File No. 403

Senate, April 19, 2005

The Committee on Judiciary reported through SEN. MCDONALD of the 27th Dist., Chairperson of the Committee on the part of the Senate, that the substitute bill ought to pass.

AN ACT CONCERNING THE MEDICAL USE OF MARIJUANA.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2005) As used in sections 1 to 9, inclusive, of this act, unless the context otherwise requires:

(1) "Debilitating medical condition" means (A) cancer, glaucoma, positive status for human immunodeficiency virus or acquired immune deficiency syndrome, or the treatment of any such conditions, including, but not limited to, chemotherapy, (B) a chronic or debilitating disease or medical condition, or the treatment thereof, that produces one or more of the following: (i) Cachexia or wasting syndrome; (ii) severe pain; (iii) severe nausea; (iv) seizures; or (v) severe and persistent muscle spasms, or (C) any other medical condition approved by the Department of Public Health, pursuant to regulations that the Commissioner of Public Health may adopt, in accordance with chapter 54 of the general statutes, in response to a request from a physician or potentially qualifying patient;

(2) "Marijuana" has the same meaning as provided in section 21a-240 of the general statutes;

(3) "Medical use" means the acquisition and distribution, possession, cultivation, use or transportation of marijuana or paraphernalia relating to marijuana to alleviate the symptoms or effects of a qualifying patient's symptoms, but does not include any such use of marijuana by any person other than the qualifying patient. For the purposes of this subdivision, "acquisition and distribution" means the transfer of marijuana and paraphernalia relating to marijuana from the primary caregiver to the qualifying patient;

(4) "Physician" means a person who is licensed under the provisions of chapter 370 of the general statutes, but does not include a physician assistant, as defined in section 20-12a of the general statutes;

(5) "Primary caregiver" means a person, other than the qualifying patient and the qualifying patient's physician, who is eighteen years of age or older and has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of marijuana, provided, in the case of a qualifying patient lacking legal capacity, such person shall be a parent, guardian or person having legal custody of such qualifying patient;

(6) "Qualifying patient" means a person who is eighteen years of age or older and has been diagnosed by a physician as having a debilitating medical condition;

(7) "Usable marijuana" means the dried leaves and flowers of the marijuana plant, and any mixtures or preparations thereof, that are appropriate for the medical use of marijuana, but does not include the seeds, stalks and roots of the plant; and

(8) "Written certification" means a statement signed by the qualifying patient's physician stating that, in such physician's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks of such use to the qualifying patient.

Sec. 2. (NEW) (Effective October 1, 2005) (a) A qualifying patient shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for the medical use of marijuana if:

(1) The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

(2) The qualifying patient's physician has issued a written certification to the qualifying patient for the medical use of marijuana after the physician has prescribed, or determined it is not in the best interest of the patient to prescribe, prescription drugs to address the symptoms for which the certification is being issued;

(3) The combined amount of marijuana possessed by the qualifying patient and the primary caregiver for medical use does not exceed five marijuana plants and one ounce of usable marijuana; and

(4) The cultivation of such marijuana occurs in a secure indoor facility.

(b) Subsection (a) of this section does not apply to:

(1) Any medical use of marijuana that endangers the health or well-being of another person; and

(2) The medical use of marijuana (A) in a motor bus or a school bus, as defined respectively in section 14-1 of the general statutes, or in any moving vehicle, (B) in the workplace, (C) on any school grounds, (D) at any public beach, park, recreation center or youth center or any other place open to the public, or (E) in the presence of a person under the age of eighteen. For the purposes of this subdivision, "presence" means within the direct line of sight of the medical use of marijuana or exposure to second-hand marijuana smoke, or both.

(c) A qualifying patient shall have not more than one primary caregiver at any time. A primary caregiver may not be responsible for the care of more than one qualifying patient at any time. A primary caregiver who is registered in accordance with subsection (a) of section 3 of this act shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for the acquisition, distribution, possession, cultivation or transportation of marijuana or paraphernalia related to marijuana on behalf of a qualifying patient, provided the amount of any marijuana so acquired, distributed, possessed, cultivated or transported, together with the combined amount of marijuana possessed by the qualifying patient and the primary caregiver, shall not exceed five marijuana plants and one ounce of usable marijuana. For the purposes of this subsection, "distribution" or "distributed" means the transfer of marijuana and paraphernalia related to marijuana from the primary caregiver to the qualifying patient.

(d) Any written certification for the medical use of marijuana issued by a physician under subdivision (2) of subsection (a) of this section shall be valid for a period not to exceed one year from the date such written certification is signed by the physician.

