Going Through Changes

HB 1043: the new law affecting patients, caregivers and collectives

By Chris O’Keefe

Colorado is known for the constant change in laws and regulations after medical marijuana became legal in 2000. It’s already been a decade and it seems that we have only in the past two years begun to really progress; even using $9 million from a medical marijuana tax fund to balance the budget last year. With the passing of every bill, the ambition to legitimize the industry and make it functional and acceptable has had its fair share of ups and downs. Needless to say, there are always going to be kinks when designing a template for a new market and House Bill 1043 is no different; affecting patients, caregivers and medical marijuana collectives when the law passes July 1.

A few of the new requirements for caregivers in particular should be considered. Some of the more invasive new ones would require caregivers to register the location of their grow operations and their registry ID numbers of their patients with the Department of Revenue. This Department will also be allowed to share the locations of caregiver grows with law enforcement and local governments. Law enforcement will also be allowed to violate Article XVIII, Section 14, of the Colorado Constitution, which requires law enforcement to preserve a patient’s or caregiver’s plants and or medicine.

A positive effect of the new bill would be that caregivers can now once again partner with two or more to cultivate medical marijuana, counteracting the law (enacted in July 2010) prohibiting this.

A few good highlights for patients would be the elimination of the 35-day rule that prohibits patients from obtaining medicine until 35 days after the submission of their application.

Naturally, as with any new law, there are a variety of opinions.

“I am somewhat divided on this issue,” says Jay, a patient from Denver. “On the one hand, it would seem to get medicine into the hands of those who qualify for it sooner, as opposed to later. If someone needs help with their quality of life, why wait to get them the help? On the other hand, though, it seems to put [medical marijuana collectives] in a bind due to possible fraudulent applications being presented and people trying to abuse the system.”

In addition, medical marijuana records will be considered medical records for the purposes of enforcing patient confidentiality and protecting patients’ rights from negligence and theft.

Unfortunately the moratorium on new “Medical Marijuana Center Applicants” has been extended for another year, until July 2012, continuing to force patients to seek out other means to obtain their medicine. The new law also states that employees of collectives who do not own any part of the business only need to be residents of Colorado on the day they apply for an employee license, which forces a residency requirement on collective owners.

But HB 1043 goes further. The new bill will eliminate the constitutional protection for the actions of collective licensees, no longer protecting the owners. Collectives are subject to prohibitions on unfair business practices—such as selling below cost. However, product may be given away or sold below cost to needy and impoverished patients as defined by the state. Now, any collective that was shut down due to a local government’s moratorium but has an authorized state license can re-open in an MMJ-friendly location.

It seems that this bill has some positive and negative impacts. It places tighter restrictions on collectives and caregivers, but furthers patients’ rights while establishing some type of regulatory system that is consistent with other industries, like pharmaceuticals, tobacco and alcohol.

“HB 1043 is a cleanup effort that helps clarify the rules and I welcome that,” says one dispensary owner. “As a dispensary owner, I look forward to clari[fying] of the rules. Although I, like many of my peers, do not like arbitrary regulations or regulations designed to put small businesses out of business, I do, however, agree that the industry needs thoughtful oversight. I view 1043 as a thoughtful and responsible effort.”

Law of the Land

HB 1043 is not the first time Colorado sought new ways to regulate patients, caregivers and collectives. When Amendment 20, passed by voters in 2000, stated that a physician “in the context of a bona fide physician-patient relationship” can recommend medical marijuana for a patient, that relationship was not defined until Senate Bill 109 was passed last year. That law says a doctor must assess a patient’s condition and medical history, and conduct a physical exam.