[This article expands upon remarks originally
presented to the 4th annual National Clinical Conference on
Cannabis Therapeutics, April 8, 2006 in Santa Barbara, California.]
The medical use of cannabis presents many interesting public
policy problems in both the United States and Canada, interesting
unless one happens to be a patient in which case the problems
are more likely described as being frustrating, often physically
and emotionally painful, and most certainly urgent. How, then,
can the public policy process be utilized to alleviate the
suffering of patients in a timely manner?
These remarks focus on medical cannabis use in the United
States, but the general issues raised in this discussion may
provide useful perspectives for Canadians by providing an
approach that frames the issue in a useful and productive
fashion. There are five key questions that must be considered.
1) How many people are affected? 2) What problems do they
face? 3) What solutions have been tried? 4) Why must we address
this problem? 5) Where do we look for remedies? In my estimation
these questions have simple answers.
The National Survey on Drug Use and Health estimates that
there are over 25 million annual users of marijuana in the
United States. It is my general estimate that there are 2.5
million medical cannabis users in the United States, and the
basis for this estimate will be provided below.
The primary problem these people face is criminal prosecution.
While possession of small amounts of marijuana are decriminalized
or otherwise subject to minor penalties medical cannabis patients
often possess and/or grow larger quantities of marijuana than
occasional recreational users. Consequently medical cannabis
patients face prosecution for possession of marijuana with
an intent to distribute or sell; the average maximum state
penalty is a felony conviction and a 5.5 year prison sentence.
In the United States at best 25% of medical cannabis patients
receive protection under state and local laws. The various
solutions to this problem have been inadequate, often because
they do not affect enough individuals to be significant or
take too long to benefit existing patients in a timely manner.
The question of public ethics is frequently ignored when
this matter is debated. We must address this problem because
we have an ethical obligation to address the needs of individuals
suffering from disease and debilitating conditions. The US
Supreme Court ruled in 1962 in the case of Robinson v.
California that it was cruel and unusual punishment to
make addiction a criminal offense. Similarly it is against
the moral convictions of most North Americans to send the
police out to arrest and imprison people whose only intent
is to seek therapeutic relief. The issue is not whether cannabis
is or is not an approved medicine, the issue is the intent
of the individual whose behavior is being subjected to the
law. An amputee who smokes cannabis to relieve pain should
not be subjected to laws that were passed solely to express
public intent to punish or deter people for the drug's casual
However both public ethics and the need for comprehensive,
national, and timely legislation are frequently ignored in
favor of political expediency by both supporters and determined
by the opponents of medical cannabis reform. Where we look
for remedies is determined by the people affected and the
nature of the problems they face, not the path of least resistance
that advances the careers of political activists.
To estimate the number of medical cannabis users in the United
States it is necessary to revisit the National
Survey on Drug Use and Health (NSDUH), sponsored the Substance
Abuse and Mental Health Services Administration (SAMHSA) of
the US Department of Health and Human Services (HHS). This
extensive survey provides the official benchmarks for evaluating
marijuana use and related public policies in the US. In the
late 1990s NSDUH estimated that approximately 19 to 20 million
people used marijuana on an annual basis in the US. After
paying people to complete the survey, improving the accuracy
of estimates, the estimate of annual marijuana use in the
US increased to nearly 26 million in 2002. It's not that the
number of annual users increased suddenly by 25%, it's just
that the improved survey process provided more accurate measurements
of marijuana use.
NSDUH provides the best data with which to estimate the number
of medical cannabis users in the United States. NSDUH is a
very sophisticated and extensive survey, and while it does
not ask people about medical cannabis use it does provide
minimal data that supports a broad estimate. This estimate
will be produced by a modeling approach derived from known
limits and a few basic assumptions. It is reasonable, for
example, to assume that medical cannabis users are a subset
of the 26 million annual users of marijuana.
One proxy variable for medical marijuana use is the presence
of a disability on the part of a marijuana user. The survey
asks ""Did any physical, mental, or emotional problem
limit you in the kind or amount of work you could do during
most of the past 12 months?" One subset of annual marijuana
users which likely includes medical cannabis users are individual
who use marijuana and have had their ability to work limited
or prevented by a physical, mental, or emotional disability.
