions:

(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances, if any, adopted in accordance with subdivision (b) of this section.
[This means that, in order to be exempt from the plant limits in 11362.1, a patient must adhere to local law. Therefore, if your city or county bans cultivation – and according to NORML, nearly 75 percent of localities either already have or are considering bans – then you cannot lawfully cultivate, regardless of what 11362.1 says.]
(2) The living plants and any marijuana produced by the plants in excess of 28.5 grams are kept within the person’s private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place.
(3) Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time. [Bingo. The evidence you’ve been waiting for.]
(b)(1) A city, county, or city and county may enact and enforce reasonable regulations to reasonably regulate the actions and conduct in paragraph (3) of subdivision (a) of Section 11362.1.
(2) Notwithstanding paragraph (1), no city, county, or city and county may completely prohibit persons engaging in the actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.
(3) Notwithstanding paragraph (3) of subdivision (a) of Section 11362.1, a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 outdoors upon the grounds of a private residence.

While literally anyone can throw a seed outside and let Mother Nature do the rest, Prop. 64 does not grant the right to simply plant a seed in the ground and let it grow. In fact, since Prop. 64 gives cities and counties the right to ban outdoor growing, the majority of Californians will only have the option to grow indoor. But indoor cultivation requires careful attention to every minute detail – from temperature, to humidity, to nutrients, to pests; not to mention sophisticated knowledge of horticulture. And growing indoors requires a dedicated space and carries with it high potential of creating mold. Under these circumstances, few patients or, in fact, Californians as a whole, would be able to take advantage of the highly-restrictive privilege to grow their own.

Once and for all, this is the proof we’ve all been seeking. It is now apparent that Prop. 64 does not protect a patient’s most hard-won right: the right to cultivate their own medicine in quantities necessary for their particular ailments. [Check back soon for details on how Prop. 64’s right to grow will be useless for almost everyone.]

It’s understandable that Prop. 64’s supporters have been duped into believing that patients’ right to unlimited cultivation would not be affected: The drafters of Prop. 64 are very clever, indeed, and have done quite a convincing job of giving the appearance of protecting patients’ rights, even though in reality, they revoke them.

And I’m not the only one that Prop. 64 deceived.

When I met up with Chris Conrad in June, a long-time patient advocate and spokesperson for Prop. 64 who often represents the initiative in panel discussions, he assured me multiple times that the initiative would not affect patients’ current right to grow an unlimited number of plants, or impact Prop. 215 at all. He even pulled up the text of Prop. 64 on his phone to prove it to me… yet he could not. He scrolled and scrolled as I patiently waited, but proof never came. He finally admitted that he couldn’t find it – not at all surprising, considering that it isn’t there – and promised to email me when he came across proof. Needless to say, I’m still waiting for that email.

Conrad’s own website makes the misleading claim that Prop. 64 “retains the following state laws: Prop. 215 Compassionate Use Act, HS 11362.5” – but he either fails to notice or simply ignores the fact that 11362.5 is only one section of Prop. 215: the one that pertains to the right to use and possess cannabis:

Health& Safety Code 11362.5 — Proposition 215
§11362.5. Use of marijuana for medical purposes.
(b)(l) 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…
 
It is only Section 11358 of the Health & Safety Code that refers to the right to cultivate, and the only place this is referenced in Prop. 64 is in the section that delineates criminal penalties – and harsh ones – for anyone who violates the six-plant cultivation limit.

The initiative would further limit patients’ access by actually making it more difficult to get a doctor’s recommendation. Whereas under current law, a patient needs nothing more than an oral or written recommendation to obtain and grow cannabis, if Prop. 64 passes, a doctor “shall not recommend medical cannabis to a patient, unless that person is the patient’s attending physician” (Section 11362.712; SB 643 Section 2525.2). In other words, patients – the overwhelming majority of whom obtain their recommendations through licensed doctors at a price as low as $35 per year – under Prop. 64 must see a primary care physician for this service. In addition, patients would be required to pay up to $100 annually for an ID card that currently is not required by law [Section 11362.755 (b)]. So, instead of $35 yearly for a doctor’s recommendation, under Prop. 64 patients will have to spend closer to $200 or more.
This would greatly limit access, because many patients cannot afford expensive health insurance and co-pays to see a primary care physician. This would also have the much intended affect of forcing patients into the recreational market – if they can afford the expected rise in the cost of cannabis, on top of the more than 30 percent increase taxes will demand – or back into the illicit, black market realm of untested cannabis, if they can’t.

