David Mangone: Americans For Safe Access Legal Counsel

David Mangone Americans for Safe Access
David Mangone Americans for Safe Access

Shane McCormick: Hello everybody, this is Shane McCormick from cheaphomegrow.com interviewing David Mangone. He works for Americans for Safe Access. David, could you please tell me about yourself?

Dave Mangone: Sure. I’m the legislative counsel for American Americans for Safe Access, as you said. Americans for Safe Access is the nation’s largest non-profit dedicated to medical cannabis patients and advancing medical cannabis therapeutics and research. We have members in all 50 states, Puerto Rico, DC, Guam, as well as internationally, and what we really focus on doing is making sure that when states are passing laws, that they’re really patient-focused and when regulations are adopted, they’re really serving the interests of patients and not necessarily the interest of the industry. We’re very grass roots. We do a lot of lobbying, efforts both on the state level and the federal level, do a lot of research, making sure that dispensary and other facilities are as compliant as they can be when they’re state laws.

Shane McCormick: My first question for you… I read in a Chicago Tribune article that was posted in November of 2017, so not that long ago, you were being quoted as saying probation is one of those areas in which a lot of states lack foresight when they craft these medical marijuana programs. My question is, what can states do to rectify their medical marijuana programs?

Dave Mangone: The first thing I would say is that when these programs started to be passed in the mid to late nineties starting with California, followed by several other West Coast states, Maine, a lot of these programs were fashioned in a way that looked at the enrollees of the program as those at the end of their lives, suffering from incredibly debilitating conditions, sort of the terminal illness type patients. As the programs have evolved, the definition of qualifying patients has expanded to include patients beyond that end of life range. Something that you see in some of the later programs that have been adopted, state legislatures are thinking about how medical cannabis users are integrated into society. You’re seeing things like the consideration of employment protections, whether or not you lose your job for testing positive. They’re looking at things like child custody considerations.

They’re looking at things like what happens if you’re in a federal prison or in a state prison and as part of terms for your parole or probation, it prevents you from using medical cannabis even if you’re a registered cardholder. So when you look at California, California still has to catch up with a lot of these civil protections.

Even though their program is over two decades old, there’s still a number of things that the state legislature, particularly with employment protection, haven’t really been able to effectively incorporate into their programs. Where if you look at a program like Arizona’s, that’s a much more recent program with a much deeper understanding that this is not something that’s used by individuals in sort of the end of life range.

You’re seeing more consideration of these civil protections. So that’s certainly something that everywhere could improve in. Obviously, there’s a lot of discrimination for individuals who use medical cannabis because it still remains illegal under federal law. (With) anything tied to a federal benefit, including housing, snap benefits, and food benefits, there’s still a lot of discrimination for medical cannabis patients, so that’s something we really are working to alleviate.

Shane McCormick: As time goes on do you see the local and federal laws restricting the study of cannabis… becoming more and more liberal?

Dave Mangone: I think that’s certainly been the national trend, especially over the last ten years. I think that there’s certainly been a speed bump, if not a roadblock, with the current presidential administration. Attorney General Sessions has been a very vocal opponent of anything related to moving forward cannabis policy. In both his Senate confirmation hearings, he said that good people don’t smoke marijuana.

He has in the past said he thought the KKK was a bunch of good people until they found out that they smoked marijuana. I think he intended it as a joke, but his actions have shown otherwise. That being said, I don’t see Congress immediately bending to the will of the attorney general.

Just last week they renewed an appropriation protection known as the Rohrabacher-Blumenauer Amendment which prevents the Department of Justice from interfering in state programs and interfering in the lives of individuals who are complying with state law, so I think certainly the trend we’re seeing is moving towards a larger national acceptance, both from the establishment of medical cannabis program as well as, ultimately, research.

Unfortunately, there are still a lot of barriers in place and I think there’s some frustration from researchers in the inability to get licenses approved by the DEA, as well as the frustration from researchers that the only place they are allowed to legally get any sort of marijuana under the Federal Government (stipulation) is from one facility at the University of Mississippi.

Shane McCormick: What are some unique challenges in the state by state patchwork to legalization?

