AgdaPkt 2011-10-10 - Laserfiche WebLink

Browse Search

7.A. - Page 3 marijuana is not available from doctors or pharmacies. Marinol, a synthetic version of a chemical in marijuana, is available when prescribed by a physician. An unresolved legal issue is whether federal law regulating controlled substances preempts California laws that exempt certain marijuana-related offenses from punishment. The courts have held that federal law does not preempt California law; so, individuals who possess marijuana in compliance with the CUA and MMP have a defense if prosecuted for possession under state law, but not if they are prosecuted under federal law. The U.S. Department of Justice has issued two memos in an effort to clarify when the Attorney General will prosecute individuals in possession of marijuana. First, in 2009, the "Ogden memo" stated that the federal government would likely prosecute significant traffickers of illegal drugs, but that it would not be efficient to prosecute caregivers or seriously ill patients who are using marijuana as part of a physician-recommended treatment regimen. The memo cautioned that commercial operations cultivating, selling, or distributing marijuana would still be subject to federal prosecution. Second, a recent memo issued on June 29, 2011 sought to clarify the "Ogden memo" but noted that "there has been an increase in the commercial cultivation, sale, distribution, and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of the millions of dollars based on the cultivation of tens of thousands of cannabis plants." The memo warns that the activities, or those who aid and abet them, may be subject to federal prosecution (Attachment 4). Therefore, it is reasonable to anticipate that the federal government intends to retain the discretion to prosecute individuals who engage in enterprises that distribute medical marijuana on more than a minor scale. Leqal Distinction Between Collectives and Dispensaries: The MMP provides individuals with a defense to a criminal charge of possession if they "associate collectively or cooperatively to cultivate medical marijuana for medical purposes." Neither the CUA nor the MMP mentions or defines collectives, cooperatives, or dispensaries. The California Attorney General attempted to clarify this distinction in an April 2011 draft directive (Attachment 5). A "cooperative" is registered and organized under the California Corporations Code or the Food and Agriculture Code for the general welfare of its members and must operate as a non-profit and should not acquire marijuana from, or distribute it to, non-members. The Attorney General's directive concludes that an establishment is only legal under state law if it follows eleven strict guidelines, including screening its members, obtaining all necessary state and local permits and licenses, and distributing only legally-cultivated marijuana. By contrast, dispensaries are commonly thought of as outlets at which marijuana is "dispensed," but they may or may not follow the strict guidelines for cooperatives with non-profit status and limited cultivation deemed legal by the Attorney General. Although the original intent of the CUA and subsequent state legislation was to allow seriously-ill