Will 2024 be the year that the Pennsylvania finally legalizes adult-use marijuana? Is the Commonwealth of Pennsylvania ready, and I mean truly ready, to come out of the closet, let the cat out of the bag, and admit to the rest of the nation, once and for all, that Pennsylvanians are totally down with the icky-sticky? That Pennsylvanians love weed?
Presently pending in our Senate is SB 846, an intelligent and moderate bill to legalize adult use of marijuana in Pennsylvania. Hope of passage is logically tempered by knowledge that a similar bill introduced last year died in committee. However, given that pot is now legal in neighboring Ohio, New Jersey, Delaware, Maryland and New York, the timing of this bill could not be more opportune.
Senate Bill 846 builds on and resembles the legislation that brought medical marijuana to Pennsylvania in 2018. It lays out a framework detailing how the medical and adult-use marijuana programs would co-exist and complement each other. Sponsors are Republican Senator Daniel Laughlin of Erie and Philadelphia Democrat Sharif Street. The bill was referred to the Law and Justice and Committee in July 2023 where it sits and waits. One hopes and prays that our legislature will find the resolve in 2024 to make this bill a law so that it does not die in committee. But for now, it is still just a bill.
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When Pennsylvania gave the green light to medical marijuana in 2018, injured workers quickly embraced it as an alternative to prescription pain medications. Though many found it alleviated their pain, the cost, usually $200-$400/month, proved to be prohibitive. Injured workers generally rely upon fixed monthly incomes from workers compensation or social security benefits.
In 2018, I hit my 20-year anniversary as a Philadelphia workers’ compensation attorney. I knew then that when it came to seriously injured workers, insurers were routinely paying thousands of dollars a month for the cost of their prescription painkillers. If only workers’ compensation carriers would reimburse injured workers $200-$400/month for medical marijuana, that would be a huge cost savings and a win-win for everyone. If only. Unfortunately, insurance companies are notoriously conservative and reluctant to change with the times, even when it may be cost-effective to do so. In 2018, insurers still viewed marijuana as “marihuana.”
I realized that if change was going to happen, it would need to be court-ordered. A claim for reimbursement of medical marijuana would need to be litigated before a Workers Comp Judge and appealed to the Commonwealth Court and probably all the way to Pennsylvania’s Supreme Court. This could not be just any claim for reimbursement, it needed to be one with a compelling set of facts where the benefit of medical marijuana was obvious. I knew these injured workers were out there, and made it my mission to find the right one and make workers’ comp reimburse him or her for medical marijuana.
Ultimately, I met and signed up four injured Pennsylvanians who were using medical marijuana to treat their work injuries. All met my basic requirements:
(1) Their injury was at least (5) years old; (2) workers compensation was still paying for medical treatment; and (3) they continued to use medical marijuana to treat their injury. All four of them had undergone multiple failed surgeries followed by long-term opioid use and/or addiction. Three of the four had already successfully replaced opioids and other medications with medical marijuana, while the fourth was in the process of doing so. All felt that switching to medical marijuana not only offered better pain relief, but that it provided a better mental outlook and took away the bipolar mood swings that come with long term use of opioids.
To drum up support for my mission, I lectured at County Bar Association seminars, at workers’ compensation conferences and to trial lawyers. I became acquainted with the players in the newly emerging medical cannabis bar, while also presenting at meetings of self-insurers, employers, and safety officers. I even appeared on union boss Joe Dougherty’s radio show on WWDB. I talked with anyone and everyone who would listen and never turned down an opportunity to get the message out there that medical marijuana was a Godsend for seriously injured workers for which workers’ compensation should be required to foot the bill. To my surprise, I encountered widespread support not just for medical marijuana, but for my mission. This held true even among people and in places I did not expect.
It took five years, but in March of 2023, the Commonwealth Court agreed with me. It is now the law in Pennsylvania that workers compensation carriers must reimburse injured workers for their use of medical marijuana to treat work injuries when deemed reasonable and necessary. All four of my clients were ultimately reimbursed for the cost of their medical marijuana. While traveling this long road, I was fortunate to have the opportunity to engage in rather candid conversations with a wide cross-section of my fellow Pennsylvanians regarding their attitudes toward marijuana, both medical and adult use. I learned that the only thing Pennsylvanians like more than weed is talking about weed. No one hesitates to divulge that they have a “medical card.” I heard how much marijuana has helped people deal with the pain of injury and aging. How it allows them to finally live not just more active, functional lives, but happier lives. So much better now than it was when they were on the opioids. Opioids always come up.