Dave Mangone: The first challenge is that with each state you’re dealing with a very different political demographic. What might work in Colorado certainly may not work in neighboring Kansas? In the Southeast that’s particularly true as well. Florida has moved forward with a relatively comprehensive medical cannabis program, but neighbors to the north, Alabama, and Georgia are still lagging very far behind … folks understand that it’s not in their best interest to continue to ignore medical cannabis.

There’s certainly still a lot of more vocal opponents about the recreational market, but when you see this issue polling at 90 – 94 percent, depending on the poll you look at, it’s becoming very politically unsavvy, and I think this will be especially true in the 2018 midterm elections, to be anti-medical marijuana.

Another challenge is certain states don’t have real clear federal guidance. Up until earlier this year, states operated under something known as the Cole memorandum, which outlined priorities for the Justice Department regarding what they would prosecute, concerning cases, but that’s since been rescinded so there’s no real clear detail or highlight of what federal enforcement priorities might be. Those two are really the two biggest challenges for states crafting the policies.

Shane McCormick: Earlier in the interview you mentioned local businesses or really small businesses. What are some things that business owners should be concerned about when hiring someone that smokes marijuana? Will their insurance costs rise? How is medical use determined? How about if you’re under 21? Can an employer still conduct a drug test? How about use outside of work? Can you get into detail there?

Dave Mangone: That’s an area that’s definitely still evolving in that different states have taken different approaches. Earlier this year Maine actually removed THC from its recommended drug testing panel that’s posted on the Department of Labor (website), basically acknowledging that just because somebody has ingested or consumed cannabis, doesn’t necessarily mean that they’re going to be impaired at the workplace.

Despite this removal, there’s not a state in the country that prevents an employer from establishing drug testing policy at the workplace, particularly when they have reason to believe one of their employees is impaired. Rhode Island has taken a slightly more liberal approach. There was the court case there last year … (involving) Darlington Fabrics, which basically said that an employer had a reasonable duty to accommodate the use of medical cannabis outside of work. They didn’t require the employer to do any accommodations at the workplace but said if somebody was complying with state law and was a cardholder that they couldn’t be terminated solely for that reason.

There are some more strict states that (single out) very specific professions, usually that relate to public safety, (such as) firefighters, police officers. Sometimes you see language about individuals who work with heavy machinery or high voltage, and Pennsylvania actually includes a carve-out for individuals who work in mines, basically saying if you’re a miner, you can’t use any sort of medical cannabis because it creates a danger on the job.

What we know about impairment and how long THC and other metabolites can stay in your system, there’s really not a great standard because THC can stay in your system for 30 days or longer, so to have somebody fail a drug test and that be the reason why they’re fired, they could be possibly not impaired at all. The medical cannabis could actually be helping them function in the workplace.

An example that comes to mind is individuals with seizure disorders and muscular disorders that cause shaking or anything like that, and sometimes cannabis is what helps them get through the workday. That’s certainly something that needs to be addressed on a state by state level, balancing the interests of employers to be able to terminate employees who are ACTUALLY creating a danger on the job, compared with those who are lawful users under state law, who aren’t impaired.

Shane McCormick: So those questions should be answered by the individual states?

Dave Mangone: Absolutely. You’re seeing more and more states deal with this question, and it’s usually through their court systems rather than their legislature. You’re seeing a lot of claims brought under state-based disability statutes, rather than the medical marijuana statutes themselves. I think as this issue continues to be litigated … you’re going to see more and more states recognize that they’re going to have to either adjust how they drug test employees or at the very least, issue guidance on how to do it appropriately.

Shane McCormick: You kind of touched upon this a little bit earlier, do you feel marijuana offenses should be expunged?

Dave Mangone: Absolutely, particularly in states where it would no longer be an offense. Individuals shouldn’t be punished for their past conduct when something’s now lawful. You’ve seen California and some of the other adult use states make moves in this direction where they’re offering to expunge these convictions.

If you are receiving discrimination because of a conviction in a state, and your conduct would have been lawful at that time, but for the change in the law, those convictions should absolutely be expunged.

Shane McCormick: I’m going to shift gears here a little bit, what do you think about the legal status of headshops, of smoke shops, and stores that sell marijuana paraphernalia?

