Originally published in Trial Reporter, Journal of the Maryland Association for Justice
ByKevin Goldberg

Medical cannabis has arrived in Maryland! The first retail sales of medical cannabis occurred in December 2017, and there are now at least 30 dispensaries, over 22,000 registered patients1 and approximately 694 participating medical professionals.2 These numbers will continue to grow over the next several years, as patients and doctors learn about the medical benefits of cannabis.

The purpose of this article is to provide readers with basic information about Maryland’s medical cannabis program as well as resources to obtain additional information.

Legal Status of Medical Cannabis

Although cannabis remains a Schedule 1 Controlled Substance and is illegal under federal Law, 30 states and Washington, D.C. have state-approved medical cannabis programs. Eight states and Washington, D.C. have legalized adult recreational use of cannabis. A Quinnipiac poll from 2017 found that 94 percent of Americans are in favor of medical cannabis and 60 percent are in favor of full legalization. Seventy six percent of those polled support reducing the classification of cannabis as a schedule 1 drug. According to data published by JAMA Internal Medicine, states that implemented medical cannabis laws have 24 percent lower opioid overdose death rates from prescription pain killers and heroin.4 In Maryland, medical cannabis is legal on the state Level; and with public support at an all-time high, Maryland’s medical cannabis program is likely here to stay. In fact, many predict that Maryland will fully legalize cannabis for all citizens within the next five years.

Overview of Maryland’s Program and The Maryland Market

Maryland’s Medical cannabis program is overseen by the Maryland Medical Cannabis Commission (MMCC).5 Currently, there are 14 licensed growers, 12 licensed processors, 30 licensed dispensaries, and four licensed Test Labs. Eventually, there will be over 100 dispensaries throughout the state.

The retail price of medical cannabis is approximately $50-$60 per eighth of an ounce of flower. Vape pens, which are also extremely popular cost about $80-$90 for a 500 milligram (mg) cartridge. Cannabis consumers typically use the mobile apps, Weedmaps or Leafly to compare pricing, research strains and determine which dispensary and brands they will use. Topicals and transdermal patches generally cost $20-$40. These prices are expected to decline over the course of the next two years as the market matures. The average medical cannabis patient will spend about $2,100 per year on cannabis products, which is not covered by health insurance, flexible spending accounts or health savings accounts. It is estimated that there will eventually be 100,000 patients in Maryland. Patients do not pay tax on medical cannabis purchased at dispensaries as Maryland does not tax medicine.

Overview of Production Process

The 14 licensed growers cultivate various strains of cannabis in either indoor growing facilities or green houses and then sell the cannabis wholesale to dispensaries and processors. The dispensaries sell the cannabis flower, vape pens, and other products retail to customers (who must be registered patients). All cannabis products sold in Maryland must pass strict independent lab testing standards which are set forth in Code of Maryland Regulations (COMAR) before any product is transported or released to the market.

Maryland has perhaps the strictest lab testing procedures for any state regulated cannabis program in the entire country. All cannabis sold Maryland is tested for pesticides, mold, heavy metals, mercury, lead, cadmium, arsenic, foreign materials, microbials, cannabinoid profile (including THC levels and CBD levels) and terpene profiles.6 Batch samples are retained for stability testing and retention sampling at 6-month intervals to ensure product potency and purity.7

Unlike cannabis purchased illegally on the black market, Maryland medical cannabis patients know exactly what they are purchasing, and they receive high quality, safe, and effective products.

The licensed “processors” take the cannabis flower or flower and cannabis byproduct (known as trim or kief) purchased wholesale from the grower and use a purification technique using either butane or carbon dioxide to extract cannabis oil from the cannabis flower material. The processors produce various products from the oil including vape pens, pills, tinctures, shatter, topicals and transdermal patches. The processors then sell these products wholesale to the dispensaries who then sell these products to patients at one of the many licensed dispensaries throughout the state.

Each plant and package has an RFID tag and state inspectors randomly visit the grow facilities for announced and unannounced inspections. Each plant and each package is tracked by Metrc, LLC, a cannabis compliance software system used by Colorado, Maryland and other states. Growers, processors and dispensaries can be fined or lose their license for violating COMAR requirements.

How to Become a Cannabis Patient

Becoming a patient eligible to purchase medical cannabis in Maryland is a two-step process. First, one must register as a patient with the MMCC and is a relatively simple process. Second, the potential patient needs to see a Maryland doctor that participates in the program and obtain a “recommendation” for medical cannabis. If a personal doctor does not participate in the program, patients can find a participating doctor at cannabisdoctors.com. Adults and children are eligible to be patients under Maryland’s program.

