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Policy commentary

Medical Marijuana programs: Implications for cannabis control policy – Observations from Canada Benedikt Fischer a,b,c,∗ , Sharan Kuganesan b , Robin Room d,e,f a Centre for Applied Research in Mental Health and Addiction, Faculty of Health Sciences, Simon Fraser University, 2400 – 515 West Hastings St., Vancouver, Canada V6B 5K3 b Social & Epidemiological Research Department, Centre for Addiction and Mental Health, 33 Russell St., Toronto, Canada M5S 2S1 c Department of Psychiatry, University of Toronto, 250 College St., Toronto, Canada M5T 1R8 d Centre for Alcohol Policy Research, Turning Point, Fitzroy, Victoria 3065, Australia e Melbourne School of Population and Global Health, University of Melbourne, 207 Bouverie Street, Victoria 3010, Australia f Centre for Social Research on Alcohol & Drugs, Stockholm University, SE-106 91 Stockholm, Sweden

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Article history: Received 11 August 2014 Received in revised form 12 September 2014 Accepted 13 September 2014 Keywords: Medical marijuana Canada Cannabis control Medicalization Policy

a b s t r a c t While prohibition has been the dominant regime of cannabis control in most countries for decades, an increasing number of countries have been implementing cannabis control reforms recently, including decriminalization or even legalization frameworks. Canada has held out from this trend, although it has among the highest cannabis use rates in the world. Cannabis use is universally criminalized, and the current (conservative) federal government has vowed not to implement any softening reforms to cannabis control. As a result of several higher court decisions, the then federal government was forced to implement a ‘medical marijuana access regulations’ program in 2001 to allow severely ill patients therapeutic use and access to therapeutic cannabis while shielding them from prosecution. The program’s regulations and approval processes were complex and subject to extensive criticism; initial uptake was low and most medical marijuana users continued their use and supply outside the program’s auspices. This year, the government introduced new ‘marijuana for medical purposes regulations’, which allow physicians to ‘authorize’ medical marijuana use for virtually any health condition for which this is considered beneficial; supply is facilitated by licensed commercial producers. It is expected that some 500,000 users, and dozens of commercial producers will soon be approved under the program, arguably constituting – as with medical marijuana schemes elsewhere, e.g. in California – de facto ‘legalization’. We discuss the question whether the evolving scope and realities of ‘medical cannabis’ provisions in Canada offer a ‘sneaky side door’ or a ‘better third way’ to cannabis control reform, and what the potential wider implications are of these developments. © 2014 Published by Elsevier B.V.

Introduction In many jurisdictions around the world, cannabis control and policy are subject to intensive current debate. These debates relate to the general control of cannabis for ‘recreational’ purposes, but also increasingly to provisions for ‘medical cannabis’ use, i.e., the use of cannabis for therapeutic purposes. While these are generally examined as two separate matters, few analyses have examined the interactive potential or implications of developments in these

∗ Corresponding author at: Centre for Applied Research in Mental Health and Addictions (CARMHA), Faculty of Health Sciences, Simon Fraser University, 2400 – 515 W Hasting St., Vancouver V6B 5K3, Canada. Tel.: +1 778 782 5148; fax: +1 778 782 7768. E-mail address: bfi[email protected] (B. Fischer).

arenas for cannabis policy reform overall. In the below, we do exactly this, based on recent developments in Canada. Cannabis control: history Cannabis became included in the scope of international drug control in 1925, and total criminal prohibition – even for personal (i.e., non-scientific or -medical) use – as dictated by the international treaties since the 1961 Convention has been the control framework of choice in most industrialized countries (European Monitoring Centre for Drugs and Drug Addiction, 2008; Levine, 2003; Room, Fischer, Hall, Lenton, & Reuter, 2010). Pushes to reform prohibition as the main control mode are almost as old as prohibition itself, yet gained in variety and vigour since the 1970s, as, for example, triggered by national drug policy commission or