Dave Mangone: That’s a tough one because I think especially those shops that are compliant with state law, I think they should be treated like any other small business. Where the gray area comes in is shops that are operating in states that don’t necessarily have these state protections. I think they certainly deserve the attention of protection, but from a legal standpoint, there’s not much really that’s protecting them and that, for me, causes concern.

But I certainly think that states that have programs, and those shops within those states that are operating within state law, should receive the protections that any other small business gets, and frankly should receive the rights and privileges that any others small business gets: tax deduction, being able to have access to banking, being able to do direct deposit for their employees. All of those things that are traditionally associated with running a successful business, I think should be extended to those businesses operating under state law, lawfully.

Shane McCormick: Given the fact that the US government has multiple patents on cannabis for medicinal uses such as fighting cancer, in your opinion, how can the DOJ have any leg to stand on in continuing to call cannabis a schedule I drug with no medicinal benefits whatsoever. I guess what I’m saying is that the government’s position pretty much contradicts itself.

Dave Mangone: Yeah, it absolutely does, particularly with the patent angle. The two categories for a substance to be schedule I drug is that there’s no accepted medical value, and the other tenet is a high potential for abuse. I think we could talk all day long about this is the second one, the high potential for abuse, and whether or not that’s something that’s true, but the first tenet of the scheduled I argument saying that there’s no accepted medical value is becoming harder and harder and harder to stand up against.

You even have government agencies. The National Academy of Sciences, Engineering, and Medicine, in January of last year, issued about a 400 page report that overviewed about 10,000 studies related to the use of cannabis as a medicine, and they came to the conclusion that particularly when it comes to chronic pain and fighting muscular spasticity, cannabis can be incredibly effective.

So the government is thirdly being contradictory to its own principles. There’s been, NIH and NIDA funded research, the National Institute of Health and National Institute of Drug Abuse, that have to lead to the same conclusions, that cannabis can be used as a medicine. I think the only thing that’s preventing the government from being caught up in this inconsistency is that not a priority for a lot of people, because there are so many other issues that lawmakers are currently dealing with, gun rights, gun control, the issue with immigrants and DACA, and the president’s wall. It just has not become a priority, and I think in a less chaotic, if I can say that, the political climate it would be the top of everyone’s focus.

Shane McCormick: What is the, I’m probably not pronouncing this right, but, what is the CARERS Act?

Dave Mangone: That is the most comprehensive, medical only, bill up both in the Senate and the House of Representatives and it has five parts. The first is that it deschedules cannabidiol. Cannabidiol is a nonpsychoactive component of the marijuana plant. It’s available in some form in 46 states. It’s been shown to have a lot of benefits, particularly with individuals with epilepsy as well as a number of other conditions and there’s really no reason for it to be treated as a schedule I substance.

There’s no “high” effect from it. It’s been converted into FDA approved medicines, so it’s really another inconsistency as to why it’s still scheduled I. The second part of the act deals with federalism, it’s respecting state’s rights. Where states have decided to have a medical program, it prevents the federal government from interfering into that program.

It really is a permanent fix to this annual appropriations process that prevents the Department of Justice from interfering with these programs. The third part is that it removes some restrictions on research. Right now it’s very difficult for researchers to get the permit and licensure they need to conduct research on a schedule I substance of any kind, but particularly marijuana, so it removes some of those barriers by making the process a little bit streamlined. The CARERS Act also helps the veterans.

For veterans who are in states where there is a lawful program set up, it allows these veterans to go into the VA and talk with their VA doctor about enrolling in the state’s medical cannabis program, and have the VA doctor help with these forms and assistance. And then lastly, the bill also made some technical changes to the Controlled Substances Act that helps reduce the amount of confusion, but the big things are the research component, of federalism component, allowing veterans to talk with their VA doctors about medical cannabis. And then descheduling cannabidiol.

Shane McCormick: What is cannabidiol?

Dave Mangone: That is a question that is probably better suited for someone else on our team. I handle the legislation and policy, but from a policy perspective, it arose out of the 2014 Farm Bill package, and in that package industrial hemp is defined as Hemp that has .3% or less of THC. The farm bill allowed manufacturers to produce a variety of products, from clothing to medicine, as long as it is under that .3% THC. So, that would be what counts as cannabidiol, … there’s also a wide range of state programs that have higher ratios of cannabidiol to THC, but that’s the definition that most people operate under.

