Viewpoint: Why Medical Marijuana Laws Are Not a Gateway to Adult Use Legislation

By William F. McDevitt | June 24, 2019

The 2018-2019 legislative sessions of Delaware, New Jersey, New York and Pennsylvania have all but ended without the passage of adult use cannabis legislation. This was especially surprising in New York and New Jersey, where adult use legislation reportedly failed by a mere handful of votes.

The Delaware Legislature saw a recreational use bill fail by just four votes in the 2017-2018 session and did not elect to call a vote on legalization in the 2018-2019 session. Similarly, Pennsylvania’s legalization measure, House Bill 50, was not moved out of the House Health Committee, and the text of Senate Bill 350, a proposed legalization measure co-sponsored by state senators Daylin Leach (Delaware/Montgomery) and Sharif Street (Philadelphia), was not introduced.

Industry observers are perplexed, especially those companies who invested in medical cannabis. It has been long thought a state’s acceptance of medical marijuana will naturally lead to legalization of adult use cannabis. Indeed, many companies entered the medical marijuana space to establish a market presence and infrastructure in advance of anticipated adult use cannabis.

So, why haven’t medical marijuana programs in the Mid-Atlantic states naturally led to legalization of adult use cannabis? Below are some of the fundamental differences between medical marijuana and adult use cannabis concerning legislators in the region:

  • Medical marijuana advocates have persuasive personal stories. Numerous legislators told stories of meeting constituents whose personal experience with medical marijuana changed their outlook on cannabis. A notable example is Mike Honig, who met with New Jersey legislators to explain how medical marijuana helped ease the pain of his son, Jake Honig, who died of brain cancer in 2018. New Jersey’s medical marijuana expansion bill is named after Jake Honig. Adult use advocates may focus on higher tax revenues or decreased elicit market activity (claims that have been subject to increased scrutiny following surplus cannabis production in Colorado and Oregon), but adult use does not carry the same emotional weight as medical marijuana.
  • Medical marijuana advocates can fully acknowledge that cannabis is a powerful drug. Medical marijuana advocates acknowledge cannabis is a drug that, under the supervision of a physician, can be used as a medical treatment. According to most polls, the majority of Americans believe this to be true, despite the FDA’s listing of marijuana as a Schedule I substance with no acceptable medical uses. Some religious groups like the Church of Jesus Christ of Latter Day Saints and the Orthodox Union prohibit members from using cannabis recreationally but support its medical use. Adult use advocates have to convince legislators that cannabis is an over-the-counter product individuals can use without supervision, regardless of the absence of any medical problems. This is a harder sell, especially if the potential medical benefits of cannabis are cited as a reason for legalization. Adult use lobbyists often cite a Johns Hopkins study that correlated lower rates of opioid abuse with the passage of adult use legislation (though a recent Stanford University study with a larger data sample has called this finding into question). Thus, the paradox in advocating for adult use is acknowledging that cannabis contains a powerful drug, but one that can be used safely with limited oversight.
  • Adult use is more closely associated with social justice. Both medical marijuana and adult use cannabis laws permit corporations (and in some states, individuals) to harvest, process and sell a product that has been the basis for hundreds of thousands of arrests, criminal convictions and penal sentences. But medical marijuana is only available to patients who register and obtain medical approvals. Even in adult use jurisdictions, medical marijuana is available for minors and persons who only wish to use the product with the approval and under the supervision of a physician. By contrast, adult use cannabis laws allow almost any adult individual to purchase and possess a regulated amount of cannabis for any reason. Adult use more closely mirrors the conduct that has served as the basis for the mass incarceration of thousands of Americans, a statistically disproportionate percentage of whom have been economically disadvantaged persons of Hispanic and/or African heritage. Expungement of prior cannabis-related convictions is becoming an essential requirement for adult use cannabis legislation. But reevaluating thousands of criminal cases, including cases in which people are still incarcerated, can undermine proposed legislation. Following the decision not to call a vote on a broad adult use bill, the New Jersey Legislature separated the expungement and decriminalization provisions into a separate bill. Decriminalization alone does not allow persons to grow or sell marijuana, but it precludes individuals from being prosecuted for possessing an established amount. Decriminalization reduces the number of new convictions, and expungement allows citizens with lesser convictions to enjoy greater opportunities to pursue education, employment and access to credit. By separately addressing social justice issues, New Jersey legislators hope to simplify the passage of a legalization measure.

Contrary to popular wisdom, medical marijuana laws are not a guaranteed gateway to adult use cannabis. In September, legislators will have a new opportunity to seek support for legalization. Over the summer, they will presumably attempt to convince their members that adult use, while different from medical use, can benefit their constituencies.

About William F. McDevitt

William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached at william.mcdevitt@wilsonelser.com.

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