HOUSE OF REPRESENTATIVES	H.B. NO.	2847
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII

A BILL FOR AN ACT

relating to medical cannabis.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

PART I.

     SECTION 1.  The legislature finds that the State's medical marijuana program, enacted into law in 2000, is a public health program conceived out of concern for the health and welfare of the seriously ill.  Registration for the program is currently administered by the narcotics enforcement division of the department of public safety.

     Many patients, however, are intimidated by the prospect of dealing with a narcotics enforcement agency, and do not apply for certification under the program.  As a result, these patients cannot benefit from the protection from arrest or the threat of arrest by state or county authorities that is offered to those who are certified.

     Furthermore, the program's current placement in the narcotics enforcement division is also partly responsible for the reluctance of many physicians to certify patients.  These physicians are concerned that their written certifications will be reviewed by the same entity that monitors physicians on issues such as over-prescribing and, "doctor shopping".

     In June 2008, the department of public safety violated patients' privacy interests by mistakenly releasing private patient information to a reporter for the Hawaii Tribune-Herald.  The list included the name of each of the four thousand two hundred patients, the location of their cannabis plants, license information, and the names of their physicians.

     Since the mission of the department of health is "to protect and improve the health and environment for all people in Hawaii", the department is experienced in dealing with private health records, and since the use of medical cannabis is properly regarded as a health issue, not simply as an exception to the State's laws on controlled substances, the legislature finds that the State's medical marijuana program would be more properly administered by the department of health instead of the department of public safety.  Moreover, the department of health is already part of the medical use of medical marijuana program as existing law confers upon the department of health the power to add new debilitating conditions to those which would permit medical cannabis use.

     The purpose of this Act is to amend the medical use of marijuana law by:

     (1)  Replacing the term "marijuana" with "cannabis";

     (2)  Transferring the administration of the program for the medical use of marijuana from the department of public safety to the department of health;

     (3)  Establishing procedures for employment-related marijuana drug testing and review of results by a medical review officer;

     (4)  Directing the department of health to establish a system of medical cannabis distribution outlets;

     (5)  Directing the counties to establish a system to license, tax, and regulate medical cannabis family farms;

     (6)  Directing the department of health, in consultation with the University of Hawaii, to establish a system to license research and development for medical cannabis related products;

     (7)  Allowing out-of-state visitors who are qualifying patients or primary caregivers in their home state to apply for a temporary registration certificate; and

     (8)  Permitting qualifying patients to transport medical marijuana for their personal use, if certain conditions are met.

     SECTION 2.  Chapter 329, part IX, Hawaii Revised Statutes, is amended by amending its title to read as follows:

     "[[]PART IX.[]]  MEDICAL USE OF [MARIJUANA] CANNABIS"

     SECTION 3.  Section 329-121, Hawaii Revised Statutes, is amended to read as follows:

     "§329-121  Definitions.  As used in this part:

     "Adequate supply" means an amount of [marijuana] cannabis 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] cannabis for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed three mature [marijuana] cannabis plants, four immature [marijuana] cannabis plants, and one ounce of usable [marijuana] cannabis per each mature plant.

"Cannabis" shall have the same meaning as "marijuana" and "marijuana concentrate" as provided in sections 329-1 and 712‑1240.

     "Debilitating medical condition" means:

     (1)  Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

     (2)  A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

         (A)  Cachexia or wasting syndrome;

         (B)  Severe pain;

         (C)  Severe nausea;

         (D)  Seizures, including those characteristic of epilepsy; or

         (E)  Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

     (3)  Any other medical condition approved by the department of health pursuant to administrative rules in response to a request from a physician or potentially qualifying patient.

"Department" means the department of health.

     ["Marijuana" shall have the same meaning as "marijuana" and "marijuana concentrate" as provided in sections 329-1 and 712-1240.]

     "Medical use" means the acquisition, possession, cultivation, use, distribution, or transportation of [marijuana] cannabis or paraphernalia relating to the administration of [marijuana] cannabis to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition.  For the purposes of "medical use", the term distribution is limited to the transfer of [marijuana] cannabis and paraphernalia from the primary caregiver to the qualifying patient[.] and acquisition from state licensed outlets.

     "Physician" means a person who is licensed to practice medicine or osteopathic medicine under chapter 453 and is licensed with authority to prescribe drugs and is registered under section 329-32.  "Physician" does not include [physician's] a physician assistant as described in section 453-5.3 or an advanced practice registered nurse with prescriptive authority as described in section 457-8.6.

