WA Senate OKs Marijuana Dispensary Bill, But…

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Photo: Smashed Frog
One amendment to SB 5073 would ban print advertising by medical marijuana dispensaries.

​Version Passed By Senate Would Ban Print Advertising By Dispensaries; Law Prof Calls That ‘Clearly Unconstitutional’

The Washington Senate approved a bill Wednesday night which, if approved by the House, would legalize and regulate medical marijuana dispensaries in the state.

The bill, intended to bring the medical marijuana supply chain out of a legal gray area, was approved by senators on a 29-20 vote after lengthy debate, reports Manuel Valdes of The Associated Press. The measure now moves to the House.
Senators approved several amendments to the bill which are opposed by the medical marijuana community, including a troublesome ban on print advertising which would strip dispensaries of their First Amendment right to advertise. Distressingly, Sen. Jeanne Kohl-Welles (D-Seattle), author of the bill, introduced that change.
​One University of Washington law professor and First Amendment expert called the proposed ban on print advertising by dispensaries “clearly unconstitutional,” reports Curtis Cartier at Seattle Weekly.


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Photo: Seattle Weekly
University of Washington law professor Stewart Jay: The advertising restrictions in SB 5073 are “clearly unconstitutional”

Stewart Jay, a Harvard graduate and 30-plus year veteran at the University of Washington, specializes in Constitutional law, First Amendment issues in particular, and has followed the state’s medical marijuana laws for years.
Writing to the Weekly, Jay compared the law’s potential treatment of marijuana to other regulated products like alcohol or tobacco.
“If a court views medical marijuana as akin to tobacco or alcohol, this law is clearly an unconstitutional regulation of commercial speech under several Supreme Court decisions,” Jay wrote. “Or, more specifically, it would be unconstitutional as applied to many ads for medical marijuana … It is a lawful product, even if for a restricted group.”
The Washington branch of the American Civil Liberties Union also has concerns with the language in the bill’s amendments. Alison Holcomb, ACLU drug policy director in Washington, called it “too vague.”
“I would like us to have a fuller conversation about what would be reasonable restrictions in advertising that would still allow producers and dispensers to show where to access cannabis and how much it will cost,” Holcomb said.
Another horrible amendment — sponsored by Sen. Mike Carrell — forbids health care professionals from having practices “that appear to be primarily for the authorization of medical cannabis.” What?! “Appear to be”? “Primarily”?
Lots of Washington doctors, especially in rural areas of the state, are afraid to write a medical marijuana recommendation. I’ve experienced this personally, and if it weren’t for alternative health care centers with doctors who are willing to recommend marijuana to patients with a qualifying condition, the medical marijuana law would be useless.
Other amendments opposed by medical marijuana advocates include shifting regulatory power from the state to cities, enabling them to regulate or ban dispensaries, and requiring dispensaries to be nonprofit entities.
The bill attempts to address a Catch-22 currently faced by Washington medical marijuana patients: While it’s legal for them to possess pot, cannabis dispensaries are neither explicitly allowed nor prohibited, raising the question of where they’re supposed to obtain the medicine. Patients are allowed to grow up to 15 plants, but that merely changes the question to “Where can I get seeds?”
Another important, and long-needed, function of the bill is to provide arrest protection for medical marijuana patients. The original language of the medical marijuana law provided only an “affirmative defense” in court, which means that once you’ve been arrested for marijuana, you can show your medical paperwork to the judge and get the case thrown out.
An unfortunate Washington Supreme Court decision last year held that police can get a search warrant, enter patients’ homes, arrest them, handcuff them and take them to jail, every time they smell pot — even if you are a legal patient carefully abiding by the rules put forth by the state.
The bill would also clear up the legal gray area concerning medical marijuana dispensaries and retail sales.
Washington’s current medical marijuana law, approved by voters in 1998, doesn’t specifically allow marijuana sales, saying that patients must grow the pot themselves or designate a caregiver to grow it for them. That has prompted many patients to form collectives to grow cannabis and share the cost.
In Seattle and a few other areas of the state, some collectives also have storefront distribution sites, called dispensaries, or medical marijuana delivery services. Many of the collectives have thousands of members.
Since current law is silent on patient collectives, prosecutors around the state have taken widely varying approaches on permitting them. The state Department of Health maintains they’re not allowed, but at the same time, the state Revenue Department wants sales tax revenue from dispensaries statewide.
Under the bill, the Department of Agriculture would license medical marijuana growers and the Department of Health would supervise dispensaries. 
The bill also creates a patient registry, accessible to law enforcement, where authorized users can enroll. Registration is voluntary.
“My intention is to ensure patients who are qualified have a safe, secure reliable source for the medication that works for them,” said Sen. Jeanne Kohl-Welles (D-Seattle), who sponsored the bill.
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