Medical Marijuana Reciprocity: A Step Toward Interstate Commerce

In legal terms, reciprocity refers to one state’s recognition of the effect of another state’s law, and the illustration usually given is driver’s licenses. Someone who has a valid Texas driver’s license can expect to be able to drive a car in Arizona, so long as he or she obeys Arizona traffic laws.

Among states that permit medical marijuana use, however, only a very few recognize medical use by visitors who may legally use medical marijuana in their home state. Imagine the chaos that would follow if Arizona began arresting all out-of-state drivers. Now take the next step and think what that would do to the trucking industry. How about Arizona consumers? There wouldn’t be a single box of frozen peas in the state.

The lack of reciprocity among medical marijuana states makes it difficult for medical marijuana patients to travel.  It is a clear indication that legislators do not entirely trust the medical use of cannabis. (What if the medical use of statins to lower cholesterol were treated the same way?) More to the point for marijuana businesses, however, the lack of reciprocity hinders the development of interstate commerce. That will ultimately affect in-state consumers, as well.  It may also be a relatively easy problem to fix.


States with MMJ Reciprocity

Thirty-four states and the District of Columbia permit some medical use of marijuana, although some are limited to cannabidiol (CBD), and not all programs are operational yet. Of those jurisdictions, only seven: Arizona, Delaware, Maine, Michigan, Montana, Nevada and Rhode Island, explicitly permit legal medical marijuana visitors to use their medications in state.

Oregon appears to reach the same result through a ruling of the state Court of Appeals. The situation is not clear in California, and the likelihood of prosecution in Colorado and Washington, where recreational marijuana has been legalized, seems slim.

Even within these states, considerable variation exists as to what is permitted. If, for example, a patient legally uses marijuana to treat glaucoma at home, but glaucoma is not a condition for which it may be used in the state being visited, then the patient cannot use it, even if the visited state normally has medical marijuana reciprocity.

A patient may be permitted to use medication brought from home, but not to purchase the same thing from a dispensary. Nevada, on the other hand, has recently amended its medical marijuana statute to permit out-of-state patients to purchase marijuana at a dispensary on the basis of a sworn affidavit until 2016, after which date it will require cross-checking through a database that has yet to be developed. Michigan, in an apparent fit of pique, limits reciprocity to residents of only those states that extend the same privilege to Michiganders. It is chaotic, to say the least.


Prospects for Change

Between 2014 and 2016, the landscape for legalization may be fairly quiet. Not much seems likely on the federal level, unless it can be accomplished administratively. State legislatures have been reluctant to act on legalization, which is why advocates take the ballot initiative route. There will be plenty of positioning for 2016 initiatives, but perhaps not much legal progress until then.

There is a glimmer of hope, however, that where the hard work of adopting a medical marijuana statute has already been done, state legislatures might be willing to act to amend it to make it reciprocal. Many state medical marijuana laws are built on a model drafted by the Marijuana Policy Project. From a drafting standpoint, Nevada’s Senate Bill 374 may provide a useful template for reciprocity. To be fair, that leaves the challenge of building a database of medical marijuana patients, but it is not insurmountable. Health Canada already does this.

The economic benefit of a rational system of reciprocity may not be immediate. Most of the conversation now seems to focus on tourism and vacationers, the folks who want to leave it all behind in Las Vegas or the snowbirds of Arizona. But as more states legalize, the importance of uniform and reciprocal laws may become more obvious in those major metropolitan areas that overlap several states, New York, New Jersey and Connecticut or the District of Columbia and its suburbs in Maryland and Virginia, for example. The busy commuter who finds it easier to pick up medication at the dispensary around the corner from the office rather than from the dispensary at home may be the best customer.

Furthermore, and more importantly in the long run, reciprocity begins to lay the groundwork for interstate commerce in marijuana. That is certainly not in the immediate picture, but the industry that begins to prepare for it now will be in a position to prosper when federal legalization does arrive.

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