July 16, 2019

Spark the Discussion: Medical Marijuana Law and Policy

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

I’ll start with a bold prediction: marijuana reform and same-sex marriage are the two policy areas in which young lawyers will see major movement in their lifetimes. These two “controversial” topics stand at the crossroads of a shift in society, with the younger generation pushing for increased tolerance of alternative lifestyles—whether it’s marriage choice or an individual’s decision to medicate—or recreate—with marijuana—and older Americans increasingly accepting that, at least with these two topics, change is inevitable.

This article will focus on medical marijuana law and policy—a dynamic field that an increasing number of Colorado lawyers are facing in their everyday practice. Currently, sixteen states (and the District of Columbia) have passed statewide medical marijuana laws, and a half-dozen others are poised to take similar action. What started largely as an area within criminal law practice—a small number of lawyers defending medical marijuana patients accused of criminal violations—has expanded into a cottage industry impacting nearly every area of legal practice. This column will highlight some of those areas and discuss the future of this hot topic.

Before reading further, please note that while medical marijuana is legal in Colorado and a growing number of states, and literally thousands of doctors recommend it every year for sick patients, it remains firmly illegal under federal law. Given these conflicting state and federal stances, it’s crucial that lawyers practicing in this area closely follow emerging trends and policies.

  • Business Law:
  • Colorado and several other states have medical marijuana laws with provisions allowing for retail stores known as dispensaries to sell marijuana to qualifying patients.  Budding entrepreneurs need guidance from attorneys who understand not only medical marijuana laws, but also traditional business law. All facets of corporate law, from drafting  operating agreements to negotiating commercial transactions, come into play with the operation of dispensaries.
  • Family Law:
  • An increasingly common theme in the family law realm is the presence of medical marijuana in custody battles or divorce proceedings. Often these disputes arise not from actual neglect or abuse, but merely from the presence of marijuana in the home. Patients need solid guidance to keep this—and all medicine—firmly away from children. There is a desperate need for lawyers who understand both medical marijuana law and family law and can advocate appropriately when the two areas overlap.
  • Elder Law:
  • As medical marijuana patients age they often end up in nursing homes or in-patient hospice care. When Maine’s medical marijuana law changed last November, the state expressly permitted nursing homes and hospice workers to act as registered medical marijuana caregivers for patients. Other states are silent on this issue. Large questions remain about federal funding for this type of care and how one patient’s possession of a federally-illegal substance could place others at legal risk.
  • Civil Law:
  • Legal medical marijuana businesses have the same problems as other, more mainstream businesses, and partnership disputes by owners of such stores are commonplace in Colorado. Some owners came out of a less-mainstream past, and built a million-dollar business without signing an operating agreement. In these messy situations, civil litigation is often the only remedy.
  • Election and Municipal Law:
  • The passage of a statewide medical marijuana law is invariably followed by conservative municipalities attempting to ban sales and cultivation within municipal borders. When Colorado passed a dispensary law in 2010, around 50 municipalities put measures on their local ballots to ban these retail shops in their communities. Whether through ballot initiative or action by a government body, there is a real opportunity for lawyers who understand election and municipal law to engage in this area.
  • First Amendment:
  • The most common complaint from community members about dispensaries is that they have offensive signage. While polls consistently show that roughly 80% of Americans support medical marijuana, most citizens don’t want it shoved in their face. Medical marijuana business owners need lawyers to explain their rights—and encourage discretion.
  • Intellectual Property Law:
  • “Can we patent the recipe for my marijuana cheesecake?” This question may seem peculiar, but my office gets several calls a week of this nature. As more patients turn to alternate forms of administering medical marijuana, such as through edibles or tinctures, interesting questions arise concerning protecting the manufacturer’s recipes and formulas.
  • Criminal Law:
  • As long as federal law continues to classify marijuana as a Schedule I Controlled Substance—the most dangerous and addictive class of drugs—there will be work for criminal defense attorneys representing medical marijuana patients and providers in federal court. On the state and local level, authorities continue to zealously target adults for marijuana crimes,  arresting over 750,000 citizens for possession of marijuana annually. That’s the equivalent of arresting every man, woman, and child in the state of Wyoming once a year!

As young attorneys in Colorado, we have an incredible opportunity in the field of medical marijuana law. Unlike property law or criminal law, this area is new and has very little case precedent. The young idealist attorney will fight out these important cases in the courtroom and establish laws that make sense both for the patient and the community.

Many lawyers initially chose this patient-centered line of work because they believed the time had come to pursue a more common-sense approach to marijuana and drug policy in America. Now, as lawyers from a diverse range of practice areas are entering this arena, let’s hope all remain true to the core principles that attracted most of us to this work:

Patients before politics; patients before profits.
Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.
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