Thirty states and the District of Columbia currently have laws which legalize cannabis for either medical or adult-use. It is important to draw a distinction between these two iterations of legalized cannabis. States with medical cannabis programs allow state licensed cultivation facilities and dispensaries to grow and sell medical grade cannabis to qualifying patients. In states with adult-use or recreational cannabis, any person over age 18 is permitted to purchase cannabis from a licensed dispensary, similar to purchasing tobacco or alcohol. Adult-use cannabis is still grown and dispensed by a state licensed facility, but it is subject to an excise tax, and is generally not as potent as medical cannabis. The typical progression for states that establish a cannabis market, is to first enact a medical cannabis program and, after the mountain of tax revenue starts pouring in for public projects, then move forward with adult-use legislation.
In 2017, the U.S legal cannabis market (medical and adult-use combined) generated $10 billion in revenue. By 2021 that number is expected to reach $25 billion. But cannabis is still illegal to possess and sell at the federal level. The conflict between federal and state laws can be confusing especially when cannabis laws often vary widely from state to state. Here is what you should know about the cannabis laws in the DMV.
I. Washington, D.C.
The District is a unique jurisdiction, for many reasons, not the least of which is its relationship with Congress, which controls the District’s purse strings and has far reaching oversight over local legislation. To understand why Congress plays such an outsized role in District affairs, we have to start with the Founding Fathers – Article I, Section 8 of the Constitution, allows Congress to “exercise exclusive” control over the District in “all cases whatsoever”. This broad language Congress unfettered control over the District’s affairs. In 1973, the Home Rule Act, vested the District with increased control over local affairs and provided for an elected Mayor and a 13 member City Council. However, Home Rule did not totally strip Congress of its oversight role in the District. Congress maintained the power to review any bill passed by the City Council and to prevent legislation from being enacted. And since the late 1990s, the Congressional nanny state has been particularly meddlesome in District affairs which relate to cannabis.
Medical Cannabis. In 1998, HIV/AIDS activists in the District succeeded in getting medical cannabis on the November ballot. The measure passed with 70% approval, but Congress intervened to prevent the District from implementing a regulatory structure. Congress lifted this prohibition in 2009, and the District began the long process of licensing medical cannabis cultivators and dispensaries. In 2013, 15 years after the ballot measure passed, the District’s first registered patient was finally able to purchase medical cannabis. The process for registering as a patient in the District is bit more cumbersome than the process in Maryland. In the District a patient must obtain a written recommendation from a medical provider, complete an application which is submitted to the Department of Health and pay the $100 fee; the application takes at least 30 days to process before a patient identification card is issued.
There are currently 5 dispensaries, 8 cultivation centers and 5,538 registered patients in the District. The Department of Health is currently reviewing license applications, and will issue two additional dispensary licenses this year, one in Ward 7 and one in Ward 8. The City Council also recently passed legislation which would allow reciprocity for medical cannabis patients from outside jurisdictions – Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, Rhode Island, Oregon and Washington State – to purchase medical cannabis from a dispensary in the District. With patient registry numbers and dispensary locations on the rise, the District’s medical cannabis program is healthy.
Adult-use. Perhaps the most pernicious form of Congressional oversight relates to the District’s budget. When the City Council passes a budget, it is automatically incorporated into the Congressional federal spending bill. Members of the Congress can make changes to the District’s budget before passing the huge omnibus federal spending bill. What does all this have to do with cannabis?
Well – District voters overwhelmingly passed Ballot Initiative 71 (or I-71 as it is colloquially referred to), which legalized adult-use cannabis in 2014. In late December 2014, Andy Harris, a republican Congressmen from Maryland’s First District inserted an amendment or “rider” in the omnibus federal spending bill which prevented the District from using any of the money in its local budget to “enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any Schedule I substance.” The Harris rider effectively prevented the District from using its own budget to develop and implement the infrastructure required to create a taxed and regulated adult-use cannabis market, similar to that Colorado or Oregon.
