hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues November 2017


Changing course on pot

In Vermont, medical marijuana faces risks in push for broader legalization


Mike Di Tomasso, Matt Lavallee, Chris Williams and Chris Motyka are among about 50 employees of Champlain Valley Dispensary and Southern Vermont Wellness, which operate Vermont’s largest legal marijuana-growing facility and supply medical marijuana dispensaries in Burlington and Brattleboro. Courtesy photo /Jessica SipeMike Di Tomasso, Matt Lavallee, Chris Williams and Chris Motyka are among about 50 employees of Champlain Valley Dispensary and Southern Vermont Wellness, which operate Vermont’s largest legal marijuana-growing facility and supply medical marijuana dispensaries in Burlington and Brattleboro. Courtesy photo Jessica Sipe


Contributing writer


Sometime in the next couple of months, a private company aims to open a medical marijuana dispensary somewhere in Bennington.

Advocates say the new dispensary, the result of a law expanding the state’s 13-year-old medical marijuana program, will make the drug much more accessible to area patients with cancer, multiple sclerosis and 10 other conditions for which Vermont allows access to marijuana. The nearest places where patients in the state program can legally buy the drug now are in Brattleboro, an hour’s drive over the Green Mountains to the east, or Brandon, 90 minutes up Route 7.

But the plan for a Bennington dispensary, the fifth such facility in all of Vermont, already hit a snag last month: The company chosen to run it, PhytoScience Institute LLC, backed off from its initial choice for a site in the face of neighborhood opposition.

And despite the expansion, access to the state’s medical marijuana program remains tightly controlled.

“The Vermont medical marijuana program is one of the most restrictive and smallest in the country,” said Laura Subin, director of the Vermont Coalition to Regulate Marijuana. “The Legislature has moved slowly and methodically.”

Subin said some patients with serious illnesses who wanted access to marijuana haven’t been able to get it.

“Historically it’s been easier to get prescription opioids than marijuana,” she said. “But by every measure, marijuana is less dangerous.”

To get onto the state registry that allows them to buy and possess medical marijuana, patients must apply to the state Department of Public Safety. The process includes submitting a $50 annual fee, a photograph, proof that the patient is a resident of Vermont, and a letter from the patient’s doctor verifying that the patient suffers from a qualifying condition.

With state legislators and Gov. Phil Scott actively discussing broader proposals for pot legalization, some are beginning to question whether the state’s medical marijuana program, born in an era of prohibition, might soon become irrelevant without a serious overhaul.
And for patients in the Bennington area who believe marijuana might help with pain, seizures, loss of appetite and other symptoms of serious illness, the calculus for how to gain access to the drug could soon change dramatically. In July, Massachusetts will begin legal retail sales of marijuana products to anyone over 21. The state line is 20 minutes away.


Vermont medical marijuana grow roomSeparate markets, separate tracks?
If patients have to go through an arduous process to get medical cannabis when they could get recreational products without scrutiny, “they’re not going to do it,” said Shayne Lynn, who runs two of Vermont’s medical marijuana dispensaries, Champlain Valley Dispensary in Burlington and Southern Vermont Wellness in Brattleboro.

But Lynn contends there’s still a role for a separate medical marijuana program, because the needs of medical and recreational users are different. He compares it to the difference between over-the-counter and prescription tracks for pharmaceutical drugs.

“Do you need two different markets? I think we do,” Lynn said.
For one thing, in states with both medical and recreational markets, “the medical market isn’t taxed,” he said. “That’s a benefit.”

In Massachusetts, voters approved a ballot proposition last year that legalized possession and use of marijuana for anyone over 21. The ballot initiative also provided for state-regulated retail sales of marijuana products that would carry a combined state and local sales tax of up to 5.75 percent. But after the measure passed, state lawmakers revised it to raise the combined sales tax rate to 20 percent.

If Vermont approves recreational use of marijuana, Lynn predicted the resulting market “will be 20 to 30 times bigger than the medical market.” He said he’s concerned that high taxes on open-market cannabis could send recreational users to medical dispensaries in search of lower prices.
“We want to make sure people coming into the medical program are looking for symptom relief,” Lynn said. “That’s a very different experience than using it recreationally.”

Staff at dispensaries, for example, will work with each patient to find the most appropriate dosage and product, he said. Different cannabis strains have different effects. Patients may have other medical concerns, such as gluten intolerance, that would limit their choice of products.