     "Primary caregiver" means a person, other than the qualifying patient and the qualifying patient's physician, who is eighteen years of age or older who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of [marijuana.] cannabis.  In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody.

     "Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition.

     ["Usable marijuana"] "Usable cannabis" means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture, oils, [[]or[]] infused preparation thereof, that are appropriate for the medical use of [marijuana.] cannabis.  ["Usable marijuana"] "Usable cannabis" does not include the seeds, stalks, and roots of the plant.

     "Written certification" means the qualifying patient's medical records or a statement signed by a qualifying patient's physician, stating that in the physician's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of [marijuana] cannabis would likely outweigh the health risks for the qualifying patient.  The department of [public safety] health may require, through its rulemaking authority, that all written certifications comply with a designated form.  "Written certifications" are valid for only one year from the time of signing."

     SECTION 4.  Section 329-122, Hawaii Revised Statutes, is amended to read as follows:

     "§329-122  Medical use of [marijuana;] cannabis; conditions of use.  (a)  Notwithstanding any law to the contrary, the medical use of [marijuana] cannabis by a qualifying patient shall be permitted only if:

     (1)  The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

     (2)  The qualifying patient's physician has certified in writing that, in the physician's professional opinion, the potential benefits of the medical use of [marijuana] cannabis would likely outweigh the health risks for the particular qualifying patient; and

     (3)  The amount of [marijuana] cannabis does not exceed an adequate supply.

     (b)  Subsection (a) shall not apply to a qualifying patient under the age of eighteen years, unless:

     (1)  The qualifying patient's physician has explained the potential risks and benefits of the medical use of [marijuana] cannabis to the qualifying patient and to a parent, guardian, or person having legal custody of the qualifying patient; and

     (2)  A parent, guardian, or person having legal custody consents in writing to:

         (A)  Allow the qualifying patient's medical use of [marijuana;] cannabis;

         (B)  Serve as the qualifying patient's primary caregiver; and

         (C)  Control the acquisition of the [marijuana,] cannabis, the dosage, and the frequency of the medical use of [marijuana] cannabis by the qualifying patient.

     (c)  The authorization for the medical use of [marijuana] cannabis in this section shall not apply to:

     (1)  The medical use of [marijuana] cannabis that endangers the health or well-being of another person;

     (2)  The medical use of [marijuana:] cannabis:

         (A)  In a school bus, public bus, or any moving vehicle;

         (B)  In the workplace of one's employment;

         (C)  On any school grounds;

         (D)  At any public park, public beach, public recreation center, recreation or youth center; or

         (E)  Other place open to the public; and

     (3)  The use of [marijuana] cannabis by a qualifying patient, parent, or primary caregiver for purposes other than medical use permitted by this part."

     SECTION 5.  Section 329-123, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§329-123[]]  Registration requirements.  (a)  Physicians who issue written certifications shall register the names, addresses, patient identification numbers, and other identifying information of the patients issued written certifications with the department of [public safety.] health.  The department of health shall provide the department of public safety, on a weekly basis, a copy of the information provided by physicians.

     (b)  Qualifying patients shall register with the department of [public safety.] health.  Such registration shall be effective until the expiration of the certificate issued by the physician.  Every qualifying patient shall provide sufficient identifying information to establish personal identity of the qualifying patient and the primary caregiver.  Qualifying patients shall report changes in information within five working days.  Every qualifying patient shall have only one primary caregiver at any given time.  The department of health shall then issue to the qualifying patient a registration certificate, and may charge a reasonable fee not to exceed $25.  The department of health shall provide the department of public safety, on a weekly basis, a copy of the information provided by qualifying patients.

     (c)  Primary caregivers shall register with the department of [public safety.] health.  Every primary caregiver shall be responsible for the care of only one qualifying patient at any given time.  The department of health shall provide the department of public safety, on a weekly basis, a copy of the information provided by primary caregivers.

(d)  An out-of-state visitor who possesses a registration certificate or its equivalent issued by another state government to permit the medical use of cannabis by a qualifying patient, or to permit a person to assist with a qualifying patient's medical use of cannabis in that other state, shall be allowed to apply for a temporary registration certificate for use within the State.  Distribution outlets licensed by the department of health shall be allowed to issue a temporary registration certificate to an out-of-state visitor who provides a valid registration certificate or its equivalent issued by another state government.  The department of health or distribution outlet may charge a reasonable fee not to exceed $25.