One million people have been kept from work from some disability
and have also used marijuana in the last year. When considering
people who have had their work limited by a disability and
had used marijuana in the last month, an estimate of 1.24
million is produced. Also, there is a subset of annual marijuana
users who also spent six or more nights in a hospital; this
group numbers 220,000. An important assumption in this estimation
is that for every one with limited work that is not a medical
cannabis user there is a medical cannabis user whose work
was not limited. On this basis a low estimate of medical cannabis
users in the United States is 1.4 million.
A higher estimate of medical cannabis users is based on the
number of people whose work has been limited by a disability
and have used marijuana in the last year. There are 2.4 million
annual marijuana users who also report that their ability
to work has been limited by a physical, mental, or emotional
problem. Add to them the 220,000 who have spent several days
in the hospital, utilize the same general assumption as with
the low estimate, and the result is a high estimate of 2.6
million medical cannabis users in the United States.
When compared to the estimate of 26 million total annual
users, these estimates suggest that medical cannabis users
account for 5% to 10% of use in the United States. This is
important for several reasons. NSDUH is also used by the US
government to generate estimates of annual marijuana use on
a state by state basis. If 5% to 10% of annual marijuana users
are medical cannabis users, then it is reasonable to apply
that estimate on a state by state basis producing estimates,
for example, of a total of 168,000 and 338,000 in California,
51,000 to 102,000 in Pennsylvania, 19,000 to 38,000 in Tennessee,
and 6,400 and 12,800 in Nebraska.
One of the benefits of a modeling approach is that it invites
disagreement. Obviously, if one were to adjust the assumptions
of this model it would change the results. Critics and analysts
are encouraged to refine this model and/or challenge the assumptions
upon which it is based. However, while necessary in many respects,
such a debate is irrelevant to the overall need for remedies.
Ethically, it doesn't matter if the number of medical cannabis
users represents 1%, 5%, 10% or even 25% of all annual marijuana
users. The magnitude of the estimate doesn't change the ethical
dilemma for the public. A significant portion of marijuana
users use the drug for therapeutic relief rather than merely
as a hedonistic pursuit - and it conflicts with the public's
ethics to subject them to criminal prosecution and prison
sentences of any length.
In Arkansas the maximum penalty for the sale of 4 ounces
of marijuana is 10 years, according to the National Organization
for the Reform of Marijuana Laws (NORML). In Florida it is
5 years, Michigan has a 4 year penalty, New Hampshire has
a 7 year penalty and in Oklahoma the penalty is 25 years.
Individuals who are arrested with 4 ounces or more of marijuana
are often charged with an intent to distribute. Anyone who
is arrested with enough marijuana for a year's consumption
or growing enough marijuana to produce a year's supply is
likely to be charged with a sales or manufacturing offense,
often justified by the opinion of law enforcement that the
amount of marijuana involved was more than an individual would
consume in a year.
It can and has been argued that law enforcement has little
interest in targeting medical cannabis users and that the
courts have little interests in subjecting them, or anyone
for that matter, to the maximum penalties available in this
sort of case. However, even in this generous light, it is
hard to justify granting the police and the courts with the
discretion to impose such a sentence should the circumstances
justify it. There simply is no justification to subjecting
an individual who grows marijuana for personal medical use
to relieve the symptoms of a medical condition to prosecution
for felony crimes requiring multiple year prison sentences.
There are no circumstances that justify subjecting a cancer
patient to a five year prison term for seeking relief from
the nausea associated with chemotherapy by using cannabis.
It simply does not matter that other medications are available
— making a personal choice about medical treatment should
not be a criminal offense.
There have been a number of proposed solutions for these
problems, including experimental research programs, state-level
reforms, and recognition of medical use as a defense against
prosecution for felony possession and/or manufacture. One
can take a detour into their actual provisions; it is an interesting
exercise in the study of the public policy process that obscures
what is otherwise an obvious problem. The problem with these
approaches, as with the development of pharmaceutical products,
is that they don't offer protections for all patients in a
timely manner. Patients need access to medical cannabis now,
in the short term.
Suggesting to patients that one course of action or another
will provide limited access at some distant point in the future
is not an acceptable answer for many patients and/or their
families. Passage of legislation in Illinois, for example,
doesn't do anything for medical cannabis patients in Kansas.