Sec. 3. (NEW) (Effective October 1, 2005) (a) Each qualifying patient who is issued a written certification for the medical use of marijuana under subdivision (2) of subsection (a) of section 2 of this act, and the primary caregiver of such qualifying patient, shall register with the Department of Consumer Protection not later than five business days after the issuance of such written certification. Such registration shall be effective until the expiration of the written certification issued by the physician. The qualifying patient and the primary caregiver shall provide sufficient identifying information, as determined by the department, to establish the personal identity of the qualifying patient and the primary caregiver. The qualifying patient or the primary caregiver shall report any change in such information to the department not later than five business days after such change. The department shall issue a registration certificate to the qualifying patient and to the primary caregiver and may charge a reasonable fee, not to exceed twenty-five dollars, for a registration under this subsection.

(b) Upon the request of a law enforcement agency, the Department of Consumer Protection shall verify whether a qualifying patient or a primary caregiver has registered with the department in accordance with subsection (a) of this section and may provide reasonable access to registry information obtained under this section for law enforcement purposes. Except as provided in this subsection, information obtained under this section shall be confidential and shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200 of the general statutes.

Sec. 4. (NEW) (Effective October 1, 2005) (a) The Commissioner of Consumer Protection may adopt regulations, in accordance with chapter 54 of the general statutes, to establish (1) a standard form for written certifications for the medical use of marijuana issued by physicians under subdivision (2) of subsection (a) of section 2 of this act, and (2) procedures for registrations under section 3 of this act.

(b) The Commissioner of Consumer Protection shall adopt regulations, in accordance with chapter 54 of the general statutes, to establish a reasonable fee to be collected from each qualifying patient to whom a written certification for the medical use of marijuana is issued under subdivision (2) of subsection (a) of section 2 of this act, for the purpose of offsetting the direct and indirect costs of administering the provisions of sections 1 to 9, inclusive, of this act. The commissioner shall collect such fee at the time the qualifying patient registers with the Department of Consumer Protection under subsection (a) of section 3 of this act. Such fee shall be in addition to any registration fee that may be charged under said subsection. The fees required to be collected by the commissioner from qualifying patients under this subsection shall be paid to the State Treasurer and credited to the account established pursuant to section 10 of this act.

Sec. 5. (NEW) (Effective October 1, 2005) Nothing in sections 1 to 9, inclusive, of this act shall be construed to require health insurance coverage for the medical use of marijuana.

Sec. 6. (NEW) (Effective October 1, 2005) (a) A qualifying patient or a primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana, or paraphernalia relating to marijuana, under chapter 420b of the general statutes or any other provision of the general statutes, provided such qualifying patient or such primary caregiver has strictly complied with the requirements of sections 1 to 9, inclusive, of this act.

(b) No person shall be subject to arrest or prosecution solely for being in the presence or vicinity of the medical use of marijuana as permitted under sections 1 to 9, inclusive, of this act.

Sec. 7. (NEW) (Effective October 1, 2005) A physician shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by the Connecticut Medical Examining Board or other professional licensing board, for providing a written certification for the medical use of marijuana under subdivision (2) of subsection (a) of section 2 of this act if:

(1) The physician has diagnosed the qualifying patient as having a debilitating medical condition;

(2) The physician has explained the potential risks and benefits of the medical use of marijuana to the qualifying patient and, if the qualifying patient lacks legal capacity, to a parent, guardian or person having legal custody of the qualifying patient; and

(3) The written certification issued by the physician is based upon the physician's professional opinion after having completed a full assessment of the qualifying patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship.

Sec. 8. (NEW) (Effective October 1, 2005) Any marijuana, paraphernalia relating to marijuana, or other property seized by law enforcement officials from a qualifying patient or a primary caregiver in connection with a claimed medical use of marijuana under sections 1 to 9, inclusive, of this act shall be returned to the qualifying patient or the primary caregiver immediately upon the determination by a court that the qualifying patient or the primary caregiver is entitled to the medical use of marijuana under sections 1 to 9, inclusive, of this act, as evidenced by a decision not to prosecute, a dismissal of charges or an acquittal. Law enforcement officials seizing live marijuana plants as evidence shall not be responsible for the care and maintenance of such plants. This section does not apply to any qualifying patient or primary caregiver who fails to comply with the requirements for the medical use of marijuana under sections 1 to 9, inclusive, of this act.

Sec. 9. (NEW) (Effective October 1, 2005) (a) Any person who makes a fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marijuana in order to avoid arrest or prosecution under chapter 420b of the general statutes or any other provision of the general statutes shall be guilty of a class C misdemeanor.

