Report to the Chairman, Subcommittee

on Criminal Justice, Drug Policy and

Human Resources, Committee on

Government Reform,

U.S. House of Representatives

United States General Accounting Office

GAO

November 2002 MARIJUANA

Early Experiences

with Four States’

Laws That Allow Use

for Medical Purposes

GAO-03-189
Page i GAO-03-189 State Medical Marijuana Laws

Letter 1

Results in Brief 3

Background 5

Implementation in Oregon, Alaska, Hawaii, and California 8

Few Registrants, Most with Severe Pain or Muscle Spasms 21

Few Physicians Make Marijuana Recommendations; Some

Guidance Available 26

Difficult to Measure the Impact of State Medical Marijuana Laws

on Law Enforcement Activities 30

Agency Comments and Our Evaluation 35

Appendix I Objectives, Scope, and Methodology 40

Objectives 40

Scope and Methodology: State Selection and Data 40

Scope and Methodology: Law Enforcement Opinions 41

Appendix II The Supreme Court’s Decision in United States v.

Oakland Cannabis Buyers’ Cooperative 44

Appendix III Medical Marijuana Registries in Oregon, Alaska,

Hawaii, and Select California Counties 46

Oregon 46

Alaska 46

Hawaii 47

California 49

Appendix IV Descriptions of Allowable Conditions under State

Medical Marijuana Laws 51

Appendix V Comments from the Department of Justice 54

Appendix VI GAO Contacts and Staff Acknowledgments 59

GAO Contacts 59

Staff Acknowledgments 59

Contents
Page ii GAO-03-189 State Medical Marijuana Laws

Tables

Table 1: Registry Requirements and Verification Procedures in

Oregon, Alaska and Hawaii, as of July 2002 11

Table 2: Definition and Provisions Regarding Caregivers in Oregon,

Alaska and Hawaii 15

Table 3: Allowable Conditions for Medical Marijuana Use in Four

States17

Table 4: Permissible Amounts of Medical Marijuana and Plant

Maturity in Oregon, Alaska, and Hawaii 18

Table 5: Safety and Public Use Restrictions in Oregon, Alaska,

Hawaii and California 20

Table 6: Medical Marijuana Registrants in Oregon, Hawaii, and

Alaska, by Projected 2002 State Population 22

Table 7: Registrants in Four California Counties by County

Population 23

Table 8: Registrant Age in Alaska, Hawaii and Oregon 23

Table 9: Registrant Conditions in Oregon and Hawaii 25

Table 10: Number of Marijuana Recommendations Made by Oregon

Physicians, as of February 2002 28

Table 11: Doctor Guidance Provided by Selected State Medical

Organizations 29

Figures

Figure 1: Example of Oregon’s Medical Marijuana Registry Card 10

Figure 2: Example of San Francisco’s Medical Marijuana Registry

Cards 13

Figure 3: Example of Alaska’s Medical Marijuana Certification Card 47

Figure 4: Example of Hawaii’s Medical Marijuana Registry Card 48

Abbreviations

CSA Controlled Substances Act of 1970

DEA Drug Enforcement Administration

FBI Federal Bureau of Investigation

HHS Department of Health and Human Services

UCR Uniform Crime Reports
Page 1 GAO-03-189 State Medical Marijuana Laws

November 1, 2002

The Honorable Mark Souder

Chairman, Subcommittee on Criminal Justice,

 Drug Policy and Human Resources

Committee on Government Reform

House of Representatives

Dear Mr. Chairman:

A number of states have adopted laws that allow medical use of marijuana.

Federal law, however, does not recognize any accepted medical use for

marijuana and individuals remain subject to federal prosecution for

marijuana possession. Debate continues over the medical effectiveness of

marijuana, and over government policies surrounding medical use. A bill

introduced in the House of Representatives in July 2001 would modify the

federal classification of marijuana and allow doctors, in states with

medical marijuana laws, to recommend or prescribe marijuana.1

 As the

debate continues, so has interest in how state medical marijuana programs

are operating, and in the issues faced by federal and state law enforcement

officials in enforcing criminal marijuana provisions. 2

This report responds to your request that we examine the implementation

of medical marijuana laws in selected states. We did not examine the

effectiveness of states’ or local jurisdictions efforts to administer their

programs and did not judge the validity of their approaches for

implementing states’ laws. As agreed with your staff, we selected Oregon,

Alaska, Hawaii, and California because they had medical marijuana laws in

effect for at least 6 months and, according to our preliminary work, some

 1

States’ Rights to Medical Marijuana Act, H.R. 2592, 107th Cong. (2001). Status as of August

5, 2002: Referred to House Energy and Commerce, Subcommittee on Health on July 31,

2001.

2

Throughout this report, we use the phrase medical marijuana to describe marijuana use

that qualifies for a medical use exception under state law.

United States General Accounting Office

Washington, DC 20548
Page 2 GAO-03-189 State Medical Marijuana Laws

data was available on patient and physician participation.3 For these

states, we are reporting on (1) their approach to implementing their

medical marijuana laws and how these approaches compare, and the

results of any state audits or reviews; (2) the number, age, gender, and

medical conditions of patients that have had doctors recommend

marijuana for medical use in each state; (3) how many doctors are known

to have recommended marijuana in each state, and what guidance is

available for making these recommendations; and (4) the perceptions of

federal and state law enforcement officials, and whether data are available

to show how the enforcement of state marijuana laws has been affected by

the introduction of these states’ medical marijuana laws.

In conducting our work, we examined applicable federal and state laws

and regulations and spoke with responsible program officials in Oregon,

Alaska, Hawaii, and California. In the four states, we obtained and

analyzed available information on program implementation, program

audits, and program participation by patients and doctors. We also met

with various federal, state, and local law enforcement officials—including

officials with the Drug Enforcement Administration (DEA) and U.S.

Attorneys offices in Washington, D.C., and the four selected states—to

discuss data on arrests and prosecutions and views on the impact of the

state’s medical marijuana laws on their law enforcement efforts.

Results from our review of these states cannot be generalized to other

states with state medical marijuana laws, nor are they generalizable across

the states selected for review. Similarly, in California, the information

from the local jurisdictions we reviewed cannot be generalized to all local

jurisdictions in California. We conducted our review between September

2001 and June 2002 in accordance with generally accepted government

auditing standards. (Appendix I describes our scope and methodology in

greater detail.)

 3

According to United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483,

502 n.4 (2001), eight states have enacted medical marijuana laws. We selected four of those

states based on the length of time the laws had been in place and the availability of data.

Two of the eight states, Nevada and Colorado, were not selected because their laws had

not been in place for at least 6 months when our review began. Also, at the time of our

review, two other states, Maine and Washington, did not have state registries to obtain

information on program registrants. Alaska, Oregon, and Hawaii have state registries and

had laws in place for at least 6 months. California’s law was enacted in1996. California does

not have a participant registry, but based on our preliminary work, some local registry

information was available.
Page 3 GAO-03-189 State Medical Marijuana Laws

State laws in Oregon, Alaska, Hawaii, and California allow medical use of

marijuana under specified conditions. All four states require a patient to

have a physician's recommendation to be eligible for medical marijuana

use. Alaska, Hawaii, and Oregon have established state-run registries for

patients and caregivers to document their eligibility to engage in medical

marijuana use; these states require physician documentation of a person’s

debilitating condition to register. Laws in these three states also establish

maximum allowable amounts of marijuana for medical purposes.

California's law does not establish a state-run registry or establish

maximum allowable amounts of marijuana. Some local California

jurisdictions have developed their own guidelines and voluntary registries.

Oregon has changed some verification practices and administrative

procedures as a result of a review of their medical marijuana program.

Relatively few people had registered to use marijuana for medical

purposes in Oregon, Hawaii, and Alaska. As of Spring 2002, about

2,450 people, or about 0.05 percent of the total population of the three

states combined, had registered as medical marijuana users. Statewide

figures for California are unknown. In Oregon, Alaska, and Hawaii, over

70 percent of registrants were over 40 years of age or older, and in Hawaii

and Oregon, the two states where gender information is collected, about

70 percent of registrants were men. Data from Hawaii and Oregon also

showed that about 75 percent and more than 80 percent respectively, of

the physician recommendations were for severe pain and conditions

associated with muscle spasms, such as multiple sclerosis. Statewide

figures on gender and medical conditions were not available for Alaska or

California.

Hawaii and Oregon were the only two states that had data on the number

of physicians recommending marijuana. As of February 2002, less than one

percent of the approximately 5,700 physicians in Hawaii and three percent

of Oregon’s physicians out of about 12,900 had recommended marijuana to

their patients. Oregon also was the only state that maintained data on the

number of times individual physicians recommended marijuana—as of

February 2002, about 62 percent of the Oregon physicians recommending

marijuana made one recommendation. Professional medical associations

in all four states provided some guidance to physicians. The associations

caution physicians about the legal issues facing them, or give advice on

practices to follow and avoid. Most state medical board officials said they

would only become involved with physicians recommending marijuana in

cases where a complaint was filed against a physician for violating state

medical practice standards. California’s medical board provides informal

guidelines on making marijuana recommendations to their patients.

Results in Brief
Page 4 GAO-03-189 State Medical Marijuana Laws

Data were not readily available to measure how marijuana-related law

enforcement has been affected by the introduction of medical marijuana

laws. To assess the relationship between trends in marijuana-related law

enforcement activities and the passage of medical marijuana laws would

require a statistical analysis over time that included measures of law

enforcement activities, such as arrests, as well as data on other factors

that are not easily measured, such as changes in perceptions about

marijuana and shifts in law enforcement priorities. Officials from over half

of the 37 selected federal, state, and local law enforcement organizations

we interviewed in the four states said that the introduction of medical

marijuana laws had not greatly affected their law enforcement activities.

These officials indicated that they had not encountered situations

involving a medical marijuana defense or they had other drug priorities.

However, officials with some of the organizations told us that the laws in

their states had made it more difficult to prosecute marijuana cases where

medical use might be claimed; there was confusion over how to handle

seized marijuana; and that, in their view, the laws had softened public

attitudes toward marijuana.

In commenting on a draft of this report, the Department of Justice (DOJ)

said that we fully described the current status of the programs in the states

reviewed. However, DOJ stated that we failed to adequately address some

of the serious difficulties associated with such programs. Specifically, DOJ

commented that the report did not adequately address issues related to the

(1) inherent conflict between state laws permitting the use of marijuana

and federal laws that do not; (2) potential for facilitating illegal trafficking;

(3) impact of such laws on cooperation among federal, state, and local law

enforcement; and (4) lack of data on the medicinal value of marijuana.

DOJ further stated that our use of the phrase “medical marijuana”

implicitly accepts a premise that is contrary to existing federal law.

We disagree. We believe the report adequately addresses the issues within

the scope of our review. With respect to DOJ’s first issue, our report

describes how laws in the selected states and federal law treat the use of

marijuana—the opening paragraph of our report specifically states that

federal law does not recognize any accepted medical use of marijuana and

individuals remain subject to federal prosecution for marijuana possession

regardless of state medical marijuana laws. With regard to the second and

third issues raised by DOJ concerning the potential for facilitating illegal

trafficking and the impact on cooperation between federal, state, and local

law enforcement officials, respectively, we interviewed federal, state, and

local law enforcement officials about their perceptions concerning the

impact of state medical marijuana laws on their activities and our report
Page 5 GAO-03-189 State Medical Marijuana Laws

conveys the views and opinions of those officials. However, based on

comments from law enforcement officials on a draft section of this report,

we modified our report to discuss some of the issues law enforcement

faces when dealing with medical marijuana laws and seized marijuana.

Concerning the fourth issue—the lack of data on marijuana’s medical

value--our report discusses that a continuing debate exists over the

medical value of marijuana, but an analysis of the scientific aspects of this

debate was beyond the scope of our review.

Finally, we disagree with DOJ’s comment that our use of the phrase

medical marijuana accepts a premise contrary to federal law. The

introduction to our report specifically states that, throughout the report,

we use the phrase medical marijuana to describe marijuana use that

qualifies for a medical use exception under state law. Our detailed

response to DOJ’s comments is provided on pages 35 to 38 and we have

reprinted a copy of DOJ’s comments in appendix V.