The thing is, you cannot discuss weed in Pennsylvania without discussing the opioid epidemic. Opioids are the “elephants” in the dispensary. Literally every Pennsylvanian knows at least one person who overdosed since Oxcontin (Oxys) saturated Pennsylvania in the mid-2000s. We have all been to the funeral of a cherished friend or family member whose life was stolen by addiction to painkillers, an addiction that started with their well-meaning doctor giving them a little pill for pain. Or maybe the funeral was for a young nephew that popped some Oxys for fun one night, and died. Perhaps that night, perhaps months later from the voracious addiction that one night spawned.
The devastating toll of watching someone you love become an addict cannot be understated or fully put into words. Addiction does not discriminate. The well-to-do and the poor, black, brown, and white, city dwellers, small town people and farmers are all affected. No subculture is immune. Addiction crosses political lines, rendering it a non-partisan issue. Whether you are a Trump supporter or Tesla Democrat, the opioid epidemic hits home. As a result of this universal Pennsylvania experience, there is universal support for the use of medical marijuana as a substitute for addictive painkillers. The consensus belief seems to be that while marijuana is not perfect, it is a better option than opioids to treat pain. We know weed is less dangerous than opioids and even alcohol. If prescription opioids and alcohol are legal in Pennsylvania, then medical weed should be too.
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Whether by design or sheer luck, the legalization of medical weed in 2018 could not have been more ideal. In 2018 Pennsylvania was drowning in opioids. Pill mill doctors were raking in the cash, with addicts in lines reminiscent of soup kitchen lines during the Great Depression. “Percs” and “Oxys” could easily be scored anywhere and everywhere. According to the Pennsylvania Overdose Data Brief, published by the Department of Health, there were 5,425 unintentional fatal overdoses in Pennsylvania in 2017. Of those, 86% were confirmed to be opioid-related. This was an increase 19% from 4,540 in 2016.
When faced with the decision of which medical conditions would qualify one for a medical card, Pennsylvania’s Department of Health was revolutionary in its recognition of and gamble on weed’s potential to be an effective weapon in the war on addiction. Pennsylvania was late to embrace medical marijuana (the 24th state in the nation to do so), but in 2018 it was the first state to include opiate use disorder as a qualifying medical condition. Colorado was the first state to legalize weed in 2012 and one of the first to legalize medical weed way back in 2000. Yet in 2018, even Colorado was not convinced medical marijuana could help people get off addictive prescription drugs. Today, most states now include opiate use disorder as a qualifying condition for medical marijuana, due largely to its successful use here in Pennsylvania as a treatment and replacement for addictive painkillers.
Pennsylvania is the undisputed heavy-weight champion when it comes to medical weed. Our medical program has been unusually expansive and robust from the get-go. We started with about 19 covered conditions; a rather sizeable number compared to other states. By 2022, Pennsylvania was up to 24 qualifying conditions and over 712,000 medical marijuana patients, according to statistics published by the Marijuana Policy Project (MPP). That means in 2022, 5.49% of Pennsylvanians had a medical marijuana card, the third highest percentage in the nation. When one looks closer at where in the state patients live, all counties, even the smallest, most conservative and most rural ones are well-represented.
Our medical marijuana system was designed for easy access. There are doctors licensed to approve medical cards in nearly every county with over 1000 certifying physicians statewide. The list of qualifying conditions is vague, examples being ‘chronic pain’ and ‘terminal illness.’ Like Colorado, there are medical offices that exist for no other reason than to get you certified for a medical card. You do not even need to leave home, as telehealth certification is permitted. With a card obtaining medical marijuana is simple. There are about 180 dispensaries statewide with more opening all the time. Dispensary orders can be placed in advance, and for those who cannot get to dispensaries, the state permits patients to appoint caregivers to pick-up their marijuana for them.