Shane McCormick: If I remember this correctly, didn’t Senator McConnell just put forward a bill that would legalize hemp, or am I not correct in that?

Dave Mangone: Yeah, he did. He did put a bill forward. Again, it’s about industrial hemp that has .3% or less of THC, and I think Mr. McConnell did this from the perspective that hemp is a crop that has an incredible potential to be monetized in Kentucky. Kentucky has the land and resources to grow hemp. You have seen a sort of a transition away from a lot of the land that was used for tobacco in Kentucky, and a belief that Mr. McConnell is under the impression (is) that this is a great agricultural crop. This is going to be able to bring a lot of revenue into Kentucky and that there’s no reason that something that’s nonpsychoactive, that are made into fibers and shirts and paper, and medicines should be criminalized.

Shane McCormick: Again, I’m going to switch gears a little bit. As you know, we are a home growing blog. I don’t know if this is your focus is, but could you talk about the legal status of growing your own at home? Is that something that you guys support? The reason why I ask is that at the end of last year, in 2017, New Jersey introduced a bill not allowing people to grow their own at home. I don’t know if you’re familiar with that bill, but a gentleman, a Senator … Nicholas Scutari from New Jersey introduced a bill that is not going to allow people to grow their own at home. Can you talk about that and give me your thoughts.

Dave Mangone: Sure. It’s something we definitely support, but would I say that with a caveat. Our number one priority is making sure that patients have access to the medicine they need.

In a state with a very robust dispensary network where there’s a lot of options and choices, and a lot of competition, the need for home grow might be a little bit reduced, but when you have patients with mobility issues or the lack of a really well-established state dispensary network, I believe actually New Jersey … only had five for a while, for the whole state, that really hinders the ability of patients to get to these dispensaries and get the medicine they need.

Particularly when you have regular users, frequent users, it does make more sense for them to have medicine in their own backyard and if that means homegrow, then that’s absolutely something that should be supported: but with some of these dispensaries you do have the benefit of labeling, of product testing, of knowing exactly what you’re getting.

I am sure that there are plenty of growers who know exactly what they’re growing and what they’re producing, but for somebody venturing into growing cannabis for the first time, who may not be as knowledgeable, there are some risks that may come with it.

The main idea is that if there’s not access, we don’t consider the program to be sufficient, so whether it’s a combination of home grow and access at a dispensary, or something else, it really comes down to whether or not they can get the medicine they need. The best examples of what we’ve seen have usually been a mix that allows some form of home grow, but also has a robust dispensary system.

Shane McCormick: What examples are you referring to?

Dave Mangone: Maine certainly is a good example when it comes to access to medicine, as is California, though since California has started their adult use market, there have been some supply shortages as well as the problems of dispensaries charging an incredibly high excise tax of 15%.

When these adult/youth programs come online, it is something important to consider that these patients are still going to need access to the medicine. An example of what not to do, Washington state … collapsed their medical market and their adult use market into one supply chain and it really had an adverse impact on patients, and they couldn’t get the medicine they needed.

Shane McCormick: From a legal perspective, what common pitfalls do you see from growing your own at home? Can you maybe talk about that to a certain extent?

Dave Mangone: Yeah. I would say the primary pitfall is individuals who aren’t fully aware of the amount they’re allowed to grow under state law; if they’re growing more than allowed by statute, sometimes it’s four plants and then six immature, or sometimes six mature plants and a greater number of immature … (T)hat would be the main caveat, where someone would be growing their own at home, they’d be in violation of state law, then they don’t have the arrest protections or don’t have the availability of an affirmative defense in the event that a neighbor … wanted to report them. It’s certainly worth being very, very cautious and being aware of what the state allows in terms of the growth limit, but also the possession limit. So that’s certainly the main area I would tell people to watch out for.

Shane McCormick: What challenges and headwinds do you see for the industry at large, whether it be home grow, whether it be starting a cannabis business, whether you’re on the legal side? I know that’s a very broad question, but perhaps you could give me a broad perspective.