The cannabis plant, commonly known as marijuana, is the most widely

used illicit drug in the United States. According to recent national survey

figures, over 75 percent of the 14 million illicit drug users 12 years or older

are estimated to have used marijuana alone or with other drugs in the

month prior to the survey.4

 Marijuana can be consumed in food or drinks,

but most commonly dried portions of the leaves and flowers are smoked.

Marijuana is widely used and the only major drug of abuse grown within

the United States borders, according to the Drug Enforcement

Administration.

Marijuana is a controlled substance under federal law and is classified in

the most restrictive of categories of drugs by the federal government. The

federal Controlled Substances Act of 1970 (CSA)5

 places all federally

controlled substances into one of five “schedules,” depending on the

drug’s likelihood for abuse or dependence, and whether the drug has an

accepted medical use.6

 Marijuana is classified under Schedule I,7 the

classification reserved for drugs that have been found by the federal

 4

U.S. Department of Health and Human Services, Substance Abuse and Mental Health

Services Administration (SAMHSA), National Household Survey on Drug Abuse 2000.

Hashish is included by SAMHSA in the statistic for marijuana use.

5

21 U.S.C. §§ 801 to 971.

6

Id. § 812(a), (b).

7

Id. § 812(c), Schedule I (c)(10).

Background
Page 6 GAO-03-189 State Medical Marijuana Laws

government to have a high abuse potential, a lack of accepted safety under

medical supervision, and no currently accepted medical use.8

 In contrast,

the other schedules are for drugs of varying addictive properties, but

found by the federal government to have a currently accepted medical

use.9

 The CSA does not allow Schedule I drugs to be dispensed upon a

prescription, unlike drugs in the other schedules.10 In particular, the CSA

provides federal sanctions for possession, manufacture, distribution or

dispensing of Schedule I substances, including marijuana, except in the

context of a government-approved research project.11

The potential medical value of marijuana has been a continuing debate.

For example, beginning in 1978, the federal government allowed the first

patient to use marijuana as medicine under the “Single Patient

Investigational New Drug” procedure, which allows treatment for

individual patients using drugs that have not been approved by the Food

and Drug Administration. An additional 12 patients were approved under

the procedure between 1978 and 1992. When the volume of applicants

tripled, the Secretary of the Department of Health and Human Services

(HHS) decided not to supply marijuana to any more patients. According to

Kuromiya v. United States, HHS concluded that the use of the single

patient Investigational New Drug procedure would not yield useful data to

resolve the remaining safety and effectiveness issues.12

 8

Schedule I includes drugs such as heroin, lysergic acid diethylamide (LSD) and other

hallucinogenic substances. 21 C.F.R. 1308.11(c), (d).

9

Id. § 812(b)(2)-(5).

10Id. § 829. DEA rejected petitions in 1992 and 2001 to reschedule marijuana to schedule II.

See Notice of Denial of Petition, 66 Fed. Reg. 20038 (2001); Marijuana Scheduling Petition;

Denial of Petition; Remand, 57 Fed. Reg. 10499 (1992) (final order affirming the 1989 denial

after remand); Marijuana Scheduling Petition; Denial of Petition, 54 Fed. Reg. 53767 (1989).

11Id. § 823(f), 841(a)(1), 844.

12See 78 F. Supp. 2d 367 (E.D.Pa.1999). In the Kuromiya case, a group of approximately

160 plaintiffs raised an equal protection challenge to the administration of the “Single

Patient Investigational New Drug” program. The plaintiffs contended that they were

similarly situated to patients currently receiving marijuana under the program and that the

government acted unconstitutionally in denying them access to the same program. The

court concluded that the government had a rational basis for its decision not to supply

marijuana to the plaintiffs through this program and granted the government's motion for

summary judgment.
Page 7 GAO-03-189 State Medical Marijuana Laws

In 1999, an Institute of Medicine study13 commissioned by the White House

Office of National Drug Control Policy recognized both a potential

therapeutic value and potential harmful effects, particularly the harmful

effects from smoked marijuana. The study called for more research on the

physiological and psychological effects of marijuana and on better delivery

systems. A 2001 report by the American Medical Association’s Council on

Scientific Affairs also summarized the medical and scientific research in

this area, similarly calling for more research.14

In May 1999, HHS released procedures allowing researchers not funded by

the National Institute of Health to obtain research-grade marijuana for

approved clinical studies. Sixteen proposals have been submitted for

research under these procedures, and seven of the proposals had been

approved as of May 2002.

Some states have passed laws that create a medical use exception to

otherwise applicable state marijuana sanctions. California was the first

state to pass such a law in 1996 when California voters passed a ballot

initiative, Proposition 215 (The Compassionate Use Act of 1996) that

removed certain state criminal penalties for the medical use of marijuana.15

Since then, voters in Oregon, Alaska, Colorado, Maine, Washington and

Nevada have passed medical marijuana initiatives, and Hawaii has enacted

a medical marijuana measure through its legislature. While state criminal

penalties do not apply to medical marijuana users defined by the state’s

statute, federal penalties remain, as determined by the Supreme Court in

United States v. Oakland Cannabis Buyers’ Cooperative.

16 (Appendix II

provides more information on the Supreme Court’s decision.)

In California, Alaska, and Oregon, where voters passed medical marijuana

laws through ballot initiatives, each state provided an official ballot

pamphlet, which included the text of the proposed law and arguments

 13National Academy of Sciences, Institute of Medicine, “Marijuana and Medicine: Assessing

the Science Base.” 1999.

14American Medical Association, Council on Scientific Affairs Report: Medical Marijuana

(A-01), June, 2001.

15The medical use exception in the states we reviewed allows growing or possessing

marijuana for the purpose of the patient’s personal medical use, and does not extend to

other state marijuana prohibitions such as distribution outside the patient-caregiver

relationship or any sale of marijuana.

16532 U.S. 483 (2001).
Page 8 GAO-03-189 State Medical Marijuana Laws

from proponents and opponents. Opponents of the initiatives referred to

federal marijuana prohibitions, legal marijuana alternatives, and evidence

of the dangers of smoked marijuana. Proponents referred to supportive

studies and positive statements from medical personnel. In Hawaii, where

the state legislature enacted the medical marijuana measure, law

enforcement officials, advocacy groups, and medical professionals made

similar arguments for or against the proposed law during the legislative

process.

Oregon, Alaska, Hawaii, and California laws allow medical use of

marijuana under certain conditions. 17 All four states require a patient to

have a physician’s recommendation to be eligible for medical marijuana.

Consistent with their laws, Oregon, Alaska, and Hawaii also have

designated a state agency to administer patient registries—which

document a patient’s eligibility to use medical marijuana based on the

written certification of a licensed physician—and issue cards to identify

certified registrants. Also, laws in Oregon, Alaska, and Hawaii establish

limits on the amounts of marijuana a patient is allowed to possess for

medical purposes. California does not provide for state implementation of

its law. In particular, California has not delegated authority to a state

agency or established a statewide patient registry. In addition, California

law does not prescribe a specific amount of marijuana that can be

possessed for medical purposes. In the absence of specific statutory

language, some local California jurisdictions have established their own

registries, physician certification requirements, and guidelines for

allowable marijuana amounts for medical purposes. Only Oregon has

reviewed its medical marijuana program, and as a result of that review, has

changed some of its procedures and practices, including verifying all

doctor recommendations.

To document their eligibility to engage in medical marijuana use,

applicants in Oregon, Alaska, and Hawaii must register with state agencies

charged with implementing provisions of the medical marijuana laws in

those states (hereinafter referred to as registry states). In Oregon, the

Department of Human Services is responsible, and in Alaska, the

 17The states’ medical marijuana laws appear at Alaska Stat. Ann. 11.71.090, 17.37.010 to

17.37.080; Cal. Health & Safety Code Ann. 11362.5; Haw. Rev. Stat. 329-121 to 329-128; and

Ore. Rev. Stat. 475.300 to 475.346. Alaska’s Hawaii’s and Oregon’s administrative

regulations appear at Alaska Admin. Code, tit. 7, ch. 34; Haw. Admin. R., tit. 23, ch. 202; and

Ore. Admin. R., ch. 333, div. 8. There are no regulations under California’s law.

Implementation in

Oregon, Alaska,

Hawaii, and California

States and Some Local

California Jurisdictions

Maintain Medical

Marijuana Registries
Page 9 GAO-03-189 State Medical Marijuana Laws

Department of Health and Social Services. In Hawaii, the Narcotics

Enforcement Division within the Department of Public Safety is

responsible for the state’s medical marijuana registry. Applicants meeting

state requirements are entered into a registry maintained by each state. In

California, a number of counties have established voluntary registries to

certify eligibility under the state’ s medical marijuana law.18

The three registry states, Oregon, Alaska and Hawaii, have similar registry

requirements. Potential registrants must supply written documentation by

a physician licensed in that state certifying that the person suffers from a

debilitating medical condition (as defined by the state statute) and in the

physician’s opinion would benefit from the use of marijuana. They also

must provide information on the name, address, and birth date of the

applicant (and of their caregiver, where one is specified) along with

identification to verify the personal information. In each state, registry

agencies must verify the information in the application based on

procedures set in that state’s statutes or regulations before issuing the

applicant a medical marijuana identification card. All three states allow

law enforcement officers to rely upon registry applications in lieu of

registry cards to determine whether a medical use exception applies.

Figure 1 provides an example of the registry card issued by Oregon.

(Appendix III provides examples of registry cards from Alaska and

Hawaii.)

 18Under Alaska’s and Hawaii’s statutes, patients and caregivers must strictly comply with

the registration requirement in order to receive legal protection; unregistered persons may

not present a medical use defense to a marijuana prosecution in these states. See Alaska

Stat. Ann. 11.71.090; Haw. Rev. Stat. 329-125. Under Oregon’s statute, unregistered patients

who have substantially complied with the act may raise such a defense to a marijuana

prosecution, while registered persons are excepted from criminal charges, so long as they

meet the act’s quantity and use restrictions. See Ore. Rev. Stat. 475.306, 475.316, 475.319,

475.342. Because California’s law does not establish a state-run registry, a medical use

defense may be established by any individual meeting the act’s substantive requirements,

that is, patients whose doctors have recommended marijuana to treat an allowed medical

condition and their primary caregivers. See Cal. Health & Safety Code Ann. 11362.5; see also

People v. Mower, No. S094490, 2002 Cal. Lexis 4520 (July 18, 2002), in which the California

Supreme Court interprets California’s medical marijuana act.
Page 10 GAO-03-189 State Medical Marijuana Laws

Figure 1: Example of Oregon’s Medical Marijuana Registry Card

Source: Oregon Department of Human Services.

Hawaii’s Department of Public Safety requires that doctors submit the

completed registry application to the state agency, and if approved, the

medical use certification is returned to the doctor for issuance to their

patient. By contrast, registry agencies in Oregon and Alaska require that

the registry card applicant submit the physician statement as part of the

application, and issue the card directly to the patient. Alaska allows

registry cards to be revoked if the registrant commits an offense involving

a controlled substance of any type, whereas Oregon and Hawaii allow

registry cards to be revoked only for marijuana-related offenses, such as

sale. Table 1 summarizes registry requirements and verification

procedures of the responsible agencies in each registry state as of July

2002.
Page 11 GAO-03-189 State Medical Marijuana Laws

Table 1: Registry Requirements and Verification Procedures in Oregon, Alaska and Hawaii, as of July 2002

Registry requirements Oregon Alaska Hawaii

Completed application form xa (submitted by

applicant)

x (submitted by

applicant)

x (submitted by

physician)

Written physician documentation x bx cx d

Applicant name, address and date of birth. Must include a copy of a

current photographic identification card, such as license, or ID card

number

xx x

Primary caregiver name, address and date of birth. Must include a copy

of a current photographic identification card, such as license, or ID card

number

xx x

Sworn caregiver statement on department form regarding lack of felony

drug conviction, not on probation or parole, and over 21

x

Address of site where marijuana will be produced x x

Annual renewal for registry card x x x

Minors: parents declaration form and agreement to serve as minor’s

caregiver

x (must be

notarized)

x x

Registration fee $150 $25 first time

$20 renewal

$25

Registry Verification Procedures

Doctor has a valid license in state x x x

Verification call or letter sent to doctor re: recommendation x xe x

Patient contacted to validate application information x xe x

Caregiver contacted to validate application information xexexe

Registry checked to assure caregiver only serves one patient x

a

A legible written statement with all the form information included will be accepted.

b

Attending physician completes a state declaration form that the person has been diagnosed with a

debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or

effects of the patient’s condition, or applicant provides medical records of debilitating condition signed

by physician that contains all information required on physician form.

c

Signed physician statement that the patient was examined within bona fide relationship and is

diagnosed with a debilitating medical condition, other medications were considered and that patient

might benefit from marijuana.

d

Signed statement that in the physician’s opinion, the qualifying patient has a debilitating medical

condition and the potential benefits of the medical use of marijuana would likely outweigh the health

risks for the qualifying patient, OR medical records with same information.

e

Agency officials verify when they believe it is appropriate.