So, while Prop. 64 masquerades as a great protector of patient rights, in reality the only one Prop. 64 would retain is the right to consume anywhere tobacco smoking is allowed (Section 11362.3). At the same time, Prop. 64 would make California’s 2 million currently legal cannabis patients potential felons overnight if they continue to grow and possess what they’re currently allowed. This is further evidence that the notion of Prop. 64 protecting patients is a deception, made under the apparent assumption that no one would actually bother reading such a dense initiative in the first place (or be able to understand it if they did). In the eyes of medical marijuana patients and supporters statewide, this is yet another nail in the coffin for Prop. 64. 

“That’s… shameful,” writes Vivian McPeak, patient advocate and Executive Director of Seattle Hempfest, “especially when our nation… is in the midst of a deadly opioid drug overdose epidemic. These… senseless, money-grab policies will cost lives and cause suffering.” And the timing could not be worse for patients, whose legitimate medical cannabis use saved Medicare more than $165 million in 2013, according to a recent study in Health Affairs.

With the looming passage of the Trans-Pacific Partnership (TPP), prescription medications could soon be out of reach for millions of people, because it would ban production of generic versions of costly medications for several years. That means medical cannabis may become more necessary than ever – not just for current patients, but for anyone who relies on prescription medication for their health and well-being. 

In this regard, Prop. 64 is California’s own personal TPP. It takes the right to grow as much as necessary away from patients and hands it instead to corporate mega grows, which would be granted free reign to cultivate literally without limitation. This is what “protecting patients’ rights” looks like under Prop. 64.

And the reason for repealing this essential right is just as nefarious as Prop. 64 is deceptive: money. By denying patients the right to grow their own as necessary, Prop. 64 would force patients to buy their medicine from the highly-taxed recreational market.

Surprisingly, for more proof that Prop. 64 will impact medical cannabis, one need look no farther than page one of the initiative, where in Section 2B it is written in black and white: Prop. 64 “will consolidate and streamline regulation and taxation for both nonmedical and medical marijuana.

If you think that merging the two systems would have no negative impact on patients, think again. Four years after the first recreational initiatives passed, we now have a clear example of what would happen under a consolidated market. It comes from Washington State, in the form of a cautionary tale of two systems, fueled by a strange new addiction in the legislature…

How Prop. 64 Could End Medical Cannabis as We Know It
Consider what is happening right now in Washington State. As of July 1, all medical dispensaries have been shuttered, and patients must now buy their medicine – if they can find it – from recreational outlets at a bank-breaking 46 percent tax increase, on top of the overall higher price of recreational cannabis.

“Washington’s vote to legalize recreational marijuana… was also the beginning of the end of the state’s medical-marijuana (MMJ) culture,” reported Casey Jaywork in Seattle Weekly. “MMJ advocates warned that sooner or later the recreational system would replace the patchwork system of medical providers, potentially making it harder for patients to get their medicine. In 2015, the state legislature proved them right by passing the Cannabis Patient Protection Act” – a title which journalist Tobias Coughlin-Bogue calls“perhaps the most egregious bit of doublespeak ever[emphasis added]. His assessment of the Act is ominously similar to the Prop. 64 deception: “The law does not protect patients. In fact, evidence suggests that it will put the state’s most vulnerable patients at risk.

Previously, patients could possess up to 24 ounces and grow up to 15 plants. Under the Patient Protection Act, they can only possess three ounces and grow just 4-6 plants. “Our state is protecting patients from what?” asks activist Vivian McPeak. “Having an adequate supply?”

Of course, Washington’s patients were all promised this wouldn’t happen. During the state’s campaign for recreational cannabis in 2012, patients were courted by proponents of Initiative 502 (I-502) with the same promise that Prop. 64 makes now: that Washington’s medical cannabis program would be left intact. But what the proponents failed to mention was that the initiative contained a rare provision that allows legislators to alter it at their whim. 

Just six months after the first recreational pot shop opened its doors, the legislature introduced a measure to eradicate the state’s 15-year-old MMJ program, close all medical dispensaries and drastically limit how much patients could grow and possess, in a deliberate move to force patients into the heavily-taxed recreational system. And today, Washington’s patients, full of regret, are making headlines for not being able to find the medicine they need in the recreational marketplace (and not being able to afford it even if they can), having their deeply private medical conditions announced openly in retail stores and being pushed underground to the black market.

