Who Killed ‘Medical Marijuana’?

Despite the good-guy-vs.-bad-guy framework so common in fiction, in real life there can be two, three — many bad guys and nary a good guy in sight.

Attorney Heather Burke is urging pot partisans not to blame the great California legalization SNAFU on the drafters and supporters of AUMA, the Adult Use of Marijuana Act. Burke points a critical finger at the California Department of Food and Agriculture under Gov. Jerry Brown and then Gavin Newsom. I’d been blaming all of the above, plus the state legislators —Rob Bonta, Mike McGuire, and Jim Wood who in 2015-16 pushed a package of bills that provided the scaffold for AUMA— and the big industry “players” (Weedmaps, DeAngelo, Cannacraft, et al) who signed off on the wording.

In a recent email Burke explained:

The Medical Marijuana Regulation and Safety Act (“MMRSA“) was signed into law on October 9, 2015, before Prop. 64 had even been registered. Among other things, MMRSA:

• Allowed cultivation licenses up to one acre per “person,” except for certain dispensary owners, who could hold four one-acre cultivation licenses; and

• Mandated independent third-party distribution, meaning farmers could not also hold distribution nor transport licenses, in addition to the current prohibition on farmers holding any interest in a cannabis testing lab.

MMRSA expressly limited the issuance of medium licenses (i.e. licenses up to one acre) but contained no limit on the number of small or specialty licenses. Moreover, MMRSA contained significant ownership limitations in the form of cross-licensing restrictions which allowed a farmer to also hold a manufacturing or one retail license; however, those ownership limitations did not prohibit issuance of more than one license per category…. License stacking was going to happen under MMRSA, meaning Prop 64 cannot be the per se culprit.

Instead, the CDFA (Food & Agriculture) or Jerry Brown’s administration made that call and bear the responsibility, though of course it remains to be seen whether the decision was influenced and, if so, by whom... Let’s get real: under MMRSA, CDFA was going to allow license stacking anyway.

The three-bills comprising MMRSA were written by politicians who wanted the approval of Law Enforcement, the Chamber of Commerce, and the League of Cities (bureaucrats pursuing the goal of “local control).” In late September 2015 Bonta wrote an op-ed in the Oakland Tribune entitled “Governor Brown Must Sign the Package of Medical Marijuana Bills.” It acknowledged the tight connection between MMRSA and the ballot measure that would be AUMA. (California voters in 1996 had legalized marijuana for medical use only. MMRSA was drafted with AUMA in mind —and vice versa.)

• California can no longer ignore an industry that has operated for nearly 20 years with no testing standards, little enforcement, environmental neglect and no tools to combat drugged driving.

• With this legislation, known as Marijuana Regulation and Safety Act, the Wild West of the medical marijuana industry will be reined in, benefiting all of California. Patients will have more assurances that their products are safe. Law enforcement will have a foundation for identifying drugged drivers and increased funding to protect the public.

• This is the comprehensive regulatory framework that California has been in desperate need of for almost 20 years.

• To ensure patient access, protect the environment and improve public safety and health, I urge Gov. Brown to sign the Medical Marijuana Regulation and Safety Act.

If Brown signs, the Act will take effect in January, 2017 — and so will the about-to-be-filed legalization initiative that has a good chance of passing in November.

Brown signed and MMRSA took effect. Your correspondent, being more focused on the medical than on the legislative side of the story, didn’t catch the license-stacking potential of MMRSA. I did deduce that no doctors had been involved in the drafting process because Bonta called his bill “mersa,” which to a doctor meant Methycillin-Resistant Staphylococcus aureus, the “flesh-eating bacteria” for which they had no treatment. When I chided Bonta’s aide, Max Mikolanis, about the macabre name, he seemed stung. “No no no no no,” he said. “That came from the Governor’s office. The name ‘Medical Marijuana Regulation and Safety Act’ came from the Governor’s office.” I didn’t think it was a significant comment at the time. As part of my day job I wrote this note to the Society of Cannabis Clinicians:

On Oct. 9, 2015, Governor Jerry Brown signed into law California’s Medical Marijuana Regulation and Safety Act (MMRSA, which the policy wonks pronounce ‘Mersa’). It consists of three separate bills, each addressing — according to Rob Bonta, the Assemblyman who steered them through the legislature — a problem supposedly stemming from the passage of Proposition 215. The language directly affecting doctors who approve cannabis use by patients is found in Senate Bill 643, which was introduced by Mike McGuire, a Democrat who represents North Coast counties. Here’s the money shot.