Source: Oregon, Alaska, and Hawaii medical marijuana state statutes, administrative rules and

program officials.

California’s statute does not establish a state registry or require that a

person or caregiver be registered to qualify for a medical use exception.

California’s law requires that medical use has been recommended by a

physician who has determined that the person’s health would benefit from

the use of marijuana for certain symptoms or conditions. The exception

applies based “upon the written or oral recommendation or approval of a
Page 12 GAO-03-189 State Medical Marijuana Laws

physician.” After the medical marijuana law was passed, the California

Attorney General assembled a task force to discuss implementation issues

in light of the “ambiguities and significant omissions in the language of the

initiative.” The task force recommended a statewide registry be created

and administered by the Department of Health Services, among other

things, to clarify California’s law.19 However, a bill incorporating many of

the ideas agreed upon by the task force was not enacted by the California

legislature.20

Some California communities have created voluntary local registries to

provide medical marijuana users with registry cards to document that the

cardholder has met certain medical use requirements. Figure 2 provides

examples of patient and caregiver registry cards issued by San Francisco’s

Department of Public Health. (See the following section for a discussion of

caregivers.)

 19Office of the Attorney General, State of California, Department of Justice, Medical

Marijuana Task Force (July 12, 1999). Other recommendations included requiring that the

patient’s personal physician make the marijuana recommendation, and allowing

cooperative marijuana cultivation.

20California Senate Bill 187, 2001-2002 Reg. Sess. The bill was introduced by California

Senator Vasconcellos on February 7, 2001.
Page 13 GAO-03-189 State Medical Marijuana Laws

Figure 2: Example of San Francisco’s Medical Marijuana Registry Cards

Source: San Francisco Department of Public Health.

According to a September 2000 letter by the California Attorney General,

medical marijuana policies have been created in some counties. Local

registries have been created in Humboldt, Mendocino, San Francisco, and

Sonoma counties. A medical marijuana registry in the city of Arcata,

located in Humboldt County, was discontinued, however, the Arcata

police department accepts registry cards from Humboldt County. A more

recent list of medical marijuana registries operated by a county or city was

not available, an official with the Attorney General’s office said, because

there is no requirement for counties or cities to report on provisions they

adopt regarding medical use of marijuana. At least two counties have since

approved development of county medical marijuana registries, in San

Diego in November 2001, and in Del Norte, in April 2002. Several cannabis

buyers’ clubs, or cannabis cooperatives may have also established

voluntary registries of their members.
Page 14 GAO-03-189 State Medical Marijuana Laws

(Appendix III provides additional discussion on state registry procedures

in Oregon, Alaska, and Hawaii, procedures in selected California county

registries, and examples of registry cards.)

Laws in Oregon, Alaska, Hawaii, and California allow medical marijuana

users to designate a primary caregiver. To qualify as a caregiver in the

registry states, persons must be part of the state registry and be issued

medical marijuana cards. Registered caregivers may assist registrants in

their medical use of marijuana without violating state criminal laws for

possession or cultivation of marijuana, within the allowed medical use

amounts. Alaska allows registrants to designate a primary and alternate

caregiver. Both must submit a sworn statement that they are at least

21 years old, have not been convicted of a felony drug offense, and are not

currently on probation or parole. In Hawaii and Alaska, caregivers can

serve only one patient at a time. Alaska, however, allows exceptions for

patients related to the caregiver by blood or marriage, or with agency

approval, such as circumstances where a patient resides in a licensed

hospice program. Oregon does not specify a limit to the number of

patients one caregiver may serve. Table 2 provides information on

definitions and caregiver provisions in Oregon, Alaska, and Hawaii.

Medical Marijuana Patient

Primary Caregivers
Page 15 GAO-03-189 State Medical Marijuana Laws

Table 2: Definition and Provisions Regarding Caregivers in Oregon, Alaska and Hawaii

Oregon Alaska Hawaii

Definition of Caregiver “Designated primary caregiver”

means an individual eighteen years

of age or older who has significant

responsibility for managing the wellbeing of a person who has been

diagnosed with a debilitating

medical condition and who is

designated as such on that person’s

application for a registry

identification card or in other written

notification to the division.

Designated primary caregiver does

not include the person’s attending

physician.

“Primary caregiver” means a

person listed as a primary

caregiver (in the state medical

use registry) and in physical

possession of a caregiver

registry identification card:

“primary caregiver” also

includes an alternate caregiver

when the alternate caregiver is

in physical possession of the

caregiver registry identification

card. “Alternate caregiver”

means a person who is listed

as an alternate caregiver (in

the state medical use registry).

“Primary caregiver” means

a person, other than the

qualifying patient and the

qualifying patient’s

physician, who is eighteen

years of age or older, and

who has agreed to

undertake responsibility for

managing the well-being of

the qualifying patient with

respect to the medical use

of marijuana.

Limit to number of caregivers

per patient

1 2 (a primary and an alternate) 1

Limit to number of patients per

caregiver

Not specified 1

(exceptions may be granted by

state agency)

1

Criminal record restriction on

serving as caregiver

Not specified Yes Not specified

Source: Oregon, Alaska, and Hawaii medical marijuana statutes and administrative rules.

California’s statute also allows qualified medical marijuana users to

designate a primary caregiver. The statue defines “primary caregiver” to

mean “the individual designated by the person exempted under this

section who has consistently assumed responsibility for the housing,

health or safety of that person.” There is no requirement that the

patient–caregiver relationship be registered or otherwise documented, nor

is there a specified limit to the number of patients that can designate a

particular caregiver.

In all four states, patients must obtain a physician’s diagnosis that he or

she suffers from a medical condition eligible for marijuana use under that

state’s statute, and a physician recommendation for the use of marijuana.

California does not have a requirement that the diagnosis or

recommendation be documented, as the other states do. In the registry

states, patients must supply written documentation of their physician’s

medical determination and marijuana recommendation in their registry

applications. This documentation must conform with program

requirements, reflecting that the physician made his or her

Physician

Recommendation

Requirements
Page 16 GAO-03-189 State Medical Marijuana Laws

recommendation in the context of a bona fide physician-patient

relationship.

California’s law does not require patients to submit documentation of a

physician’s determination or recommendation to any state entity, nor does

it specify particular examination requirements. According to California’s

law, marijuana may be used for medical purposes “where that medical use

is deemed appropriate and has been recommended by a physician who has

determined that the person’s health would benefit from the use of

marijuana” in treating certain medical conditions; such recommendations

may be oral or written.

The physician certification form adopted by Hawaii’s Department of

Public Safety calls for doctors recommending marijuana to a patient to

certify that “I have primary responsibility for the care and treatment of the

named patient and based on my professional opinion and having

completed a medical examination and/or full assessment of my patient’s

medical history and current medical condition in the course of a bona fide

physician-patient relationship have issued this written certificate.”

Similarly in Alaska, the recommending physician signs a statement that

they personally examined the patient on a specific date, and that the

examination took place in the context of a bona fide physician-patient

relationship.

Under Oregon’s medical marijuana law, the patient’s attending physician

must supply physician documentation. Oregon’s administrative rules

defining “attending physician” were amended in March 2002 to more fully

describe the conditions for meeting the definition. To qualify, the

physician must have established a physician-patient relationship with the

patient and must diagnose the patient with a debilitating condition in the

context of that relationship.21 Agency officials stated that they changed the

definition of an attending physician in light of information that one doctor

responsible for many medical marijuana recommendations had not

 21As provided in Ore. Admin. R. 333-008-0010, an attending physician is “a physician who

has established a physician/patient relationship with the patient, is licensed under ORS

chapter 677, and who, with respect to a patient diagnosed with a debilitating medical

condition: (a) Is primarily responsible for the care and treatment of the patient; (b) Is

primarily responsible for recognized, medical specialty care and treatment of the patient;

(c) Has been asked to consult and treat the patient by the patient’s primary care physician;

or (d) Has reviewed a patient’s medical records at the patient’s request, has conducted a

thorough physical examination of the patient, has provided a treatment plan and/or followup care, and has documented these activities in a patient file. “
Page 17 GAO-03-189 State Medical Marijuana Laws

followed standard physician-patient practices, such as keeping written

patient records. (See physician section.) Under its regulations, the

Department of Human Services will contact each physician making a

medical marijuana recommendation to assure that the physician is an

“attending physician” and, with patient approval, the department may

review the physician’s patient file in connection with this inquiry.

The laws in all four states we reviewed identify medical conditions22 for

which marijuana may be used for medical purposes. Table 3 displays the

allowed medical conditions for which marijuana may be used in each

state. (See appendix IV for descriptions from general medical sources of

the allowable conditions identified by the state laws.)

Table 3: Allowable Conditions for Medical Marijuana Use in Four States

ConditionsaOregon Alaska Hawaii California

Cancer x xx x

Glaucoma x xx x

HIV positive status x xx

AIDS x xx x

Cachexia x xx

Wasting syndrome x

Anorexia x

Epilepsy and other seizure disorders x x x

Multiple sclerosis and other disorders characterized by persistent muscle spasticity x x x x

Crohn’s disease x

Alzheimer’s disease x

Arthritis x

Migraine x

Severe pain x xx

Chronic pain x

Severe nausea x xx

Any other illness for which marijuana provides reliefb x

a

Oregon’s, Alaska’s, and Hawaii’s medical marijuana statutes use the term “debilitating medical

condition” to encompass the conditions eligible for medical marijuana use. California’s statute does

not use this term, but simply lists the eligible conditions.

b

California’s statute does not define “any other illness for which marijuana provides relief.”

 22For simplicity, we use the general term medical “condition” to encompass, diseases,

symptoms, and medical conditions.

Qualifying State

Conditions for Use of

Medical Marijuana
Page 18 GAO-03-189 State Medical Marijuana Laws

Source: California, Oregon, Alaska and Hawaii medical marijuana statutes and Oregon administrative

rules.

Statutes in Oregon, Alaska, and Hawaii define the maximum amount of

marijuana and the number of plants that an individual registrant and their

caregiver may possess under medical marijuana laws, while California’s

statute does not provide such definitions. Oregon and Hawaii regulations

also provide definitions of marijuana plant maturity. Table 4 provides the

definitions of quantity and maturity for each registry state.

Table 4: Permissible Amounts of Medical Marijuana and Plant Maturity in Oregon, Alaska, and Hawaii

Oregon Alaska Hawaii

Allowable amount A patient and a designated

primary caregiver may not

individually or collectively

possess more than three mature

plants, four immature marijuana

plants, and one ounce of usable

marijuana per each mature

plant, if present at a location at

which marijuana is produced,

including any residence

associated with that location.

If not at a location where

marijuana is produced, including

any residence associated with

that location, the allowable

amount is one ounce of usable

marijuana.a

A patient, primary caregiver or

alternate caregiver may not possess

in the aggregate more than one

ounce of marijuana in usable form;

and six marijuana plants, with no

more than three mature and

flowering plants producing usable

marijuana at any one time.

“Adequate Supply” means an amount

of marijuana jointly possessed between

the qualifying patient and the primary

caregiver that is not more than is

reasonably necessary to assure the

uninterrupted availability of marijuana

for the express purpose of alleviating

the symptoms or effects of a qualifying

patient’s debilitating medical condition;

provided that the “adequate supply”

jointly possessed by the qualifying

patient and the primary caregiver not

exceed three mature marijuana plants,

four immature marijuana plants, and

one ounce of usable marijuana per

each mature plant.