Vermont requires that medical cannabis products be tested for potency but has no standards for purity.


Medical use increases
It’s still unclear what path Vermont will choose in making marijuana available for recreational use. In the past two years, the state Senate has twice passed a bill to create a regulated market for recreational sales, but both times the proposal died in the House.

In May, both the House and Senate passed a bill allowing adults to possess up to an ounce of marijuana and to grow a small number of plants for personal use. The bill didn’t provide for legal sales of the drug. Scott vetoed the proposal, saying some enforcement provisions were too lax. At a two-day veto session in June, the Senate approved an amended bill designed to satisfy the governor’s objections, but the House didn’t have the votes to take it up.

Scott has since appointed an advisory commission that began meeting in September to discuss options for legalizing recreational marijuana use, and the panel’s members have said they expect the state will legalize cannabis to some degree in the next couple of years.

For now, Vermont is one of 29 states that sanction and regulate medical use. It passed its first medical marijuana law in 2004, and the state now has four licensed dispensaries -- in Burlington, Brandon, Montpelier and Brattleboro – where patients can buy it legally.

Enrollment in the state’s medical marijuana program has grown from about 200 patients in 2009 to more than 4,600 as of late August, according to the state Department of Public Safety, which oversees the system.

Last year, a new state law allowed a license for a fifth dispensary and allowed each of the five to open one satellite dispensary. In September, the state awarded PhytoScience Institute a license to open the fifth dispensary in Bennington and conditional approval for a satellite in St. Albans.
PhytoScience Institute is a Vermont laboratory that provides testing, certification, research, product development and other services for the cannabis and hemp industries. The company did not respond to an interview request for this story, but its representatives have told other news organizations that it aims to open the Bennington dispensary in December and the St. Albans location next year. Like other dispensaries, the Bennington location would not be a walk-in store but would instead provide appointments to registered patients.

The law passed last year also added three health conditions to the list for which patients can seek medical marijuana. That list now comprises cancer, multiple sclerosis, HIV, AIDS, glaucoma, Crohn’s disease, Parkinson’s disease, post-traumatic stress disorder, wasting syndrome, severe nausea, seizures and chronic pain. (To obtain cannabis for PTSD, a patient must submit documentation from a mental health professional.)


Barriers to access
Subin, of the Vermont Coalition to Regulate Marijuana, said that despite the growing of number of patients in the state’s marijuana program, use of cannabis still carries a stigma for some patients, and many medical professionals are reluctant to be seen as endorsing it.
“Many people want medical marijuana but don’t want to have their name out there,” Subin said. “It’s difficult and embarrassing for people who want to use it. Doctors are reluctant to refer people to the program due to fear and misinformation.”

Although a federal court has ruled that doctors are free to discuss medical marijuana with patients, the Vermont program’s application states clearly that doctors are not recommending or prescribing marijuana, only verifying that a patient does indeed have one of the qualifying conditions for enrollment.

Patients registered in Vermont’s program can choose a dispensary or grow their own plants – or both. They’re limited to two mature plants or seven immature plants and two ounces of usable marijuana. The plants must be in a secure room to which only the patient has access.
The law makes no provision for how patients obtain seeds or starter plants.

“That’s a gray area,” Subin said.
For patients who have no experience with growing plants, lack suitable space, or are worried about theft, the other choices are a dispensary or the black market. Patients are allowed to deal with only one dispensary, and with only four now operating across the state, drives can be long (though some dispensaries offer home delivery), and appointment times may be inconvenient.
Dispensaries are required to offer a sliding scale on prices to assist lower-income patients. But because banks and other financial institutions don’t want to handle marijuana transactions, payment must be by cash, check or money order. Products must be transported in a locked container.


Out of the shadows
With the passage of ballot propositions last year, Massachusetts and Maine joined six other states and the District of Columbia in legalizing marijuana for recreational use. Most of those states also have or are creating systems for regulated, taxed retail sales of the drug. New Hampshire and D.C. allow adult use and limited possession but don’t have a legal sales mechanism.

In Vermont, a Rand Corp. study in 2015 estimated that 80,000 people use marijuana every month, collectively spending $165 million annually on the drug. Supporters say legalization would take those sales out of the hands of criminal enterprises while providing revenue for the state and more protections for consumers.

At the Statehouse, “there seem to be some efforts to take their heads out of the sand and be realistic about what’s happening already,” Subin said.

