Summary
Medical Marijuana in Montana
Thoughtful Questions, Responsible Answers
By
Executive Director Ralph Johnson
Underwritten by Exergy Development , the Thomas and Teresa Quinn Family of the Whitefish
Community Foundation, the family of Burton K. Wheeler and the Board of Directors of the Burton K.
Wheeler Center, the Spring 2011 conference in Helena, Montana focused on finding the balance between the desires of some Montanans to support the use of marijuana for medical purposes and the consequences of the federal government’s classification of marijuana as a Schedule I controlled substance.
The panels were moderated by Lee Banville, UM School of Journalism, who used a roundtable, q
& a approach to leading each session. Former U.S. Attorney William Mercer opened the conference by offering his insights into what he sees as the Federal perspective. Congress, in the 1970’s classified marijuana as a Schedule I controlled substance, defined as a drug with high potential for abuse, no accepted medical use in the U.S., and unsafe for use even under medical supervision. Other Schedule I drugs include heroin, LSD and PCP. In comparison, Schedule II drugs, those still considered to have a high abuse potential but with accepted medical uses and considered safe for use under medical supervision include cocaine, morphine and methamphetamine. The DEA (Drug Enforcement
Administration) was given responsibility for developing a national policy with regard to the regulation of marijuana and that policy was and is based on the goal of stopping addiction. To deter addiction a threepronged approach was adopted focusing on prosecution, law enforcement and treatment. The Office of
National Drug Control Policy is responsible for treatment while the DEA, a component of the U.S.
Department of Justice, is responsible for law enforcement and prosecution.
Since the 1970’s the strategy developed by the DEA has been described as the “war on drugs” and this strategy has focused on cutting off supplies. In the case of marijuana the DEA, FBI and the
Federal Prosecutors have stressed eliminating the supply of large quantities of marijuana. Herein lies the clash between the Federal position and the State’s aspiration to provide access to marijuana for medical use by its citizens. How much supply can exist in Montana for medical purposes versus the DEA’s responsibility for fighting addiction thru eradication of the supply?
From 2004, when the voters of Montana passed Initiative-148 authorizing the use of marijuana under medical supervision, until 2009, the Federal position did not change. As long as an individual comported themselves within State regulations the federal government would not prosecute. In early
2009, the “Ogden” memo to the states from the U.S. Dept of Justice seemed to indicate that prosecution of the sale of medical marijuana would be considered a low federal priority. From March 2009 to
December of 2010 the number of Montana cardholders authorized by physicians to utilize marijuana for medical purposes grew from 2,074 to 27,218, an increase of 1,216%. Undoubtedly this increase and the related increase in producers and suppliers (caregivers by Montana nomenclature) raised questions within the DEA with regard to their responsibility to fight addiction thru eradication of the supply. The “Cole” memo, released this year at the end of June, sought to clarify the Ogden memo, “declaring that it might prosecute large-scale medical marijuana cultivation operations and dispensaries even in states where they are operating in compliance with state laws.”
State Representatives Gary MacLaren and Diane Sands joined Mercer on the stage to offer a perspective gained from their Montana legislative experience. The voter initiative process has a significant influence on State Legislators and they are loath to reverse action on initiatives. Although
Initiative-148 had no effect on federal law and policy, it was unequivocally accepted as both by the
Legislature from 2005 to 2009. Paralleling the action of the federal government, the State Legislature did

not address the consequences of Initiative-148 until the 2011 legislative session when the number of cardholders and caregivers rose so significantly. Public perceptions of abuse for recreational purposes brought pressure on legislators to do something. Legislation to repeal Initiative-148 was vetoed by
Governor Schweitzer and thus legislation intended to bring the number of cardholders and caregivers more in line with those experienced prior to 2009 and provide greater control over the physician authorization for cardholders as well as the quantity of marijuana available through production and sales was ultimately approved.
Concluding their remarks, Rep. MacLaren noted that it is the job of the legislative branch to make and change laws, both at the federal and state level. Seventeen states have adopted medical marijuana legislation and this could indicate that there is a significant desire among Americans to provide marijuana for medical purposes to those in need. MacLaren beleives Congress needs to address the issue in light of today’s science and political will.
Sands echoed MacLaren’s sentiments and noted that the federal government, through the
Department of Justice, has failed to give clear and consistent direction within which States could develop legislation. She noted that the Federal Drug Administration (FDA) is the arbiter of the medical value of drugs. It is within their power to reclassify marijuana from Schedule I to Schedule II thus not only enabling its use as a prescription drug, but also permitting its use in research to more accurately determine its medicinal value.