SEC. 2. Section 2220.05 of the Business and Professions Code is amended to read:

2220.05. (a) In order to ensure that its resources are maximized for the protection of the public, the Medical Board of California shall prioritize its investigative and prosecutorial resources to ensure that physicians and surgeons representing the greatest threat of harm are identified and disciplined expeditiously. Cases involving any of the following allegations shall be handled on a priority basis, as follows, with the highest priority being given to cases in the first paragraph:

(1) Gross negligence, incompetence, or repeated negligent acts that involve death or serious bodily injury to one or more patients, such that the physician and surgeon represents a danger to the public.

(2) Drug or alcohol abuse by a physician and surgeon involving death or serious bodily injury to a patient.

(3) Repeated acts of clearly excessive prescribing, furnishing, or administering of controlled substances, or repeated acts of prescribing, dispensing, or furnishing of controlled substances without a good faith prior examination of the patient and medical reason therefor.

(4) Repeated acts of clearly excessive recommending of cannabis to patients for medical purposes, or repeated acts of recommending cannabis to patients for medical purposes without a good faith prior examination of the patient and a medical reason for the recommendation.

(5) Sexual misconduct with one or more patients during a course of treatment or an examination.

Note that they’ve made “excessive recommending of cannabis” a higher-priority offense than sexual misconduct with a patient — which says something about the ethical standards of the California Legislature. It can’t be an oversight — establishing “investigative priorities” is the very purpose of their directive to the med board.

(6) Practicing medicine while under the influence of drugs or alcohol.

There should have been an explicit exception protecting doctors under the influence of legally prescribed or recommended drugs, but there isn’t.

My note to the SCC made some good points, but I hadn’t followed the legislative history and I was wrong about the money shot. That was fired when McGuire amended SB 987 with these words 0n 3/15/2016” “This bill, on and after January 1, 2018, unless a specified initiative is passed by the voters at the November 8, 2016, statewide general election, would impose an excise tax on the consumption or other use in this state of medical marijuana purchased from any retailer for the consumption or other use in this state at the rate of 15% of the sales price of the medical marijuana.”

I once had a naive idea — maybe from a high school civics class in the 1950s — that food and medicine weren’t taxed because they were necessities that everyone needed. Even today, no prescription medicines are taxed in the US except in Illinois, where the rate is 1%. Seven states don’t charge tax on over-the-counter meds. Most states tax OTC meds at the sales tax rate (which in progressive California is highest in the country at 8.25%). Arguably, cannabis purchased on a doctor’s recommendation should be treated like a prescription med and not taxed. (That’s the position of the Society of Cannabis Clinicians, but the SCC can’t afford a lobbyist.) The 15% excise tax on cannabis is an outrage whether a person needs large doses to control their kid’s seizures or an occasional gummy to elevate their mood. As Dennis Peron said years ago, “In a country where they’re pushing Prozac on shy teenagers, all marijuana use is medical.”

Jim Wood introduced the 15% excise tax measure in the Assembly, and also proposed a 9.25% cultivation tax based on weight, not sales price. McGuire pushed Wood’s cultivation bill in the Senate. With Bonta, Reggie Jones-Sawyer and Steve Cooley, these politicians dubbed themselves “the fab five” at a self-congratulatory press conference after Brown signed their MCRSA bills. In retrospect, it’s apparent that somebody was orchestrating this complex series of legislative maneuvers. I figured it was Bonta, who had been most prominent among the drafters claiming credit for the “legalization” regs. Now, thanks to Heather Burke’s analysis and recalling that Max Mikalonis attributed the deadly name “mersa” to the Governor’s office, I think the archest of villains was probably Jerry Brown and whoever was advising him (and now Gavin Newsom) on drug policy.

The drafters of AUMA — ”policy experts” from the Drug Policy Alliance and other NGOs funded by enlightened billionaires — incorporated the legislators’ unprecedented tax on medicine into a provision stating, “Effective January 1, 2018, a marijuana excise tax shall be imposed upon purchasers of marijuana or marijuana products sold in this state at the rate of fifteen percent of the gross receipts of any retail sale...” 

Today the politicians who set up the legislative scaffold for AUMA recognize that they created an unworkable situation. Rob Bonta saw the disaster looming in 2019 and proposed a bill to reduce the excise tax to 11% but his colleagues, addicted to the revenue, wouldn’t go along. He tried again in 2020 and fell short. Bonta was named Attorney General by Newsom after AG Xavier Becerra became US Secretary of Health and Human Services in March of 2021.

Jim Wood has been doing a mea culpa on the cultivation tax, and would reduce it in concert with a bill introduced by McGuire that will raise the excise tax to 16%! The squeaky wheel gets the grease, they say, and the growers have been making their case to the politicians while the physicians and medical users have hardly made a peep.