Plant maturity “Mature plant” means the

following: A marijuana plant

shall be considered mature

when male or female flower

buds are readily observed on

the plant by unaided visual

examination. Until this sexual

differentiation has taken place, a

marijuana plant will be

considered immature.

Not specified “Immature marijuana plant” means a

marijuana plant, whether male or

female, that has not yet flowered and

which does not yet have buds that are

readily observed by unaided visual

examination. “Mature plant” means a

marijuana plant, whether male or

female, that has flowered and which

has buds that are readily observed by

unaided visual examination.

a

Registered patients and caregivers in Oregon who exceed the act’s quantity restrictions are not

immune from prosecution, but may establish an “affirmative defense” in a marijuana prosecution that

the greater amount is medically necessary to mitigate the symptoms or effects of the patient’s

debilitating medical condition. Ore. Rev. Stat. 475.306(2).

Source: Oregon, Alaska, and Hawaii medical marijuana statutes and administrative rules.

California’s statute does not specify an amount of marijuana allowable

under medical use provisions; however, some local jurisdictions have

established their own guidelines. The statute’s criminal exemption is for

“personal medical purposes” but does not define an amount appropriate

Allowable Amounts of

Marijuana for Medical Use
Page 19 GAO-03-189 State Medical Marijuana Laws

for personal medical purposes. The California Attorney General’s medical

marijuana task force debated establishing an allowable amount but could

not come to a consensus on this issue, proposing that the Department of

Health Services determine an appropriate amount. Participants did agree

that the amount of marijuana a patient may possess might well depend on

the type and severity of illness. They concluded that an appropriate

amount of marijuana was ultimately a medical issue, better analyzed and

decided by medical professionals. In the absence of state specified

amounts, a number of the state’s 58 counties and some cities have

informally established maximum allowable amounts of marijuana for

medical purposes. According to the September 2000 summary by the

California Attorney General’s office, the amount of marijuana an individual

patient and their caregiver were allowed to have varied, with a two-plant

limit in one area, and a 48 plant (indoors, with mature flowers) limit in

another area. In May 2002, Del Norte County raised their limit from

6 plants to 99 plants per individual patient.

California, Oregon, Alaska, and Hawaii prohibit medical marijuana use in

specific situations relating to safety or public use. Patients or caregivers

who violate these prohibitions are subject to state marijuana sanctions

and, in the registry states, may also forfeit their registry cards.23 Table 5

reflects the various states’ safety or public use restrictions.

 23Alaska’s statute provides a one-year suspension from using or obtaining a registry card;

Oregon’s statute provides up to a 6-month suspension from using or obtaining a registry

card; Hawaii’s rules provide for revocation of the registry certificate for an indefinite time.

Safety and Public Use

Restrictions
Page 20 GAO-03-189 State Medical Marijuana Laws

Table 5: Safety and Public Use Restrictions in Oregon, Alaska, Hawaii and California

Oregon Alaska Hawaii California

Safety

restrictions

Oregon’s medical

marijuana statute

prohibits driving under the

influence of marijuana.

Alaska’s medical marijuana

statute prohibits medical

use of marijuana that

endangers the health or

well-being of any person.

Hawaii’s medical marijuana

statute prohibits medical

use of marijuana that

endangers the health or

well-being of another

person.

California’s medical

marijuana statute

provides that, “Nothing in

this section shall be

construed to supersede

legislation prohibiting

persons from engaging in

conduct that endangers

others, nor to condone

the diversion of

marijuana for nonmedical

purposes.”

Public use

restrictions

Oregon’s medical

marijuana statute

prohibits patients and

caregivers from engaging

in the medical use of

marijuana in public places

as defined in Ore. Rev.

Stat. 161.015,a

 or in public

view or in a correctional

facility as defined in Ore.

Rev. Stat. 162.135(2) or

youth correction facility as

defined in Ore. Rev. Stat

162.135(6).

Alaska’s medical marijuana

law prohibits the medical

use of marijuana in plain

view of, or in a place open

to, the general public. The

law also states that medical

marijuana use need not be

accommodated in any place

of employment; in any

correctional facility, medical

facility, or facility monitored

by the Alaska Department of

Administration; on or within

500 feet of school grounds;

at or within 500 feet of a

recreation or youth center;

or on a school bus.

Hawaii’s medical marijuana

statute prohibits the medical

use of marijuana in a school

bus, public bus, or any

moving vehicle; in the

workplace of one’s

employment; on any school

grounds; at any public park,

public beach, public

recreation center, recreation

or youth center; or other

place open to the public.

(not specified)

a

As defined in Ore. Rev. Stat. 161.015, a public place means a place to which the general public has

access including, but not limited to, hallways, lobbies and other parts of apartment houses and hotels

not constituting rooms or apartments designed for actual residence, and highways, streets, schools,

places of amusement, parks, playgrounds and premises used in connection with public passenger

transportation.

Source: California, Oregon, Alaska and Hawaii state statutes.

Oregon was the only state of the four we reviewed to have conducted a

management review of their state’s medical marijuana program.24 The

Oregon Department of Human Services conducted the review after

concerns arose that a doctor’s signature for marijuana recommendations

had been forged. The review team reported a number of program areas

needing improvement, and proposed a corrective plan of action. Most of

 24“Oregon’s Medical Marijuana Program: A Management Review” Oregon Department of

Human Services, June 11, 2001.

Management Review

Results in Oregon Program

Changes
Page 21 GAO-03-189 State Medical Marijuana Laws

the actions had been completed, as of May 2002. Lack of verification of

physician signature was a key problem identified by the team. All

physician signatures are now verified. A number of other team findings

had to do with program management and staffing. The Program Manager

was replaced, additional staff was added, and their roles were clarified,

according to officials. Another area of recommendation was the

processing of applications and database management, such as how to

handle incomplete applications, handling of voided applications, edit

checks for data entry, and reducing the application backlog. As of May

2002, some action items were still open, such as computer “flags” for

problem patient numbers or database checks on patients and caregivers at

the same address.

A relatively small number of people are registered as medical marijuana

users in Oregon, Hawaii, and Alaska. In those states, most registrants were

over 40 years old. Severe pain and muscle spasms (spasticity) were the

most common medical conditions for which marijuana was recommended

in the states where data was gathered.

Relatively few people are registered as medical marijuana users in Alaska,

Hawaii and Oregon. In these states, registry data showed that the number

of participants registered was below 0.05 percent or less of the total

population of each respective state. Data doesn’t exist to identify the total

population of people with medical conditions that might qualify for

marijuana use because not all the conditions specified in the state’s laws

are diseases for which population data is available. For example, a

debilitating condition of “severe pain” may be a symptom for a number of

specific medical conditions, such as a back injury, however not all patients

with back injury suffer severe pain. Table 6 shows the number of patients

registered in Oregon, Hawaii, and Alaska, at the time of our review as

compared to the total population from the U.S. Census Bureau population

projections for 2002.

Few Registrants, Most

with Severe Pain or

Muscle Spasms

Small Number of Medical

Marijuana Registrants
Page 22 GAO-03-189 State Medical Marijuana Laws

Table 6: Medical Marijuana Registrants in Oregon, Hawaii, and Alaska, by Projected

2002 State Population

State State population Number of registrants

Percent of registrants

by state population

Oregon 3,488,000 1,691 0.05

Hawaii 1,289,000 573 0.04

Alaska 672,000 190 0.03

Totals 5,449,000 2,454 0.05

Note: Oregon data as of February 2002, Alaska and Hawaii data as of April 2002.

Source: Oregon, Hawaii, and Alaska state medical marijuana registries and U.S. Bureau of the

Census population projections for 2002.

There is no statewide data on participants in California because the

medical marijuana law does not provide for a state registry. We obtained

information from four county registries in San Francisco, Humboldt,

Mendocino and Sonoma counties.25 In each of these registries,

participation was 0.5 percent or less than the respective county’s

population. However, because the local registries are voluntary it is

unknown how many people in those jurisdictions have received medical

recommendations from their doctors for marijuana but have not

registered.

Table 7 shows the number of patients registered in four California

counties and as a percent of the population for those counties, since each

registry was established.

 25Sonoma County does not maintain a “registry” of approved medical marijuana users, but

is included because it does have records of county patients whose doctors have

recommended marijuana using Sonoma County Medical Association peer review process.
Page 23 GAO-03-189 State Medical Marijuana Laws

Table 7: Registrants in Four California Counties by County Population

 Registrant source

County

population

Number of

registrants

Percent of

registrants by

county

population

San Francisco Department of

Public Health

793,729 3551 0.44

Sonoma County Medical

Association

468,754 435 0.09

Humboldt County

Department of Public Health

127,754 182 0.14

Mendocino County 87,273 430 0.49

Note: San Francisco and Sonoma county data as of July 2002, Humboldt county data as of January

2002, and Mendocino county data as of April 2002.

Sources: California State Association of Counties (as of January 2002), and California medical

marijuana county registries.

Most medical marijuana registrants in Hawaii and Oregon—the states

where both gender and age data were available—were males over 40 years

old. Hawaii and Oregon were the only states that provided gender

information; in both cases approximately 70 percent of registrants were

men. In Alaska, Hawaii, and Oregon state records showed that over

70 percent of all registrants in each state were 40 years of age or older.

Only in one state was there a person under the age of 18 registered as a

medical marijuana user. Table 8 shows the distribution of registrants by

age in the registry states.

Table 8: Registrant Age in Alaska, Hawaii and Oregon

(Percent in each age category)

Age Alaska Hawaii Oregon

Under 18 1 (1%) 0 0

19-29 10 (5%) 16 (3%) 145 (9%)

30-39 42 (22%) 70 (12%) 247 (15%)

40-49 84 (44%) 197 (34%) 613 (36%)

50-59 42 (22%) 216 (38%) 550 (33%)

Over 60 11 (6%) 74 (13%) 136 (8%)

Total 190 573 1691

Note: Oregon data as of February 2002, Alaska and Hawaii data as of April 2002.

Source: Medical Marijuana registries in Alaska, Hawaii and Oregon.

Medical Marijuana

Registrant Demographics
Page 24 GAO-03-189 State Medical Marijuana Laws

In California, none of the local jurisdictions we met with kept information

on participants’ gender, and only Sonoma County Medical Association

provided information on their registrants’ age. The age of medical

association registrants was similar to participants in the state registries,

only slightly younger. Over 60 percent of participants that have had their

records reviewed by medical associations were 40 years or older.

Most medical marijuana recommendations in states where data are

collected have been made for applicants with severe pain or muscle

spasticity as their medical condition. Conditions allowed by the states’

medical marijuana laws ranged from illnesses such as cancer and AIDS, to

symptoms, such as severe pain. Information is not collected on the

conditions for which marijuana has been recommended in Alaska or

California. However, data from Hawaii‘s registry showed that the majority

of recommendations have been made for the condition of severe pain or

the condition of muscle spasticity. Likewise, data from Oregon’s registry

showed that, 84 percent of recommendations were for the condition of

severe pain or for muscle spasticity. Table 9 shows the number and

percentage of patients registered by types of conditions in Oregon and

Hawaii.

Medical Marijuana

Registrant Conditions
Page 25 GAO-03-189 State Medical Marijuana Laws

Table 9: Registrant Conditions in Oregon and Hawaii

Oregon Hawaii

Number of

recommendations

per condition

Percent with

condition

Number of

recommendations

per condition

Percent with

condition

Cancer 43 3 9 2

Glaucoma 31 2 10 2

HIV positive status or AIDS 47 3 66 12

Cachexia 18 1 - -

Cachexia or wasting syndrome -- 9 2

Epilepsy and other seizure disorders 43 3 5 1

Multiple Sclerosis and other disorders

characterized by persistent muscle

spasms, or spasticity 459 28 240 43

Alzheimer’s disease 1 Under 1 - -

Severe pain 915 56 172 31

Severe nausea 83 5 12 2

Severe nausea/severe pain - - 31 6

Total 1640a 554b

Note: Oregon data as of February 2002, Hawaii data as of March 2002.

a

Information on 51 cases not available.

b

The number of registrants for Hawaii differs in tables 8 and 9 due to differences in the reporting

dates.

