What qualifies a state for recognition as one that has legalized medical marijuana?

It’s a question that has surfaced in recent months, as some states have passed restrictive medical marijuana bills that specifically outline how patients can consume their medicine, as well as which forms of medical marijuana will be available to patients in that state and which ones will not.

For example, legislation recently passed in five states — Kentucky, Utah, Mississippi, Wisconsin and Alabama — only allows the use of cannabidiol, or CBD, since lawmakers influenced by the so-called “mommy lobby” wanted to be able to help children with epilepsy enjoy a better quality of life but still ensure that they were not getting high.

None of those five states have been classified by any of the big three marijuana legalization advocacy groups — Americans for Safe Access, the Marijuana Policy Project and the National Organization for the Reform of Marijuana Laws — as a state that has legalized medical marijuana. If they did, the number of states that have passed medical marijuana laws would be closer to 30 than 20.

Highly restrictive medical marijuana legislation that recently passed the state Legislature in Minnesota was largely criticized by legalization advocates for barring patients from smoking marijuana and not allowing home cultivation. But the state has still been hailed as the latest medical marijuana state by MPP and NORML, raising the official number of medical marijuana states in the United States to 22.

Americans for Safe Access is also expected to categorize Minnesota as the 22nd state to legalize medical marijuana, but it is waiting for the state’s Gov. Mark Dayton to sign the legislation into law first. (He is expected to do so by the end of the month.)

With so many differences in state medical marijuana laws, MintPress asked experts: What qualifies a state for recognition as one that has a legalized medical marijuana program?

Why CBD-only doesn’t work

Kris Hermes, media specialist for Americans for Safe Access, says the process of defining a state as having passed a medical marijuana law or not is subjective, but there are some cornerstones that have existed over the years that groups use when analyzing state-passed legislation. Examples of this are clauses ensuring that patients have immunity from arrest and prosecution or an affirmative defense in court, as well as the ability to cultivate their own medicine or have a caregiver grow their medicinal supply for them.

A pillar of any medical marijuana law is related to a patient’s ability to obtain a recommendation for medical marijuana from a licensed physician, he continued.

Other important factors Hermes says should be incorporated into the legislation include allowing patients to cultivate their own plants, allowing dispensaries to be located in places that are easy for patients to access, and ensuring patients’ privacy from the federal government as well as state and local law enforcement.

Although ASA has encouraged lawmakers across the nation to introduce model legislation that includes a full range of options and rights for patients, no state has passed a piece of legislation that Hermes says is well-rounded and meets all the needs of the patients. This is why advocacy groups are moving toward a grading scale for each state’s medical marijuana legalization legislation, instead of just saying whether or not a program exists.

California’s medical marijuana program is often lauded by advocates, since it’s one of the less restrictive programs in the U.S., but Hermes says there currently isn’t any state that has all of the facets medical marijuana advocacy groups would like to see in order for all the needs of the patients to be met. For example, California may have a more inclusive list of qualifying conditions, but access to dispensaries has become an issue, and Hermes notes that discrimination is a problem when it comes to employment, housing, child custody and even organ transplants.

Paul Armentano, deputy director of NORML, also believes that the question of what qualifies a state as a “medical marijuana state” has become a tricky issue. He explained that the conversation shouldn’t be reduced to the archaic question of whether a state has a medical marijuana law or not, since there are “a number of states that are enacting laws that are related in some capacity to medical cannabis but are far removed from what the initial state medical marijuana laws in the late 1990s and early 2000s looked like.”

Instead, Armentano says the conversation needs to shift away from whether or not a state has legalized medical marijuana, and move toward how helpful the legislation is and whether or not the state has even implemented a way for patients in the state to legally access and obtain the medicine they need.

When California first legalized medical marijuana in 1996 and Colorado in 1998, he adds, the states passed laws that legalized use of the entire plant for medicinal use, which provided real relief for patients. The problem he points out now, though, is that some lawmakers are focusing on legalizing specific parts of the plant, such as CBD, which many describe as the non-psychoactive compound in marijuana.

Influence of CBD and the “Mommy Lobby”

As several marijuana legalization advocates have pointed out, CBD is psychoactive, as a “psychoactive” is defined as something that crosses the blood-brain barrier and affects brain functioning. However, unlike the well-known psychotropic compound found in marijuana — tetrahydrocannabinol, or THC — consumption of CBD doesn’t give users the high effect that THC produces because it has very little, if any, psychotropic properties.

Armentano notes that some of the lawmakers who are currently advocating for the legalization of CBD are the same ones who argued a decade ago that a medical marijuana program wasn’t necessary because THC was legally available as Marinol, a pill produced by Solvay Pharmaceuticals. But now those lawmakers want nothing to do with THC.

“The irony should not be lost on people,” he said.

Hermes agrees, saying that beyond just restricting the type of medical marijuana patients are allowed to consume, the problem with CBD-only legislation is that there is no mechanism in place for cultivating the medicine, manufacturing it, or extracting the chemical compound and putting it into an oil.

“Essentially, these states have just decriminalized CBD,” he said.

While Hermes says CBD can be smoked, the idea behind the use of CBD is that it can be made into an oil. Since the regulatory laws regarding the sale and distribution of CBD are non-existent, though, he says patients can’t take advantage of the law, thereby making it impractical.

