As Marijuana Banking Reform And Rescheduling Loom, We Must Not Forget Medical Cannabis Patients

“Since market conditions seem to be pushing products toward cannabinoid profiles that appeal to adult-use customers, where does this leave patients who make up a smaller component of demand?”

Changes may be coming to cannabis regulation. After many attempts, the Secure and Fair Enforcement Regulation (SAFER) Banking Act is out of committee and headed to the full Senate for consideration. If passed, the SAFER Banking Act will give cannabis businesses better access to financial institutions, allowing them to stop operating as cash-only businesses. In turn, this could make operating cannabis medical and adult-use businesses much less challenging.

The barriers that the SAFER Banking Act attempts to remedy are just one example of how conflicting policies and inaction have limited the industry. Should this legislation become law, it could be the first in a series of major changes to federal cannabis law. Considering re-scheduling may be on the horizon, as well, it is worth considering how these changes may change the industry’s balance of supplying cannabis as a medicine and supplying cannabis for recreational use.

Patients themselves and patient advocacy organizations express concerns about how expanding adult-use markets can shrink medical markets and patient access. For example, Americans for Safe Access’s 2022 state-by-state report notes that medically focused companies are transitioning to adult-use sales, because of a perception that adult-use is more profitable. Patients interviewed for a study that my colleague conducted echoed that concern that adult-use dispensaries are replacing medical dispensaries and that they had observed a decrease in the availability of the types of products they desired.

Some might think, “If recreational use is legal, then what are the benefits of having dedicated medical markets?”

True, some states’ medical cannabis programs are marked by red tape leading to access requirements that can be burdensome. The barriers these policies impose may make patients less willing to jump through the required hoops to get a medical card, thereby preventing some people who could benefit from medical cannabis from accessing it. However, some relief from the hefty taxes levied on adult-use products can be a benefit of going through a state’s medical program. Additionally, as adult-use products have trended to higher concentrations of THC (the primary intoxicating cannabinoid), these products may not be as desirable or useful to medical cannabis patients.

Since market conditions seem to be pushing products toward cannabinoid profiles that appeal to adult-use customers, where does this leave patients who make up a smaller component of demand?

Some research suggests that some states have enacted programs that could disadvantage medical cannabis businesses. A study that analyzed different indicators of the medical marketplace use and accessibility in three states found some evidence that adult-use legalization can change the makeup of the medical marketplace. The regulatory structure states adopt seems to affect how patient registry numbers, the proportion of medical to adult-use dispensaries and medical cannabis sales change after legalization of adult-use. The study shows that adult-use legalization is not necessarily a death sentence for the medical market, but it also suggests there are likely specific policy provisions that help insulate medical markets after adult-use markets open.

There are some examples of states implementing policies designed to maintain patient access after adult-use laws go into effect. New Mexico has empowered its regulatory agency to require certain quantities of cannabis to be earmarked for patients and Maryland requires dispensaries maintain adequate inventory for medical patients.

However, regulation is only as effective as enforcement. In New Jersey, dispensaries that serve the medical and adult-use markets must allow patients to reserve product and offer patient-only hours, parking and checkout lines. Yet since adult-use dispensaries opened in April 2022, all but one of the notices of violation listed on the Cannabis Regulatory Commission’s website through January 2023 were related to violating patient access laws. Although it’s encouraging that the state is issuing violations and enforcement actions, seeing that some companies have multiple violations may suggest that enforcement measures are not as much of a deterrent as they could be.

As states open adult-use markets and modify existing medical and adult-use markets, regulators should consider the impact that new and updated laws may have on patient access, especially as federal regulations change.