In 2018, Pennsylvania was also the first state to permit the use of medical marijuana for autism spectrum disorder. Pennsylvania was also a leader in including Crohn’s disease and PTSD, both of which have been listed as covered conditions since the inception of the program. Pennsylvania continued its pioneering ways when, in July 2019, it added Tourette’s Syndrome as well as anxiety as qualifying conditions.
The 2019 addition of anxiety flooded the Pennsylvania medical marijuana system with new patients, with more people being certified for anxiety than any other condition since 2020. In 2020, over 148,000 Pennsylvanians received a card for anxiety, about 51% of the total. In 2022, the last year official statistics are available, over 264,500 Pennsylvanians were approved for a medical card for anxiety. The next closest condition was chronic pain with over 163,000 people being certified.
Anxiety, like all qualifying medical conditions, is not defined by the Department of Health. Certifying doctors have the discretion to decide if a patient has anxiety and if it warrants treatment with medical marijuana. One is not required to show proof of prior diagnosis or treatment. No medical records need be provided or reviewed. Most, if not all the other qualifying conditions require a doctor certifying a patient for medical marijuana to review medical records to verify prior diagnosis of the qualifying condition, examples being ALS, AIDS, and Huntingdon’s Disease.
Because Pennsylvanians can get a medical card for nearly any medical condition or disease there is no stigma to having a ‘medical card’ or admitting to using marijuana. There is buy-in from the populace because no one’s medical condition is excluded. If you are a Pennsylvanian, you either have a card or know someone who does. Having a medical card is a topic of conversation here, just not a controversial one. Your grandma would never judge you for having a card for your anxiety. Nor would you judge your grandma for telling you she is using pot to treat her arthritis. For Pennsylvanians, medical marijuana access is not a politically charged or partisan issue. Rather, it is a health and quality of life issue. Pennsylvanians of all backgrounds accept medical marijuana as a legitimate medical treatment that helps reduce suffering from pain and debilitating diseases, and to treat opiate addiction. While medical marijuana is not perfect, it is a better choice than opioids.
The addition of anxiety as a qualifying medical condition followed the decriminalization of possession of weed in huge populations centers across Pennsylvania. Between 2014 and 2019, Philadelphia, Pittsburgh, Erie, Allentown, State College, Harrisburg, Lancaster, York, and Norristown all decriminalized possession of up to 30 grams (about an ounce) of weed. That is far from an insignificant amount. Flower in dispensaries is commonly sold in 3.5 ounce containers (commonly known as an eighth). Many smaller towns and boroughs across the state also decriminalized including Doylestown, Bethlehem, Folcroft, and Steelton.
It is past time that Pennsylvania reveals to the rest of the nation that due to large-scale decriminalization across the state, combined with the addition of anxiety as a qualifying condition, marijuana has been de facto legal in Pennsylvania since 2019. Yes, you read that right. It is no secret here that anyone can easily get a medical card for “anxiety.” We all know those Pennsylvanians, and frankly we are just fine with it. The aroma of weed permeates the state. You notice it walking around Philadelphia. You can catch a whiff while driving pretty much anywhere. Our public transportation has never smelled nicer.
The transition to legal marijuana should Senate Bill 846 become law will be an easy and lucrative one for Pennsylvania. All the necessary parts are already in place. The bill states that existing dispensaries would become dual medical/adult-use within 180 days of passage with payment of a $25,000 fee. Adult-use purchases would be subject to an 8% tax which would be a source of revenue for the state.
Legalizing adult-use would open Pennsylvania’s large and vibrant marijuana market to out-of-state customers as well. Pennsylvania is surrounded by states where weed is legal, but adult use dispensaries are rare or non-existent. There is the real potential to tap these markets. Ohio technically legalized in 2023 based upon a vote of the citizens, yet their legislature is doing everything it can to prevent the law from going into effect. In New Jersey, many communities have opted out of the adult-use program and will not allow dispensaries to be situated in their towns.
In New York, the rollout of adult-use dispensaries has been plagued by bureaucratic red tape. By the end of 2023, only 37 recreational dispensaries managed to open in all of New York State (not City). Due to the ineptitude of New York’s government, New Yorkers wishing to exercise their legal right to get high with marijuana from a legitimate dispensary are ironically forced to frequent illegal bodegas where they purchase overpriced and questionable marijuana products in colorful boxes that are the modern-day equivalent of unlabeled Ziploc baggies.