Source: Oregon and Hawaii medical marijuana registries.

On the basis of records from the Oregon registry, we reviewed the

information provided by doctors for additional insight into the conditions

for which registrants use marijuana. The Oregon registry keeps track of

secondary conditions in cases where the recommending doctor specified

more than one condition. We examined the pool of secondary conditions

associated with severe pain26 and muscle spasms,27 the two largest

condition categories. About 40 percent of those with severe pain reported

muscle spasms, migraines, arthritis, or nausea as a secondary medical

condition. The most common secondary conditions reported by those with

 26Of the 915 registrants that reported severe pain as their primary condition, over half

reported only one secondary condition, some included up to five secondary conditions. The

percentages reported here include those with only one secondary condition.

27Of the 459 registrants that reported spasms as a primary condition over 40 percent

reported only one secondary condition, some included up to four secondary conditions.

The percentages reported here include those with only one secondary condition.
Page 26 GAO-03-189 State Medical Marijuana Laws

spasms were pain, multiple sclerosis, and fibromyalgia,28 accounting for

37 percent of the secondary conditions for spasms. A variety of other

secondary conditions were identified in the Oregon data, such as acid

reflux, asthma, chronic fatigue syndrome, hepatitis C, and lupus.

In the two states, Hawaii and Oregon, where data on physicians is

maintained, few physicians have made medical marijuana

recommendations. Of the pool of recommending physicians in Oregon,

most physicians made only one to two recommendations. Over half of the

medical organizations we contacted provide written guidance for

physicians considering recommending marijuana.

Only a small percentage of physicians in Hawaii and Oregon were

identified by state registries as having made recommendations for their

patients to use marijuana as medicine. These two states maintain

information on recommending physicians in their registry records. No

information was available on physician participation in California and

Alaska. In Hawaii, at the time of our review, there were 5,673 physicians

licensed by the state’s medical board. Of that number, 44 (0.78 percent)

physicians had recommended marijuana to at least one of their patients

since the legislation was passed in June 2000. In Oregon, at the time of our

review, 435 (3 percent) of the 12,926 licensed physicians in the state had

participated in the medical marijuana program since May 1999.

Both Hawaii and Oregon’s medical marijuana registration programs are

relatively new, which may account for the low level of participation by

physicians in both states. Oregon’s program has operated for a year longer

than Hawaii’s, however physician participation overall is low in both

states. A Hawaii medical association official told us that he believes

physicians consider a number of factors when deciding whether to

recommend marijuana as medicine, such as the legal implications of

recommending marijuana, lack of conclusive research results on the

drug’s medical efficacy, and a doctor’s own philosophical stance on the

use of marijuana as medicine.

 28Fibromyalgia: Chronic pain, stiffness, and tenderness of muscles, tendons, and joints

without detectable inflammation. Fatigue and sleep disorders are common in fibromyalgia

patients.

Few Physicians Make

Marijuana

Recommendations;

Some Guidance

Available

Low Physician

Participation
Page 27 GAO-03-189 State Medical Marijuana Laws

The lower federal courts are divided in terms of whether doctors can

make medical marijuana recommendations without facing federal

enforcement action, including the revocation of doctors’ DEA registrations

that allow them to write prescriptions for federally controlled substances.

In one case, the district court for the Northern District of California held

that the federal government could not revoke doctors’ registrations,

stating that the de-registration policy raised “grave constitutional doubts”

concerning doctors’ exercise of free speech rights in making medical

marijuana recommendations.29 In the other case considering this issue, the

district court for the District of Columbia ruled that the federal

government could revoke doctors’ registrations, stating that “[e]ven

though state law may allow for the prescription or recommendation of

medicinal marijuana within its borders, to do so is still a violation of

federal law under the CSA,” and “there are no First Amendment

protections for speech that is used ‘as an integral part of conduct in

violation of a valid criminal statute.”30

Oregon is the only state we reviewed which has registry records that

identify recommendations by doctor. Few Oregon physicians made

recommendations to use medical marijuana to more than two patients.

According to registry data, 82 percent of the participating physicians made

one or two recommendations, and 18 percent made three or more

recommendations. Table 10 shows a breakdown of the frequency by which

physicians made marijuana recommendations.

 29See Conant v. McCaffrey, No. C-97-00139, 2000 U.S. Dist. LEXIS 13024 at *19 (N.D. Cal.

Sept. 7, 2000) (permanent injunction granted); see also Conant v. McCaffrey, 172 F.R.D.

681 (N.D. Cal. 1997) (preliminary injunction granted). On October 29, 2002, the Ninth

Circuit Court of Appeals affirmed, finding that the district court convincingly explained

how the government’s professed enforcement policy threatened to interfere with doctors’

First Amendment rights. See Conant v. Walters, No. 00-17222, 2002 U.S. App. LEXIS 22942

at *2 (9th Cir. Oct. 29, 2002)

30See Pearson v. McCaffrey, 139 F. Supp. 2d 113, 121 (D.D.C. 2001).
Page 28 GAO-03-189 State Medical Marijuana Laws

Table 10: Number of Marijuana Recommendations Made by Oregon Physicians, as

of February 2002

Number of

recommendations

Number of physicians

making recommendations

Percentage of

recommending

physicians

1 269 61.8

2 87 20.0

3 33 7.6

4 22 5.1

5 8 1.8

6 2 0.5

7 2 0.5

9 2 0.5

10 1 0.2

11 1 0.2

12 1 0.2

13 2 0.5

14 1 0.2

18 1 0.2

23 1 0.2

38 1 0.2

823 1 0.2

Source: Oregon Department of Human Services.

State or law enforcement officials in Oregon, California, and Hawaii

indicated that they were each aware of a particular physician in their state

that had recommended marijuana to many patients.31 In Alaska, a state

official knew of no physician that had made many recommendations. In

Oregon and California the state medical boards have had formal

complaints filed against these physicians for alleged violations of the

states’ Medical Practices Acts, which establish physician standards for

medical care. The complaints charge the physicians with unprofessional

conduct violations such as failure to conduct a medical examination,

failure to maintain adequate and accurate records, and failure to confer

with other medical care providers. In Oregon, the physician

 31Program officials in the registry states verify that a physician recommendation has been

made in accordance with program requirements, and that the physician is licensed; they are

not authorized to determine whether a doctor’s recommendation is medically appropriate.
Page 29 GAO-03-189 State Medical Marijuana Laws

recommending marijuana to over 800 patients was disciplined.32 The

California case was still pending. At the time of our review, there was no

medical practice complaint filed against the Hawaiian doctor known to

have made many marijuana recommendations.

In all four states, professional medical associations provide some guidance

for physicians in regards to recommending marijuana to patients. State

medical boards, in general, have limited involvement in providing this type

of guidance. Table 11 indicates the type of guidance available from these

medical organizations in each state.

Table 11: Doctor Guidance Provided by Selected State Medical Organizations

State Medical Organizations Guidance provided Description

Oregon State Board of Medical

Examiners

No

Oregon Medical Association Yes The association has a document informing members of the

legal issues facing doctors and advising them on doctorpatient discussions and documentation concerning the use of

marijuana for medicine, and actions to avoid.

Alaska State Medical Board No

Alaska Medical Association Yes Those inquiring about recommending marijuana are directed to

seek legal counsel.

Hawaii State Board of Medical

Examiners

No

Hawaii Medical Association Yes Those inquiring about recommending marijuana are informed

of the association’s official position against medical marijuana

and advised of the legal implications involved.

Medical State Board of California Yes The board has a document that describes the standards

physicians recommending marijuana should apply to their

practice and advises them on how to best protect themselves.

California Medical Association Yes The association provides a document covering the legal issues

facing doctors, doctor-patient discussions and documentation

concerning the use of marijuana for medicine, actions to avoid,

and other topics under the law that may be of concern to

physicians.

Note: Guidance provided as of the time of our review.

Source: State Medical Boards and Medical Associations in Oregon, Alaska, Hawaii, and Oregon.

The guidance to physicians considering recommending marijuana to a

patient in Oregon, for example, includes avoiding engaging in any

 32The April 2002 order by the Oregon Board of Medical Examiners reprimanded the

physician, fined him $5,000, suspended his license for 90 days, and specified conditions

under which any future marijuana recommendations would be made, and other disciplinary

actions.

Physician Guidance for

Making Medical Marijuana

Recommendations
Page 30 GAO-03-189 State Medical Marijuana Laws

discussions with a patient on how to obtain marijuana, and to avoid

providing a patient with any written documentation other than that in the

patient’s medical records. The medical association also advises physicians

to clearly document in a patient’s medical records conversations that take

place between the physician and patient about the use of marijuana as

medicine. Oregon’s medical association notes that until the federal

government advises whether it considers a physician’s medical marijuana

recommendation in a patient chart to violate federal law, no physician is

fully protected from federal enforcement action.

Most of the state medical board officials we contacted stated that the

medical boards do not provide guidance for physicians on recommending

marijuana to patients. The medical boards do become involved with

physicians making marijuana recommendations if a complaint for violating

state medical practices is filed against them. Once a complaint is filed, the

boards investigate a physician’s practice. Any subsequent action occurs if

the allegations against a doctor included violations of the statutes

regulating physician conduct.

California medical board’s informal guidance states that physicians

recommending marijuana to their patients should apply the accepted

standards of medical responsibility such as the physical examination of

the patient, development of a treatment plan, and discussion of side

effects. In addition, the board warns physicians that their best legal

protection is by documenting how they arrived at their decision to

recommend marijuana as well as any actions taken for the patient.

Data are not readily available to show whether the introduction of medical

marijuana laws have affected marijuana-related law enforcement

activities. Assessing such a relationship would require a statistical analysis

over time that included measures of law enforcement activities, such as

arrests, as well as other measures that may influence law enforcement

activities. It may be difficult to identify the relevant measures because

crime is a sociological phenomena influenced by a variety of factors.33

Local law enforcement officials we spoke with about trends in marijuana

law enforcement noted several factors, other than medical marijuana laws,

important in assessing trends. These factors included changes in general

perceptions about marijuana, shifts in funding for various law

 33According to the FBI introduction to users of Uniform Crime Report data.

Difficult to Measure

the Impact of State

Medical Marijuana

Laws on Law

Enforcement

Activities
Page 31 GAO-03-189 State Medical Marijuana Laws

enforcement activities, shifts in local law enforcement priorities from one

drug to another, or changes in emphasis from drugs to other areas, such as

terrorism. Demographics might also be a factor.

The limited availability of data on marijuana-related law enforcement

activity illustrates some of the difficulties in doing a statistically valid

trend analysis. To fully assess the relationship between the passage of

state’s medical marijuana laws and law enforcement, one would need data

on marijuana related arrests or prosecutions over some period of time,

and preferably an extended period of time. Although state-by-state data on

marijuana-related arrests is available from the FBI Uniform Crime Reports

(UCR), at the time of our review, only data up to the year 2000 was

available. Yearly data would be insufficient for analytic purposes since the

passage of the medical marijuana initiatives or law in three of the states—

Oregon (November 1998), Alaska (November 1998), and Hawaii (June

2000)—is too recent to permit a rigorous appraisal of trends in arrests and

changes in them.34 Furthermore, although California’s law took effect

during 1996 providing a longer period of data, it is also important to note

that the FBI cautions about UCR data comparisons between time periods

because of variations in year-to-year reporting by agencies.35

Similar data limitations would occur using marijuana prosecutions as a

measure of trends in law enforcement activity. Data on marijuana

prosecutions are not collected or aggregated at the federal level by state.

At the state level, for the four states we reviewed, the format for collecting

the data, or time period covered also had limitations. For example in

California, the state maintains “disposition” data that includes

prosecutions, but reflects only the most serious offenses, so that

marijuana possession that was classified as a misdemeanor would not be

captured if the defendant was also charged with possession of other drugs,

or was involved with theft or other non-misdemeanor crimes. Further, the

data is grouped by the year of final disposition, not when the offense

 34Programs to implement the laws in Oregon, Alaska and Hawaii were developed somewhat

later. Alaska’s registry was established in June 1999, Oregon’s program began operating in

May 1999, and Hawaii issued its first card in January 2001.

