Attorney general issues letter to lawmakers on medical marijuana (The Bay Area Reporter)

By Dan Aiello on 12/29/11 
Just a week after Assemblyman Tom Ammiano met with the U.S. attorney's office to discuss federal raids on California's medical marijuana dispensaries and growers, California's attorney general has issued a letter to the state's top lawmakers warning that attempts to pass statewide regulation of marijuana must not impede upon the will of the people or further provoke the wrath of the federal government.
"We have started a conversation," Ammiano, an openly gay San Francisco Democrat, told the Bay Area Reporter of his meeting with Melinda Haag, U.S. attorney for the Northern District of California.
Ammiano called Haag's requirement that marijuana dispensaries be 1,000 feet, as per federal law, rather than California's 600 feet from schools, parks, and playgrounds, "entirely reasonable." But Ammiano also warned that he would "continue to push back," against what he sees as an arbitrary and irrational enforcement of federal controlled substances laws within the borders of the Golden State.
Ammiano called the U.S. Department of Justice's concerns "a moving target," and expressed his frustration that any legislative efforts to regulate the implementation of Proposition 215 might pass, only to be met by new concerns of the feds.
Prop 215, passed by state voters in 1996, legalized medical marijuana in California. Since then, 15 other states and the District of Columbia have followed suit. However, the federal government does not recognize medical marijuana as legal medicine.
In the meantime, state Attorney General Kamala Harris wrote a letter December 21 to top lawmakers – Senate Pro Tem, Darrell Steinberg (D-Sacramento) and gay Assembly Speaker John A. Perez (D-Los Angeles) – and copied Ammiano and out state Senator Mark Leno (D-San Francisco), both instrumental in the medical marijuana debate. In the letter, Harris wrote that, following a series of meetings with groups representing the parties concerned with the state's medical marijuana laws she concluded that any effort to regulate the compassionate use of marijuana in statewide legislation will be limited by the state's constitution and by the response to such legislation by the U.S. Department of Justice's enforcement of the Controlled Substances Act.
"I am troubled by the exploitation of California's medical marijuana laws by gangs, criminal enterprises, and others," Harris wrote, explaining that the 2008 nonbinding guidelines established by her predecessor, Jerry Brown (now the governor), no longer are effective in a "more complicated" present day.
Harris reminded Steinberg and Perez that two legal "boundaries" limit the Legislature's ability to regulate the issue.
First, said Harris, was the current precedent of the Second Appellate District ruling in Pack v. Superior Court , which found that state regulation of large scale cultivation and manufacture of marijuana "stand as an obstacle to federal enforcement efforts and are therefore preempted by the Federal Controlled Substances Act," of 1970.
Second, because the Compassionate Use Act (Prop 215) was adopted as an initiative statute, legislative efforts to regulate the issues surrounding its implementation are limited by the state constitution, which prevents legislative regulation that would "undo what the people have done."
Despite these limits, Harris indicated the need for legislative intervention, describing "significant unresolved legal questions," regarding parts of the initiative that allow for collaborative cultivation. While the initiative itself does not include the term "dispensaries," Section 11362.775 of the Health and Safety Code that describes collective cooperation to cultivate marijuana is the source of what has come to be known as dispensaries.
In her letter, Harris states, "strict constructionists argue the plain wording of the law only provides immunity to prosecution for those who associate in order to collectively cultivate marijuana," while those not involved in the physical cultivation are not protected from prosecution.
The attorney general stated that others read the statute to expansively include all who are involved with the cultivation and dispensing of marijuana for medical use.
Harris called the two interpretations "irreconcilable," and stated that until there is a clear interpretation of the statute "uncertainty" for law enforcement and patients will continue to exist.
Harris also noted that marijuana "edibles," food with THC, marijuana's active ingredient, also were not defined by Prop 215, noting the amount of THC in such food products as cookies, infused drinks, cakes, and butter has no standard portion established, nor are such food products regulated to ensure they are made in "a safe manner."
"I hope that the foregoing suggestions are helpful to you in crafting legislation," Harris concluded. "California law places a premium on patients' rights to access marijuana for medical use. In any legislative action that is taken, the voters' decision to allow physicians to recommend marijuana to treat seriously ill patients must be respected."