(b) Any person who makes a fraudulent representation to a law enforcement official of any fact or circumstance relating to the issuance, contents or validity of a written certification for the medical use of marijuana, or a document purporting to be such written certification, shall be guilty of a class A misdemeanor.

Sec. 10. (NEW) (Effective July 1, 2005) There is established a medical marijuana administration account which shall be a separate, nonlapsing account within the General Fund. The account shall contain the fees collected pursuant to subsection (b) of section 4 of this act, and any other moneys required by law to be deposited in the account, and shall be held in trust separate and apart from all other moneys, funds and accounts. Any balance remaining in the account at the end of any fiscal year shall be carried forward in the account for the fiscal year next succeeding. Investment earnings credited to the account shall become part of the account. Amounts in the account shall be expended only pursuant to appropriation by the General Assembly for the purpose of providing funds for administering the provisions of sections 1 to 9, inclusive, of this act.

Sec. 11. Subsection (a) of section 21a-246 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

(a) No person within this state shall manufacture, wholesale, repackage, supply, compound, mix, cultivate or grow, or by other process produce or prepare, controlled substances without first obtaining a license to do so from the Commissioner of Consumer Protection and no person within this state shall operate a laboratory for the purpose of research or analysis using controlled substances without first obtaining a license to do so from the Commissioner of Consumer Protection, except that such activities by pharmacists or pharmacies in the filling and dispensing of prescriptions or activities incident thereto, or the dispensing or administering of controlled substances by dentists, podiatrists, physicians [,] or veterinarians, or other persons acting under their supervision, in the treatment of patients shall not be subject to the provisions of this section, and provided laboratories for instruction in dentistry, medicine, nursing, pharmacy, pharmacology and pharmacognosy in institutions duly licensed for such purposes in this state shall not be subject to the provisions of this section except with respect to narcotic drugs and schedule I and II controlled substances. Upon application of any physician licensed pursuant to chapter 370, the Commissioner of Consumer Protection shall, without unnecessary delay, license such physician to possess and supply marijuana for [the treatment of glaucoma or the side effects of chemotherapy] medical use pursuant to sections 1 to 9, inclusive, of this act. No person [without] outside this state shall sell or supply controlled substances within [the] this state without first obtaining a license to do so from the Commissioner of Consumer Protection, provided no such license shall be required of a manufacturer whose principal place of business is located outside [the] this state and who is registered with the federal Drug Enforcement [Agency] Administration or other federal agency, and who files a copy of such registration with the appropriate licensing authority under this chapter.

Sec. 12. Section 21a-253 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

Any [person] qualifying patient or primary caregiver, as defined respectively in section 1 of this act, may possess or have under [his] such qualifying patient's or primary caregiver's control a quantity of marijuana less than or equal to that quantity supplied [to him] pursuant to a prescription made in accordance with the provisions of section 21a-249 by a physician licensed under the provisions of chapter 370 and further authorized by subsection (a) of section 21a-246, as amended by this act, by the Commissioner of Consumer Protection to possess and supply marijuana for [the treatment of glaucoma or the side effects of chemotherapy] medical use pursuant to sections 1 to 9, inclusive, of this act. The provisions of this section do not apply to the possession or control of marijuana in a quantity that exceeds the amount permitted for medical use pursuant to sections 1 to 9, inclusive, of this act.

The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for the purpose of information, summarization, and explanation, and do not represent the intent of the General Assembly or either House thereof for any purpose:

OFA Fiscal Note

State Impact:

Note: GF=General Fund

Municipal Impact: None

Explanation

The bill requires patients and their primary caregivers to register with the Department of Consumer Protection (DCP) regarding the medical use of marijuana. The maximum fee that DCP may charge for the registration is $25. While it is uncertain the number of patients and caregivers that would register for the medical use of marijuana, this would result in a revenue gain.

The bill also requires patients to pay an additional fee to offset the direct and indirect costs incurred as a result of the bill. Therefore, DCP would have to charge additional fees in the aggregate of approximately $248,236 in FY 06 and $281,946 in FY 07 in order to offset the costs associated with the bill as described below. (Since it is uncertain how many patients will register for the medical use of marijuana, the dollar amount of the required assessment is unknown.) The bill establishes the “Medical Marijuana Administration Account” within the General Fund for this purpose.

The increased accessibility of marijuana would require additional safeguards for marijuana handling, storage, and maintenance within the state. As a result, two Drug Control Agents, with an annual salary of $66,695 each, would be needed in the Department of Consumer Protection to advise manufacturers, wholesalers, laboratory licensees and health care professionals regarding safeguards and standards required by state law and regulations for controlled substances.¹ One Secretary, with an annual salary of $33,727, would also be needed to facilitate the licensing of physicians and the registration of patients and primary caregivers. Additionally, DCP would incur costs of $36,816 in FY 06 and $24,736 in FY 07 in Other Expenses and Equipment in order to implement the provisions of the bill.

