By Randall Fearnow and Jaya White, both of Quarles & Brady LLP
Recent polls show widespread support in Indiana for medical marijuana. Legal cannabis sales in the U.S. in 2019 are projected to exceed ten billion dollars. Billions of dollars are being invested in the sector. National law firms have opened cannabis practice groups to meet the myriad regulatory challenges faced by this developing sector.
There is at least one major problem: marijuana is still a Schedule I controlled substance, which means it is illegal under federal law. A Schedule I controlled substance is a drug with no currently accepted medical use and a high potential for abuse. It is also illegal to use marijuana recreationally in the majority of states. Currently, only 11 states plus D.C. have authorized recreational cannabis. Thirty-three states have approved medical marijuana. In Indiana, where it is still illegal both recreationally and medically, almost 9,000 people were arrested for simple possession in 2016. If law enforcement estimates are accurate, more than 80 percent of the marijuana consumed in the United States is purchased on the black market.
Indiana may soon feel the effects of a wave of legalization. Its neighbor to the east, Ohio, has a robust medical marijuana program. Its neighbor to the south, Kentucky, is one of the largest producers of hemp. And its neighbors to the north and west, Michigan and Illinois, have both recently legalized medical and recreational marijuana. Illinois is unique in that it is the first state to legalize recreational use by way of legislative action as opposed to referendum. The Illinois law permitting recreational use also permits non-residents to purchase marijuana (in lesser amounts than Illinois residents).
Indiana health care facilities should prepare for the possibility that some of their patients may legally purchase recreational marijuana in Illinois or Michigan or may be approved medical marijuana patients holding medical cards from Michigan, Ohio, or Illinois. Preparation is particularly important in long term care where residents are afforded certain resident rights and an expectation of privacy in what is supposed to be a home-like environment, and in hospice where medical marijuana products are in demand. How will long term care facilities address consumer choice when that choice involves a product illegal in the state?
In states where possession is legal, either medically or recreationally, facilities follow state law at the risk of federal sanctions. Indiana permits only low THC cannabidiol (CBD) derived from hemp, which was subsequently removed from the list of controlled substances by the federal government late last year. The simplest answer for Indiana facilities is to prohibit the use of possession of marijuana on the facility’s premises, which is consistent with both federal and Indiana law. But what if long term care residents continue to use in defiance of the rule? Is facility management ready to assume the role of "pot enforcer," interfering in the privacy of its residents, residents who could possibly pack up and move to a competitor in a more pot-friendly neighboring state? Only time will tell.
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