If the idea of folding medical cannabis into the recreational system to increase tax revenue on the backs of patients sounds far-fetched, it isn’t. Early observers noted that the recreational market’s “success may hinge on preventing consumers from choosing to get high on readily available medical cannabis because of low and sometimes nonexistent taxes on it,” according to an article by Jonathan Kaminsky for Reuters. Mark Kleiman, Professor of Public Policy at New York University and Washington’s top cannabis consultant during the transition to recreational, admitted in the Huffington Post that people’s “ability to buy significantly cheaper medical cannabis will make it hard for the recreational market to take hold.” And indeed, prices at medical dispensaries had been at least half those of recreational stores.

“[Y]ou see, since the recreational shops couldn’t beat the medical dispensaries on either price or quality, they had the competition outlawed,” writes cannabis journalist Steve Elliott. It may sound like conspiracy theory, but the words of one Washington lawmaker prove otherwise.

Rep. Chris Hurst, the former police officer most responsible for merging the two markets, announced his unscrupulous plan to eliminate the competition in 2013, saying, “All you have to do is make examples of five or six people and the entire [MMJ] industry collapses almost immediately. You have to have something to replace it, and that’s what the recreational market is,” he was quoted in The Huffington Post. 

Eradicating the MMJ program and forcing the sick to buy their medicine from recreational outlets is a move which greatly restricts patient access, as those stores typically do not carry the kinds of products that have the highest medicinal benefit, since those products usually are far less psychoactive than the dizzying levels of THC most recreational consumers demand. Despite all the promises the initiative’s proponents made to the contrary, Washington’s most vulnerable cannabis consumers – the seriously and terminally ill – to put it bluntly, got screwed.

“I’ve been without medical [cannabis] for two weeks,” said Shelia Scott, a patient who requires higher-dosage products than the recreational system allows, in The Olympian. “Now, I’m in an extreme amount of pain and am suffering because I can’t get anything anywhere.”

Kari Boiter, a medical cannabis patient and a member of advocacy group Americans for Safe Access, said the transition has been “everything patients feared.” She stocked up on medical cannabis prior to July 1, but said in the News Tribune, “When I run out, I cannot honestly tell you where I’ll get the products I’m using now.”

Coughlin-Bogue, in an article for The Stranger, has covered extensively the plight of patients since the medical market was subsumed under recreational. 

“One patient I spoke with reported that, in the recreational market, he pays around $200 a month for products that used to cost $50 in the medical market.” A veteran he interviewed said he couldn’t find enough CBD – a highly therapeutic component of cannabis that is nonpsychoactive and most effective in extremely concentrated doses – at recreational stores, “so he grows his own. He sent me a selfie from his grow room, and it contained far more plants than the new law would allow, even with a doctor’s recommendation.”

The reporter concludes, “As I discovered when interviewing veterans who use high-CBD cannabis for PTSD, this is literally a life-or-death issue. If we consider our state compassionate, and I like to fool myself into thinking that we do, it’s not something we can afford to wait and see on.”

Renowned Washington cannabis defense attorney Jeff Steinborn also sympathizes with patients under the recreational system. He was quoted in Seattle Weekly as saying, “I don’t like the prices I’m seeing, and I particularly do not like what’s happened to the patients. They’re screwed. If you’re a real patient for whom this is a life-changing medicine, you probably can’t afford it unless you hung onto your old connections, which has been my advice all along: ‘Don’t burn your connections, you’re going to need him or her pretty soon.’” In retrospect, he observes, “We didn’t have to make so many compromises to get legalization to pass.”

In an article titled, “Forced Into the Black Market,” Coughlin-Bogue elaborated further on the real-world complications of merging the recreational system with medical:

“Both the Washington State Liquor and Cannabis Board and the Washington State Department of Health – the state’s two regulatory agencies that govern the new medical cannabis system – have stated that they believe the only difference between medical and recreational use is the intent of the user. Essentially, that the needs of the medical market can be just as easily served by the recreational market. If only that were true.”

In the case of three-and-a-half-year-old Madeline Holt, he reports, access to cannabis is a life-or-death situation. Madeline was born with a terminal genetic disorder that causes frequent seizures. A year ago, her mother was told that the toddler had only one day to live. Out of options and out of time, she turned to cannabis in the form of CBD oil, a product that’s been making waves in epileptic communities for years, especially since CNN’s Gupta publicly extolled the medicinal virtues of the plant.

