Regulated Substances Update: A Closer Look at Pennsylvania’s Medical Marijuana Act
April 27, 2016
On Sunday, April 17, 2016, Governor Tom Wolf signed a Senate Bill 3 legalizing medical marijuana in Pennsylvania. The law goes into effect May 15, 2016. The bill makes Pennsylvania the 24th state to grant its citizens access to medical marijuana. Presently, six other states are considering legislation and/or ballot measures in 2016 to legalize medical marijuana: Florida, Kentucky, Missouri, Nebraska, South Carolina and Tennessee.
Like many other state medical marijuana programs, Pennsylvania’s Medical Marijuana Act (Act 16 of 1996, the “Act”) places significant restrictions on who can grow, distribute or sell medical marijuana in the Commonwealth. The Act also limits the specific conditions that can be treated with medical marijuana, as well as the manner in which medical marijuana may be consumed. The summary below outlines several significant aspects of the Act and how its provisions impact potential medical marijuana patients and business in Pennsylvania.
Lawful Use of Medical Marijuana
Under the Act, use and possession of medical marijuana (“MMJ”) is now lawful in Pennsylvania for Pennsylvania residents with certain medical conditions. MMJ, however, can only be dispensed to these patients, or their authorized caregivers, who possess a valid MMJ ID card; and, only in the form of a pill, oil, topical cream or ointment, liquid or through vaporization (excluding dry leaf or plant forms).
In other words, patients will not have access to dried smokable marijuana nor edible marijuana products, which are permitted in some states. The Act specifically makes it unlawful to smoke MMJ or incorporate MMJ into an edible form.
Authorized Medical Conditions
Only patients with certain serious medical conditions certified by a registered physician will qualify for an MMJ ID card. The Act defines “Serious Medical Condition” as any of the following:
- Cancer;
- HIV or AIDs;
- ALS (amyotrophic lateral sclerosis);
- Parkinson’s Disease;
- MS (multiple sclerosis);
- Spinal cord injury;
- Epilepsy;
- Inflammatory bowel disease;
- Neuropathies;
- Huntington’s Disease;
- Crohn’s Disease;
- PTSD (post-traumatic stress disorder);
- Intractable seizures;
- Glaucoma;
- Sickle cell anemia;
- Severe chronic pain that has not responded to other treatments; and
- Autism.
The Act also establishes the Medical Marijuana Advisory Board, which must issue a written report to the Governor and the Pennsylvania General Assembly by May 15, 2018, as to whether to change, add or reduce the types of medical conditions which qualify as serious medical conditions under the Act.
Registered Practitioners
To qualify for an MMJ ID card, a patient must be certified by a physician, who herself/himself has been authorized by the Commonwealth to issue MMJ certifications.
To be included in the Department of Health’s registry of authorized physicians, a doctor must apply to the Department and submit documentation of her/his credentials, training and experience. The doctor must also complete the Department’s 4-hour training course on the latest scientific research and risks and benefits of MMJ. The Department will then determine if the physician is qualified to treat one of the above serious medical conditions.
If the application is approved, the doctor will be listed by the Department as a registered practitioner. Once listed, the doctor is subject to an ongoing responsibility to immediately notify the Department in writing if:
- the patient no longer has the serious medical condition for which the certification was issued;
- MMJ is no longer therapeutic or palliative; or
- the patient has died.
Importantly, registered practitioners may not hold a direct or economic interest in a MMJ organization – i.e., grower/processor or dispensary. Nor can a registered practitioner advertise her/his services as a physician who can certify a patient to receive MMJ.
Patients and Caregivers and Identification Cards
The Act permits designated “caregivers” to act as a proxy if the patient is a minor or unable to obtain MMJ on their own. The caregiver is designated by the patient, or in the case of a minor, by their parent or legal guardian.
A patient may designate up to two caregivers at any one time. However, no one may act as a caregiver for more than five patients. Either the patient or the caregiver may apply to the Department for an MMJ ID card ($50 processing fee). MMJ ID cards for patients and caregivers expire one year after issuance and can be renewed
Medical Marijuana Organizations
The Act classifies “Medical Marijuana Organizations” into two groups: (1) growers/processors; and, (2) dispensaries. These organizations represent the supply chain from seed to sale of MMJ in Pennsylvania. All three must apply for a limited number of nontransferable permits to grow, process or dispense MMJ.
