State rule clarifies 60-day supply of medical marijuana

A new rule determining how much pot constitutes a 60-day supply for medical-marijuana users was finalized on Thursday, a decade after Washington voters passed an initiative legalizing marijuana for people suffering from terminal and debilitating illnesses.

The new state rule, which goes into effect Nov. 2, sets the supply limit at 24 ounces of usable marijuana plus 15 plants. Those who need more marijuana to manage their pain will have to prove they need it — though how they would do that remains unclear.

While the new, 60-day-supply rule is meant to clarify the law and help police officers determine legitimate amounts, medical-marijuana advocates say the amounts are unreasonable — especially the 15-plant limit — and put patients at risk of criminal prosecution.

In King County, though, that's not going to happen, said Prosecuting Attorney Dan Satterberg, who has met with local law-enforcement officials and created an office policy that looks upon medical-marijuana cases "with a very lenient eye."

"Having this rule, having some amount ... is helpful, but it's not the end of the analysis," Satterberg said. "If you're in King County and you're dying of cancer, we're not going to prosecute you if you have 15 plants or 30. If somebody is legitimately ill, we're not going to prosecute that case, period."

In 1998, Initiative 692 legalized marijuana for medical purposes. Passed by 59 percent of Washington voters, the initiative said patients with valid certification from their doctors could possess a 60-day supply — but never said how much pot that was. The confusion and uncertainty led to conflict between police and patients.

Last year, the Legislature ordered the state Department of Health to spell out an acceptable amount. An early recommendation put the limit at 35 ounces of usable pot plus 100 square feet of growing space. That proposal was changed after Gov. Christine Gregoire's policy analysts urged the health department to get more input from law-enforcement agencies and medical experts because the amounts appeared to be on the high side.

Earlier this year, the draft rule was changed to 24 ounces of usable pot, six mature plants and 18 immature ones. The new rule finalized Thursday, however, doesn't differentiate between mature and immature plants.

The rule also drops a requirement included in the earlier draft that patients get a doctor's note if they need more marijuana than the determined 60-day supply. The department opted "for more general wording" to better reflect what is written in state law, said Health Department spokesman Tim Church.

During a public hearing in August, many patients argued that their doctors were unlikely to write them a note because of the controversy surrounding supply limits, he said.

The department didn't come up with an alternative to a doctor's note because that wasn't their task from the Legislature. While Church acknowledged that the new language muddies the waters some, he said it will now "be up to patients and the courts to determine what medical necessity is" and how to prove it.

Gregoire's spokeswoman, Laura Lockard, said Thursday the governor "wanted the department to have a solid sense of wide-ranging opinions and information to develop the best possible rule. She feels they have done that."

But doctors and patient advocates say the new 60-day limit is woefully inadequate and could have a chilling effect on physicians if they have to go to court to defend their medical opinions.

"I'm disappointed. I think it's more politically driven — they used politics rather than science" in determining amounts, said Dr. Greg Carter, a clinical professor of rehabilitation medicine at the University of Washington. Carter was one of the first researchers to report marijuana's effectiveness in treating the symptoms of amyotrophic lateral sclerosis, also known as Lou Gehrig's disease.

"The state is really not operating in the best interest of sick people who require this medicine," Carter said.

Steve Sarich, the executive director of CannaCare, an advocacy group that provides patients with starter plants, said the health department "has set up a law you can't possibly follow." He said the rule doesn't take into account marijuana's growing cycle, which exceeds 60 days, or the fact that someone would need to plant 60 plants in the hope that 15 or 20 of them might reach maturity.

Alison Holcomb, the drug-policy director for the American Civil Liberties Union of Washington, said the new rule "is a step in the right direction," even though it doesn't begin to address the practical matter of accessing medical marijuana.

"Twenty-four ounces and 15 plants is a heck of a lot clearer than '60-day supply,' " she said. "It gives an average law-enforcement officer a very quick and easy way to determine if they're in compliance, move on and leave that patient in peace."

But Douglas Hiatt, an attorney who represents medical-marijuana patients, disagrees. He said he plans to file a lawsuit to have the limits thrown out.

"No one I know is in compliance with the number of plants. No one," he said. "We will drown in cases if we can't get this rule stopped and keep it out of the hands of law enforcement."

Satterberg said that, at least in King County, he's advised law-enforcement officers not to confiscate patients' pot supplies on the spot, even if they seem questionable.

Essentially, Satterberg's policy says, growers — including cooperatives — won't be prosecuted unless prosecutors believe the operation is a front for distributing marijuana to those who are not ill. He said Thursday that his office hasn't yet encountered any such illegal operation.

Satterberg said he's told local police agencies and the sheriff's office that "If there are any questions [about a patient's legitimacy], officers should take a small sample and some photos and give us a call."

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com