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inquiries (e.g., in Europe, North America and Australia) (EMCDDA, 2008; Room et al., 2010). In subsequent years, well-known cannabis reform efforts occurred in the Netherlands, as well as several US and Australian states, largely implementing different versions of ‘decriminalization’ regimes of recreational cannabis use, based on changes in either law (‘de jure’) or enforcement practice (‘de facto’) (Hall, 2001; Korf, 2002; MacCoun & Reuter, 2001; NORML, 2014; Single, Christie, & Ali, 2000). The extent and momentum of international cannabis control reform appear to have culminated in new peaks in the recent present. Several jurisdictions – including Uruguay and the two US states Colorado and Washington – have approved the implementation of ‘legalization’ regimes, including both legal use and supply/distribution frameworks for recreational use (Room, 2014); other jurisdictions in Europe and Latin America (e.g., Germany, Belgium, Spain, Portugal, Argentina, Colombia, Jamaica) have or are in the process of moving towards liberalizing their cannabis control regimes (Hawken, Caulkins, Kilmer, & Kleiman, 2013; Pudney, Adda, & Boone, 2010; Room et al., 2010; Room, 2014; Van Ours, 2012). Canada features a distinct national profile regarding cannabis use, control and reform efforts. Cannabis was added to the Canadian drug prohibition law in 1923, defining any use (by way of userelated acts, i.e. ‘simple possession’) as well as production/supply as criminal offenses (Giffen, Endicott, & Lambert, 1991). In the 1960s, cannabis users became drug law enforcement’s primary target, suddenly resulting in thousands of criminal arrests each year (Boyd, 1991; Bryan, 1979). The ensuing social controversy over the zealous scope and punitive consequences of cannabis use enforcement – which included many young, middle-class offenders now marred by criminal convictions and records – triggered formal recommendations from a national inquiry (‘Le Dain Commission’) to decriminalize cannabis use control as early as 1972 (Giffen et al., 1991; Le Dain Commission, 1972). Numerous similar recommendations and proposals for cannabis control reform were launched in the years following, but all essentially failed to materialize; these included, more recently, formal recommendations from a Senate and a Parliamentary Committee formally proposing legalization and decriminalization of cannabis use, respectively (Fischer, Ala-Leppilampi, Single, & Robins, 2003; Solomon, Single, & Erickson, 1983). In recent years, Canada has reported among the highest cannabis use rates in the world; some 10–15% of all adults and 20–30% of young adults are current cannabis users (Health Canada, 2014a; Ialomiteanu & Adlaf, 2012; UNDCP, 2014). While there are some variations between (e.g., inter-provincial or between urban/non-urban) jurisdictions, approximately 60,000 cannabis-related criminal arrests occur across Canada each year, mostly for personal cannabis possession/use; 500,000 to 1.5 million Canadians are estimated to carry cannabis offense-related criminal records (Beeby, 2014; Cannabis Facts, 2014; Dauvergne, 2009; Government of Canada, 2014). While public opinion support for cannabis control reform has been steadily increasing over the past decades, with now at least a majority of Canadians in favour of at least decriminalization, the current (conservative) government has categorically vowed that it will not revise the current universal criminal prohibition approach to cannabis (Drews, 2013; Grenier, 2013). Evolution of Canada’s ‘medical marijuana’ program In the years leading up to 2000, a series of higher court decisions responding to constitutional challenges resulted in the Canadian federal government being forced by the courts to establish provisions that would allow for severely ill individuals to freely use and access cannabis for therapeutic purposes without punitive consequences (Belle-Isle et al., 2014; Bogdanoski, 2010; Lucas, 2009). Consequently, in 2001, the then (Liberal) federal government