Permits will be granted based, at least in-part, on geography. Under the Act, the Department will establish at least 3 regions within the Commonwealth and approve permits in a manner “which will provide an adequate amount of medical marijuana to patients and caregivers in all areas of this Commonwealth.” Specific factors to be considered include: population, access to public transportation, and number of patients and type of serious medical conditions.
Fees
Potential growers/processors of MMJ must pay a nonrefundable $10,000 application fee. Grower/processors must also pay a $200,000 fee if granted a permit , which is valid for one year. The renewal fee drops to $10,000. Notably, before issuing a permit, the Department must also verify that the applicant has at least $2,000,000 in capital, $500,000 of which must be on deposit with a financial institution.
For dispensaries, the picture is slightly better. The initial application fee is $5,000 and the permit fee is $30,000 for each dispensary location. Again, the permit is only valid for one year. The renewal fee is $5,000 and covers all dispensary locations. Finally, before issuing a dispensary permit, the Department must verify that the applicant has at least $150,000 in capital, which must be on deposit with a financial institution.
Medical Marijuana Controls
The Act implements strict controls on the tracking of MMJ. Specifically, growers/processors and dispensaries must implement an electronic inventory tracking system which is directly accessible to the Department through the Department’s own database to track MMJ on a daily basis.
Growers/processors must track MMJ from seed to sale to a dispensary. Dispensaries, must track MMJ from purchase from growers to verified sales to patients and caregivers. All Medical Marijuana Organizations are further required to maintain daily logs of inventory, purchases, sales and disposals.
Growers/processors may only grow, store, harvest or process MMJ in an indoor, enclosed, secure facility which:
- is located within Pennsylvania; and
- includes electronic locking systems and electronic surveillance.
The Department must develop additional regulations relating to the transportation and storage of MMJ among growers/processors, testing laboratories and dispensaries to ensure security and guard against in-transit losses.
Laboratory Testing
Under the Act, growers/processors must contract with an independent laboratory to test MMJ produced by the grower/processor. The Department is tasked with developing specific regulations, but at a minimum, tests must be performed by a Department-approved laboratory once at harvest and again at final processing.
Tax on Medical Marijuana
The Act imposes a 5% tax on the gross receipts received by a grower/processor from the sale of its MMJ to dispensaries.
Dispensaries
All dispensaries must have a physician or pharmacist onsite at all times during the dispensary’s hours of operation. If the dispensary has more than one location, a physician assistant or registered nurse practitioner may be onsite at each of the other locations.
Dispensaries are also responsible for providing patients and caregivers with a safety insert that explains the proper method for taking MMJ in individual doses; the dangers stemming from use of MMJ; and how to prevent misuse by minors or others. Dispensaries are required to use sealed and labeled containers that contain the following warning:
THIS PRODUCT IS FOR MEDICINAL USE ONLY. WOMEN SHOULD NOT CONSUME DURING PREGNANCY OR WHILE BREASTFEEDING EXCEPT ON THE ADVICE OF THE PRACTITIONER WHO ISSUED THE CERTIFICATION AND IN THE CASE OF BREASTFEEDING, THE INFANT’S PEDIATRICIAN. THIS PRODUCT MIGHT IMPAIR THE ABILITY TO DRIVE OR OPERATE HEAVY MACHINERY. KEEP OUT OF REACH OF CHILDREN.
As with growers/processors, dispensaries must conduct business in an indoor, enclosed, secure facility located within Pennsylvania. However, a dispensary may not operate on the same site as a facility used for growing or processing MMJ. A dispensary must be located at least 1,000 feet from any school or daycare center.
Medical Marijuana Advisory Board
The Act establishes the Medical Marijuana Advisory Board within the Department. The Board’s duties include examining and analyzing the law and events in other states and the nation with respect to medical marijuana. The Board is also tasked with providing a written report to the Governor and the Pennsylvania General Assembly that specifically addresses the following issues:
- whether to change the types of medical professionals who can issue certification;
- whether to change the form of medical marijuana permitted under the Act;
- whether to change, add or reduce the types of medical conditions which qualify as serious medical conditions under the Act;
- whether to change, add or reduce the number of growers/processors or dispensaries; and
- whether to permit medical marijuana to be dispensed in dry leaf or plant form, for administration by vaporization.
This Medical Cannabis Update is intended to keep readers current on developments regarding medical cannabis legalization and regulation and is not intended to be legal advice. If you have any questions, please contact Daniel Clearfield at dclearfield@eckertseamans.com.