The bill makes it a crime to lie to a law enforcement officer about using marijuana for medical purposes or about being issued a doctor’s certification to use marijuana for such purposes. To the extent that this new crime increase the likelihood that offenders would be prosecuted or receive harsher penalties, a potential revenue gain from criminal fines and potential cost for incarceration and/or probation supervision in the community exist. It is anticipated that relatively few fines would be imposed on an annual basis, and, consequently, any revenue gain under the bill is expected to be minimal. On average, it costs the state $2,150 to supervise an offender on probation in the community as compared to $35,040 to incarcerate the offender (note that both figures include fringe benefits).



OLR Bill Analysis

sSB 124

AN ACT CONCERNING THE MEDICAL USE OF MARIJUANA

SUMMARY:

This bill allows the Department of Consumer Protection (DCP) to license physicians to prescribe, possess, and supply marijuana for the treatment of various debilitating conditions, rather than just glaucoma and the effects of chemotherapy.

It allows a physician to certify a patient’s use of marijuana after determining that an adult patient has a debilitating condition and could potentially benefit from the use of medical marijuana.

It allows people suffering from these conditions and their primary caregivers to possess the prescribed quantity of marijuana to treat the conditions.

EFFECTIVE DATE: October 1, 2005, except for the provision establishing the Medical Marijuana Administration Account, which is effective July 1, 2005.

USE OF MARIJUANA FOR MEDICAL PURPOSES

By law, the DCP commissioner can license physicians to possess and supply marijuana for the treatment of glaucoma or the side effects of chemotherapy. The law explicitly allows people suffering from these conditions to possess the marijuana these physicians prescribe.

The bill extends the conditions of licensure to include the treatment of adults suffering from (1) cancer, HIV, AIDS, or the side effects of treatment for such conditions; (2) a chronic or debilitating disease or medical condition, or the effects of treatment for such conditions, that causes wasting syndrome, severe pain, severe nausea, seizures, or severe and persistent muscles spasms; or (3) any other medical condition that a physician or patient with a debilitating condition requests and the DPH approves through regulations. And just as with people with glaucoma or receiving chemotherapy, the bill allows people with the debilitating conditions listed above to possess marijuana, up to the amount permitted for medical use.

The bill allows a patient’s primary caregiver to possess the same amount. The caregiver must be at least age 18 and someone other than the patient’s doctor who assists the patient in his use of marijuana for medical purposes. If the patient lacks legal capacity, the caregiver must be his parent, guardian, or legal custodian. The bill limits patients to one caregiver at a time and caregivers to only one patient.

CERTIFICATION OF MARIJUANA USE

Under the bill, a physician may certify a patient’s use of marijuana only after he has determined that the patient is over 18 and has a debilitating condition (i.e., the patient is a qualifying patient) and the potential benefits of medical marijuana would likely outweigh its health risks. The bill makes the certification valid for one year from the date it is signed.

The bill permits DCP to establish in regulations a form physicians must use to certify a patient’s medical use of marijuana. “Medical use” means the acquisition and distribution, possession, growth, use, or transportation of marijuana or marijuana paraphernalia to treat the symptoms or effects of a qualifying patient’s symptoms. “Acquisition and distribution” means the transfer of marijuana and marijuana paraphernalia from the primary caregiver to the qualifying patient.

The bill does not require health insurers to cover the medical use of marijuana.

REGISTRATION

The bill requires patient-recipients of the certification and their primary caregiver to register with DCP within five business days after they receive the certification. They must give the department information that sufficiently and personally identifies them and report any change in the information within five business days after it occurs.

The bill requires DCP to issue the patient and the primary caregiver a registration certificate that is valid for the same period as the written certification from the physician, up to one year. DCP may charge any reasonable registration fee, up to $25.

The bill makes registration information confidential and not subject to disclosure under the Freedom of Information Act. But DCP can verify for any law enforcement agency that asks whether a patient or primary caregiver is registered and provide the agency with reasonable access to registry information for law enforcement purposes.

The bill permits DCP to establish registration procedures in regulations. It requires the department to establish in regulations a reasonable fee that helps it offset direct and indirect costs associated with administering the medical use of marijuana. Patients must pay the fee, which is in addition to any registration fee, when they register. The fees must be paid to the state treasurer and credited to the Medical Marijuana Administration Account.

