Cannabis History in Hawaii
Background: The Law in Hawaii
In April 2000 Hawaii became the first state to permit medicinal use of cannabis via an act of the state legislature. Governor Benjamin Cayetano signed Hawaii’s Act 228 into law on June 15, 2000. Rules for its administration were developed by the state Department of Public Safety where the program was initially housed. Since their approval, in December of 2000, Hawaii’s medical cannabis registry program has been in effect. Since the implementation of the program, more than 23,000 patients have registered to use medical cannabis under state law.
In January 2015 the program moved to the Department of Health (DOH) where it is now administered by the Harm Reduction Services Branch.
On July 14, 2015 SB1291 was signed into law as Act 242 which added additional patient and caregiver protections that specifically address non-discriminatory requirements for the following:
Schools and landlords towards individuals based solely on the individual’s status as a qualifying patient or primary caregiver in the medical marijuana program,
Medical care, including organ transplants, in that the medical use of marijuana shall be considered equivalent to the use of any other medication under the direction of a physicians, and
Custody, visitation, or parenting time and no presumption of neglect or child endangerment.
A long-awaited dispensary program also became law in 2015, when Governor David Ige signed and enacted HB321 as Act 241 - a program that is administered by the Office of Health Care Assurance at DOH. During the 2016 Legislative Session, both the registry and dispensary laws were further amended when HB2707 was enacted as Act 230. One of the key changes was that Advanced Practice Registered Nurses (APRNs) with specific prescriptive privileges are now able to certify patients for legal medical cannabis use.
In the summer of 2017, the first dispensaries and testing labs opened, the plant count for registered patients increased from 7 to 10 and five more medical conditions were added to the list of qualifying conditions. Lupus, epilepsy, multiple sclerosis and rheumatoid arthritis were added via legislation. ALS was added through a new DOH petitioning process.
In 2018: Omnibus bill HB2729 signed into law as Act 116. It established a working group to address employment discrimination and edibles. It also: allows for an extention of the certification (up to 3 years), allows dispensaries to sell Safe Pulmonary Administration products (such as vaporizers), allows the establishment of a bona fide provider-patient relationship via telehealth (after the relationship has been established by a face-to-face consultation) and allows one or both parents/guardians to register as caregivers for one or more qualifying minor patients. It also addresses rules for out-of-state patients and reciprocity, allowing qualifying patients to use dispensaries, which has been in effect since 3/5/19.
In 2018, SB2488 passed (as Act 161) and addressed reimbursement by health insurance (including Worker’s Comp). SB2407 was passed and VETOED by the Governor (Ige). It would have added opioid use and substance use disorders & withdrawal symptoms resulting from their treatment to the list of qualifying conditions.
In 2019 more than 23,000 patients are registered to use medical cannabis under state law. During the summer of 2019, the Department of Health is planning to merge the registry and dispensary programs under the Office of Medical Cannabis Control and Regulation.
Conflict between State and Federal Laws
Despite the progress that has been made toward creating safe and legal systems at the state and local level, federal laws banning any use of cannabis remain in effect - with a few exceptions for participants in federally approved clinical trials and the Compassionate Investigational New Drug Program patients (the Federal Government’s medical cannabis program since 1978).
Cannabis remains at this writing in Schedule I of the Controlled Substances Act of 1970, despite meeting none of the criteria mandating this highly restrictive placement. This scheduling is a barrier to legislation, to patient access and to research. The Drug Enforcement Administration (DEA) is under substantial public and political pressure to revise this placement.
Current Medical Cannabis Climate
In 2005 the U.S. Supreme Court, in Gonzales v. Raich ruled that the federal government had the power under the commerce clause of the U.S. Constitution to enforce federal cannabis laws against patients who possess or cultivate cannabis. The ruling did not address any issues related to medical cannabis nor did it overturn any of the state laws on medical cannabis. The power of state governments to enact and enforce state medical cannabis laws was not affected by this decision.
From a practical point of view, federal prosecutors tend to act against large drug operations. Federal charges are rarely brought against patients for small-scale, personal possession or cultivation of cannabis, although this remains a possibility. In fact, arrests for cannabis by federal authorities in the U.S. over the last several years account for only 1% of all cannabis arrests.
If a state like Hawaiʻi has removed criminal penalties for medical use of cannabis, then patients and physicians are protected from arrest by state or local authorities, assuming they remain compliant with the program. It is important to note, however, that the protections of the Hawaiʻi medical cannabis laws do not protect patients and physicians from possible federal prosecution.
On August 29, 2013, however, the U.S. Department of Justice “Cole Memorandum” signified a substantial swing of the government’s focus away from the stringent implementation of federal cannabis prohibition, and stated that “a robust [state] system may affirmatively address [federal] priorities by, for example, implementing effective measures to prevent diversion of cannabis outside the regulated system and to other states, prohibiting access to cannabis by minors, and replacing an illicit cannabis trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.” Please note that these priorities are policies, not laws, and thus can be changed at any moment by a sitting Administration.
In December 2014, the “Hinchey-Rohrabacher Medical Marijuana Amendment” (House Amendment 272) was incorporated by both houses of Congress as a portion of the $1.1 trillion spending bill that prevents the Department of Justice from spending money to impede the execution of state medical marijuana laws.
In May 2017, then AG Sessions announced that low-level drug offenders would once again be criminalized to the maximum extent possible. In 2018 he encouraged federal prosecutors to go after states pursuing well-regulated, democratically enacted cannabis programs and he rescinded the Cole Memo. The Congressional Cannabis Caucus was formed. In 2019, William Barr, nominee for U.S. attorney general pledged during his Senate confirmation hearing not to “go after” cannabis companies that comply with state laws.
As of January 2019: Thirty-three states, Washington, D.C. and the U.S. territories of Guam and Puerto Rico have enacted legislation specific to the physician-authorized use of cannabis. Ten US States plus D.C. have legalized cannabis entirely under a system of regulation and control.
