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Medical pot industry group asks judge to block law

Medical pot industry group asks judge to block law

  • Updated

HELENA — A former cancer patient and the husband of an elderly woman with serious health problems told a district judge Monday they worry whether they can still obtain medical marijuana if a new law takes effect July 1 and bans commercial growing operations

They, some physicians and others testified during the first day of a hearing in a lawsuit filed by the Montana Cannabis Industry Association and others asking District Judge James Reynolds to issue an injunction to prevent the new law from taking effect July 1. The medical marijuana group contends the law is unconstitutional, while the state attorney general’s office said it passes legal muster.

“If this law’s enacted, I’m a dead man,” said Pointe Hatfield of Gardiner, 60, a former river guide who has had cancer in his head, neck and throat. “I tried to grow it. I can’t grow it. It died on me.”

Hatfield said he has a caregiver in Livingston who sells him his monthly one-ounce supply of medical pot for $200. Maintaining the current commercial market is vital, he said.

“It’s the same as going to a drug store to get an aspirin,” he said.

Charlie Hamp, 79, is concerned about still obtaining a $40-a-monthly medical marijuana tincture for his wife, Shirley, 78, who had her esophagus removed and replaced with the lining of her stomach and has lost weight.

Asked if he wants to grow medical marijuana and make tinctures, Hamp said, “Absolutely not.” He added, “I have no expertise in gardening of any kind.”

Like Hatfield, the Hamps now pay to buy legal medical marijuana products from caregivers who grow it and can make tinctures, salves and other products.

The new law, passed by the 2011 Legislature, halts all commercial medical pot growing operations in 12 days.

It replaces them with a grow-it-yourself system or requires medical marijuana cardholders to find a provider (the new name for caregiver), to grow it for them — but for free. Providers will be limited to growing medical pot for three patients apiece, while no such limit currently exists. Patients now pay their caregivers for medical marijuana products.

In one of its most contentious issues, the 2011 Legislature approved the new law to reel in a medical marijuana system that many people believed has careened out of control in recent years.

Montana now has more than 31,500 medical pot cardholders — or more than seven times the 4,000 cardholders in September 2009.

The numbers skyrocketed after the U.S. Justice Department issued a memo in October 2009 saying the federal government wouldn’t prosecute any seriously ill people who were complying with their states’ medical pot laws.

Then a Missoula caregiver set up a series of “cannabis caravans” that traveled across the state to sign up thousands of cardholders. People at times saw out-of-state doctors in person or over the Internet for a few minutes before getting their cards.

Earlier this year, federal agencies raided a number of Montana medical marijuana growers and seized medical marijuana plants and products and cash.

“The key issue here is the virtual denial of access to medical marijuana,” said Bozeman attorney James Goetz, representing the Cannibis Industry Association.

He said the law denies Montanans their fundamental right in the state Constitution to pursue good health. Goetz said the new law is allows “excessive government interference in the lives of Montanans” and empowers the state to conduct warrantless searches of patients and providers.

“Our proof will show that marijuana, while not completely harmless, is remarkably safe,” Goetz said.

But Assistant Attorney General James Molloy, representing the state, said the new law does not prevent people like Hamp’s wife from obtaining a medical marijuana product. Hamp can grow it for his wife, hire a consultant to show them how to do it or find a provider to grow it for them.

The imitative passed by Montana voters in 2004 envisioned a law in which people with certain conditions could grow their own pot for medicinal purposes, he said.

The question, Molloy said, is whether the state must allow a commercial marijuana industry to exist in the state.

“The commercial activity they wish to engage in is illegal under the laws of the United States of America,” he said.

Reynolds asked the state attorneys if they are willing to concede that any parts of the new law are invalid and medical marijuana trade association lawyers to identify what parts of the law are illegal.

Goetz called as witnesses three Montana physicians, a Harvard medical professor emeritus and a social worker, in addition to the Hatfield and Hamp.

Dr. Jack Hensold, a Bozeman cancer specialist, estimated he recommends medical marijuana to two or three patients a month. One was Hatfield, who now is cancer-free but has continued difficulty with nausea and his appetite, which medical marijuana has helped, the doctor said.

The oncologist said he worries about the restrictions in the new law because “the availability of the drug would be limited.”

Dr. Lester Grinspoon, a professor emeritus at Harvard Medical School who has written extensively about marijuana, testified by video that medical marijuana should be as widely available as aspirin.

“Eventually, marijuana is going to be recognized as a wonder drug, just like penicillin was in 1941,” said Grinspoon, who serves on the national board of NORML or the National Organization for the Reform of Marijuana Laws.

The hearing resumes Tuesday with the Cannabis Industry Association calling several final witnesses, before the state puts on its case.

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