MEDICAL MARIJUANA ADMINISTRATION ACCOUNT

The bill establishes a separate, nonlapsing Medical Marijuana Administration Account within the General Fund. The account consists of the fees DCP collects for medical marijuana registration and administration, investment earnings, and any other moneys the law requires to be deposited in it. The legislature can only appropriate money in the account for medical marijuana administration. Any money remaining in the account at the end of any fiscal year must be carried forward to the next year.

PUNISHMENT FOR MARIJUANA CERTIFICATION, USE, AND POSSESSION

Physician

The bill prohibits any physician from being arrested, prosecuted, or otherwise punished, including being denied any right or privilege, or being disciplined by the Connecticut Medical Examining Board or any other professional licensing board, for writing a certification for marijuana if he:

1. diagnosed a qualifying patient with a debilitating condition;

2. explained the risks and benefits of using marijuana for medicinal purposes to any such patient or the parent, guardian, or legal custodian of any such patient who lacks legal capacity; and

3. based his written certification on his professional opinion after fully assessing the patient’s medical history and current medical condition in the course of a physician-patient relationship.

Qualifying Patients

The bill prohibits qualifying patients from being arrested, prosecuted, denied any right or privilege, or otherwise punished for using marijuana if:

1. they are diagnosed with a debilitating condition;

2. their physician has issued a written certification for the patient’s medical use of marijuana after prescribing, or determining it is against the patients’ best interest to prescribe, prescription drugs to address the symptoms the marijuana is supposed to treat;

3. the combined amount possessed by the patient and his primary caregiver does not exceed five marijuana plants and one ounce of usable marijuana (see definition under Primary Caregiver); and

4. the marijuana is cultivated in a secure indoor facility.

The protection against punishment does not apply if a patient uses marijuana:

1. in a way that endangers another person's health or well-being; and

2. on a motor or school bus, in any moving vehicle, at work, on school grounds, or at a public park, beach, recreation or youth center, or any other public place; or

3. within the direct line of sight of anyone under age 18 or in any way that exposes that person to second-hand marijuana smoke, or both.

Primary Caregiver

The bill prohibits registered, primary caregivers from being arrested, prosecuted, denied any right or privilege, or otherwise punished for acquiring, distributing, possessing, growing, or transporting a small amount of marijuana or marijuana paraphernalia for a qualifying patient. The amount of marijuana cannot exceed five plants and one ounce of usable marijuana (i.e., dried marijuana leaves and flowers or preparation or mixture of flowers and leaves, minus the seeds, stalks, and roots).

The protection against punishment for distribution applies only when the drug or paraphernalia is transferred from the caregiver to the patient.

MEDICAL USE OF MARIJUANA AND CRIMINAL PROCEDURE

The bill permits patients and primary caregivers who comply with its requirements to assert that fact as an affirmative defense to (i.e., a way to avoid) any state prosecution involving marijuana or marijuana paraphernalia. The bill prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, possessed, cultivated, used, distributed, or transported for medical use.

The bill requires law enforcement agencies to return marijuana, marijuana paraphernalia, or other property seized from a patient or primary caregiver who complies with its provisions immediately after a court determines that they were entitled to have it. Under the bill, entitlement is evidenced by a prosecutor's decision to dismiss the charges or not to prosecute, or the patient or caregiver’s acquittal.

The law absolves law enforcement officials of any responsibility for the care and maintenance of live marijuana plants seized as evidence.

The bill makes anyone who lies to a law enforcement officer about acquiring, possessing, cultivating, using, distributing, or transporting marijuana for medical use in order to avoid arrest or prosecution for a drug-related offense guilty of a class C misdemeanor, punishable by up to three months’ imprisonment, a $500 fine, or both. It makes anyone who lies to the officer about the issuance, contents, or validity of a (1) written certification for the medical use of marijuana or (2) document purporting to be a written certification guilty of a class A misdemeanor, punishable by up to one year in prison, a $2,000 fine, or both.

BACKGROUND

Marijuana is a Controlled Substance

Federal law classifies marijuana as a Schedule I controlled substance. With one exception, the law prohibits anyone from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense Schedule I drugs. Licensed practitioners, including pharmacies, can use Schedule I substances in government-approved research projects. The penalty for violations varies depending on the amount of drugs involved (21 USCA §§ 812, 823, and 841 (a)(1)).

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

¹ The fringe benefit costs for state employees are budgeted centrally in the Miscellaneous Accounts administered by the Comptroller. The estimated fringe benefit reimbursement rate as a percentage of payroll is 53.91%, effective July 1, 2004. However, first year fringe benefit costs for new positions do not include pension costs lowering the rate to 22.65%. The state's pension contribution is based upon the prior year's certification by the actuary for the State Employees Retirement System.