Please Read the Below Before Proceeding
FREQUENTLY ASKED QUESTIONS ABOUT PENNSYLVANIA’S MEDICAL MARIJUANA PROGRAM
Pennsylvania passed the “MEDICAL MARIJUANA ACT” (“Act 16”) in April 2016, permitting growers/processors and dispensaries to provide medical marijuana for patients with serious medical conditions specified in Act 16. The Pennsylvania Department of Health’s Office of Medical Marijuana oversees the implementation and regulation of growers/processors, dispensaries, registered physicians and practitioners (medical professionals working at dispensaries), patients and caregivers. The regulations may be revised by the Department of Health in April 2018 or later.
Notwithstanding the passage of Act 16 in Pennsylvania, the cultivation, manufacturing, transportation, sale, distribution, dispensation and possession of marijuana (also known as cannabis) violates federal law. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Section 801, et. Seq (1970) (“The Controlled Substances Act”), categorizes marijuana as a ‘Schedule I’ controlled substance. Schedule I drugs are defined as drugs with no currently accepted medical use in treatment in the United States and a high potential for abuse. As such, while users, growers/processors and dispensaries of medical marijuana that comply with Act 16 are protected from state criminal prosecution, their activities remain illegal under The Controlled Substances Act and other related federal statutes and regulations.
Because of the discrepancy between Pennsylvania and federal laws, the Allegheny County Bar Association (ACBA) has provided below a list of frequently asked questions to assist patients and caregivers with information about medical marijuana and their legal rights.*
* The information contained below is for general communication only. The application and impact of Pennsylvania and federal laws can differ extensively based on the particular facts involved. Given the changing nature of laws, rules and regulations, as well as the ability of the ACBA to update the information below in a timely manner, delays, omissions or inaccuracies may exist in the information contained herein. As such, this information is provided with the understanding that no member of the ACBA, nor the ACBA itself or any of its employees, is herein engaged in providing legal advice. Before making any decision or taking any action, the reader should consult a legal professional.
While every attempt has been made to safeguard that the information contained below was obtained from reliable sources, the ACBA is not responsible for any errors or omissions, or for any results occuring from the use of this information. All information is provided “as is”, with no guarantee as to its completeness, accuracy, timeliness or of the results occuring from the use of this information, and without any warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular use. The ACBA, any of its members, or their respective employees shall not in any way be liable to the reader or anyone else for any decision made or action taken in reliance on the information provided herein. References made to certain links in the information provided connect to other websites providing additional relevant information. Such websites are maintained by third parties, unrelated to the ACBA, and as such, the ACBA makes no representations or warranties as to the accuracy of the additional information contained in those websites.
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Pennsylvania Medical Marijuana Frequently Asked Questions
- Can someone bring medical marijuana products from other medical marijuana legalized states to Pennsylvania if that someone has a recommendation from a physician?
- Can someone use medical marijuana and be cited with driving under the influence (“dui”) if that someone is using medical marijuana pursuant to a physician’s recommendation?
- Can someone be arrested for possession of medical marijuana?
- A doctor will not recommend medical marijuana. Can a patient see another doctor?
- Can someone overdose from medical marijuana?
- What types of medical marijuana will be available?
- Can someone be disciplined or terminated by his/her employer if he/she uses medical marijuana?
- Can an employer require an employee to take a drug test and can the employee provide evidence that the employee is using medical marijuana under the approval of a doctor?
- How can someone obtain medical marijuana for a serious medical condition?
- Where can someone find more information about obtaining medical marijuana in Pennsylvania?
- Can minors access medical marijuana?
- Can minors use medical marijuana in school?
- Can someone be a medical marijuana patient and have a license to carry a firearm?
- Can a patient see a doctor for a recommendation for medical marijuana through telemedicine or telehealth?
- CAN SOMEONE BRING MEDICAL MARIJUANA PRODUCTS FROM OTHER MEDICAL MARIJUANA LEGALIZED STATES TO PENNSYLVANIA IF THAT SOMEONE HAS A RECOMMENDATION FROM A PHYSICIAN?
As marijuana is a federally illegal controlled substance, Pennsylvania does not permit out of state products to be transported into Pennsylvania. A Pennsylvania patient must purchase from a licensed Pennsylvania dispensary and must keep his/her medical marijuana in its original packaging. Additionally, Pennsylvania does not offer reciprocity to medical marijuana cardholders from any other state. A Pennsylvania patient may not travel to another state with his/her Pennsylvania medicinal marijuana product.
- CAN SOMEONE USE MEDICAL MARIJUANA AND BE CITED WITH DRIVING UNDER THE INFLUENCE (“DUI”) IF THAT SOMEONE IS USING MEDICAL MARIJUANA PURSUANT TO A PHYSICIAN’S RECOMMENDATION?
Act 16 does not specifically address operating a motor vehicle as a medical marijuana patient. The act does provide an active 10 ng/ml threshold. As set forth in 35 Pa.C.S.A. 10321.510(1), when engaged in certain high-risk employment duties, “(1) A patient may not operate or be in physical control of any of the following while under the influence with a blood content of more than 10 nanograms of active tetrahydromarijuana per milliliter of blood in serum”.
