Is That ‘Medical’ Cannabis, or Are You Just Partying?

It might just be a distinction without a difference.

Is cannabis really an “essential” business? The food business obviously is. But the legal cannabis industry didn’t exist a few years ago, while gathering and making food — contrary to the popular cliché about prostitution — is the world’s oldest profession.

As state and local governments across the country have decided which business should be allowed to continue operating while most people are sheltering in place to avoid spreading the COVID-19 virus, the decisions are, naturally often politically motivated. At the moment, cannabis has a lot of momentum behind it in the states where it is legal. Many politicians in those states have fully signed on as champions of the industry.

For many people, perhaps even most, cannabis is an agent of relaxation or fun. The fact that “medical marijuana” is also legitimately a thing complicates matters greatly in states where “recreational” pot is legal. That has tended to diminish the difference between “medical” and “recreational” pot, since consumers no longer need to be formally designated as “patients” to obtain weed. So governments can’t practically distinguish between the two.

Some have tried, though. A few weeks ago, the Santa Clara County Public Health Department announced that only medical pot could be legally sold in-store or via curbside pickup, and that “recreational” pot would be delivery-only. This was deeply confusing on a number of levels, but chiefly because now that pot is legal for all adults, who is to say what is “medical?” Panic ensued for several days. Cannabis dispensaries in San Jose — the only city in Santa Clara County where they are allowed — started scrambling to help their customers obtain medical ID cards.

Finally, it was clarified that the people to determine whether cannabis purchases are “medical” are the consumers themselves. The laws that emanated from Proposition 64 — which legalized cannabis for all adults — still distinguish between “medical” and “recreational,” and technically, it’s still the case that only medical sales are allowed in person or via curbside pickup in San Jose. But unless someone tells a budtender “I would like some recreational marijuana, please, for my recreational, partying needs,” anyone can still buy legally weed by presenting a driver’s license or other valid ID.

The San Jose cops, who are the regulatory authority in this matter, have clarified that they won’t force dispensaries to sell only to those with a medical card and a doctor’s note.

A representative of Airfield Supply, a big San Jose dispensary, told me on April 6 that it was assisting its customers in obtaining medical-marijuana IDs and that it was rushing to add capacity for making deliveries. Before that, the vast majority of its business was in-store. After the San Jose police and county officials clarified their positions, “all guests are now welcome to shop at Airfield,” said Mark Matulich, Airfield’s founder and CEO. It remains “an evolving situation and we applaud efforts made by public health officials in Santa Clara County to juggle so many elements in the service of public good,” he said.

The dual nature of cannabis — it’s both a “vice” and a health elixir, and sometimes both at once — makes it hard to regulate in this way. But James Anthony, the Oakland-based cannabis lawyer who complained to Santa Clara County when the order was first issued, believes it doesn’t have to be. “I think all cannabis is medical,” he said. “People use it to feel better, right?”

That’s true. Also true: Anthony’s observation that the way the industry is set up, there’s just no practical way to distinguish between “recreational” and “medical.” So if medical pot is legal, it’s all legal. Grocery stores and pharmacies have been deemed “essential businesses,” he noted, but “you can go into a CVS or a Safeway and buy booze.” The stores are “essential” because they sell goods that are obviously essential, like food and pharmaceuticals. But you can also pick up a fifth of Jack while you’re in there. Or just the Jack, if you want. Liquor stores are also open — presumably because Fritos are considered food.

This demonstrates that cannabis’s long history of being legally recognized as “medical” is “critically important now,” Anthony said.

It might remain important depending on what happens over the next couple of weeks. The stay-at-home orders issued by six Bay Area counties in mid-March are now set to expire on May 31. Conrad Gregory, who is the president of the California Cannabis Industry Association’s board of directors and head of government relations at Harborside, the Oakland-based dispensary chain that has an outlet in San Jose, would love to see additional clarity from Bay Area governments. The situation in Santa Clara County is still confusing, Gregory said, but for now “we’ve reached a little bit of a steady state.”

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