     [(d)] (e)  Upon an inquiry by a law enforcement agency, the department of [public safety] health shall verify whether the particular qualifying patient has registered with the department and may provide reasonable access to the registry information for official law enforcement purposes."

     SECTION 6.  Section 329-124, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§329-124[]]  Insurance not applicable.  This part shall not be construed to require insurance coverage for the medical use of [marijuana.] cannabis."

     SECTION 7.  Section 329-125, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§329-125[]]  Protections afforded to a qualifying patient or primary caregiver.  (a)  A qualifying patient or the primary caregiver may assert the medical use of [marijuana] cannabis as an affirmative defense to any prosecution involving [marijuana] cannabis under this [[]part[]] or chapter 712; provided that the qualifying patient [or the], primary caregiver, distribution outlet, licensed farmer, or research center strictly complied with the requirements of this part.

     (b)  Any qualifying patient [or], primary caregiver, distribution outlet, licensed farmer, or research center not complying with the permitted scope of the medical use of [marijuana] cannabis shall not be afforded the protections against searches and seizures pertaining to the misapplication of the medical use of [marijuana.] cannabis.

     (c)  No person shall be subject to arrest or prosecution for simply being in the presence or vicinity of the medical use of [marijuana] cannabis as permitted under this part."

     SECTION 8.  Section 329-126, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§329-126[]]  Protections afforded to a treating physician.  No physician shall be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for providing written certification for the medical use of [marijuana] cannabis for a qualifying patient; provided that:

     (1)  The physician has diagnosed the patient as having a debilitating medical condition, as defined in section 329-121;

     (2)  The physician has explained the potential risks and benefits of the medical use of [marijuana,] cannabis, as required under section 329-122;

     (3)  The written certification is based upon the physician's professional opinion after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship; and

     (4)  The physician has complied with the registration requirements of section 329-123."

     SECTION 9.  Section 329-127, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§329-127[]]  Protection of [marijuana] cannabis and other seized property.  [Marijuana,] Cannabis, paraphernalia, or other property seized from a qualifying patient or primary caregiver in connection with a claimed medical use of [marijuana] cannabis under this part shall be returned immediately upon the determination by a court that the qualifying patient or primary caregiver is entitled to the protections of this part, as evidenced by a decision not to prosecute, dismissal of charges, or an acquittal; provided that law enforcement agencies seizing live plants as evidence shall not be responsible for the care and maintenance of [such] the plants."

     SECTION 10.  Section 329-128, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§329-128[]]  Fraudulent misrepresentation; penalty.  (a)  Notwithstanding any law to the contrary, fraudulent misrepresentation to a law enforcement official of any fact or circumstance relating to the medical use of [marijuana] cannabis to avoid arrest or prosecution under this part or chapter 712 shall be a petty misdemeanor and subject to a fine of $500.

     (b)  Notwithstanding any law to the contrary, fraudulent misrepresentation to a law enforcement official of any fact or circumstance relating to the issuance of a written certificate by a physician not covered under section 329-126 for the medical use of [marijuana] cannabis shall be a misdemeanor.  This penalty shall be in addition to any other penalties that may apply for the non-medical use of [marijuana.] cannabis.  Nothing in this section is intended to preclude the conviction of any person under section 710-1060 or for any other offense under part V of chapter 710."

     SECTION 11.  This part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 12.  All appropriations, records, equipment, files, supplies, contracts, books, papers, documents, maps, computer software and data, authorizations and other property, both real and personal, heretofore made, used, acquired, or held by the department of public safety in the exercise of the functions and programs transferred by this Act shall be transferred to the department of health when the functions or programs are transferred.

     SECTION 13.  All rules, policies, procedures, guidelines, and other material adopted or developed by the department of public safety to implement provisions of the Hawaii Revised Statutes which are reenacted or made applicable to the department of health by this Act, shall remain in full force and effect until amended or repealed by the department of health pursuant to chapter 91, Hawaii Revised Statutes.  In the interim, every reference to the department of public safety or the director of public safety in those rules, policies, procedures, guidelines, and other material is amended to refer to the department of health or the director of health as appropriate.

PART II.