Pennsylvania DUI law prohibits operating a motor vehicle with any active or inactive THC metabolites in the blood. Active THC metabolites spike in the blood shortly after ingestion. These active THC metabolites will begin to dissipate within an hour of ingestion and will then convert to inactive THC metabolites, which can stay in the blood for weeks and months depending on the rate of usage and physical characteristics of the user.
Other medical marijuana states such as Arizona have addressed the issue of whether inactive THC metabolites violate state DUI laws where the patient is not actually impaired. How Pennsylvania Courts address the issue is yet to be determined.
- CAN SOMEONE BE ARRESTED FOR POSSESSION OF MEDICAL MARIJUANA?
A Pennsylvania registered medical marijuana patient is protected from state criminal prosecution provided the patient is in possession of medical marijuana purchased by the patient (or his/her caregiver) from a licensed Pennsylvania dispensary using the patient’s (and caregiver’s) identification card that is issued by the Pennsylvania Department of Health. The medical marijuana product must be kept in its original packaging at all times.
A patient in possession of medical marijuana from another state or from another patient, is subject to prosecution under Pennsylvania’s Controlled Substances Act. A patient in possession of medical marijuana in an amount in excess of the thirty-day limit imposed by Section 801(e) of Act 16, is also subject to prosecution. Processing medical marijuana into an “edible” form is prohibited unless it will aid the patient relative to ingesting medical marijuana.
Act 16 imposes criminal liability for any patient who “adulterates, fortifies, contaminates or changes the character or purity of medical marijuana from that set forth on the patient’s or caregiver’s identification card.” See Section 1306(a) and (b).
In addition to the above, Pennsylvania’s Criminal Code Section 1308 imposes criminal liability for violations of Act 16 as set forth above.
- A DOCTOR WILL NOT RECOMMEND MEDICAL MARIJUANA. CAN A PATIENT SEE ANOTHER DOCTOR?
A patient may consult with any physician registered with the Pennsylvania Department of Health to write recommendations for medical marijuana. A pre-existing physician patient relationship is not required. A patient must, however, follow-up with the recommending physician at least yearly while the recommendation is valid.
- CAN SOMEONE OVERDOSE FROM MEDICAL MARIJUANA?
The Drug Enforcement Administration (“DEA”) recently issued a report saying no overdose of marijuana use has ever been reported. See https://www.dea.gov/documents/2020/2020-04/2020-04-13/drugs-abuse. For more information, it is recommended that a patient speak with a physician.
- WHAT TYPES OF MEDICAL MARIJUANA WILL BE AVAILABLE?
Act 16 specifically prohibits “smoking” medical marijuana products. It permits “vaporization” and “nebulization”. Actual plant material, such as dry leaf or plant form, is not an approved medical marijuana product under Act 16, but the Pennsylvania Department of Health may add flower material as an approved medical marijuana product in the future.
Currently, medical marijuana will be provided in pills, oils, topical forms (such as gel, creams and ointments), tinctures and liquid.
- CAN SOMEONE BE DISCIPLINED OR TERMINATED BY HIS/HER EMPLOYER IF HE/SHE USES MEDICAL MARIJUANA?
Act 16 provides some patient protections; however, an employer is not required to accommodate medical marijuana use in all circumstances. For example, although the act prohibits discrimination and retaliation solely on the basis of being a person permitted to use medical marijuana (through a medical marijuana patient card), the act does not prohibit employers from enforcing their own drug policies, including zero-tolerance policies. Thus, an employer that drug tests may be within its rights to terminate an employee who tests positive for marijuana – regardless of whether the employee has a valid patient medical marijuana card. The law does not require employers to allow use of medical marijuana at work. There also are restrictions regarding the types of duties that may be performed by medical marijuana users “while under the influence” of medical marijuana. “Under the influence,” however, is an ambiguous term in the act.
As of Jan. 2, 2018, the regulations related to the act have not been completed, and the regulations that have been drafted do not address most employment situations.
- CAN AN EMPLOYER REQUIRE AN EMPLOYEE TO TAKE A DRUG TEST AND CAN THE EMPLOYEE PROVIDE EVIDENCE THAT THE EMPLOYEE IS USING MEDICAL MARIJUANA UNDER THE APPROVAL OF A DOCTOR?
Drug-testing, including post-accident testing, is permitted by law. Federally mandated drug-free workplace programs, including programs requiring employers to report positive marijuana test results, are also valid. Employees who have a medical marijuana card issued by the Pennsylvania Department of Health should notify the testing organization before the test. Employees may be asked to produce the documentation to establish that they are using medical marijuana legally.
- HOW CAN SOMEONE OBTAIN MEDICAL MARIJUANA FOR A SERIOUS MEDICAL CONDITION?