Maryland has a broad list of medical conditions for which cannabis can be recommended including severe or chronic pain, cachexia, anorexia, wasting syndrome, severe nausea, seizures, persistent muscle spasms and any condition that results in a patient being admitted to hospice or receiving palliative care.8

Limitations on Medical Cannabis Use

Prior to receiving cannabis at any dispensary, all patients and caregivers must sign a form acknowledging that they are not immune from civil, criminal or other penalties for operating vehicles/boats, while under the influence, smoking medical cannabis in any public place or in a motor vehicle, undertaking tasks while under the influence of medical cannabis when doing so would constitute negligence or professional malpractice.9 Furthermore, it is now a felony punishable by up to five years in jail or a fine of up to $10,000 for any person to distribute medical cannabis from a grower, dispensary or patient to any individual who is not a properly qualified patient.10

Conclusion

There will be many implications and considerations for lawyers, judges and others in the legal community to consider in light of Maryland’s new medical cannabis laws. Here are a few examples:

  • Can a client with chronic pain resulting from negligence claim future medical expenses for medical cannabis recommended by a doctor? If so, does this impact whether a case should be filed in state court or federal court?
  • Will defense lawyers subpoena medical records from our clients who see cannabis doctors and admit to having chronic or severe pain which may have preceded the accident? Expect discovery related to whether your client was a cannabis patient prior to the accident.
  • Will the Workers’ Compensation Commission require insurers to pay for medical cannabis for individuals injured on the job who receive a doctor’s recommendation for cannabis?
  • Will a Social Security Disability claimant receive an unfavorable ruling from a federal administrative law judge just because the claimant uses medical cannabis to treat their symptoms? What is the proper advice to give to the client who asks whether they can use medical cannabis as a treatment option?
  • How will a defendant driver admit use of medical cannabis impact liability? What experts are needed to prove that the use of medical cannabis impacted the individual’s ability to drive?

Biography

Kevin I. Goldberg was the 2009-2010 President of the Maryland Association for Justice. He is currently a partner at Goldberg & Finnegan, LLC. He also founded Green Leaf Medical, LLC which is one of the licensed Growers and processors in Maryland. Green Leaf had the number-one-ranked application out of 146 Applicants in Maryland. Mr. Goldberg currently serves as Green Leaf’s General Counsel and Chief Operating Officer.

1Including 81 registered minor patients, 87 hospice patients, and 1080 Caregivers. These numbers come from the Maryland Medical Cannabis Commission as of February 7, 2018.

2Including 491 physicians, four podiatrists, 160 nurses and 39 dentists. These numbers come from the Maryland Medical Cannabis Commission as of February 7, 2018.

4https://media.jamanetwork.com/news-item/lower-opioid-overdose-death-rates associated-with-state-medical-cannabis-laws/ (Conclusion: Medical cancer laws are associated with significantly lower state-level opioid overdose mortality rates. Further investigation is required to determine how medical cannabis laws may interact with policies aimed at preventing opioid analgesic overdose)

5See MD. Health General § 13-3301 through 13-3316; and COMAR Title 10 Maryland Dept. Health Subtitle 62 Ch. 01 through Ch. 35. Maryland’s Legislature will likely pass additional legislation making certain changes and allowing for additional licenses to grow and process medical cannabis.

6COMAR 10.62 15.05 (Contents of Certificate of Analysis)

7COMAR 10.62 15.07 (Stability Testing and Retention Sampling)

8See Health General § 13-3304. Physician certification requirements In general

(a) The Commission shall register as a certifying provider an individual who:

(1) Meets the requirements of this subtitle; and

(2) Submits application materials that meet the requirements of this subtitle. Contents required in application

(b) To be registered as a certifying provider, a provider shall submit a proposal to the Commission that includes:

(1) The reasons for including a patient under the care of the provider for the purposes of this subtitle, including the patient’s qualifying medical conditions;

(2) An attestation that a standard patient evaluation will be completed, including a history, a physical examination, a review of symptoms, and other pertinent medical information; and

(3) The provider’s plan for the ongoing assessment and follow-up care of a patient and for collecting and analyzing data.

Requirements for registration as certifying provider

(c) The Commission may not require an individual to meet requirements in addition to the requirements listed in subsections (a) and (b) of this section to be registered as a certifying provider

Medical conditions for which applications encourage

(d)(1) The Commission is encouraged to approve provider applications for the following medical conditions:

(i) A chronic or debilitating disease or medical condition that results in a patient being admitted into hospice or receiving palliative care; or

(ii) A chronic or debilitating disease or medical condition or the treatment of a chronic or debilitating disease or medical condition that produces:

1. Cachexia, anorexia, or wasting syndrome;

2. Severe or chronic pain;

3. Severe nausea

4. Seizures; or

5. Severe or persistent muscle spasms.

(2) The Commission may not limit treatment of a particular medical condition to one class of providers.

Severe conditions for which other treatments ineffective

(e) The Commission may approve applications that include any other condition that is severe and for which other medical treatments have been ineffective if the symptoms reasonably can be expected to be relieved by the medical use of cannabis.

9 A copy of this form can be found at https://mmcc.maryland.gov/Documents/QualifiedPatientAttestationForm.pdf. This requirement is codified at Health General § 13-3314 (activities Subject to Civil, Criminal or Other Penalties).

1010 Health General § 13-3313 (b).