     SECTION 14.  Chapter 329B, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§329B-A Marijuana testing. (a)  If an employer requires an employee to submit to a drug test for marijuana, the employer shall designate a medical review officer to receive, review, and report the test result to the employer.  The medical review officer shall be trained in the assessment and treatment of substance abuse.

(b)  If a medical review officer receives a test result that is negative for marijuana from a laboratory as provided in section 329B-5, the medical review officer shall report a negative marijuana test result to the employer.

(c)  If a medical review officer receives a test result that is positive for marijuana from a laboratory as provided in section 329B-5, the medical review officer shall consult with the employee to determine if the employee is registered with the department of health as a qualifying patient under section 329-123.

(d)  If the employee is not registered with the department of health as a qualifying patient under section 329-123, the medical review officer shall report a positive marijuana test result to the employer.

(e)  If the employee is registered with the department of health as a qualifying patient under section 329-123, the medical review officer shall consult with the employee to determine the employee's pattern of marijuana use and the potential for impairment while the employee is acting in the course and scope of employment.

(f)  If, after the consultation required by subsection (e), the medical review officer determines that the employee's marijuana use poses a risk to the safety of the employee or others in the employee's place of employment, the medical review officer shall report a positive marijuana test result to the employer.

(g)  If, after the consultation required by subsection (e), the medical review officer determines that the employee's marijuana use does not pose a risk to the safety of the employee or others in the employee's place of employment, the medical review officer shall report a negative marijuana test result to the employer."

     SECTION 15.  Section 329B-5, Hawaii Revised Statutes, is amended to read as follows:

     "§329B-5  Substance abuse testing procedures and interpretation of test results.  (a)  Prior to the collection of any sample for substance abuse testing, the individual to be tested shall receive a written statement of the specific substances to be tested for and a statement that over-the-counter medications or prescribed drugs may result in a positive test result.

(b)  When the substance abuse testing is for nonmedical employment or pre-employment purposes and includes a test for marijuana, the laboratory shall forward the marijuana test result to the medical review officer designated by the employer under section 329B-A.  The laboratory may not report a marijuana test result to the employer, but may report the result of any other substance abuse test in accordance with this chapter.

     [(b)] (c)  In accordance with this section, the director shall adopt rules pertaining to:

     (1)  The qualifications, responsibilities, and licensing of the medical review officer;

     (2)  The method of transmittal of laboratory test results and any interpretations of test results to the third party and the tested individual; and

     (3)  The obtaining, disclosure, and confidentiality of substance abuse testing information.

     [(c)] (d)  No laboratory, including a substance abuse on-site screening location, may test for any substance not included on the written statement containing the specific substances to be tested for.

     [(d)] (e)  As used in this section, "test results" means laboratory test results or the results of substance abuse on-site screening tests."

PART III.

     SECTION 16.  The department of health shall adopt rules pursuant to chapter 91, Hawaii Revised Statutes, within one hundred-twenty days of the effective date of this Act, to establish and regulate a system of medical cannabis distribution outlets to supply the medical cannabis needs of qualifying patients in the State.  The rules shall address, but not be limited to, the following issues:

     (1)  Licensure of distribution outlets;

     (2)  The sale of medical cannabis and related products, which shall be restricted to qualifying patients and primary caregivers;

     (3)  Application for licensure, including requisite knowledge of organic cannabis products and reasonable security measures;

     (4)  Issuance of temporary registration certificates by distribution outlets to out-of-state visitors who possess a registration certificate or its equivalent issued by another state government to permit the medical use of cannabis by a qualifying patient or to permit a person to assist with a qualifying patient's medical use of cannabis in that other state; and

     (5)  Requirement that all medical cannabis sold by distribution outlets originate within the State.

PART IV.

     SECTION 17.  The purpose of this part is to:

     (1)  Authorize and direct each county to develop a system to tax and regulate medical cannabis by licensing family farmers' land-leases and service contracts to individual state certified medical cannabis patients; and

     (2)  Authorize and direct each county to create an allotment system, licensing agriculturally zoned family farmers to supply the medical needs of their respective community by securing and leasing plots of land to individual medical cannabis patients.  Thirty per cent of all allotments shall be provided to residents that can prove over seventy years of residency in the State.  Money will be exchanged over the land lease only as necessary to avoid violating state or federal law.