established the ‘Medical Marihuana Access Regulations’ (MMAR). With an ‘authorization’ based on a physician’s confirmation for one of a list of federally sanctioned, severe/chronic medical conditions, an individual could become an authorized medical marijuana user; these could obtain their medical cannabis supplies directly from Health Canada, grow it themselves or rely on ‘designated’ suppliers growing it on their behalf (Belle-Isle et al., 2014; Eggertson, 2013; Fischer et al., 2003; Lucas, 2009). Given the complex bureaucratic processes and requirements involved, as well as the program’s inherent selectiveness, the MMAR’s initial uptake was highly limited, extending to only a few hundred authorized users in the initial years, although the number of individuals who characterized their cannabis use as ‘medical’ in Canada was estimated at 400,000–1,000,000 (Belle-Isle & Hathaway, 2007; Lucas, 2009; Ogborne, Smart, Weber, & Birchmore-Timney, 2000; Walsh et al., 2013). Thus, the vast majority of self-described medical marijuana users continued to use and source their product outside of the auspices of the federal program (Belle-Isle et al., 2014). While the MMAR went through several revisions over the coming years, and its pool of authorized user participants started to gradually increase, it remained subject to considerable criticism; much related to onerous process and barriers to access issues for program applicants, as well as concern about potential criminal abuses of the ‘designated grower’ system (Belle-Isle & Hathaway, 2007; Comeau, 2007; Jones & Hathaway, 2008). Following a long process of deliberations and consultations, the federal government announced (2013) and implemented the new – and distinctly different – ‘Marihuana for Medical Purposes Regulations’ (MMPR) in 2014 (Government of Canada, 2014; Belle-Isle et al., 2014). Under the MMPR, the government is no longer involved in ‘authorizing’ individuals for medical cannabis use; rather, the crucial decision of approval needs to come from (any) doctor who formally assesses and endorses – similar to a prescription – that an individual will ‘therapeutically’ benefit from cannabis use, thereby authorizing the patient as a medical marijuana user (Health Canada, 2013). Eligibility is also no longer tied to a limited catalogue of health problems, yet extends to any adult residing in Canada who has received a physician’s authorization for symptoms pertaining to a list of standard severe/chronic and or terminal medical conditions, or for “a debilitating symptom that is associated with a medical condition or with the medical treatment of that condition” (Health Canada, 2014b). In essence, any symptom a physician is prepared to confirm as ‘medical’ and as benefiting from cannabis use is sufficient for authorization for medical marijuana use. While the gatekeeper role to authorize medical marijuana use under the MMPR has been delegated to physicians, the government’s decision-maker role is now mainly limited to supply regulation (Eggertson, 2013). Specifically, the federal government selects and licenses commercial cannabis producers – based on an extensive catalogue of criteria – as retail suppliers for authorized medical marijuana users, offering their product at governmentregulated prices (The Canadian Press, 2014). These commercial suppliers come in addition to the existing community-based ‘cannabis dispensaries’. Dispensaries have proliferated across Canada as the primary providers of cannabis product to the growing numbers of – authorized and un-authorized – medical cannabis users in recent years (Canadian Association of Medical Cannabis Dispensaries, 2013; Capler & Lucas, 2006; Walsh et al., 2013). However, virtually all of these dispensaries have remained unsanctioned and operate in a legally ambiguous state (some have been raided and/or closed), and are excluded from authorization as licensed cannabis suppliers under the MMPR (Belle-Isle et al., 2014; Hopper, 2014; Penn, 2013). Canadian physicians – like their US colleagues – have expressed concern and discomfort with their designated ‘gatekeeper’ role as the decision-making authority for medical cannabis use (Hoffmann & Weber, 2010; Kahan & Srivastava, 2014; Leaf

Please cite this article in press as: Fischer, B., et al. Medical Marijuana programs: Implications for cannabis control policy – Observations from Canada. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.09.007

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Science, 2014; Petch, Konkin, & Tierney, 2014) and there continues to be discontent regarding the design and functioning of the MMPR on the part of users/applicants. Latest numbers suggest a tally of some 37,000 approved medical cannabis users in Canada; this number is expected to reach 500,000 or more – or >2% of the Canadian adult population – in the coming years, although these numbers primarily rely on prevalence estimates of self-labeled medical marijuana users, and could be substantially higher if other (e.g., recreational) users embrace this label to be a pragmatic or desirable path to facilitate their own cannabis use and supply (The Globe & Mail, 2013). Currently, more than 50 community-based cannabis dispensaries provide cannabis to more than 50,000 individuals (Belle-Isle et al., 2014; Freeman, 2014; Walsh et al., 2013). While, to date, there are only 13 approved named commercial cannabis providers under the MMPR, hundreds more applications have been filed or are in development; this number is expected to further increase in the near future (Beeby, 2014; Hopper, 2014; Spence, 2014). It is predicted that the commercial providers’ medical marijuana sales will generate $1.3 billion in revenue by 2024 presumed to be subject to federal and provincial sales taxes (Sherman, 2013; The Canadian Press, 2014). Wider implications for cannabis control policy The MMPR has created a ‘medical marijuana’ regulation framework that has evolved a long way from the original MMAR. In practice, under the MMPR, it is now conceivably possible for any adult in Canada to become an authorized (medical) marijuana user shielded from punitive consequences of the existing drug law, which continues to categorically prohibit cannabis possession/use as a criminal offense (Fischer et al., 2003; Hyshka, 2009). While the federal government – in line with its neoliberal principles and focus on economic markets – revised its role so that it now principally facilitates the MMPR framework as a regulator (Larner, 2000), it is medical professionals who now actively authorize medical use; similarly, cannabis supply is provided and sold by licensed private and commercial producers set to generate extensive tax revenue for the public purse. As ‘medical marijuana’ programs (primarily targeting severely ill individuals) exist in several other countries (Cohen, 2010; Degenhardt, Hall, & Lynskey, 2003; Shelef, Mashiah, Schumacher, Shine, & Baruch, 2011), Canada’s MMPR program is perhaps most similar to California’s program, one of the oldest medical marijuana programs now operating in about two dozen US states. There, medical marijuana use can be quickly and easily endorsed by a physician for virtually any illness, and similarly obtained from omnipresent dispensaries (Hoffmann & Weber, 2010; National Conference of State Legislatures, 2014; Pacula, Kilmer, Wagenaar, Chaloupka, & Caulkins, 2014; Reinarman, Nunberg, Lanthier, & Heddleston, 2011). There are an estimated 750,000 – 1,125,000 medical marijuana users – or about 2–3% of the adult population – authorized under the California medical marijuana scheme (California NORML, 2011; Leff, 2012). On this basis, the MMPR – much as the California program has done in the US – are in the process of establishing a ‘de facto’ state of cannabis use legalization under the ‘veil’ of medicalization in Canada. From a policy-analytical perspective, several notable observations and questions arise. First, it is interesting to speculate to what extent the MMPR reform consequences were intended by their political creators – i.e., a federal government with a conservative law-and-order and anti-drug ideology – to result in an evolving ‘de facto’ legalization of cannabis reality. At the same time, public opinion in the Canadian population on cannabis control liberalization is still divided, while medical cannabis use is supported by a vast majority (Kennedy, 2014; Savas, 2001; Teotonio, 2014). On this basis, the MMPR may be understood as a smart tactic responding


