Illinois Bar Journal

April 2016Volume 104Number 4Page 12

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LawPulse

Cannabis ambivalence

Medical cannabis users who are parents of minors may discover that the law exposes them to DCFS scrutiny, just one way cannabis users may be treated as "second-class patients."

Illinois' Compassionate Use of Medical Cannabis Pilot Program Act went into effect on January 1, 2014. As of January 2016, there were 4,037 registered qualifying patients in Illinois. There were approximately 5,000 as of March 1, 2016. According to the Illinois Department of Public Health (IDPH), the January statistic represents an increase of over 1,300 since June of 2015 (see http://1.usa.gov/1VaasCk).

About 40 dispensaries have opened across the state, some users - specifically, registered patients who are parents of minor children - may discover that Section 30 of the Act exposes them to the scrutiny of the Illinois Department of Children and Family Services (DCFS). Other registered patients may face scrutiny from current or potential employers or on campus.

Parenting and medical cannabis

Section 30 prohibits registered patients from knowingly "using" medical cannabis "in close proximity to anyone under the age of 18 years of age" (410 ILCS 130/30(a)(3)(G)). The Act does not define "close physical proximity."

This can be problematic for parents who are also registered users. Where do they go to medicate? How far away from minors do they need to be? Illinois Representative Lou Lang (D-Chicago) told the Illinois Times, "The bill we passed requires that a person not smoke medical marijuana in front of a child" (http://bit.ly/1SlZj0V).

Therefore, in the case of edible and other preparations that are not smoked, does the Act's prohibition even apply? Section 30 does not distinguish between types of medical cannabis with regard to the use prohibitions.

The proximity requirements have not been interpreted by the courts. Attorney Dina Rollman of Rollman & Dahlin LLP says that in the absence of guidance from the courts, a "common sense reading" of the Act is best. In her view, common sense would dictate that parents not inhale, ingest, or otherwise use medical cannabis in front of a minor, and parents should also be sure to store their cannabis out of reach of children.

Although there are no legal penalties built into §30(a)(3)(G), if someone lodged a complaint with DCFS, it might prompt a visit to the home. In some situations, registered users who violate the use restrictions of the Act can have their card revoked. Rollman points out a different scenario - in a contested custody proceeding, one parent's allegations that the other parent consumed in front of a child could lead to a bad result for the registered user.

Medical cannabis on campus

Other use restrictions may also cause problems. Employers are not prohibited from drug testing their employees or from prohibiting the use of medical cannabis on their premises. As a result, registered users may face fewer employment opportunities.

Universities, colleges, and public schools can also restrict use on campus. For patients who are under 18 or who are attending college, this creates barriers to medicating. According to the Lake County News-Sun, school districts are taking various approaches to medical cannabis. Community Consolidated School District 46 is not allowing students to medicate at school, but they may take it before school (http://trib.in/1fH1smo).

Waukegan Community Unit School District 60 may allow parents to administer medication to students during the day, but not on school grounds.

Based on IDPH data from January 2016, 8.8% of registered patients are under 30. Another 30.3% range between 31 and 50 years of age. This means that almost 40 percent of registered patients have the greatest chance of being affected by the Act's restrictions.

Rollman thinks that these types of restrictions show "the legislature's ambivalence" towards medical cannabis. Although the Act acknowledges that cannabis is medicine, it is "not treated like any other medicine."

Patients that are prescribed pain medication like OxyContin or anti-anxiety medications such as Xanax are able to consume their medications without any restrictions on where they medicate or who can see them medicate. They are not denied employment for taking their legally-prescribed drugs, and do not have to submit to drug tests that screen for their legally prescribed medications.

In some ways, the Act "turns medical cannabis patients into second-class citizens," she says. Rollman notes that, in all other situations, "you don't need to get fingerprinted to get medicine." She believes that these restrictions increase barriers to care.

Rollman might be right - only 5,000 patients are registered two years into the pilot program. For those who have managed to obtain a medical cannabis card, it is very important that they comply with the Act's current usage and possession restrictions.

When the Act comes up for renewal in two years, the General Assembly may need to address some of the issues created by the restrictions. For example, the question of children who take medical cannabis should be addressed so that school boards have a clear direction for crafting policy. Additionally, clarifying the definition of "close physical proximity" would give parents a better guide for responsible use of medical cannabis.


Matthew Hector
Matthew Hector is a senior associate at Woerthwein & Miller.

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