West Virginia Expands Medical Marijuana Program Despite Federal Prohibition

By Mike Maharrey

CHARLESTON, W. Va. (May 29, 2019) – Today, West Virginia Gov. Justice signed a bill to expand the state’s medical marijuana program despite federal prohibition.

Sen. Mitch Carmichel (R-Ripley) and Sen. Roman Prezioso (D-Fairmont) sponsored Senate Bill 1037 (SB1037). The legislation makes a number of changes to the state’s medical marijuana laws that will streamline the program, increase access for patients and open up the market for medicinal cannabis.

The Senate passed SB1037 by a 23-7 vote and the House approved the measure 81-17 during a special session of the West Virginia Legislature.

The proposed law makes the following changes to the state’s medical marijuana program.

• Removes a requirement that a doctor must be present in a dispensary at all times.
• Increases the allowable number of dispensaries in the state from 30 to 100 and removes a limit on the number of dispensaries allowed in one region.
• Increases the number of dispensary licenses one person may hold from two to 10.
• Removes a restriction that a grower or processor cannot own a dispensary.
• Creates legal protections for state employees involved in the medical marijuana program
• Removes language requiring physicians to first consider other treatments “including treatments involving opioids” before issuing a marijuana certificate to a patient.
• Allows the Department of Health and Human Resources to pre-register patients before the official July 1 date.

During the regular session, Gov. Justice signed a bill that will help facilitate banking for the state’s medical marijuana program.

Justice vetoed a similar bill during the regular session and suggested some tweaks that were incorporated into SB1037. With his signature, the bill goes into immediate effect.

This is another example of the rapidly expanding availability of marijuana despite federal prohibition.

EFFECT ON FEDERAL PROHIBITION

Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

West Virginia’s medical marijuana program removes one layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains in place. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

Passage of SB1037 further undermines prohibition make it that much more difficult for the federal government to enforce it in West Virginia.

A GROWING MOVEMENT

West Virginia joins a growing number of states simply ignoring federal prohibition, and nullifying it in practice.

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In 2018, Vermont became the first state to legalize marijuana through a legislative act. and Michigan passed a ballot measure legalizing cannabis for general use.

With 33 states including West Virginia allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.

Expansion of medical marijuana laws in West Virginia demonstrates another important reality. Once a state puts laws in place legalizing cannabis, they tend to eventually expand. SB1037 serves as a perfect example of this tendency. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. This bill represents a further erosion of unconstitutional federal marijuana prohibition. It also demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Opening the door clears the way for additional steps. You can’t take the second step before you take the first.

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