Mercer concluded by arguing that there is a small “space” in which states, including Montana, can adopt legislation that meets both the intention of the DEA to fight addiction by limiting supply and the desire to provide marijuana for medical purposes to individuals who benefit from its medicinal characteristics. This requires tight categories of prescription and objective standards for use as well as verifiable production, and distribution systems. Montana’s existing system remains far too loose for federal support and the problem inherent in this approach is that the next executive branch may be very vigorous in enforcing federal law thus closing what at the moment appears to be the small “space” of compromise.
Sue O’Connell
, research analyst for the Montana Legislative Services Division, presented a power point, soon to be made available on the Burton K. Wheeler Center web site, wheelercenter.org, titled “Medical Marijuana in Montana: From I-148 to SB 423”. Highlights include the key provisions of
I-148 and the misconceptions shared by many Montanans about the law as well as a timeline revealing registry statistics for the number of patients and caregivers. Additionally you will find the demographics of patient conditions and age as well as the key elements of SB 423.
Of particular note is an analysis of the significant elements from the Department of Justice’s
“Ogden Memo: Oct. 19, 2009” regarding the investigations and prosecutions in states authorizing the medical use of marijuana. Much confusion has arisen from the memo’s apparent ambiguous and contradictory statements indicating that the Department of Justice will not “focus resources on individuals whose actions are in clear and unambiguous compliance with state laws” and “prosecution of significant traffickers of illegal drugs, including marijuana continues to be a core priority” as well as the closing statement that “no state can authorize violations of federal law”.
To provide a perspective regarding Montana’s medical marijuana law within the context of other state statutes, Anna Rau of Montana PBS provided a power point presentation soon to be available on the
Burton K. Wheeler web site titled “Medical Marijuana: Around the Country.” This document provides information on when states adopted medical marijuana laws, the doctor-patient relationship, and number of plants that may be grown, and who may provide services. Ms. Rau notes that the federal government operated the Federal Compassionate Use Program providing medical marijuana to a very limited number of patients from 1976 to 1992, when the program was terminated.

Today there are 16 states and Washington D.C. that allow for medical use of marijuana. An additional five states have pending legislation and four have legislation in committees at this time. In general the statutes can be divided into two models, those similar to Montana where patients may grow their own or acquire marijuana from “caregivers” or the large licensed dispensaries model. The former are in general based on the California model adopted in 1996 where doctors provide a recommendation and patients carry an ID card. The marijuana growers and distributors are business owners engaged in a for-profit enterprise meeting the needs of their clients. With the exception of Montana, which adopted a caregiver program in 2004, this model was common until 2000. Beginning with Maine, in 1999, state statutes shifted the distribution from individual caregivers to authorized state-licensed dispensaries. In most states the dispensaries must be non-profit. This model gives the state much greater control over acquisition and distribution, but also places the state and state employees in direct violation of federal law. In this regard Ron Hyman, Director of the Colorado Medical Marijuana Registry explained
Colorado’s medical marijuana constitutional amendment adopted in 2000, which is a dispensary based system allowing for-profit based dispensaries.
Dr. Mary Anne Guggenheim offered insight into the biology of cannabis and the science associated with its action on the human brain. She noted that because of its Schedule I status, no human clinical studies have been done in the United States so much of our knowledge is based on animal experiments and anecdotal. Cannabis is indigenous in all animals and the products of the cannabis class are indigenous to human beings. In her experience, it appears that in some individuals cannabis decreases the perception of pain and provides GI track therapy. Quizzed about the overuse of chronic pain as a justification for the use of medical marijuana Dr. Guggenheim noted that “chronic pain,” a typical condition covered in medical marijuana laws, is a very complex phenomenon. It is not easily isolated to a single source or causality and yet quite conceivably minimized by the use of certain cannabis products.
Although seen as catchall phenomena by the lay public, she noted that doctors who rigorously investigate a patient’s history and symptoms can distinguish between a claim of chronic pain and the reality of chronic pain.
Mayor Tammi Fisher of Kalispell and Randy Leibenguth , a business owner from Bozeman, addressed the question of who should provide cannabis for patients and under what regulatory structure.
Mayor Fisher pointed out that federal law requires conformance with “all” federal laws when accepting federal grants or loan funds. Because of this municipalities could be subject to fines, forfeiture and/or reimbursement of federal funds acquired if the municipality is in violation of the federal statute banning the growing, distribution or use of marijuana. This circumstance places the municipality in direct conflict with both I-148 and SB 423 thus placing elected officials in the untenable position of ignoring
Montanan’s electorate and legislative statute in an effort to conform to federal regulations. This results in caregivers being forced to operate outside of municipalities where oversight and public services will be minimal.