to the complex dynamics of the politics of cannabis control reform while appeasing the different forces of popular opinion and political ideology. This positioning may be well-illustrated by the disclaimer centrally displayed on the government’s official MMPR website: “Marijuana is not an approved drug or medicine in Canada. The Government of Canada does not endorse the use of marijuana, but the courts have required reasonable access to a legal source of marijuana when authorized by a physician” (Health Canada, 2014c). An interesting test for the nature and value of these political calculations may come soon – after the next federal elections (to be held in 2015), which may shift government responsibility to one of the other major parties, e.g., the Liberal Party. While the Liberals have openly (but controversially) advocated for cannabis legalization (O’Malley, 2014), it will remain to be seen whether they would actually pursue necessary law reforms, or pragmatically rely on the MMPR ‘solution’ already put into in place. A second question is how the described ‘cannabis legalization’ scheme by way of the MMPR sits with and is compatible with Canada’s relevant international drug control treaty obligations (Bewley-Taylor, 2003; Room & Reuter, 2012). For instance, the 1961 treaty requires that the government be the wholesaler of all cannabis used for medical purposes (Articles 23 & 28). However, under the MMPR, the universal criminal prohibition law of cannabis use remains formally on the books, and the MMPR formally allows for cannabis use and provision for medical (and not recreational) purposes only. As cannabis use for medical and/or scientific purposes is specified as an explicit exemption clause from the standing treaty obligations, this path should likely be less problematic than universal decriminalization schemes for all cannabis use (Bewley-Taylor, Blickman, & Jelsma, 2014; Room et al., 2010). A ‘sneaky side-door’ or the ‘better third way’ for cannabis control reform? Third – as the perhaps most complex issue – the question arises whether the described ‘legalization through medicalization’ scheme described for Canada constitutes a potentially better, more pragmatic and politically feasible ‘third way’, or rather a sneaky ‘side-door’ for the cause of cannabis control reform, especially when aiming for or referring to principles of ‘good public policy’ (Gerston, 1997). One aspect for consideration in answering this question concerns the nature and dynamics of ‘medicalization’ of behaviors subject to public interest and control. As a substantive critical sociological literature from the 1980s (Conrad, 1992; Schneider, 1978) illustrated, many forms of ‘deviance’ – including different forms of ‘addiction’, e.g. alcoholism – have become effectively ‘medicalized’ in recent decades. ‘Medicalization’ essentially entails that, while a behavior is not considered ‘normative’ or normal and continues to be considered deviant and stigmatized, it is more likely to be accepted, excused and helped rather than shunned, condemned and punished when medicalized (Conrad & Schneider, 2010). As such, ‘medicalization’ of cannabis use stands in some tension with professed tendencies of ‘normalization’ (Duff et al., 2012). While, naturally, strands of the underlying assumptions of ‘therapeutic’ cannabis use include the simple experience of pleasure or something that it is simply ‘good’ for its users (e.g., like a glass of wine, sports or a concert), medical marijuana’s current realities first require a visit to a physician and declaration of (some) illness. So – for a moment putting aside those individuals who suffer from severe illnesses for whom medical cannabis use brings desired relief – is it pragmatically reasonable and acceptable that ordinary people who want to smoke a joint, if mainly for pleasure, need to rationalize and proclaim this desire to be ‘medical’ (Dekker, Linszen, & De Haan, 2009; Schaub, Fanghaenel, Senn, & Stohler, 2008; Webb & Webb, 2014)? Or is it rather an absurd premise for contemporary public policy – even if now institutionalized on a systemic