Those five states that have solely legalized CBD have “inadequate” medical marijuana programs, he says, since the law often doesn’t help patients in any way but to protect them from being prosecuted in the state if they are in possession of the substance. This backs up his argument for why the law should be considered a form of decriminalization instead of legalization.

While patients in these five states may be protected from prosecution in their state for possessing CBD, this protection doesn’t extend to dealings with federal officials or law enforcement in another state. Due to marijuana’s current federal status as a Schedule I drug, the substance is not legal in any shape or form under federal law — not even for medicinal use.

Because of its illegal status on the federal level, not only can federal law enforcement raid and prosecute medical marijuana patients in states where the drug has been legalized, but patients also can not carry marijuana across state borders. In other words, patients in Utah who were told that they should obtain their CBD in Colorado — a state that had to promise to not knowingly allow any marijuana products to leave the state if it didn’t want the feds to get involved — would risk prosecution by not only the state of Colorado, but also the federal government.

Influx of symbolic legislation

Due to laws like the CBD-only measures as well as the restrictive medical marijuana programs in states such as Minnesota, Florida and Missouri that address some aspects of medical marijuana but don’t provide for patients to cultivate the whole plant or even allow patients access to the whole plant, Armentano says NORML was compelled to reconstruct its website and highlight the differences between state laws, instead of explicitly stating the existence of state programs.

Armentano says NORML also plans to highlight the states included in the 20-plus medical marijuana legalization count that have not yet implemented the laws. This would include Delaware, which legalized medical marijuana in 2011, but still doesn’t have any dispensaries or ways for patients to register with the state and access their medicine.

Failure to implement a medical marijuana program even though the substance has been legalized for medicinal use has also been a problem in a handful of other states, including New Hampshire and Illinois. It is not known when patients in these states will be able to access their medicine.

Armentano explains that since the first states passed medical marijuana laws in the late 1990s and early 2000s, many states have started to propose and pass laws that are much more restrictive in regards to qualifying conditions and home cultivation.

When patients are not given the option to cultivate their own medicine or to have a caretaker do it for them, the state is tasked with creating distribution facilities. Armentano points out that one of the problems with banning patients from growing their own medicine is that patient access is often delayed — for a few years, in some cases — as state officials “work through the regulatory hurdles that are inherent to setting up state-licensed programs to facilitate medical marijuana.”

Though a state can later amend its medical marijuana legalization bill to allow home cultivation or to expand the list of qualifying conditions, these are difficult tasks. Much lawmaker support for medical marijuana seems to be related more to political posturing than actual concern for patients, Armentano says, adding that others may not make the expansion a priority because, in their view, a program already exists.

Whether these laws have been more symbolic than practical is a question Armentano expects will be answered in the next few years, when lawmakers decide whether or not to revisit these laws and ensure there is a solution for patients or if they argue they have already addressed the issue of patient access to medical marijuana.

“NORML doesn’t believe in symbolic laws,” Armentano said. “Only under a system that legalizes the plant for everybody will patients be able to enjoy the full benefits of marijuana as a medicine.”

Hermes echoed this, saying that while it’s OK to celebrate the passage of a law and to thank governors and legislators for doing so, that’s where the applause should end — especially if the law is not workable and patients will not be served.

“Something needs to be done to address that failure,” he said.

Willing to make a fix

Lawmakers in Michigan may be an example of politicians who are advocating for more than just a symbolic fix. They recently voted to expand the list of qualifying medical conditions for the state’s medical marijuana program by including post-traumatic stress disorder.

In the case of the recent medical marijuana bill that was passed in Minnesota, Heather Azzi, political director for Minnesotans for Compassionate Care, applauded the passage of the Minnesota medical marijuana bill in a press release, but also announced plans to work to expand the program during the next legislative session.

“Seriously ill Minnesotans and their families have been waiting a long time for legal access to medical marijuana,” she said. “This law will help some of them, but it will leave many more behind.

“This is a big step forward for Minnesota, but it is by no means the final step,” Azzi said. “We hope legislators will be ready to revisit this issue next year and build upon this law to ensure it helps all Minnesotans who could benefit from medical marijuana.”

While some patients in Minnesota are now one step closer to receiving the relief they need, the bill doesn’t help all patients. A concern is that some of those who are not helped by the medical marijuana law may not wait around to see whether the law is expanded in the future. This also worries legalization advocates, as those working to legalize the drug may decide to move to other states.

Evidence of a “green rush” is already being seen in states like Colorado, where patients are heading for relief. Hermes says “the fact that people are disappointed enough to still want to move and not fight for expansion is telling and unfortunate,” but added that the main priority for these people is to get well. For that, he says, you “can’t fault those folks for wanting to move.”

Fears brought on by the federal government’s reaction to the legalization of medical marijuana in states such as California are part of what’s fueling the restrictive medical marijuana laws seen in recent months.

While some lawmakers hope implementing a restrictive law will protect people in the state from trouble with the Drug Enforcement Administration, Hermes says the real solution lies in changing federal policy “so that those restrictions are no longer a component of the decision-making process.”

Ultimately, Hermes says that if there will be any positive changes, lawmakers have to remember who they are designing a bill for in the first place: patients.