35As described in the methodology section of UCR’s annual publication, Crime in the

United States (2000) UCR excludes trend statistics if the reporting units have not provided

comparable data for the periods under consideration, or when it is ascertained that unusual

fluctuations, such as improved record keeping or annexations are involved. Although most

law enforcement agencies submit crime reports to the UCR program, data are sometimes

not received for complete annual periods. If data on other factors was available for

California to analyze the relationship of its medical marijuana law and arrests, one would

also need to assess the comparability of arrest data from different time periods.
Page 32 GAO-03-189 State Medical Marijuana Laws

occurred. Hawaii does not have statewide prosecution data. At the time of

our review, prosecution data from Oregon’s statewide Law Enforcement

Data System was only available for 1999 and 2000.

We interviewed officials from 37 selected federal, state, and local law

enforcement organizations in the four states to obtain their views on the

effect, if any, state medical marijuana laws had on their law enforcement

activities. Officials representing 21 of the organizations we contacted

indicated that medical marijuana laws had had little impact on their law

enforcement activities for a variety of reasons, including very few or no

encounters involving medical marijuana registry cards or claims of a

medical marijuana defense. For example:

• The police department on one Hawaiian island had never been

presented a medical marijuana registry card, and only 15 registrants

lived on the island.

• In Alaska, a top official for the State Troopers Drug Unit had never

encountered a medical marijuana registry card in support of claimed

medical use.

• In Oregon, one district attorney reported having less than 10 cases

since the law was passed where the defendant presented a medical

marijuana defense.36

• In Los Angeles County, an official in the District Attorney’s office

stated that only three medical marijuana cases have been filed in the

last two years in the Central Branch office, two of the cases involving

the same person.

Some of the federal law enforcement officials we interviewed indicated

that the introduction of medical marijuana laws has had little impact on

their operations. Senior Department of Justice officials said that the

Department’s overall policy is to enforce all laws regarding controlled

substances, however they do have limited resources. Further, the federal

process of using a case-by-case review of potential marijuana prosecutions

has not changed as a consequence of the states’ medical marijuana laws.

These officials said that U.S. Attorneys have their own criteria or

guidelines for which cases to prosecute that are based on the

Department’s overall strategies and objectives.

 36The District Attorney noted that they had won these cases because the defendants were

not operating within the parameters of the state medical marijuana law.

Perceptions of Officials

with Selected Law

Enforcement

Organizations Regarding

the Impact of Medical

Marijuana Laws
Page 33 GAO-03-189 State Medical Marijuana Laws

Law enforcement officials in the selected states also told us that, given the

range of drug issues, other illicit drug concerns, such as rampant

methamphetamine abuse or large-scale marijuana production are higher

priorities than concerns about abuse of medical marijuana. In at least one

instance, this emphasis was said to reflect community concerns—in

Hawaii, one prosecuting attorney estimated that one-third to one-half of

the murders and most hostage situations in the county involved

methamphetamines. He said businesses ask why law enforcement is

bothering with marijuana when they have methamphetamines to deal with.

Although many of the officials with other organizations we contacted did

not clearly indicate whether medical marijuana laws had, or had not, had

major impact on their activities, officials with two organizations said that

medical marijuana laws had become a problem from their perspective.

Specifically, an official with the Oregon State Police Drug Enforcement

Section said that during 2000 and 2001, there were 14 cases in which the

suspects had substantial quantities of processed or growing marijuana and

were arrested for distribution of marijuana for profit, yet were able to

obtain medical marijuana registry cards after their arrests. Because the

same two defense attorneys represented all the suspects, the police

official expressed his view that the suspects might have been referred to

the same doctor, causing the official to speculate about the validity of the

recommendations. In Northern California—an area where substantial

amounts of marijuana are grown37—officials with the Humboldt County

Drug Task Force38 told us that they have encountered growers claiming to

be caregivers for multiple medical marijuana patients. With a limit of 10

plants per person established by the Humboldt County District Attorney,

growers can have hundreds of plants officials said, and no documentation

to support their medical use claims is required.39

Over one-third of officials from the 37 law enforcement organizations told

us that they believe that the introduction of medical marijuana laws have,

or could make it, more difficult to pursue or prosecute some marijuana

 37According to the senior DEA official for the area, three northern counties are the source

region for much of the domestically produced marijuana in the United States, and this

production is a major contributor to the local economies.

38Headed by a Commander from the California Bureau of Narcotics and staffed by officers

from local law enforcement.

39The 10 plant limit can be exceeded if the grower claims to grow 10 plants for patient A, 10

plants for patient B, and so on. Documentation of caregiver status is not required under the

state’s law.
Page 34 GAO-03-189 State Medical Marijuana Laws

cases. In California, some local law enforcement officials said that their

state’s medical marijuana law makes them question whether it is worth

pursuing some criminal marijuana cases because of concerns about

whether they can effectively prosecute (e.g., with no statutory limit on the

number of marijuana plants allowed for medical use, the amount

consistent with a patient’s personal medical purposes is open to

interpretation). In Oregon, Hawaii, and Alaska where specific plant limits

have been established, some law enforcement officials and district

attorneys said that they were less likely to pursue marijuana cases that

could be argued as falling under medical use provisions. For example, one

Oregon District Attorney stated that because they have limited resources

the District Attorneys might not prosecute a case where someone is sick,

has an amount of marijuana within the medical use limit, and would

probably be approved for a card if they did apply. Officers in Hawaii

reported reluctance of a judge to issue a search warrant until detectives

were certain that cultivated marijuana was not being grown for medical

use, or that the growth was over the 25-plant limit qualifying for felony

charges.

Less concrete, but of concern to law enforcement officials were the more

subtle consequences attributed to the passage of state medical marijuana

laws. Officials in over one-fourth of the 37 law enforcement organizations

we interviewed indicated they believe there has been a general softening

in public attitude toward marijuana, or public perception that marijuana is

no longer illegal. For example, state troopers in Alaska said that they

believe that the law has desensitized the public to the issue of marijuana,

reflected in fewer calls to report illegal marijuana activities than they once

received. Hawaiian officers stated that it is their view that Hawaii’s law

may send the wrong message because people may believe that the drug is

safe or legal.

Several law enforcement officials in California and Oregon cited the

inconsistency between federal and state law as a significant problem,

particularly regarding how seized marijuana is handled. According to a

California Attorney General official, state and local law enforcement

officials are frequently faced with this issue if the court or prosecutor

concludes that marijuana seized during an arrest was legally possessed

under California law, and law enforcement is ordered to return the

marijuana. To return it puts officials in violation of federal law for

dispensing a Schedule I narcotic, according to the California State Sheriffs’

Association, and in direct violation of the court order if they don’t return

it. The same issue has arisen in Portland, Oregon, officials said, when the

Portland police seized 2.5 grams of marijuana from an individual. After the

state dismissed charges, the court ordered the return of the marijuana to
Page 35 GAO-03-189 State Medical Marijuana Laws

the individual, who was a registered medical marijuana user. The city of

Portland appealed the court order on grounds that its police officers could

not return the seized marijuana without violating federal law, but the

Oregon court of appeals rejected this argument in Oregon v. Kama.

40

Oregon officials said that DEA then obtained a federal court order to seize

the marijuana from the Portland police department. The Department of

Justice stated in comments on a draft of this report that they believe

conflicts between federal and non-federal law enforcement over the

handling of seized marijuana has been and will continue to be a problem.

Law enforcement officials in all four states identified areas of their

medical marijuana laws that can hamper their marijuana enforcement

activities because the law could be clearer or provide better control. In

California, key issues were lack of a definable amount of marijuana for

medical use, and no systematic way to identify who qualifies for the

exemption. In Oregon, officers were concerned about individuals

registering as medical marijuana users after they have been arrested, and

timely law enforcement access to the registry information. Officials with

about one-fourth of the law enforcement organizations in Hawaii,

California and Oregon shared the concern about the degree of latitude

given to physicians in qualifying patients for medical use.

We provided a copy of a draft of this report to the Department of Justice

for review and comment. In a September 27, 2002 letter, DOJ’s Acting

United States Assistant Attorney General for Administration commented

on the draft. DOJ’s comments are summarized below and presented in

their entirety in appendix V.

In its comments, DOJ noted that the report fully described the current

status of the programs in the states reviewed. However, DOJ stated that

the report failed to adequately address some of the serious difficulties

associated with such programs. Specifically, according to DOJ, the report

 4039 P.3d 866 (Or. Ct. App. 2002); rev. den. 47 P.3d 484 (Or. S. Ct. 2002). In Kama, the city

argued that, because marijuana is a Schedule I controlled substance, its police officers

would commit the federal crime of delivering a controlled substance if they returned seized

marijuana. The court of appeals disagreed, reasoning that the federal Controlled

Substances Act, 21 U.S.C. 885(d), confers immunity on state or local law enforcement

officials “lawfully engaged in the enforcement of any law or municipal ordinance relating to

controlled substances." The court concluded that, because the officers were required to

return the seized marijuana under Oregon’s medical marijuana act, Or. Rev. Stat.

475.323(2), federal law granted them immunity for doing so.

Agency Comments

and Our Evaluation
Page 36 GAO-03-189 State Medical Marijuana Laws

does not adequately address, through any considered analysis, issues

related to the (1) inherent conflict between state laws permitting the use

of marijuana and federal laws that do not; (2) potential for facilitating

illegal trafficking; (3) impact of such laws on cooperation among federal,

state, and local law enforcement; and (4) lack of data on the medicinal

value of marijuana. DOJ further stated that our use of the phrase “medical

marijuana” implicitly accepts a premise that is contrary to existing federal

law.

In regard to the first issue—state laws that permit the use of marijuana

and federal laws that do not—DOJ pointed out that the most fundamental

problem with the report is that it failed to emphasize that there is no

federally recognized medicinal use of marijuana and thus possession or

use of this substance is a federal crime. We disagree, and believe that we

have clearly described federal law on the use of marijuana. On page 1 of

our report, we specifically state that federal law does not recognize any

accepted medical use for marijuana and individuals remain subject to

federal prosecution for marijuana possession regardless of state medical

marijuana laws.

In other comments about state and federal laws, DOJ also pointed out that

our report failed to mention that state medical marijuana laws undermine

(1) the closed system of distribution for controlled substances under the

Controlled Substances Act and (2) the federal government’s obligations

under international drug control treaties which, according to DOJ, prohibit

the cultivation of marijuana except by persons licensed by, and under the

direct supervision of, the federal government. As discussed in our report,

the legal framework for our work was the Supreme Court’s opinion in

United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483

(2001) which held that the federal government can enforce marijuana

prohibitions without regard to a medical necessity defense, even in states

with medical marijuana laws. During our review, we saw no reason to

expand our analysis beyond that set forth in the Supreme Court’s decision.

This is especially true since the scope of our work was to examine how

the selected states were implementing their medical marijuana laws—not

the issues raised in DOJ comments.

Regarding the second issue concerning the potential for illegal trafficking,

DOJ commented that our report did not mention that state medical

marijuana laws are routinely being abused to facilitate traditional illegal

trafficking. DOJ also highlighted the lack of guidance provided by the

California state government to implement its medical marijuana law as

contributing to the problem in California. Our report discusses the views
Page 37 GAO-03-189 State Medical Marijuana Laws

of law enforcement officials representing 37 organizations in the four

states—including federal officials—regarding the impact of state medical

marijuana laws on their law enforcement efforts. Our report presented the

views they conveyed to us. Thus, in those instances where law

enforcement officials, including representatives of DEA and U.S.

Attorneys’ offices, discussed what they considered instances of abuse or

potential abuse, we discussed it in our report. During our review, none of

the federal officials we spoke with provided information to support a

statement that abuse of medical marijuana laws was routinely occurring in

any of the states, including California. DOJ further asserted that we should

include information on the “underlying criminal arena,” on homicides

related to marijuana cultivation, and on illegal marijuana production and

diversion. These issues were beyond the scope of our work.

