New England Journal of Medicine: Medical Marijuana and the Law

Medical Marijuana and the Law

Volume 362:1453-1457
April 22, 2010
Number 16

Diane E. Hoffmann, J.D., and Ellen Weber, J.D.

The U.S. legal landscape surrounding “medical marijuana” is complex and rapidly changing. Fourteen states — California, Alaska, Oregon, Washington, Maine, Hawaii, Colorado, Nevada, Vermont, Montana, Rhode Island, New Mexico, Michigan, and most recently, New Jersey — have passed laws eliminating criminal penalties for using marijuana for medical purposes, and at least a dozen others are considering such legislation.

Medical experts have also taken a fresh look at the evidence regarding the therapeutic use of marijuana and the American Medical Association (AMA) recently adopted a resolution urging review of marijuana as a Schedule I controlled substance, noting it would support rescheduling if doing so would facilitate research and development of cannabinoid-based medicine. Criticizing the patchwork of state laws as inadequate to establish clinical standards for marijuana use, the AMA has joined the Institute of Medicine, the American College of Physicians, and patient advocates in calling for changes in federal drug-enforcement policies to establish evidence-based practices in this area.

States have led the medical marijuana movement largely because federal policymakers have consistently rejected petitions to authorize the prescription of marijuana as a Schedule II controlled substance that has both a risk of abuse and accepted medical uses. Restrictive federal law and,until recently, aggressive federal law enforcement have hamstrung research and medical practice involving marijuana. The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug — one with a high
potential for abuse and “no currently accepted medical use” — and criminalizes the acts of prescribing, dispensing, and possessing marijuana for any purpose. Although physicians may recommend its use under First Amendment protections of physician–patient communications, as set forth in the 2002 federal appeals court decision Conant v. Walters, they violate federal law if they prescribe or dispense marijuana and may be charged with
“aiding and abetting” violation of the federal law if they advise patients about obtaining it. A 2005 Supreme Court decision (Gonzales v. Raich) made clear that regardless of state laws, federal law enforcement has the authority under the CSA to arrest and prosecute physicians who prescribe or dispense marijuana and patients who possess or cultivate it.

Nevertheless, in October 2009, the Department of Justice issued a memorandum
to U.S. Attorneys stating that federal resources should not be used to
prosecute persons whose actions comply with their states’ laws permitting
medical use of marijuana. This change in the Justice Department’s
prosecutorial stance paved the way for states to implement new
medical-marijuana laws, and states are now attempting to design laws that
balance concerns about providing access for patients who can benefit from
the drug with concerns about its abuse and diversion. Although the current
state laws facilitate access, they do little to advance the development of
standards that address the potency, quality, purity, dosing, packaging, and
labeling of marijuana.

All the state laws allow patients to use and possess small quantities of
marijuana for medical purposes without being subject to state criminal
penalties. They also allow a patient’s “caregiver” — an adult who agrees
to assist with a patient’s medical use of marijuana — to possess, but
not use, marijuana. Most laws protect “qualifying” patients, who are
defined as those who have received a diagnosis of a debilitating medical
condition and have written documentation (or, in one case, an oral
recommendation) from their physician indicating that they might or would
“benefit from the medical use of marijuana” or that the “potential benefits
of medical use of marijuana would likely outweigh the health risks.”
Definitions of “debilitating medical condition” vary by state (see Table 1)
but typically include HIV–AIDS, cachexia, cancer, glaucoma, epilepsy and
other seizure disorders, severe nausea, severe and chronic pain, muscle
spasms from multiple sclerosis or Crohn’s disease, and other conditions. All
but two states allow additions to this list if approved by the state health

View this table: Table 1. Diseases and Conditions for Which Medical
Marijuana Use Is Permitted According to State Laws. –

State laws do not regulate marijuana’s quality or potency, and most don’t
address ways of obtaining the drug. Virtually all permit patients or
caregivers to cultivate marijuana. New Jersey’s new law prohibits such
cultivation but provides for the establishment of alternative treatment
centers that will “fill” a physician’s written instruction for a certain
quantity of marijuana. Most laws are silent on whether patients or their
caregivers may buy or sell marijuana or whether dispensaries are permitted
(see Table 2). California permits dispensing through cooperatives or
collectives, but until recently most other states did not — a situation
that is changing with the enactment of some recent laws and amendments.