The Harris rider only prevented the District from enacting a legalization law. The rider did not prevent the District from carrying out I-71, which is self executing. Under 1-71, it is legal for an adult (age 21 and older) to possess and transport up to 2 ounces of cannabis and transfer up to 1 ounce of cannabis to another adult. An adult is also permitted to cultivate no more than 6 cannabis plants in their principal residence with 3 of the plants being mature and budding at any one time. However, it is still illegal to sell or exchange anything of value for cannabis. The restraint on remuneration has lead to the rapid proliferation of a cannabis gifting economy, where a business sells a retail product, like a T-shirt or artistic print, and then gifts a small amount of cannabis to the customer with their purchase. Pop-up events that resemble cannabis bazaars, with people openly selling and consuming cannabis have also cropped up all over the District. The D.C. Metropolitan Police Department has largely taken a hands-off attitude toward the thriving gray market, however it is important to remember: it is still illegal to sell cannabis and to consume cannabis in public. Also don’t forget that over 29% of the District is actually federal land, so if you choose to consume in public, do so off federal property.
Medical Cannabis. In 2013, Governor Martin O’Malley signed legislation which legalized medical cannabis. Since the signing, Maryland’s program has been plagued by multiple delays. Beginning in December 2017, patients were finally able purchase medical cannabis. Unfortunately, the pace of the roll out has not quickened and, as of April 2018, only forty-six of the 102 dispensaries slated to open had been fully licensed by the Maryland Medical Cannabis Commission (“MMCC”). Additionally, there are currently 14 licensed cultivation facilities and 13 processing facilities. As of April 2018, there were approximately 28,000 registered patients in Maryland’s cannabis program.
A resident of Maryland, who is 18 or older and has a qualifying medical condition can register as a patient by submitting an application, proof of residency and a photo on the MMCC’s website. Maryland has a comprehensive list of qualifying conditions which includes a catch-all for severe or chronic pain, opioid addiction and any other condition for which medical treatment is ineffective and the “symptoms can be reasonably expected to be relieved by medical cannabis.”1 Upon approval of the patient application, the next step is make an appointment with a medical provider that is registered with the MMCC and obtain a written certification. Because every patient is registered with the MMCC, Maryland does not require patients to obtain identification cards. A patient who is registered with the MMCC, may obtain a “30 day supply” of cannabis2. The regulations do not provide much guidance regarding what constitutes a 30 day supply, but its a safe bet that it is around 4 ounces. A registered medical cannabis patient in possession of a “30 day supply” is exempt from state criminal prosecution and/or civil penalties.
Adult-use. In 2014, Maryland decriminalized possession of up to ten grams of cannabis, which translates to a little more than a ¼ ounce. A bill being considered by the state Senate would decriminalize possession of up to 1 ounce of cannabis. The House and Senate are also each considering bills which would put a constitutional amendment to legalize adult-use cannabis on the ballot in November 2018. This show of legislative enthusiasm for enacting more sensible cannabis laws (if not implementing full legalization) is good news for cannabis enthusiasts and advocates, particularly in light of the fact that the majority of democratic candidates for governor have openly supported legalization.
Medical Cannabis. The Commonwealth is poised to implement a limited medical cannabis program, which will permit individuals who suffer from a diagnosed medical condition or disease to obtain oils made from strains of cannabis with low levels of THC (no more than 5%) and high levels of CBD or THC-A (at least 15%), the non-psychoactive cannabinoids found in cannabis. Qualifying patients will be able to register with the Virginia Board of Pharmacy, which administers the program. The Board will issue a maximum of 5 Pharmaceutical Processor licenses, one for each Health Service Area established by the Virginia Board of Health. A licensed Pharmaceutical Processor will be permitted to cultivate, process, dispense and deliver cannabis oils.
The program is expected to roll out in late 2019, but until then individuals with a qualifying medical condition can have their doctor sign an Affirmative Defense Certificate. This certificate provides what is essentially a “get out of jail free card” if someone is prosecuted for possession of cannabis. The Affirmative Defense only applies to cannabis oils that have no more than 5% THC and at least 15% CBD or THC-A. However, the individual bears any risk associated with obtaining and purchasing these oils.
As for a more expansive cannabis policy that permits the use and possession of medical or adult-use cannabis with higher concentrations of THC, Virginians will have to wait.
1Md. Health Gen. Code § 13-3304(e).
2COMAR § 10.62.30.03(D)