How do we fix medical cannabis in Colorado?

by Special to DGO

These days, when the legal status of weed makes the news, especially in Colorado, it tends to be in reference to recreational usage. This bias makes sense to a certain extent — the market for recreational marijuana is larger than the market for medical marijuana. And when medical cards and prescriptions were no longer required to legally access cannabis, would-be users without medical conditions lost interest in its availability as a medicine.

But paradoxically, as access to recreational marijuana improves, access to medical marijuana gets worse. Now that it’s out of the limelight, medical weed takes a back seat to recreational when it comes to things such as, say, making sure people have access to it during a pandemic. This can be a major problem. After all, in this context, we’re talking about medicine.

WHAT MAKES MEDICAL MARIJUANA DIFFERENT? It sounds like a question with an obvious answer, but it’s worth explaining why the cannabis industry is divided into two sides. For the most part, medical and recreational cannabis are the same (though some products, such as edibles, are allowed to have a higher THC potency when they’re produced for medical reasons, as this allows patients to treat their medical issues more effectively). It’s the rules surrounding the sale of medical-use vs. recreational-use cannabis that differentiate them.

The three big rules that separate the sale of recreational from medical cannabis are the age at which it can be consumed, the quantity of it people can purchase, and the taxes charged on it (or lack thereof), said Tom Newell, a family nurse practitioner who was formerly with Family Health Care, one of the very few medical practices in the Durango area that provide Medical Marijuana Card services.

Much like alcohol, you have to be 21 years old to buy weed for recreational purposes in all states where it’s legal. If they suffer from an approved medical condition, though, 18- to 20-year-olds can purchase cannabis products from a medical dispensary. If two physicians sign off on it being absolutely necessary, patients even younger than 18 can get access to it.

In Colorado, a recreational customer can possess an ounce of marijuana at a time, while a medical customer can have twice that amount. Similarly, a recreational user can grow up to six of their own plants at a time, while medical users can potentially grow twice as many.

And while recreational users have to pay some hefty taxes on their weed, at medical dispensaries, cannabis is tax-exempt, saving medical users a significant amount of money.

The process of getting a medical marijuana card in Colorado is not terribly complicated. You have to prove that you’re a resident of the state and you have to meet with a physician to discuss your qualifying medical condition (the legislature has approved a limited list of conditions that qualify). Newell said that most of his patients seek out cannabis as a treatment for chronic pain. If the physician determines that you’re eligible, they’ll upload your information to the Colorado Medical Marijuana Registry and print out forms for you to complete and submit by mail — or you can complete and submit the forms online instead. You then pay a $25 fee and either receive a card in the mail or download a digital copy so you can show it electronically.

Physicians don’t typically recommend what kind or form of cannabis to use, Newell said. Instead, budtenders at a medical dispensary will be able to recommend products to treat what ails you. Anecdotally, he said that most of his patients with medical cards don’t smoke cannabis, opting to use edibles instead.

WHAT’S THE PROBLEM? As recreational marijuana became legal in Colorado, it took over the majority of the industry — to the point where most companies have no interest in opening a medical dispensary.

“Medical is about 10% of the market and recreational is 90% of the market,” said Martha Montemayor, director of
Cannabis Clinicians Colorado, a nonprofit dedicated to supporting people who work with cannabis patients, and founder of Healthy Choices Unlimited, a group of clinics. “From a business standpoint, if you own a rec dispensary, why would you get a second license for tens of thousands of dollars, a second grow for tens of thousands of dollars.
You shouldn’t have to have a separate joint rolling machine that’s not allowed to move in between med and rec. …
You have to have a whole separate system for 10% of your business. And that’s why we see the number of medical dispensaries reducing.”

The profit to be made in the recreational sector and the expense of opening a complete, secondary side of the business have left many Colorado counties, such as Archuleta and Gunnison, with no medical dispensaries whatsoever. Some recreational dispensaries try to compensate for the absence of medical ones. For instance,
Pagosa Springs’ Good Earth Meds, a recreational-only dispensary that began in 2009 as a medical one, advertises a discount for customers who have Colorado medical marijuana cards. But this doesn’t change the amount the business can sell to someone or the fact that a 20-year-old cannot shop there.

There’s a danger, Montemayor said, when people assume that medical patients can just go shop at a recreational dispensary.

“That thirty to fifty percent in taxes is brutal for a lot of our patients who are low income, because they have chronic debilitating conditions,” she said. “Many of our patients use edibles to control their conditions — literally, about fifty percent of our patients find an edible at bedtime is both a sleep aid, number one, and number two, it helps reduce inflammation from the inside out and better sleep and less inflammation means less pain the next day. Number three, (it also) helps them maintain better the next day without having a lot of other medicines because of the long term effects. So being limited to one hundred milligrams on an edible in a rec store is not enough for a lot of our patients.
The same twenty-five dollar candy bar at a rec store that’s only one hundred milligrams might be three hundred, five hundred, or a thousand milligrams at a med store, which means they can break it up and have it last.”