Please cite this article in press as: Fischer, B., et al. Medical Marijuana programs: Implications for cannabis control policy – Observations from Canada. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.09.007

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level – in a country that prides itself on its foundations of measured democratic liberalism (Lipset, 1991) that thousands of people need to have themselves declared as “sick and suffering” (Lucas, 2009) to enjoy the simple psychoactive pleasures of a ‘joint’, similar to the ways people did during late 19th century temperance times to obtain alcohol from a doctor’s prescription? This – partly philosophical, partly practical – debate has yet to occur in Canada. In the end, however, Canada’s new ‘medical marijuana’ policy may simply be both: the ‘better third way’ and the ‘sneaky side-door’ towards cannabis control reform, for the principal reason that it has been the one and only effective way to bring any tangible reforms that are at least bypassing universal criminalization of cannabis use, after half a century’s worth of other efforts which have, more or less, utterly failed (Fischer et al., 2003). However, the use of the ‘side-door’ may well have long-lasting consequences, if Canada does eventually follow present trends south of the border towards full legalization. The MMPR are in the course of creating substantial private interests at every level of the supply chain for legal cannabis products, including production and retail levels. This is a different system of distribution from the system Canada has for alcohol, for instance, where in all but one province sales of wine and spirits are monopolised by the province. This “Canadian system” has considerable advantages for public health, providing some limits on the availability of alcohol, and with the state occupying the place at the policy table which otherwise would be occupied by private entrepreneurs pushing always for more availability (Giesbrecht et al., 2006). If and when Canada moves on to a fully legalised marijuana regime, the precedents set by the MMPR will make such a solution for cannabis unlikely. The pattern can be seen already in Colorado and Washington state. Both states already had extensive medical marijuana systems, and the private medical marijuana sellers were at the policy table in setting up the new fully legalized regimes, and in fact in Colorado became the backbone of the new system (Pardo, 2014; Room, 2014). The facts on the ground in the MMPR system will make it extremely difficult for Canadian governments in the future – even if there was a general will to do so – to build a fully legalised supply system for cannabis that is as oriented to public health interests as the Canadian system for alcohol. Acknowledgements The authors acknowledge Ms. Chantal Burnett’s skilful assistance in preparing this manuscript. Dr. Fischer acknowledges funding support from a CIHR/PHAC Applied Public Health Chair Award. Conflict of interest The authors have no conflict of interest to report. References Beeby, D. (2014). Health Canada swamped with medical marijuana business applications. Ottawa: The Canadian Press. Retrieved from: http://www. thecanadianpress.com/english/online/OnlineFullStory.aspx?filename=DORMNN-CP.2114027dfc524e008344a16ce243e170.CPKEY2008111303&news itemid=28586879&languageid=1 Belle-Isle, L., Walsh, Z., Callaway, R., Lucas, P., Capler, R., Kay, R., et al. (2014). Barriers to access for Canadians who use cannabis for therapeutic purposes. International Journal of Drug Policy, 25(4), 691–699. Belle-Isle, L., & Hathaway, A. (2007). Barriers to access to medical cannabis for Canadians living with HIV/AIDS. AIDS Care, 19(4), 500–506. Bewley-Taylor, D. R., Blickman, T., & Jelsma, M. (2014). In D. Aronson (Ed.), The rise and decline of cannabis prohibition. Jubels, Amsterdam: Global Drug Policy Observatory. Bewley-Taylor, D. R. (2003). Challenging the UN drug control conventions: Problems and possibilities. International Journal of Drug Policy, 14(2), 171–179.

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Please cite this article in press as: Fischer, B., et al. Medical Marijuana programs: Implications for cannabis control policy – Observations from Canada. International Journal of Drug Policy (2014), http://dx.doi.org/10.1016/j.drugpo.2014.09.007

Medical Marijuana programs: implications for cannabis control policy--observations from Canada.

While prohibition has been the dominant regime of cannabis control in most countries for decades, an increasing number of countries have been implemen...
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