     SECTION 18.  The Hawaii Revised Statutes is amended by adding a new chapter to title 6 to be appropriately designated and to read as follows:

"Chapter

Family Farmer Regulation and Revenue program

§   -1  Family farmers; regulation.  (a)  Each county shall establish a system to license, tax, and regulate medical cannabis.  Each county council shall enact ordinances for the purposes of this chapter.

     (b)  Cannabis family farmers shall be required to pay licensing fees and taxes on land leases to individual patients and shall be subject to other reasonable safety and regulations standards.

§   -2  Family farmers; licensing.  (a)  Each county shall issue licenses to agriculturally zoned family farmers to supply the medical needs of their respective community.

     (b)  The licensed family farmer may have allotments to allow for the production of five hundred pounds of A grade medical cannabis and two hundred pounds of infused/oil cannabis products.

§   -3  Medical cannabis allotment system.  An agriculturally zoned family farmer may qualify for a medical cannabis allotment by creating a five-year organic farm plan based on at least two organic crops.  The first crop shall be medical cannabis.  The second crop shall be determined by need in the community, identified by the respective community oversight committee.

§   -4  Community oversight committees.  (a)  Community oversight committees shall be established in each county to administer implementation of the program, adopt rules under chapter 91, investigate and discuss procedures to obtain licenses, focus on growing standards, and develop a legal distribution system.

     (b)  Each community oversight committee shall consist of:

     (1)  The director of health or the director's designee;

     (2)  The chairperson of the board of agriculture or the chairperson's designee;

     (3)  One community member appointed by the governor;

     (4)  One community member appointed by the department of agriculture; and

     (5)  One representative of the county auditor.

     (c)  The responsibilities of each community oversight committee shall include:

     (1)  Ensuring timely implementation of this chapter;

     (2)  Making recommendations to the county council regarding appropriate regulations, in accordance with section    -1;

     (3)  Developing a land tax and gram tax for medical cannabis farmers and submitting allotment, license, and tax plans;

     (4)  Voting on plans and submitting a final draft to the county council;

     (5)  Issuing licenses to family farmers that meet the approved plan requirements; and

     (6)  Reporting annually to the county council on the implementation and progress of the program."

PART V.

     SECTION 19.  The department of health, in consultation with the University of Hawaii, is directed to establish and implement a program to license the research and development of medical cannabis products to serve the needs of individuals registered with the department for the medical use of cannabis.  This research shall include development of:

     (1)  Infused cannabis products;

     (2)  Cannabis oil products;

     (3)  Cannabis strains; and

     (4)  Clone production.

     The department shall adopt rules in accordance with chapter 91 for the purposes of this program.

PART VI.

     SECTION 20.  Chapter 329, Hawaii Revised Statutes, is amended by adding a new section to part IX to be appropriately designated and to read as follows:

     "§329‑    Transport of cannabis by qualifying patient. (a)  No person shall transport cannabis for the person's own use under this part unless the person:

(1) Is a qualifying patient;

(2) Holds and has in the person's physical possession a valid and unexpired written certification from a physician to use cannabis for medical purposes;

(3) Registers with the department of health;

(4) Holds and has in the person's physical possession a valid and unexpired registration certificate from the department of health;

(5) Transports no more than three ounces of marijuana;

(6) Carries the transported marijuana in a closed container designed to be resistant to inadvertent opening by a child; and

(7) Affixes a label on the container containing the marijuana that bears the person's name, address, department of health registration certificate number, and name and address of the physician issuing the person's written certification.

(b)  If personally transporting cannabis to another state, the person shall comply with all laws of the state to which the person travels."

PART VII.

     SECTION 21.  In codifying the new section added by section 14 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 22.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 23.  This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

Medical Marijuana; Medical Cannabis; Department of Health; Drug Testing; Distribution Outlets; Family Farms; Research and Development Licensing; Temporary Registration Certificates; Transport

Description:

Amends the term "medical marijuana" to "medical cannabis"; transfers the administration of the program from the department of public safety to the department of health.  Establishes procedure for employment-related marijuana drug testing and review of results by medical review officer.  Directs the department of health to establish a system of distribution outlets.  Directs the counties to establish a system to license, tax, and regulate medical cannabis family farms.  Directs the department of health, in consultation with the University of Hawaii, to establish a system to license research and development for medical cannabis related products.  Allows out-of-state visitors who are qualifying patients or primary caregivers to apply for a temporary registration certificate.  Permits transport of medical marijuana if certain conditions are met.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.