Pennsylvania’s Act 16 makes medical marijuana available to a patient with a “serious medical condition” as defined by the Act. The Pennsylvania Department of Health maintains a website with the list of the qualifying serious medical conditions. See https://www.pa.gov/guides/pennsylvania-medical-marijuana-program/ – 17MedicalConditions
If someone has a qualifying serious medical condition, a physician who is registered with the Pennsylvania Department of Health can make a medical marijuana recommendation. The Department provides a list of certified physicians available to the public through its website. See http://www.health.pa.gov/My%20Health/Diseases%20and%20Conditions/M-P/MedicalMarijuana/Documents/DOH%20Approved%20Practitioners%2012-21-17.pdf Once the physician makes a medical marijuana recommendation, the patient can apply to be registered with the Pennsylvania Department of Health for a patient medical marijuana card that must be presented to a Pennsylvania licensed dispensary. The cost of obtaining a patient identification card is $50. Patients can apply for identification card at https://www.pa.gov/guides/pennsylvania-medical-marijuana-program/#PatientsandCaregivers. The patient’s purchase of medical marijuana at a dispensary will be logged into an electronic tracking system and a patient may not have more than a thirty-day supply of medical marijuana. While the recommendation and dispensing of medical marijuana does not fall under the confidentiality protected under HIPPA, physicians and dispensaries take precaution to protect patient information as permitted by law.
- WHERE CAN SOMEONE FIND MORE INFORMATION ABOUT OBTAINING MEDICAL MARIJUANA IN PENNSYLVANIA?
Accurate and reliable information can be elusive in this new industry. The following websites offer more information:
- CAN MINORS ACCESS MEDICAL MARIJUANA?
Children with a defined “serious medical condition” may use medical marijuana products. Generally no one under the age of 18 is permitted inside a Pennsylvania licensed grower/processor or dispensary. However, minors who are patients with a serious medical condition, are permitted to enter Pennsylvania licensed dispensaries if they are accompanied by a parent or caregiver. Also, a parent or other designated caregiver, to a minor or incapacitated person who has a serious medical condition, may enter the Pennsylvania licensed dispensary to purchase the product for the patient. Anyone acting as a caregiver to a patient must register with the Pennsylvania Department of Health as a “caregiver.” A caregiver must be over 21 and be free from criminal convictions. The cost of obtaining a caregiver identification card is $50. Caregivers can apply for identification cards at https://www.pa.gov/guides/pennsylvania-medical-marijuana-program/#PatientsandCaregivers
- CAN MINORS USE MEDICAL MARIJUANA IN SCHOOL?
The Pennsylvania Department of Health advises that the Pennsylvania Department of Education supports the administration of medical marijuana to students with serious medical conditions and the maintenance of a safe environment for other students while on school property. The Pennsylvania Department of Health provides information to school administrators to assist them in developing policies for the administration of medical marijuana on school property. The recommended guidance issued by the Pennsylvania Department of Health remains in effect until the Pennsylvania Department of Education promulgates regulations regarding the possession and use of medical marijuana in the commonwealth’s schools. See https://www.pa.gov/guides/pennsylvania-medical-marijuana-program/#PatientsandCaregivers
- CAN SOMEONE BE A MEDICAL MARIJUANA PATIENT AND HAVE A LICENSE TO CARRY A FIREARM?
According to federal law, 18 U.S.C. §922(g)(3), patients who use medical marijuana are not allowed to own firearms due to violations of The Controlled Substances Act.
18 U.S.C. §922(d)(3) also makes it illegal for any person to sell firearms or ammunitions to anyone who violates The Controlled Substances Act.
The U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives issued an open letter in September 2011, see https://www.atf.gov/file/60211/download, to federal firearm licensees stating there are no exceptions to gun laws whether a particular state passes cannabis legalization laws or not.
The 9th U.S. Circuit Court of Appeals has ruled in Wilson v. Lynch that this federal law does not violate the Second Amendment. The ruling by the 9th U.S. Circuit Court of Appeals applies to nine Western states that fall under the court’s jurisdiction, including California, Washington and Oregon. The court concluded that it is reasonable to assume that a medical marijuana cardholder is a marijuana user, and hence reasonable to deny their gun purchase on those grounds.
- CAN A PATIENT SEE A DOCTOR FOR A RECOMMENDATION FOR MEDICAL MARIJUANA THROUGH TELEMEDICINE OR TELEHEALTH?
While some states permit doctors to practice Telemedicine, Pennsylvania does not.
“Telemedicine” or “Telehealth” is the delivery of health care services provided through technology where the physician and the patient are in 2 separate places and communicate with each other directly through video web communication in real time like services similar to Webex, Skype or FaceTime for example.
Bills have been introduced in the Pennsylvania Legislature that would permit Telemedicine. However, it is not yet law, and until law permits Telemedicine to be practiced in Pennsylvania, patients wishing to see a doctor for a serious medical condition in order to receive a medical recommendation for medical marijuana are required to see a doctor who is registered with the Pennsylvania Department of Health’s Office of Medical Marijuana for a face-to-face consultation.