A sizeable number of New Yorkers could and would travel to Pennsylvania to purchase safe, high quality marijuana products that are free from contaminants, with labels that clearly and accurately state the amount of THC. Unlike bodegas, the products sold in dispensaries are reputable, regulated and produced by nationally known cannabis growers.
By comparison, just within the confines of the City of Philadelphia there are over 20 medical dispensaries that could be dually operating by the end of 2024. Statewide there are about 180 that could become dual use by the end of the year. Given the system already in place, the potential for Pennsylvania to be the Colorado of the East can be easily visualized. The significant tax revenue and new jobs this would bring to the state would be an economic boon. Adult-use dispensaries will also be allowed to sell popular edibles such as gummies, which are currently prohibited in dispensaries.
The other compelling reason Pennsylvania should legalize now is that there is a significant group of Pennsylvanians that have been left behind and cannot participate in our medical marijuana system: law abiding gun owners. I met many gun owners in my search for the perfect test case. Federal law still prohibits those who use marijuana, including state legal medical marijuana, from purchasing guns. This is because medical marijuana remains federally illegal. Contrary to popular belief, having a gun will not prevent you from qualifying for a medical card. The problem is that if you have a valid medical card and attempt to purchase a gun, the background check will flag you as having a medical a card. You will therefore fail the check and not be able to purchase the gun.
As a result, many gun owners who would otherwise use and benefit from medical marijuana opt not to get a medical card. This is far from a trivial number of individuals. Statistics vary, but over 40% of Pennsylvanians own guns. Which means 40% of Pennsylvanians are locked out of the dispensary. I spoke to many, many Pennsylvanians that do not want to give up their Second Amendment rights, and are afraid that their guns or licenses could be taken away from them if they obtain a medical marijuana card. Gun owners are as interested as anyone else in using marijuana to treat legitimate illnesses and pain, but not at the risk of losing their right to self-defense. Regardless of one’s personal view on guns, I found that Pennsylvanians of all stripes generally agree that the prohibition on gun ownership by medical marijuana patients is silly and illogical. There is litigation currently pending to change this rule, but the fact remains that gun owners that want to use medical marijuana do not feel able to participate in our medical marijuana system.
The legalization of adult-use medical marijuana will open the market up to the 40% of Pennsylvanians who are gun owners. Senate Bill 846 provides that there will be no record or database kept of adult-use dispensary customers. At the time of purchase, identification would be used only to verify age, much like going to a state store to buy alcohol. No personal information can be recorded or tracked without consent.
Given that out current medical marijuana program effectively allows adult use for anxiety, the transition to dual use will not be complicated. The system is already set up to a degree for the recreational user willing to go through the motions and pay the fees to get a card. Most dispensaries offer a wide variety of products with options for both the medicinal and recreational user. The products that would be sold would remain the same, except for the addition of edibles. The only real difference between adult use and medicinal sales in a dual use dispensary is whether the purchase is taxable or not. The products are the same. There is nothing magical about medicinal marijuana other than the intent of the customer when buying the product.
It would be expected that many of those currently possessing a medical card for anxiety would let their card lapse upon expiration and move to the adult-use system as paying the 8% tax for any would be cheaper than the yearly cost of a doctor’s appointment to be certified and the $50 annual cost for a card from the state. Adult use would allow access to gummies which are very popular and not part of the medical program. For such individuals, it certainly would be less time consuming to not have to be recertified every year and pay for a new card every year. It is time for Pennsylvania to officially legalize marijuana now. It is time to move marijuana from unofficially legal to fully legal. Doing so will allow access to marijuana for all Pennsylvanians, create jobs and generate tax revenues that the current system fails to collect. The memo appended to Senate Bill 846 indicates that at least 2/3 of Pennsylvanians support adult-use marijuana. This includes the majority of citizens in urban, suburban, and rural parts of the state. Marijuana is not a partisan issue in Pennsylvania. It is time for our legislators to listen to the desires of the citizens of the Commonwealth and make this a reality.
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