In regard to its third comment pertaining to cooperation among federal,

state, and local law enforcement officials, DOJ stated that our report did

not reflect DEA’s experience—a worsening of relations between federal,

state, and local law enforcement. DOJ’s comments provided specific

examples of incidents involving conflicts between DEA and non-federal

law enforcement officials, but these examples were not provided to us

during our fieldwork. In comments on a summary of law enforcement

opinions, some of the non-federal law enforcement officials we

interviewed also stated we should discuss the conflict between state

medical marijuana laws and federal laws as it related to seized marijuana.41

We modified our draft to include a discussion of these concerns, and have

likewise included DOJ’s comment. It is also important to note, however,

that contrary to DOJ’s suggestion, our report included a discussion about

the concerns of the law enforcement officials regarding a “softening” of

the public perception about marijuana. Finally, DOJ’s point that Oregon’s

medical marijuana law negatively impacts federal seized asset sharing was

an issue outside the scope of our review.

In regard to the fourth issue—lack of data on the medicinal value of

marijuana—DOJ stated that our discussion of the debate over the medical

value of marijuana is inadequate and does not present an accurate picture.

We believe our report adequately discusses that a continuing debate

exists. The overall objective of our review was to examine the

implementation of state medical marijuana laws, and an analysis of the

 41A summary of law enforcement opinions was sent to those we spoke with for their

comments.
Page 38 GAO-03-189 State Medical Marijuana Laws

scientific aspects of the medical marijuana debate was beyond the scope

of our work. We do, however, footnote various studies so that readers can

access additional information on the studies if they desire.

Finally, we disagree with DOJ’s comment that our use of the term medical

marijuana accepts a premise contrary to federal law, given that we

specifically defined the term in relation to state, not federal, law. As

mentioned earlier, our report specifically states that federal law does not

recognize any accepted medical use for marijuana and individuals remain

subject to federal prosecution for marijuana possession regardless of state

medical marijuana laws. Furthermore, the introduction to the report

clearly points out that, throughout the report, we use the phrase medical

marijuana to describe marijuana use that qualifies for a medical use

exception under state law.

DOJ also provided technical comments, which we have included in this

report, where appropriate. In addition, as mentioned earlier, some of the

representatives of state law enforcement organizations provided

comments on the section of the report dealing with their perceptions, and

we have made changes to the report, where appropriate.

As agreed with your office, unless you publicly announce the contents of

this report earlier, we plan no further distribution until 30 days from the

report date. At that time, we will send copies of this report to the Ranking

Minority Member, Subcommittee on Criminal Justice, Drug Policy and

Human Resources, and the Chairman and Ranking Minority Member,

House Committee on Government Reform; the Chairman and Ranking

Minority Member of the House Judiciary Committee; the Chairman and

Ranking Minority Member of the Senate Judiciary Committee; the Attorney

General; and the Director, Office of Management and Budget. We will also

make copies available to others on request. In addition, the report will be

available at no charge on the GAO Web site at http://www.gao.gov.
Page 39 GAO-03-189 State Medical Marijuana Laws

If you or your staff have any questions on this report, please contact me or

John Mortin on (202) 512 –8777. Key contributors are acknowledged in

appendix V.

Sincerely yours,

Paul Jones

Director, Justice Issues
Appendix I: Objectives, Scope, and

Methodology

Page 40 GAO-03-189 State Medical Marijuana Laws

Our overall objectives were to provide fact-based information on how

selected states implement laws that create a medical use exception to

specified state marijuana prohibitions, and to document the impact of

those laws on law enforcement efforts. Specifically, for selected states,

our objectives were to provide information on (1) their approach to

implementing their medical marijuana laws and how they compare, and

the results of any state audits or reviews, (2) the number of patients that

have had doctors recommend marijuana for medical use in each state, for

what medical conditions, and by age and gender characteristics, (3) how

many doctors are known to have recommended marijuana in each, and

what guidance is available for making these recommendations, and

(4) perceptions of federal and state law enforcement officials, and whether

data are available to show how law enforcement activities have been

affected by the exceptions provided by these states’ medical marijuana

laws.

We conducted our review between September 2001 and June 2002 in

accordance with generally accepted government auditing standards.

Eight states have enacted medical marijuana statutes.1

 We selected four of

those states based on the length of time the laws had been in place, the

availability of data, and congressional interest. Two of the eight states,

Nevada and Colorado, were not selected because their laws had not been

in place for at least 6 months when our review began. Another two states,

Maine and Washington, were not selected because they do not have state

registries to obtain information on program registrants. Alaska, Oregon

and Hawaii do have state registries and had laws in place for at least

6 months. California’s law was enacted in 1996; however, the state does

not have a participant registry. We included it because some local registry

information was available, and the requestor specifically requested

information on California and Oregon. Our sample consists of these four

states: California, Oregon, Alaska, and Hawaii.

We conducted on-site data collection and interviews with senior officials

at state registries in Oregon and Hawaii, county offices in selected

California counties, and the senior official in Alaska by phone and email.

We examined applicable federal and state laws and regulations and

 1

These eight states were identified in the Supreme Court’s decision in United States v.

Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 502 n.4 (2001).

Appendix I: Objectives, Scope, and

Methodology

Objectives

Scope and

Methodology: State

Selection and Data
Appendix I: Objectives, Scope, and

Methodology

Page 41 GAO-03-189 State Medical Marijuana Laws

obtained and analyzed available information on program implementation,

program audits, and program participation by patients and doctors.

State and California county officials voluntarily supplied data on medical

marijuana program registrants and some provided data on physician

participation. Officials did not provide names to protect participants’

confidentiality. We reviewed the data for reasonableness and followed up

with appropriate individuals about any questions concerning the data.

Given the confidentiality of the information, we could not check the data

back to source documents. We also interviewed knowledgeable state and

county officials to learn how the data was collected and processed, and to

gain a full understanding of the data. We determined the data was reliable

enough for the limited purposes of this report. However, the data only

reflects those that have registered with state and county programs. No

estimate is available on the number of medical marijuana users that have

not registered with a program. Additionally, data from the three state

registries are not representative of participation in other states for which

we did not collect data. Similarly, data from select California counties only

reflect each county, not other counties where we did not conduct audit

work.

We used a nonprobability sample to select law enforcement

representatives to provide examples of the policies, procedures,

experiences, and opinions of law enforcement regarding state medical

marijuana laws. Our selection of these law enforcement representatives

was not designed to enable us to project their responses to others, in this

case, other law enforcement officials. Feedback was requested from

officials at law enforcement organizations we visited, and incorporated

where appropriate.

We discussed state medical marijuana laws with federal, state and local

law enforcement officials in the states of California, Hawaii, Oregon and

Alaska. On-site interviews were conducted in all but Alaska.2

 Federal

officials in each state included representatives from the office of the U.S.

Attorney and the Drug Enforcement Administration (DEA). The specific

 2

As a result of phone discussions with law enforcement officials in Alaska, and the low

number of registrants in Alaska’s medical marijuana program, we decided that interviews

could be conducted by email and phone.

Data Reliability

Scope and

Methodology: Law

Enforcement

Opinions
Appendix I: Objectives, Scope, and

Methodology

Page 42 GAO-03-189 State Medical Marijuana Laws

U.S. Attorney and DEA office and officials we met with were selected by

the Department of Justice as the most knowledgeable on the subject. For a

statewide perspective, we interviewed representatives from the Attorney

General’s office and at least one statewide association in California and

Oregon representing law enforcement officials. This included

representatives from the following:

Oregon Attorney General

Oregon Association of Chiefs of Police

California Attorney General

California District Attorney Association

California State Sheriff’s Association

Hawaii Attorney General

Hawaii Department of Public Safety

Alaska Attorney General

Alaska State Troopers

For a local law enforcement perspective, we interviewed district attorney

and local police department officials. Selection was judgmental and based

on a number of factors, including: suggestions by federal or state officials,

jurisdictions where trips were planned to interview state medical

marijuana registry program officials or state officials, or large portions of

the state population were covered by the department. Local law

enforcement representatives included the following:

Marion County Oregon District Attorney

Portland Oregon District Attorney

Portland Oregon Bureau of Police

Oregon State Police

Oregon Association of Chiefs of Police (Dallas Oregon Police Chief

participated)

Clackamus County Oregon Sheriff’s Office

Los Angeles California District Attorney

Los Angeles California Police Department

San Bernardino California Police Department

Orange California Police Department

Eureka California Police Department/ Humboldt (state) Drug Task Force

Arcata California Police Department

San Francisco California Police Department

Hawaii County Hawaii Prosecuting Attorney

Honolulu County Hawaii Prosecuting Attorney

Hawaii County Hawaii Police Department

Honolulu Hawaii Police Department
Appendix I: Objectives, Scope, and

Methodology

Page 43 GAO-03-189 State Medical Marijuana Laws

Maui Hawaii Police Department

Anchorage Alaska District Attorney

Anchorage Alaska Police Department

Juneau Alaska Police Department

We requested comments from DOJ on a draft of this report in August 2002.

The comments are discussed near the end of the letter and are reprinted as

appendix V. DOJ also provided technical comments on the draft of this

report and we incorporated DOJ’s comments where appropriate. In

addition, we requested comments from the law enforcement officials we

interviewed pertaining to the section of this report dealing with their

perceptions and included their comments where appropriate. Finally, we

verified the information we obtained on the implementation of state

medical marijuana laws with the officials we contacted during our review.
Appendix II: The Supreme Court’s Decision in

United States v. Oakland Cannabis Buyers’

Cooperative

Page 44 GAO-03-189 State Medical Marijuana Laws

Under the federal Controlled Substances Act of 1970 (CSA), marijuana is

classified as a Schedule I controlled substance, a classification reserved

for drugs found by the federal government to have no currently accepted

medical use. 21 U.S.C. 812(c), Schedule I (c)(10).

Consistent with this classification system, the CSA does not allow

Schedule I drugs to be dispensed upon a prescription, unlike drugs in the

less restrictive drug schedules. Id. 829. In particular, the CSA prohibits all

possession, manufacture, distribution or dispensing of Schedule I

substances, including marijuana, except in the context of a governmentapproved research project. Id. 823(f), 841(a)(1), 844.

Some states have passed laws that create a medical use exception to

otherwise applicable state marijuana sanctions. California was the first

state to pass such a law, when, in 1996, California voters passed a ballot

initiative, Proposition 215, which removed certain state criminal penalties

for the medical use of marijuana.

In the wake of Proposition 215, various cannabis clubs formed in

California to provide marijuana to patients whose physicians had

recommended such treatment. In 1998, the United States sued to enjoin

one of these clubs, the Oakland Cannabis Buyers’ Cooperative, from

cultivating and distributing marijuana. The United States argued that,

whether or not the Cooperative’s actions were legal under California law,

they violated the CSA. Following lower court proceedings, the U.S.

Supreme Court granted the government’s petition for a writ of certiorari to

review whether the CSA permitted the distribution of marijuana to

patients who could establish “medical necessity.” United States v.

Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001).

Although the tension between California’s Proposition 215 and the broad

federal prohibition on marijuana was the backdrop for the Oakland

Cannabis case, the legal issue addressed by the Supreme Court did not

involve the constitutionality of either the federal or state statute. Rather,

the Court confined its analysis to an interpretation of the CSA and whether

there was a medical necessity defense to the Act’s marijuana prohibitions.

The Court held that there was not. While observing that the CSA did not

expressly abolish the defense, the Court stated that the statutory scheme

left no doubt that the defense was unavailable for marijuana. Because

marijuana appeared in Schedule I, it reflected a determination that

marijuana had no currently accepted medical use for purposes of the CSA.

The Court concluded that a medical necessity defense could not apply

under the CSA to a drug determined to have no medical use.

Appendix II: The Supreme Court’s Decision in

United States v. Oakland Cannabis Buyers’

Cooperative
Appendix II: The Supreme Court’s Decision in

United States v. Oakland Cannabis Buyers’

Cooperative

Page 45 GAO-03-189 State Medical Marijuana Laws

The Oakland Cannabis case upheld the federal government’s power to

enforce federal marijuana prohibitions without regard to a claim of

medical necessity. Thus, while California (and other states) exempt

certain medical marijuana users and their designated caregivers from state

sanctions, these individuals remain subject to federal sanctions for

marijuana use.
Appendix III: Medical Marijuana Registries in

Oregon, Alaska, Hawaii, and Select California

Counties

Page 46 GAO-03-189 State Medical Marijuana Laws

How states implemented registry requirements in the three registry states,

such as which agency administers the registry or the number of staff to

manage it, varied in some ways and were similar in other ways. Similarly,

the county-based registries in California had some differences and

commonalities.

