United States: High Point For Pennsylvanians: Medical Marijuana Now Legal

On April 17, surrounded by supporters from both sides of the aisle, Governor Tom Wolf (D) signed into law Senate Bill SB3, which legalizes the use of medical marijuana. SB3, primarily sponsored by Senator Mike Folmer (R), gained much bi-partisan support, as it was co-sponsored by current Senators Leach (D), Teplitz (D), Ferlo (D), Fontana (D), Farnese (D), Wiley (D), Blake (D), White (R), Yudichak (D), Scarnati (R), Boscola (D), Yaw (R), Argall (R), Costa (D), Wagner (R), Bartolotta (R), Williams (D), Tartaglione (D), Vulakovich (R), Schwank (D), Rafferty (R), Stefano (R), Wozniak (D), McGarrigle (R), Browne (R), and Dinniman (D). "We stopped being liberals and started being problem solvers, and we stopped being conservatives and started being compromisers," said Senator Leach. "And we stopped being politicians and started being human beings."

The passage of SB3 was a meaningful step in the legalization of medical marijuana as Pennsylvania has now become the 24th state to legalize marijuana use for medicinal purposes. It also symbolized an important step forward from a healthcare perspective. As Governor Wolf remarked, the historic SB3 bill now can "help patients who have run out of medical options" to finally find relief for their ailments. Patients suffering from various illnesses, including cancer, HIV/AIDS, Crohn's Disease, and Post-Traumatic Stress Disorder, may apply for a medical marijuana permit and acquire marijuana at approved dispensaries.

It will take up to two years for the legislation's programming to be up and running, but that does not necessarily mean all patients will have to wait to access the drug. In the interim, SB3 carves out an option for parents of minor patients to obtain the drug for their children from other states. The bordering states of New Jersey, Delaware, and New York (Maryland has passed legislation, but it is not yet operational) already have operational medical marijuana programs in place.

Interestingly, Pennsylvania, as well as its bordering states, have limitations on the form of marijuana that can be used for medicinal purposes. SB3 only allows use of the drug in pill form, oil or other liquid form, or in topical form, including gel, creams, or ointments. Reading that part of the bill together with the carve-out for parents of minor patients seems to frustrate the purpose of the carve-out, in that the states in which parents could obtain the drug before the bill's implementation may not have legalized the form of the drug approved under Pennsylvania state law. For example, New Jersey's amended medical marijuana bill allows use of edible forms of marijuana, but only for qualifying minor patients; otherwise, the "usable form" of the drug is in the form of cannabis flowers or buds.

The most troubling reality is that Pennsylvania's bordering states cannot be forced to accept other states' registry cards. Neither Delaware, New York, nor New Jersey currently accept other states' registry ID cards. Of course, the mention of "neighboring states" is important because one cannot bring marijuana onto an airplane; airplanes are regulated under federal law, and possession of the drug is still illegal under the Controlled Substances Act ("CSA").

From a practical standpoint, the only legal way a patient could obtain marijuana for medicinal purposes before State implementation would be to drive to a state that has legalized marijuana for such purposes. However, states in-between Pennsylvania and a given destination state may very well have not legalized such use, let alone the form of which Pennsylvania has legalized. As such, a Pennsylvania resident may find herself facing criminal charges because she thought she could obtain medical marijuana as an approved patient, or caregiver of a patient.

To illustrate, consider the following: Michigan has passed legislation allowing for medicinal use of marijuana. "Usable marihuana [sic]" in Michigan means "the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof...". Such mixtures could include topical forms, which are approved for use in Pennsylvania. However, the state that separates Michigan from Pennsylvania, Ohio, has not yet legalized marijuana use for any purpose, let alone the transport thereof. Should a Pennsylvania resident, such as the parent of a minor patient, drive to Michigan to obtain marijuana and get pulled over in Ohio, and an officer discovers the drug in the car, the officer could take the resident into custody and ultimately initiate criminal proceedings against her.

At the end of the day, states' rules disallowing out-of-state medical marijuana cardholders from obtaining marijuana in their states could indeed mean that Pennsylvania patients, particularly minors, will have to wait until implementation of the bill occurs in the State. Otherwise, patients or parents of minor patients could be susceptible to federal prosecution for transporting a controlled substance across state lines, an action over which the federal government has sole discretion. Further, these patients may not be able to obtain the requisite form of marijuana, say, from California or another distant state in which it is available, because dispensaries in those locations may not be able to ship marijuana out-of-state. Of course, a look into those states' regulations on the sale and shipment of the drug would be in order.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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