View this table: Table 2. Variation among State Medical Marijuana Laws. –

Most of the statutes also limit the amount of marijuana that patients or
caretakers can possess or cultivate, although the quantities allowed are not
derived from clinical trials or pegged to a medical condition (see Table 2).
The amounts range from 1 oz and 6 plants in Alaska to 24 oz and 15 plants in
Washington, an amount that Washington considers to be a “60-day supply.”
California’s original medical-marijuana ballot initiative did not specify an
allowed quantity, instead permitting an amount reasonably related to the
patient’s medical needs. Subsequent legislation set limits, which apply to
individuals who register and thereby gain protection from arrest, but the
California Supreme Court recently struck down the limits as they apply to
unregistered patients who possess amounts of marijuana acceptable under the
original ballot initiative. Such patients can be arrested, but if prosecuted
can assert that the quantity they possess is reasonably related to their
needs. Under the New Jersey law, physicians must provide patients with
written instructions specifying the amount of marijuana to be dispensed by
legally sanctioned treatment centers, but the maximum amount for a 30-day
period is 2 oz — making a “60-day supply” in New Jersey just 4 oz, one
sixth of that in Washington, a disparity that underscores the absence of

The laws also vary in terms of whether they establish a registry and issue
identification cards for qualifying patients. Eleven of the 14 states have a
registry, and Maine and New Jersey will soon. In most states where patients
have identification cards, they are protected from arrest and prosecution.
In some states, however, registered patients with identification cards may
be arrested but can use the defense that they have a demonstrated medical
need for marijuana. And in a few states, unregistered but “qualifying”
patients who meet other requirements of the law may also use this defense.

Missing from many state laws is a requirement that physicians recommending
medical marijuana to adult patients provide the rudimentary disclosure of
risks and benefits necessary for informed consent, although such disclosure
is generally required for patients who are minors. In Canada, the first
country to decriminalize medical marijuana, regulations require that
physicians discuss the risks with their patients, yet the lack of relevant
clinical trials of smoked cannabis makes it difficult for physicians to
comply with the law.

In states debating new legislation, policymakers are grappling with
questions that only scientific research can answer: For what conditions does
marijuana provide medicinal benefits? Are there equally effective
alternatives? What are the appropriate doses for various conditions? How can
states ensure quality and purity?

Although state laws represent a political response to patients seeking
relief from debilitating symptoms, they are inadequate to advance effective
treatment. Medical experts emphasize the need to reclassify marijuana as a
Schedule II drug to facilitate rigorous scientific evaluation of the
potential therapeutic benefits of cannabinoids and to determine the optimal
dose and delivery route for conditions in which efficacy is established.2
This research could provide the basis for regulation by the Food and Drug
Administration. Current roadblocks to conducting clinical trials, however,
make this more rational route of approval unlikely and perpetuate the
development of state laws that lack consistency or consensus on basic
features of an evidence-based therapeutic program.

Reliance on state laws as the basis for access to medical marijuana also
leaves patients and physicians in a precarious legal position. Although the
current Justice Department may not prosecute patients if they use marijuana
in a manner consistent with their states’ laws, the federal law remains
unchanged, and future administrations could return to previous enforcement

Disclosure forms provided by the authors are available with the full text of
this article at

Source Information

From the University of Maryland School of Law, Baltimore.


1. 14 Legal medical marijuana states: laws, fees and
possession limits. (Accessed April 1, 2010, at

2. Taylor T. Supporting research into the therapeutic role of marijuana.
Position paper. New York: American College of Physicians, 2008. (Accessed
April 1, 2010, at

3. Use of cannabis for medicinal purposes, report 3 of the Council on
Science and Public Health (I-09). Chicago: American Medical Association,
2009. (Accessed April 1, 2010, at

4. Degenhardt L, Hall WD. The adverse effects of cannabinoids:
implications for use of medical marijuana. CMAJ 2008;178:1685-1686. [Free
Full Text]


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