With California voting on Prop 64 (the Adult Use of Marijuana Act) next week, it sometimes seems that full-blown legalization has eclipsed the conversation around medicinal cannabis. But even if California—and eventually the entire country—were to legalize cannabis for recreational use, it’s all but guaranteed that cannabis would still play a major role in the healthcare industry.
Questions remain, however, around how regular consumers would purchase medicinal cannabis in the future. Namely, will it be a prescription drug or simply an over-the-counter product like a bottle of supplements?
In addition to the four states that have legalized cannabis for both medicinal and recreational use (Alaska, Colorado, Oregon, and Washington), 21 states have legalized it for strictly medicinal use, according to Ackrell Capital. Patients who want to purchase medicinal cannabis typically have to have a “qualifying condition” and a physician's recommendation or approval.
For example, here’s the list of qualifying conditions in California (though each state has its own unique list):
- Chronic Pain
- HIV or AIDS
- Persistent Muscle Spasms
- Severe Nausea
- Any debilitating illness where the medical use of marijuana has been "deemed appropriate and has been recommended by a physician."
An individual with any of these conditions and a physician’s recommendation can legally possess and cultivate (but not distribute or sell) cannabis. In most cases, patients in California and other states purchase medical cannabis from state-licensed dispensaries, not pharmacies.
Notably, even states that have legalized recreational cannabis maintain separate programs for medical cannabis—the two cohorts are regulated differently. In Colorado, for example, recreational cannabis is first subject to a 15 percent excise tax (based on the average market rate of retail cannabis), and then consumers pay a 10 percent sales tax (for cannabis) plus a 2.9 percent sales tax (imposed by the state on all tangible personal property).
Medical cannabis, however, is only subject to the 2.9 percent sales tax.
So today cannabis consumers can go down a few different paths depending on their needs and the legalization status in their state:
- A recreational user can purchase recreational cannabis from a retail store.
- A medicinal user can purchase medicinal cannabis from a dispensary.
- Depending on the state’s laws, users can grow the plant themselves.
Pharmacies don’t yet play any role. Why not? Because, no matter what the states say, federal law still says cannabis is illegal.
Turning down the chance to change its stance, the Drug Enforcement Administration (the “DEA”) in August announced its decision to deny two petitions to reschedule cannabis under the Controlled Substances Act (the “CSA”). According to the DEA, cannabis falls under the same category—Schedule I—as heroin and LSD because it has a "high potential for abuse" and no medical use.
Many people seeking to reform cannabis law found the decision baffling, especially since two of the active chemicals in cannabis (THC and CBD) have already been proven to have a wide range of medical applications.
The DEA's decision also appears to contradict another government agency’s former actions around cannabis. The U.S. Food and Drug Administration (FDA) has gone so far as approving two THC-based pills: dronabinol and nabilone (brand names: "Marinol" and "Cesamet"), which are used to treat nausea and vomiting resulting from cancer chemotherapy. Dronabinol can also be used to encourage appetite in AIDS patients experiencing weight loss.
The distinction with medical cannabis is that most patients are getting a "recommendation" from their physicians for cannabis products, not a "prescription." A prescription can only be given for FDA-approved drugs; for THC, that's dronabinol and nabilone, but those are synthetically-created.
The one silver lining to the DEA’s decision in August was that it increased the amount of cannabis available for legitimate research and opened the process up to additional institutions (whereas before research was monopolized by the University of Mississippi). Some have perceived this as opening the door to pharmaceutical companies. From the DEA's statement:
“Under the historical system, there was no clear legal pathway for commercial enterprises to produce marijuana for product development. In contrast, under the new approach, persons may become registered with DEA to grow marijuana not only to supply federally funded or other academic researchers, but also for strictly commercial endeavors by the private sector and aimed at drug product development.”
In other words, we may be one step closer to having cannabis sold at pharmacies like Walgreens or CVS. As to whether it would be a prescription drug or over-the-counter product remains to be seen, but there are doubts that we're close to having prescriptions for cannabis.
"I do believe that the existing rules regarding the regulation of supplements, which includes a number of herbal-based products like echinacea, valerian root, or Saint John’s wort, could readily be applicable to cannabis — and, in fact, would be more applicable than regulations governing the production and sale of alcohol or conventional prescription medications," said NORML Deputy Director Paul Armentano. "But there would need to be a seismic shift in political and cultural understanding of the plant before such a change in policy would occur."
With so many cannabis issues on the ballot, we could certainly be on the way to seeing that "seismic shift," but we're not quite there yet.