In Oregon, the Department of Human Services is designated to maintain

the state medical marijuana registry. A staff of six is responsible for

reviewing and verifying incoming applications and renewals, including

following up on those that are incomplete, and input and update of the

database. Recommending physicians are sent, and must respond to a

verification letter for the application to be approved. By statute in Oregon,

an applicant can be denied a card for only two reasons—submitting

incomplete or false information. According to the State Public Health

Officer, the scope of the Department of Human Services responsibility is

to see to that there is a written determination of the patient’s condition by

a legitimate doctor, and includes an attending physician recommendation

that the patient might benefit from using marijuana. He stated that the

staff does not question a doctor’s recommendation for medical marijuana

use. The law is clear, he said. It is up to the physician to decide what is

best.

The Oregon Department of Human Services also considers the addition of

new conditions to the list of those acceptable for medical use of

marijuana, as authorized by Oregon’s medical marijuana statute. At the

time of our review, only one of the eight petitions that had been reviewed

by the Department had been approved—agitation due to Alzheimer’s

disease. Most of the petitioned conditions have had a psychological basis,

the State Public Health Officer said.

Alaska’s statute designates the Department of Health and Social Services

to manage the state medical marijuana registry. The full time equivalent of

one half-time person is responsible for registry duties, including checking

applications for accuracy and completeness and entering the information

into the registry. The physician’s license is checked for approval to

practice in Alaska, and if a caregiver is designated the registry is checked

to assure they are only listed as a caregiver for one person unless

otherwise approved by the Department. Patients, physicians and

caregivers are also contacted to verify information as appropriate. If all

Alaska statutory requirements are met, a medical marijuana registry

identification card is issued (see fig. 4). Registry cards are denied in Alaska

Appendix III: Medical Marijuana Registries in

Oregon, Alaska, Hawaii, and Select California

Counties

Oregon

Alaska
Appendix III: Medical Marijuana Registries in

Oregon, Alaska, Hawaii, and Select California

Counties

Page 47 GAO-03-189 State Medical Marijuana Laws

if the application is not complete, the patient is not otherwise qualified to

be registered, or if the information in the application is found to be false.

Figure 3: Example of Alaska’s Medical Marijuana Certification Card

Source: Alaska Department of Health and Social Services.

Alaska’s statute allows the Department to add debilitating medical

conditions to the approved list for use of marijuana. A procedure for

requesting new conditions is outlined in state regulations. To date, there

have been no requests to consider new conditions and none have been

added.

The medical marijuana law passed by the Hawaiian legislature designates

the state Department of Public Safety to administer the Hawaiian medical

marijuana registry. One person within Public Safety’s Narcotics

Enforcement Division staffs the registry. This person is responsible for

reviewing and approving applications and renewals as complete, inputting

applicant information into the database, and responding to any law

enforcement inquiries. Verification procedures in Hawaii are similar to

those followed in other states. See figure 4 for an example of Hawaii’s

registry card.

Hawaii
Appendix III: Medical Marijuana Registries in

Oregon, Alaska, Hawaii, and Select California

Counties

Page 48 GAO-03-189 State Medical Marijuana Laws

Figure 4: Example of Hawaii’s Medical Marijuana Registry Card

Source: State of Hawaii Department of Public Safety.
Appendix III: Medical Marijuana Registries in

Oregon, Alaska, Hawaii, and Select California

Counties

Page 49 GAO-03-189 State Medical Marijuana Laws

Registration application requirements and procedures for the voluntary

California registries we reviewed were unique to each county, but shared

some procedures with the programs established in the registry states.

In Humboldt County, the patient must submit an application and physician

recommendation to the county Department of Health and Human Services,

with a $40.00 fee. Applicants are interviewed, photographed, and their

county residency documents are checked during an in-person interview.

To protect the confidentiality of doctors, after the physician

recommendation has been verified, the physician portion of the

application is detached and shredded. Applications are denied if the

patient is not a county resident, the physician is not licensed in California,

or there is not a therapeutic relationship between the patient and

physician.

The San Francisco Medical Cannabis ID Card Program applications are

made available through the city’s Department of Public Health, where the

registry is maintained, and also from clinics, doctor’s offices and medical

cannabis organizations that have requested them. Applicants must bring a

physician’s statement form, or form documenting that an oral

recommendation was received, medical records release form, proof of

identification and residence in San Francisco and the fee. For an applicant

the fee is $25.00, plus $25.00 for each primary caregiver, up to a maximum

of three caregivers. Registry cards are valid for up to 2 years, based on a

physician’s recommendation. After verifying the application documents to

its satisfaction, the Department returns the entire application package to

the applicant, and issues cards to the applicant and caregivers. The

department does not copy the materials, or keep the name of registrants.

Information kept on file is limited to the serial number of the cards issued,

the serial number of the identification card submitted, the date the registry

card was issued, and when it expires.

The Mendocino County Public Heath Department and the Sheriff’s office

jointly run the County Pre-identification Program for county residents. The

Health Department accepts the applicant’s Medical Marijuana

Authorization forms, which includes patient and caregiver information,

and a section for the physician to complete. The physician section requires

checking “yes” or “no” to a recommendation, and the expiration length for

the recommendation in months, years or for the patient’s lifetime. No

condition information is requested. After verifying the physician

recommendation, that section is destroyed, and the approved

authorization sheet is sent to the Sheriff’s office. The Sheriff’s office

interviews registrants and caregivers, requiring that they sign a declaration

California
Appendix III: Medical Marijuana Registries in

Oregon, Alaska, Hawaii, and Select California

Counties

Page 50 GAO-03-189 State Medical Marijuana Laws

as to the caregiver’s role in patient care. Program identification cards with

photographs of patients and caregivers are issued by the Sheriff’s office.

In Sonoma County, the Sonoma County Medical Association, in

conjunction with the Sonoma County District Attorney, developed a

voluntary process for the medical association to provide peer review of

individuals’ medical records and physician recommendations for medical

use of marijuana. Based on the review, the patient’s physician is sent a

determination regarding whether the patient’s case met criteria

established regarding the patient-physician relationship, whether

marijuana was approved of, and whether the condition is within the

California state code allowing medical marijuana use. Upon receiving the

determination from their doctor, patients decide whether to voluntarily

submit the results to the District Attorney for distribution to the

appropriate police department or to the sheriff’s office. According to the

medical association director, some patients will go through the process

but prefer to keep the letter themselves rather than have their name in a

law enforcement database.
Appendix IV: Descriptions of Allowable

Conditions under State Medical Marijuana

Laws

Page 51 GAO-03-189 State Medical Marijuana Laws

Medical marijuana laws in California, Oregon, Hawaii and Alaska identify

medical conditions or symptoms eligible for medical marijuana use, but do

not specifically define the conditions or symptoms. The following

descriptions are based on definitions in the Merriam Webster Medical

Dictionary and selected other sources.

Alzheimer’s Disease: Alzheimer’s is a brain disease that usually starts in

late middle or old age. It is characterized as a memory loss for recent

events spreading to memories for more distant events and progressing

over the course of five to ten years to a profound intellectual decline

characterized by impaired thought and speech and finally complete

helplessness.

Anorexia: Anorexia is a lack, or severe loss of appetite, especially when

prolonged. Many patients develop anorexia as a secondary condition to

other diseases.

AIDS: Acquired Immune Deficiency Syndrome is a severe disorder caused

by the human immunodeficiency virus, resulting in a defect in the cells

responsible for immune response that is manifested by increased

susceptibility to infections and to certain rare cancers.

Arthritis: Arthritis refers to the inflammation of joints, usually

accompanied by pain, swelling, and stiffness.

Cachexia: Cachexia is a general physical wasting and malnutrition usually

associated with chronic disease, such as AIDS or cancer.

Cancer: Cancer is an abnormal growth that tends to grow uncontrolled

and spread to other areas of the body. It can involve any tissue of the body

and can have many different forms in each body area. Cancer is a group of

more than 100 different diseases. Most cancers are named for the type of

cell or the organ in which they begin.

Crohn’s Disease: Crohn’s disease is a serious inflammatory disease of the

gastrointestinal tract, it predominates in parts of the small and large

intestine causing diarrhea, abdominal pain, nausea, fever, and at times loss

of appetite and subsequent weight loss.

Epilepsy: Epilepsy is a disorder marked by disturbed electrical rhythms of

the central nervous system and typically manifested by convulsive attacks,

usually with clouding of consciousness.

Appendix IV: Descriptions of Allowable

Conditions under State Medical Marijuana

Laws
Appendix IV: Descriptions of Allowable

Conditions under State Medical Marijuana

Laws

Page 52 GAO-03-189 State Medical Marijuana Laws

Glaucoma: Glaucoma is a disease of the eye marked by increased

pressure within the eyeball that can result in damage to the part of the eye

referred to as the blind spot and if untreated leads to gradual loss of

vision.

HIV: Human Immunodeficiency Virus is a virus that reduces the number of

the cells in the immune system that helps the body fight infection and

certain rare cancers, and causes acquired immune deficiency syndrome

(AIDS).

Migraine: A migraine is a severe recurring headache, usually affecting

only one side of the head, characterized by sharp pain and often

accompanied by nausea, vomiting, and visual disturbances.

Multiple Sclerosis: Multiple Sclerosis is a disease of the central nervous

system marked by patches of hardened tissue in the brain or the spinal

cord causing muscular weakness, loss of coordination, speech and visual

disturbances, and associated with partial or complete paralysis and jerking

muscle tremor.

Nausea: Nausea refers to a stomach distress with distaste for food and an

urge to vomit. Severe Nausea refers to nausea of a great degree.

Pain: Pain refers to an unpleasant sensation that can range from mild,

localized discomfort to agony. Pain has both physical and emotional

components. The physical part of pain results from nerve stimulation. Pain

may be contained to a discrete area, as in an injury, or it can be more

diffuse, as in disorders that are characterized as causing pain, stiffness,

and tenderness of the muscles, tendons, and joints. Severe pain refers to

pain causing great discomfort or distress. Chronic pain is often described

as pain that lasts six months or more and marked by slowly progressing

seriousness.

Spasticity: Spasticity is a condition in which certain muscles are

continuously contracted. This contraction causes stiffness or tightness of

the muscles and may interfere with gait, movement, and speech.

Symptoms may include increased muscle tone, a series of rapid muscle

contractions, exaggerated deep tendon reflexes, muscle spasms,

involuntary crossing of the legs, and fixed joints. The degree of spasticity

varies from mild muscle stiffness to severe, painful, and uncontrollable

muscle spasms.
Appendix IV: Descriptions of Allowable

Conditions under State Medical Marijuana

Laws

Page 53 GAO-03-189 State Medical Marijuana Laws

Wasting Syndrome: A condition characterized by loss of ten percent of

normal weight without obvious cause. The weight loss is largely the result

of depletion of the protein in lean body mass and represents a metabolic

derangement frequent during AIDS.
Appendix V: Comments from the Department

of Justice

Page 54 GAO-03-189 State Medical Marijuana Laws

Appendix V: Comments from the Department

of Justice
Appendix V: Comments from the Department

of Justice

Page 55 GAO-03-189 State Medical Marijuana Laws
Appendix V: Comments from the Department

of Justice

Page 56 GAO-03-189 State Medical Marijuana Laws
Appendix V: Comments from the Department

of Justice

Page 57 GAO-03-189 State Medical Marijuana Laws
Appendix V: Comments from the Department

of Justice

Page 58 GAO-03-189 State Medical Marijuana Laws
Appendix VI: GAO Contacts and Staff

Acknowledgments

Page 59 GAO-03-189 State Medical Marijuana Laws

Paul Jones (202) 512-8777

John Mortin (202) 512-8777

Tanya Cruz, Christine Davis, Francisco Enriquez, Evan Gilman, and

Monica Kelly made key contributions to this report.

Appendix VI: GAO Contacts and Staff

Acknowledgments

GAO Contacts

Staff

Acknowledgments

(440091)
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