Action Item – Support our lawsuit to STOP HB21-1317 from becoming law
Click Here to Read HB21-1317 signed by Governor Polis on May 24, 2021. You can still sign the Veto Request, as the signatures are now becoming part of our lawsuit against this bill.
June 6, 2021
Dear Friends –
On behalf of Cannabis Clinicians Colorado, we ask that Governor Polis veto HB21-1317.
The sponsors of this bill seem to believe the 5% of registered medical marijuana patients who are 18-20 years old are more likely to both abuse cannabis concentrates and to illegally divert them to minors. Unfortunately, their solution is to restrict all medical marijuana going forward.
While we are 100% in favor of helping stop diversion of cannabis to minors and unauthorized persons, and 100% in favor of research on cannabis products and potencies, we cannot support this “throw the baby out with the bathwater” bill. If HB21-1317 passes into law as written, it will end Colorado’s medical marijuana program.
Why? 1) It violates both the constitution of the State of Colorado and federal DEA law by requiring cannabis physicians/providers to write a prescription for medical marijuana. In 1996, the 9th circuit court of appeals ruling Conant vs Walters paved the way for the Colorado medical marijuana amendment by highlighting the distinction between “recommending” and “prescribing”. The court ruled recommendations fall under the First Amendment right to free speech, while prescriptions are regulated by the DEA. Therefore, the DEA cannot punish a physician for recommending marijuana to a patient, but they can if the doctor writes a prescription for it. The difference between a recommendation and a prescription? Dispensing instructions. HB21-1317 requires the medical cannabis practitioner to include the following in the “recommendation”: the potency, dosage form, daily authorized quantity, and directions for use. Those are literally the definition of dispensing instructions. If this bill becomes law, doctors will be forced to break the law, risking their DEA and medical license. What doctor would do that? 87,000+ medical marijuana patients would lose access to their medicine.
2) It creates an undue burden on the patient by circumventing the Medical Practices Act to strip cannabis doctors of diagnosing rights. Under the Colorado Medical Practices Act, physicians and certain advanced practitioners are allowed to diagnose and treat patients as part of their practice. HB21-1317 seeks to wrongly limit the scope of practice for cannabis providers by no longer allowing them to diagnose patients themselves, thus forcing patients to pay for 2 medical visits: one to diagnose, and a second to recommend medical marijuana. This is social justice problem. Requiring medical records is fine for well-off patients who’ve enjoyed the privilege of health insurance and well-documented care, but impossible for sporadically insured and uninsured patients who can’t remember the name of the surgeon who fixed their knee in Texas 10 years ago. That’s why the one-visit-only cannabis recommendation for adults has been repeatedly upheld by CPDHE for over 20 years – it follows both the constitution and Medical Practices Act. If this bill passes, the 30% of our patients who use cannabis as their only medicine will lose all their healthcare.
The bill offers a work-around for the records requirement by waiving a previous diagnosis if the doctor approving medical marijuana is also the patient’s primary care provider. Again, this could work – but only for our most privileged patients. But it won’t. Primary care providers cannot write medical marijuana recommendations because providers who write medical marijuana recommendations cannot belong to health insurance networks. This is why only 1.6% of the 27,000+ active physicians in Colorado write cannabis recommendations, and why cannabis medicine is practiced in private, stand-alone clinics where the patients pay directly.
Unfortunately, no cannabis specialists were consulted for this bill. We believe a law setting purchase limits on high-potency concentrates is possible if it makes a distinction between different types of cannabis concentrates. Concentrates manufactured for inhaled use by dabbing such as wax, shatter, and rosin carry a higher risk for misuse in our clinical experience. Concentrates designed for ingestion such as honeyed oils, RSO/“Phoenix Tears”, and infused cooking oils have lower probability for misuse. The 40 gram limit was set with good intention that a rural cancer patient wanting to try a traditional RSO aka Rick Simpson Oil treatment could get the first 30 days worth of meds in one drive. How often does this happen? Rarely, as RSO is expensive. Vape pens do not give the same super-high potency hit as dabbing because of their significantly lower temperature po int, and so are often used as a rescue for acute episodic conditions. We are in favor of limiting purchases of inhaled concentrates intended for dabbing more strictly, while setting limits for concentrates intended for cancer care, oral use, and pre-packaged vape pen cartridges higher. This is not that bill.
We have other suggestions for a future bill, such as adding research on medicines and over-the-counter supplements that can be used to make people less high following overuse of cannabis. We applaud the CME/CNE/Continuing Education requirement for recommending providers, but it doesn’t go far enough. Quinnipiac University polls show 52% of Colorado adults have used cannabis in the past 5 years, yet fewer than 2% of Colorado physicians recommend it. Those 2% of physicians already know something about cannabis. There’s a 98% chance your primary care doctor knows nothing about a substance over half their patients have already tried. Let’s change that.
Please feel free to contact me directly.
Martha Montemayor CNC
Director, Cannabis Clinicians Colorado