Dave Mangone: Well, I’d say the challenge is, for a brand new business getting to this base, the first is access to capital. A lot of states have incredibly high a bond requirements or immediate liquid asset requirements, to even obtain a license through the state. Some of these states are as high as a million dollars up front or even higher. So that’s certainly a big concern for a lot of businesses stepping into this.

The second challenge for these businesses is a dealing with product safety. If you’re going to open a dispensary or a cultivation facility, how do you ensure that what you’re putting out is going to be safe in terms of pesticides, in terms of labeling, making sure that you’re following the requirements outlined by the state? And actually as an aside, a project of Americans for Safe Access is called Patient Focused Certification, which is a standard group that will go into these new dispensaries and new facilities, and tell them how they can improve their compliance.

It’s an auditing system. It will identify potential health and safety violations for that and really show them how they can best serve patients with minimizing adverse effects. The third broad challenge is there’s still a stigma of being involved with cannabis. There’s, I think, a lingering perception from the fifties through the seventies for a lot of individuals that this is a bad substance, this is evil, and this is going to cause a lot of problems.

Overcoming that stigma is often difficult when a trying to get a loan or trying to convince the community that is going to be an acceptable business. Those three things are probably the biggest challenges.

Shane McCormick: I know you’re not a doctor, but this is a question that I always like to ask everybody that comes on the show. Do you see a future where cannabis can lower or potentially lower healthcare costs?

Dave Mangone: I think that’s a completely fair statement. The research we’ve seen has shown that medical cannabis has the potential to reduce the number of opioid-related deaths and opioid-related overdoses. There was a study in 2014 that said that the states with medical cannabis programs saw about a 25 percent decrease in opioid overdose deaths.

That study was supplemented this earlier that year by the Rand Corporation that went further to say in states where there were dispensaries, that decrease in opioid overdose is around 40 percent. You supplement that with a study from the University of Georgia that found that if cannabis was legalized nationwide, there’d be approximately about a billion dollar savings a year for Medicare Part D costs. Medicare Part D deals with the prescription drugs; it’s usually elderly populations. So I certainly think that it has the potential to save greatly on healthcare costs.

Shane McCormick: This question wasn’t on my list, but how do you think President Trump is doing to fight the opioid crisis? Is he doing a good job? Should he do something different? What are your general thoughts?

Dave Mangone: I think that there’s been a lot of talk without a lot of action from this administration, unfortunately. President Trump commissioned a panel of drug policy experts, and legislators called the President’s Commission on Drug Abuse and Combating the Opioid Crisis, and they got together and had several meetings and issued an interim report this past summer, and then they issued their final report in October of 2017.

Since issuing that report, we haven’t really seen any concrete steps to further any of the policy principles listed in that report. There hasn’t been much discussion of how to actively solve his problem. There have been a few acts by Congress that increased levels of funding, but we haven’t seen any of this funding really distributed to help fight the problem yet. Part of President Trump’s Plan that’s got a lot of media coverage was also the idea of executing drug dealers.

That is something that, as the eighties and nineties showed us, really wasn’t a terribly effective way to mitigate any sort of drug crisis or drug problem. I think the sentiment that President Trump has, in terms of ways to quell this crisis, is there, but I don’t think a drug dealer is the way to, to solve this, nor is a massive advertising campaign. We saw that fail with “Just Say No,” and some of the D.A.R.E. campaigns, and they really didn’t efficiently reduce what they were trying to reduce.

So I worry that this administration is going to take the wrong approach and push us backward in terms of incarceration, in terms of arrest … and going after innocent patients. I’m yet to be impressed by this administration’s solutions for the opioid crisis, but I hope that with the listening sessions they’ve been doing and with the policy information they’ve been given, that there will be a turnaround.

Shane McCormick: That’s all the questions that I had for you. Should I be asking you anything here? Am I missing any questions? Do you want to make any final statements or anything along those lines?

Dave Mangone: No questions. I would just encourage your listeners to visit our website safeaccessnow.org and find out what we’re all about. We have a lot of information out there. We have legal resources, research reports, publications, including our most recent one which provides a letter grade to every state that has a medical cannabis program. It really gives you an idea to see how your state compares to other states and really where your state needs to go in terms of improving access for patients.

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