Monday, May 9, 2016

Safe Harbor

The “safe harbor” provision of the PA Medical Marijuana law (PA Act 16) is a confusing and mostly unworkable option for patients eager to access medical marijuana (MMJ) in PA. Like many things in government, it sounds good until you look at the details. You'll notice the use of vague terms like “possibly”, “anticipated” and “could” in this blog. That is because there are many unknowns at this point. The regulations for how the program will work have not been established and legal and other challenges to the law (and program) that could add clarity or set precedence have not yet occurred.

The safe harbor provision from PA Act 16 (the medical marijuana law):
“It is not a violation of this act (or PL233 No64, known as the Pennsylvania Controlled Substance, Drug, Device, and Cosmetic Act), if a parent or guardian of a minor under 18 years of age lawfully obtains medical marijuana from another state, territory of the U.S. or any other country to be administered to the minor.”

This provision goes into effect on May 17. It is anticipated that a similar provision will be authorized for all patients in the temporary regulations, which are to be completed within six months.

Safe harbor is pretty much unworkable (especially in a legal sense) in that you cannot obtain an MMJ product from another state and transport or ship it to PA without crossing state lines and violating federal law (and possibly other state laws). You would also have to be in compliance with the intent of the rest of Act 16 for this provision to apply – i.e. you would have to be using it for a qualifying medical condition and in a form identified in the law, etc.

Even so, you could still be arrested and prosecuted for pursuing this option in PA. If you pursue the safe harbor option, understand what you are doing and that there is risk involved - legal risk and making sure you are getting what you think you are getting (product quality, purity, etc). Some may see those risks as minimal and pursue this option, while others will be unwilling to do so.

The benefit of the safe harbor provision is that you could possibly use it as a defense in court - but that doesn't guarantee that you will be successful. As we stated before: we advise you to consult an attorney and your doctor before you pursue this option.

If you don't want to use the provision, or you don't understand the risks, then you'd be advised to wait until the program is better established, which could take a number of months, or fully implemented (estimated to be around two years). The process of establishing the program will probably occur in stages rather than on a single date. For example, MMJ access cards for patients will probably be available before the first dispensary is open. Having an access card could help you obtain an MMJ product in an MMJ state that allows sales to out-of-state patients (reciprocity). This would make obtaining a MMJ product through the safe harbor provision easier, but you'd still have the legal issue of transporting the product back to PA.

The safe harbor provision was included in the bill to make the Legislators look like they did something to allow for some form of access and/or protection for patients before the program is fully implemented. It is not practical and nothing the Governor or Legislators can tell you will change that at this point. What they could do at this point to help the patients in PA is to decriminalize marijuana state-wide for possession of small amounts (ex. $25 fine for possession of up to 30 grams of plant material). This would immediately reduce the legal risks not only for patients who would qualify under the Act 16, but also those with symptoms and conditions not covered in the law. Patients and patient advocates should push for this with their PA Senators and Representatives now. There are decriminalization bills currently being worked on and introduced in the Legislature.

The PA Department of Health, which is responsible for establishing and administering the MMJ program is working hard to get it up and running, but there will surely be some snags along the way. We can all help this process by staying informed and informing others.

One group in particular that needs to be educated and informed is the medical community. They also need to be part of the process and the program to make it all work. IF THE DOCTORS ARE NOT ON BOARD WE WON'T HAVE MMJ IN PA!! Everyone needs to have conversations with ALL of their doctors and other medical professionals to help them understand how the program works, their roll in the program and that the patients in PA need their participation.

There is still much work to be done before patients and caregivers can walk into a dispensary to obtain MMJ products. Stay informed and stay engaged to help make this work. Thanks...

~Campaign for Compassion Team

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