When medical patients can’t shop for what they need, can’t afford recreational taxes, or simply can’t shop at all —
Montemayor points out that cannabis patients under 21 years old at Western Colorado University in Gunnison have nowhere to go nearby (and almost certainly can’t grow it in their dorms) — tend to travel however far they need in order to find a medical dispensary. In addition to limiting access and putting an extra burden on people seeking medical treatment, this proves especially problematic during a pandemic, when people are supposed to be limiting the amount that they travel to slow the spread of the virus.

In response to some of the immediate problems facing Colorado’s medical marijuana industry during the COVID-19 pandemic, Cannabis Clinicians Colorado has drafted a bill that aims to protect patients. It seeks to allow medical marijuana evaluations via remote means (such as telemedicine); let patients age 18 and older purchase cannabis from recreational dispensaries without the burden of taxes and at medical potencies and quantities; and let medical marijuana patients without internet access purchase cannabis with new or renewal application paperwork and proof of mailing for up to 90 days.

This would allow a medical patient to treat the closest dispensary to them as a medical one, regardless of whether it was licensed as such or not. Montemayor said the organization is currently in the middle of a drive to get people to sign a petition so the bill can get a sponsor within the Colorado legislature.

RECENT SUCCESSES AND LINGERING ISSUES The status of medical marijuana in Colorado is not all gloom and doom. In 2019, the state passed two laws that widened what weed could be used to treat. One, HB19-1028, added autism to the list of conditions. The other, SB19-013, made it so that physicians can prescribe cannabis for any condition for which they could otherwise prescribe an opioid. This was added as a way to fight the country’s opiate addiction epidemic by creating increased access to alternative treatments for pain.

“The way the law was written previously was that the severe pain had to be chronic,” said Montemayor. “So if you had your wisdom teeth pulled last week, we couldn’t prescribe medical marijuana for it — we would have to wait a month so you got dry sockets or infection or something like that, and then ‘Okay, now it’s chronic pain. Now we can write for it.’ … Instead, we can start using cannabis right away. That’s actually been huge.”

Newell agrees with Montemayor. “When I started … I thought it was just people who wanted to smoke pot and get a discount on doing it — I was wrong,” he said. “We’ve probably done about 200 or so cards, and I am amazed how many people tell me they’re off their chronic meds, their opiates, their fentanyl patches. It’s amazing how many elderly you see, sixty- to seventy-year-olds, who say, ‘I’ve been on chronic meds my whole life, back pain, neck pain, etc., and I’m now off all my medications.’”

For medical marijuana advocates like Montemayor, though, Colorado’s laws still have a long way to go to reach a state of fairness, and some of its problems have been around since weed was first legalized.

A persistent problem, she said, is that when the state legalized medical and recreational marijuana, it never made corresponding changes to the Colorado Controlled Substances Act. This isn’t a big deal if you buy weed recreationally, but the process of becoming a medical marijuana patient lands you on the medical marijuana registry.
In theory, a list like that should be private and protected by the Health Insurance Portability and Accountability Act.
The Controlled Substances Act, however, enables any government agency to access the registry and check to see if you’re on it. They can then use this information against you.

“We have patients who are military veterans who are now unable to own a gun or can’t renew their concealed carry permit because the Colorado Bureau of Investigation uses that controlled substance loophole to see if they’re on the medical marijuana registry. If they are recreational users smoking every day, no problem. But if they’re actually treating a chronic condition, with a doctor helping them, then all of a sudden they can’t,” she said.

Likewise, courts can see when a parent is on the registry and use that information to justify granting custodial rights of their children to the other parent — simply for seeking a legal medical treatment.

Speaking of doctors, another outdated remnant of Colorado’s laws is the fact that any adult over the age of 21 can use marijuana recreationally — except for a doctor or a nurse. Because it would violate the Controlled Substances
Act, doing so would also violate the Medical Practices Act and the Nursing Practices Act, Montemayor said. In other words, a physician can recommend cannabis as a treatment for their patients’ arthritis, but they can’t try it for their own arthritis, thus gaining firsthand experience that would inform the advice they would give to patients.

Needless to say, Cannabis Clinicians Colorado also seeks to change the language of the Controlled Substances Act in the near future. Cannabis, she said, “is separately and well regulated outside of the Controlled Substances Act. There’s no reason for it to be there anymore. It’s kind of an oversight that wasn’t removed when we regulated it separately.

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