Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, February 19, 2014

Can medical and recreational marijuana legalization co-exist in Washington state?

For some time, we have put mind-altering substances into one of three boxes: (1) acceptable for recreation (e.g., alcohol and tobacco), (2) acceptable for use as a medicine but for no other use (e.g., substances in Schedules II through V of the CSA) or (3) not acceptable for any use (e.g., all Schedule I substances.)  Kimani Paul-Emile wrote an interesting article (PDF) discussing this, and advancing an alternative framework for thinking about drug control, a few years back.

There isn't a lot of modern precedent for a substance regulated under the law for both medicine and recreation.  (Of course, there was medicinal alcohol during prohibition.  But after repeal, interest in alcohol as a medicine faded pretty fast.)  

With evidence of marijuana's value as a medicine only mounting as time goes on, it doesn't seem likely that interest in the medical use of marijuana will vanish anytime soon.  And so, as marijuana legalization takes hold, regulating the medicinal and recreational uses of marijuana may pose difficult legal and policy challenges.  

In Colorado, legalization left medical marijuana largely untouched (at least in terms of legal regulation).  Recreational pot stores have one "menu" and set of prices for registered medical patients and a different "menu" for recreational buyers (with medical marijuana subject to less tax and, as a result, cheaper).  Colorado already had a robust set of medical marijuana regulations, which may have helped the state implement this system.  So far, Colorado medical marijuana patients seem to be OK with how things are going.

Washington is a different story.  There, the State's pre-legalization medical marijuana law was much more open-ended.  And, as a result, regulators and lawmakers have been struggling over what to do about medical marijuana now that they are implementing legalization.

Earlier this week, Washington state legislators passed a measure that would bring medical users into the recreational system.  And so far, medical marijuana patients do not seem happy about the development.

Jacob Sullum has the story at Forbes:  

Last night the Washington House of Representatives approved a bill that would abolish medical marijuana dispensaries, a.k.a. “collective gardens,” and impose new restrictions on patients who use cannabis for symptom relief. H.B. 2149, which passed by a vote of 67 to 29, would thereby eliminate some of the unregulated competition for the state-licensed pot stores that are expected to start opening this summer under I-502, the legalization initiative that Washington voters approved in November 2012. Supporters of the bill, which was introduced by Rep. Eileen Cody (D-West Seattle), hope that banning dispensaries will help maximize tax revenue and mollify the feds.


The bill requires patients to buy their cannabis from the same stores that serve recreational customers, which would be the only legal sellers of medical marijuana as of May 1, 2015, when the provision allowing collective gardens would be repealed. Patients could continue to grow marijuana for their own use, but the maximum number of plants would be reduced from 15 to six (three of them flowering). The ceiling on possession by patients would be cut from 24 ounces to three. The bill instructs the state Department of Health, together with the Washington State Liquor Control Board (which is charged with regulating marijuana growers, processors, and retailers), to produce a report by November 15, 2019, on the question of whether it is appropriate to continue allowing home cultivation.

Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink


A key question is whether it even makes sense to continue to distinguish these two markets. Maybe the closest analog to medical marijuana is over the counter medication, rather than alcohol / tobacco or prescription medication. Most states (I think) tax OTC meds but not prescription meds (or medical marijuana), so there would be no tax rational for treating medical / recreational marijuana differently. Both recreational users and medical users need to be protected by labeling and similar requirements. And though we might hope that seriously ill people would have the good sense to discuss marijuana with a doctor (rather than just self-medicating, and potentially foregoing much more effective treatment options), it seems unrealistic to suppose everyone will do so if it’s not required of them (i.e., if they can just go to the recreational counter). So I guess even if WA / CO could segregate markets, should they?

Posted by: Rob Mikos | Feb 20, 2014 7:53:35 AM

It's a very good question. Just as a matter of politics, it seems like a significant number of medical marijuana patients may want two different systems and are concerned about taxes. With pretty significant taxes for recreational marijuana in CO and WA, I can see a stronger rationale for differentiating the markets based on that concern than for over the counter medicine. Either way, it is definitely an issue people drafting marijuana legalization ballot measures and laws will need to keep in mind if WA is any indication.

Posted by: Alex Kreit | Feb 21, 2014 11:09:01 AM

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