D.C. Council Votes To Let Medical Marijuana Patients Self-Certify Without Doctors, In Workaround To Federal Block On Recreational Sales

The Washington, D.C. Council unanimously approved emergency legislation on Tuesday that will effectively create a recreational marijuana market by allowing people to self-certify themselves as medical cannabis patients and access dispensaries—without needing to get a recommendation from a doctor.

The legislation from Councilmembers Kenyan McDuffie (D) and Mary Cheh (D) cleared the full Council in a 13-0 vote.

It effectively enables the District to circumvent a congressional rider barring D.C. from using its local dollars to implement a system of adult-use marijuana sales. Voters approved the legalization of personal cannabis possession, cultivation and gifting at the ballot in 2014, but there’s been no licensed retailers for non-patients.

A similar bill that would have also provided the cannabis self-certification process was narrowly defeated in April. But the reason for its defeat was largely related to separate provision’s in Chairman Phil Mendelson’s (D) measure that would have cracked down on unlicensed businesses that are using existing policy to “gift” cannabis to people who purchase unrelated products and services.

Those enforcement provisions were not included in the legislation passed on Tuesday. However, the issue was addressed in a resolution attached to the measure. It notes that there are “lower barriers to access” at “gray” market suppliers, because an unregistered person could simply buy a non-cannabis items in exchange gifted marijuana, without going through the application and certification process to access licensed dispensaries.

There are also safety risks in that market, the legislation noted, because products aren’t subject to quality control standards as in the existing medical cannabis program.

“Because these shops are operating outside of the law, there is no requirement or enforcement of customer registration, including verification that purchasers are of legal age,” the resolution says. “In addition, for gray market products, there is no assurance that the marijuana has been tested or adequately labeled, raising concerns that products could be contaminated or otherwise unsafe for consumers, and that the potency of the marijuana purchased could differ from what was advertised.”

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“On the other hand, a patient wishing to buy legal marijuana for medical purposes from the existing regulated dispensaries must adhere to numerous regulatory requirements,” it says, adding that the onerous registration requirements for qualifying patients “has had real consequences for legal medical dispensaries.”

“This emergency legislation moves only the portion of that prior legislation regarding self-certification. Specifically, it would allow medical marijuana patients 21 years of age and older to self-certify that they are utilizing marijuana for medical purposes. Patients will still be formally registered in the medical marijuana program, issued a patient identification number, and recorded in ABRA’s private and secure ‘Metrc’ track-and-trace system. While not a panacea to the issues facing our legal marijuana market, this emergency legislation provides a small amount of relief by increasing the ability of medical marijuana patients to access the legal and regulated medical market.”

While local legislators, as well as the mayor, are eager to formally create a regulated market for adult-use marijuana, they’ve been blocked from doing so because of a GOP-sponsored congressional spending bill rider that’s been annually renewed, specifically prohibiting D.C. from using its local tax dollars to implement a system of recreational cannabis commerce.

But it remains to be seen when that rider might be lifted.

“Patients who self-certify will still be formally registered in the medical marijuana program, issued a patient identification number and have all sales reported,” Cheh said ahead of Tuesday’s vote. “Permanent legislation to comprehensively update the District’s marijuana laws, including providing for certification, is currently moving its way through the Council. But in the meantime, this will provide a critical stopgap measure to help legal safe and regulated medical marijuana dispensaries retain and win back patients and protect the patients.”

Under Democratic control, both chambers of Congress have proposed lifting the rider from Rep. Andy Harris (R-MD) in recent years—including in the latest spending bill—but last year’s appropriations bill maintained the ban, and President Joe Biden proposed for the second time a budget that would continue the cannabis restriction.

The patient self-certification provision of the measure would represent a significant expansion of another piece of legislation enacted into law this year that allows people 65 and older to self-certify for medical cannabis without a doctor’s recommendation.

Meanwhile, the D.C. Council unanimously approved a bill this month to ban most workplaces from firing or otherwise punishing employees for marijuana use.

The legislation, sponsored by Councilmember Trayon White (D) first cleared a key committee vote in March before being initially approved by the full body during an April hearing. It would expand on previous legislation the D.C. Council approved to protect local government employees against workplace discrimination due to their use of medical cannabis.

In 2019, another D.C. lawmaker proposed a separate medical cannabis reform bill meant to ease the registration process for patients. Instead of having to wait several weeks for regulators to process their medical cannabis approvals, patients would simply fill out an application with the city health department and would then automatically qualify to legally purchase marijuana on a provisional basis.

Lawmakers held a joint hearing last year on a pair of bills to authorize the legal sale of recreational marijuana and significantly expand the existing medical cannabis program in the nation’s capital.

D.C. Mayor Muriel Bowser (D) has been adamant about the need to congressional remove the rider and fulfill the will of voters by establishing a regulated system of adult-use marijuana sales.

The mayor said last year that local officials are prepared to move forward with implementing a legal system of recreational marijuana sales in the nation’s capital just as soon as they can get over the final “hurdle” of congressional interference.

Bowser introduced a cannabis commerce bill last year, though her measure was not on the agenda for November’s hearing alongside the cannabis legalization proposal put forward by Mendelson.

Last March, a federal oversight agency determined that the congressional rider blocking marijuana sales in D.C. does not preclude local officials from taking procedural steps to prepare for the eventual reform, such as holding hearings, even if they cannot yet enact it with the blockade pending.

Separately, a group of activists last year announced an effort to pressure local lawmakers enact broad drug decriminalization, with a focus on promoting harm reduction programs, in the nation’s capital. A poll released last year found that voters are strongly in favor of proposals.

At the congressional level, Rep. Eleanor Holmes Norton (D-DC) said in November that she is “closer than ever” to removing the federal blockade on cannabis commerce in her district.

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