Mr. Leibenguth agreed that caregivers could provide the best services to their clients when located in a storefront as a legitimate business within the community. Storefronts offer the best vehicle for regulation and as a part of the free market system develop a strong patient to plant and dosage relationship. Professional caregivers are motivated to test their products to develop the most appropriate strain of cannabis and dosage in relation to symptoms and thus ensure quality control when they can operate as a legitimate business. SB 423 has eliminated the motivation for specialization and the testing necessary to make scientific production and distribution of medical marijuana a more regulated industry.
In Leibenguth’s view, the expertise necessary to most effectively support patients has been lost with the elimination of the larger scale caregiver business model.
Luncheon speaker and former New Jersey Assemblyman Dan Todd , founding Chair of the Board of Compassionate Sciences-ATC, one of six licensed providers of medical marijuana in New Jersey, described the regulatory environment in which he works and its relationship to the federal government’s

position on marijuana. New Jersey regulations are based on the pharmacological model where standards for control of the substance and record keeping provide assurances that the medical profession conforms to prescription standards, suppliers provide consistent, tested and verifiable content in the products they produce, patients are ensured of the quality and availability of the medicine they are prescribed and the body politic is provided, not only with a viable tax source to enforce regulations but a reasonable assurance that marijuana is not being used as a recreational drug or consumed in addictive quantities.
Today we have the technology that ensures consistent quality of the product, its traceability, and packaging delivery systems that eliminate the “smoke” associated with recreational use.
Within a strict regulatory environment Todd feels that the industry can build a body of research in which growers create records of their achievements, the industry develops specificity with regard to strains of cannabis and dosage as well as the potential for genetic engineering to further the potential of cannabis for medical use. By adopting a strict regulatory environment today, Todd believes the industry will be prepared for the inevitable transition from a Schedule I drug to a Schedule II drug with which doctors can prescribe, for compassionate use, a strain of cannabis based medical drugs in therapeutic formulations.
The final panel of the conference focused on law enforcement. Blue Corneliusen, president of the Montana Sheriff and Peace Officers Association, Josh Van de Wetering , practicing attorney and former prosecutor in the U.S. Attorney’s office and
Tony Ryan , retired Denver police officer and member of Law Enforcement Against Prohibition expressed a common set of concerns with regard to enforcement of the medical marijuana laws. In every case law officers and prosecutors must enforce what the state and federal laws require of citizens. Unfortunately the laws at both the federal and state level remains foggy. When should law enforcement enforce the law with arrests? When should prosecutors prosecute and who should be prosecuted? What are appropriate sentences? There is an inconsistency in the response to these questions at every level of enforcement because of the nature of the crime. Despite newspaper sensationalism there seems to have been no quantifiable increase in trouble spots or break-ins associated with the production and distribution of medical marijuana. Thus, some feel the principle issue remains one of drug use. Enforcement of the drug laws associated with marijuana is part of a much larger issue guided by the “war on drugs” in which the DEA was placed in charge of determining that the use of marijuana was a crime as opposed to a health issue.
Still, there remains some possibility that marijuana could be a gateway drug, similar to alcohol and other abused or illicit drug products. In this regard it, like these others, results in social and domestic turmoil. Is jail time the appropriate response to this circumstance or is addiction treatment and remediation the appropriate course of action? The focus of the conference has come full circle. The DEA is charged with law enforcement and prosecution. The Office of National Drug Control Policy is responsible for policy and treatment. Until marijuana is reclassified either by Congress or the FDA from a Schedule I to a Schedule II drug the DEA will be responsible for stopping addiction by incarceration.
What are the policy issues that were most clearly revealed throughout the conference? First is the knowledge that until marijuana is reclassified from a Schedule I drug to Schedule II (or lower) drug, any action taken by Montana to permit the use of marijuana for medicinal purposes, regardless of the regulatory system put in place by the State, is null and void at the discretion of the Department of Justice and the Drug Enforcement Administration. Secondly, if marijuana is reclassified as a Schedule II drug it is imperative that all interested parties engage in the creation of what Dan Todd described as a pharmacological model where standards for control of the substance and record keeping provide assurances that the medical profession conforms to prescription standards, suppliers provide consistent, tested and verifiable content in the products they produce, patients are ensured of the quality and availability of the medicine they are prescribed and the body politic is provided, not only with a viable tax source to enforce regulations (see Colorado) but a reasonable assurance that marijuana is not being used as a recreational drug or consumed in addictive quantities.

The complete conference was recorded by Stephen Maly of Helena Civic Television and is available on television stations that carry Public Access Television. Lastly the Burton K. Wheeler Center wishes to thank all of the individuals who participated in the conference and contributed so thoughtfully to the dialogue.
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