Neither does passage of congressional legislation that prevents
the federal government from enforcing federal law in states
with local protections for patients. A national solution is
required because the patients requiring assistance are in
every part of the nation. A timely solution is required because
therapeutic relief is a necessity rather than a luxury that
can be deferred. Ethics require that the interests of patients
come first. Patients need relief from prosecution throughout
the entire country, and they need legal access, as soon as
possible, under federal law and regulations.
The most important remedies, thus, are state and local level
protections from prosecution. The challenge of creating just,
effective laws and regulations addressing the public policy
problems caused by medical cannabis use must not used as an
excuse to avoid the urgency of the problems faced by individual
patients. There are compelling moral, ethical, and practical
arguments why therapeutic cannabis users should not be classified
as criminals by society and the law. Contemporary marijuana
laws persist to express societal disapproval of recreational
marijuana use and to deter casual, non-medical use. These
laws were enacted for a different purpose than to criminalize
individuals seeking relief from chronic pain. That aspect
of the law is the biggest problem for medical cannabis users,
and it should be the first priority of public policy efforts
seeking to respond to the needs of patients. They need to
be protected from prosecution.
Medical cannabis patients require immediate relief from prosecution,
protections for all patients in all states and territories,
followed by short-term federally regulated access (such as
in the form of state-managed research programs) and long-term,
federally regulated drug and analog development.
More specific steps are: 1) Institute state-level protections
from prosecution; 2) Reschedule cannabis under federal Controlled
Substances Act; 3) Implement manufacturing and distribution
regulations consistent with the new scheduling status; 4)
Follow the Institute of Medicine recommendation to provide
for n=1 research programs under federal or state auspices;
and 5) Design and implement policies designed to make medical
cannabis manufacture and distribution consistent with US federal
food, drug, and cosmetic laws.
This last point requires some elaboration. The needs of patients
require that we tailor our policy recommendations to their
benefit. Cannabis is an easily produced substance and relatively
safe to use; indeed it is widely produced and used throughout
North America. Cannabis need not be approved as "medicine"
under federal laws to be available to patients for therapeutic
use. Indeed the most efficient set of regulations for both
medical cannabis users and the general public would be to
have cannabis production and sales regulated for safety, purity,
and controlled access and leave the issue of medical effectiveness
up to the practice of informed consent. In other words, it
will be less expensive for everybody to allow for marijuana's
use outside the closed system of medical approval and controlled
The process of drug development is immensely expensive. Rescheduling
marijuana in the United States will provide greater certainty
about the future regulatory environment, which, in turn, should
expedite the flow of capital into cannabinoid drug development.
This will eventually produce great benefits for patients,
but those benefits will be in the future, they will be expensive
to produce, and regardless of criminal laws and public health
regulations those benefits will still have to compete with
the availability of illicitly grown and sold marijuana. Marijuana
is available now and will, regardless of the law, be available
in the future. Let's save everybody involved a lot of time
and money and recognize the reality of the situation.
What is the ethical justification for extracting huge amounts
of capital from the sick, their families, and the general
public when there is an efficient and substantially less costly
alternative available? Medical cannabis patients are already
being exploited by the market. For example, even in California
where patients are protected by state law medical cannabis
is frequently sold at prices set by the illicit market —
several hundred dollars per ounce. What patients need are
federal regulations that expedite access, provide consistent
supply, reduce costs, and protect them from exploitation.
Efficient solutions to these problems exist that address both
the needs of patients and the public. The key to reaching
them is to stay focused on the actual problems of patients
and the ethical challenges these problems present to society.
The public policy process works best when it is confronted
with real problems, legitimate interests, and appeals to common
values. The way to get the public policy process to address
the needs of medical cannabis patients is to sharpen the focus
of public debate on the most pressing problems these individuals
face — prosecution for exercising their right to choose
a course of medical treatment. Honestly addressing this fundamental
problem is the key to unlocking the ability of the public
policy process to address the needs of medical cannabis users.
The key to using the public policy process to resolve the
medical cannabis crises in North America is to make sure we
elevate the interests of patients over those of the political
class that serves them.