Madeline’s mother’s “greatest fear is that, due to an inadequate supply of affordable medicine, she’ll be forced to get hers illegally:

‘I’ve heard of people starting to stockpile medicine. 
I can’t really do that. I can’t afford to do that, 
so I’m forced into the black market and forced 
to just hope that I have people who
will help us. Another sad reality of our situation 
 is that my child is living on borrowed time, I’m
her only caregiver, and I’m living on a fixed
income… I’m going to do whatever I have to do
to save my child’s life… That’s really what this is
about… I’m not going to let my child die because
a few people in the legislature decided to strip us
of our rights. I know what I’m doing is right.’” 
 
Denise Harrington, patient and activist with People for Medical Cannabis in Washington State, echoed this sentiment in The Olympian. “We deserve to have the same access we had before and we do not intend to wait until someone dies from the [Department of Health’s] bad policies. There are cancer patients, MS patients, HIV patients, kids with severe seizure disorders for which cannabis is the best therapy[,] all without their medication… [C]annabis[,] for many patients[,] is their last and only hope.” 

As sad as this narrative is, it is one that is destined to be repeated in California if Prop. 64 passes. This is because regardless of the false narratives put out by its supporters, Prop. 64 will replace, repeal and supersede Prop. 215. Remember, Prop. 215 is a voter initiative. And under state law, there is only one way a voter inititaive can be changed, and that is with another voter inititative. And since Prop. 64 is also a voter initiative, and purports to regulate and tax “both nonmedical and medical marijuana(Section 2B), Prop. 64 will unquestionably repeal Prop. 215.

And just like Washington’s much-derided initiative, it also would give the legislature the same rare and unfettered power to alter the initiative in any way it sees fit. In Washington, lawmakers decided to use that power to increase tax revenue by nixing the MMJ program. In California, it appears that Lt. Gov. Gavin Newsom has similar plans.

In a recent interview with Mother Jones, Newsom makes clear not only his expectation that the two markets will become one, but that the reasons for this are entirely based on increasing potential tax revenue: “If you don’t tax one but you tax the other,” he said, “everyone remains ‘sick.’” Most patients would likely disagree with that statement, suggesting instead that if you don’t tax the medical market, the sick have a fighting chance to heal. 

In Washington, at least one lawmaker thinks the state is what’s sick, suffering from a rare affliction known as “political addiction to marijuana taxes.” Rep. Reuven Carlyle of Seattle is the House Democrats’ chief tax writer. Although he doesn’t “necessarily regret Initiative 502 passing,” he has been a vocal critic of the state’s implementation of the commercial recreational system and the wanton money-grab he sees being perpetrated on the backs of patients.“I very much regret the ineffective and unwieldy policy implementation that has been a disservice to the people of our state in both the recreational and medical markets,” he states in a lengthy exposé. “The public was promised a well regulated and appropriately taxed system. We have neither.”

He goes on to say, “The troubling part… that I initially anticipated but did not fully grasp is a reckless, uncontrollable political addiction to marijuana taxes” – which he says are so high that they may make legal cannabis unable to compete with the black market, rendering this entire experiment ineffective. 

Such is the climate created when instead of simply repealing prohibition and decriminalizing cannabis, an initiative sets out to install a corporatized commercial industry backed by a state-sanctioned cartel. For Washington, it is too late. But California can still vote No on Prop. 64. And to save the medical cannabis industry from irreparable ruin, we must.

Finally, and trickier still, the California legislature passed its own measure last year to regulate the medical cannabis industry. Known as the Medical Cannabis Regulation and Safety Act (MCRSA), and set to take effect in 2018, the bill takes liberties which technically are unconstitutional under state law. Namely, the MCRSA creates cultivation limits for patients – something no legislature can do since Prop. 215 sets no such limits and contains no special provision that would allow the legislature to alter it. It is only a matter of time before a court strikes down this most critical aspect of the MCRSA and, in fact, a lawsuit to repeal the section limiting cultivation is already underway. But if Prop. 64 passes, there will be no chance of reversing MCRSA’s unconstitutional plant limits, because Prop. 64 will replace and supersede Prop. 215. So, defeating Prop. 64 in November is vital, or medical cannabis as we know it will disappear forever, and so will your right to grow it. 

If you want to keep medicating, you need to start educating. So spread the word. This article is the first installment in a series on the various ways Prop. 64 will do more harm than good for California. Sign up for email updates on future articles and check back often.


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One thought on “HOW PROP. 64 WILL DESTROY PROP. 215 PATIENTS’ RIGHTS

  • prop 64 is / was created to allow money to become laundered, years upon years they have had to store their money somewhere, with the millions made it will take a large place to do this in, prop 64 provides this blanket for them.

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