Most states that have legalized recreational marijuana already had a medical marijuana program.
“Each state has dealt with the transition differently,” said Matt Simon, the New England political director of the Marijuana Policy Project, a pro-legalization group.

Colorado, for example, had more than 500 licensed medical-marijuana dispensaries that were allowed to expand into recreational sales after the state’s voters approved adult recreational use. In contrast, Washington state’s medical marijuana dispensaries weren’t regulated, so when voters there approved the creation of a regulated market for recreational marijuana, the state “had to shut them down and start over,” Simon said.

The impact of full legalization on the medical-marijuana business “depends entirely on what the recreational marijuana policy ends up being,” Simon said.

“The medical dispensaries could be licensed to sell recreationally,” he said. “The Legislature has to decide: How many suppliers? How large should they be? What are the barriers to entry for the market? Can small growers get in? If there are too few sellers and too few suppliers, it could allow the existing dispensaries to have too large a share of the market.”

Another question is whether federal policy regarding marijuana might change. The drug remains illegal under federal law, though in recent years the Obama administration generally set a hands-off policy toward enforcement in states that hand sanctioned its use. But Jeff Sessions, the new U.S. attorney general under President Trump, has long been outspoken against state-level marijuana legalization efforts.


Supply and demand
Vermont’s medical-marijuana law requires dispensaries to grow their own plants in indoor facilities. Each growing facility is limited in the quantity and number of strains it can grow, Simon said. If something goes wrong – whether it’s a plant-disease outbreak or a heating or cooling system failure -- a dispensary could lose its entire crop.

Lynn’s 2,800-square-foot growing facility in Milton supplies his Burlington and Brattleboro dispensaries, making him the largest legal marijuana grower in Vermont.

If the state decides to allow recreational sales of marijuana, he said ensuring an adequate supply for both medical and recreational users “is a very real concern.”

Existing dispensaries “can’t produce what is needed for Vermont,” Lynn said. “There will have to be many licensed producers. If your goal is to put the black market out of business, then you have to have enough product to meet the demand.”

The state would have to issue growers’ licenses in advance of legalizing sales, Lynn said. His company is willing to help other growers, he added.

“But we need time to prepare,” Lynn said. “Otherwise we could see swings in supplies and prices.”

Potential growers may view cannabis as a gold mine, but “people forget that the market will be very competitive,” he said. “There will be losers and winners.”

If the state creates a regulated recreational market, entrepreneurs will want to open retail shops.
As the opposition to the Bennington dispensary reveals, “not everybody in the state is open to that,” Lynn said. “We in the industry forget that the greater public doesn’t do this every day.”
In siting dispensaries, Lynn said he has found that “there’s usually a lot of questions people have.”

“You need to sit down with them and answer their questions,” he added.
“People usually come around.”


Changing attitudes
Although Vermont is still debating whether to allow recreational marijuana at all, Simon said legalization in Massachusetts and Maine “has affected the conversation considerably.”
Once these states begin to allow retail sales, “any adult who doesn’t have already have access will be able to buy it in Massachusetts and Maine,” Simon said. “Access will be universal. The state will either regulate and tax or leave it unregulated and untaxed, and the tax money will go to Massachusetts and Maine.”

Opponents of legalization worry about impaired driving, abuse, and use by minors. The Vermont Medical Society, for example, was expected to consider two resolutions at its annual meeting this month, one to require warning labels on cannabis products and restrict conditions for which it could be prescribed, and the other opposing recreational legalization.

“Opponents say they have concerns, but there’s no money to deal with them,” Simon said. Regulating and taxing “is a direct attempt to solve that and take money away from the illicit market.”

Money that Vermonters are spending now on illegal marijuana “is all untaxed and going to people who commit crimes,” he said.

Instead, he argued, those funds could pay for public safety, education and substance abuse programs.

Subin acknowledged that the danger of impaired driving is real. Because the body processes alcohol and marijuana differently, there’s as yet no equivalent to the Breathalyzer test to measure impairment by marijuana.

“But police were making DUI arrests before they had Breathalyzers,” Subin pointed out. Officers could be trained in other methods of determining impairment, she said.

Will Vermont not only legalize recreational use but create a regulated market as well?
“I think eventually it will,” Lynn said. When legal markets open in Massachusetts and Maine, and with Canada going in that direction as well, “we’ll be surrounded at that point.”

“We see regulate and tax as the most reasonable approach,” Simon said. “Regional legalization has brought everyone to the table, whether they want that or not.”