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Recent Medical Marijuana Developments in Illinois

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Recent Medical Marijuana Developments in Illinois

Medical marijuana has had a short but turbulent history in Illinois, and recent developments have only added to the disarray in the Land of Lincoln.

When former Governor Pat Quinn, considered by many to be an advocate for medical cannabis, signed the Compassionate Use of Medical Cannabis Pilot Program Act (the “Act”) into law on August 1, 2013, Illinois became the 23rd state in the nation to enact medical marijuana legislation. The Act created a four-year medical marijuana pilot program, which allows individuals suffering from one of 39 defined medical conditions or diseases to receive a registry identification card from the Department of Public Health and to generally receive up to 2.5 ounces of marijuana every 14 days. Unlike many other states’ medical marijuana laws, the Act does not allow patients or their caregivers to cultivate cannabis, instead requiring individuals to purchase their marijuana from one of up to 60 licensed dispensaries in the State, all of whom are to be supplied by the up to 22 licensed cultivation centers.

In 2014, individuals began to file applications for registry identification cards, and businesses and entrepreneurs began to apply for dispensary and cultivation center licenses. In all, the State received 214 dispensary license applications and 159 cultivation center license applications. However, despite doing much of the legwork in evaluating these applications and vowing to grant applications before his term ended in 2014, Governor Quinn left the process of license approval to his successor, Governor Bruce Rauner, who had been vocal in his criticism of the Act and has continued to publicly call for further studies to validate the palliative effects of cannabis before expanding the program. Amidst claims of fraud and favoritism in Governor Quinn’s process, Governor Rauner’s staff undertook its own review of the cannabis business applications and, as a result, the State did not begin to grant business licenses until February 2015, or roughly 19 months after the Act was initially signed into law. By that time, however, the Department of Public Health had only granted 650 registry identification cards to patients, well below anticipated participation levels.

The Department of Agriculture granted approval to the first cultivation center to begin actually growing cannabis on July 10, 2015, and the facility planted its first seeds three days later, nearly two years into the four-year pilot program. By this time, the State had roughly 2,800 patients, still far below expectations. The first dispensaries in the State did not open until November 9, 2015, when eight such facilities commenced operations. At that point, Illinois had roughly 3,300 patients. According to state-released data, those patients purchased approximately $1.7 million worth of marijuana from dispensaries in November and December 2015. During that same period, the State collected roughly $105,000 in tax revenue from wholesale cannabis transactions.

Today, more than halfway through the pilot program, there are 36 dispensaries in the State, and just 6,200 patients according to Department of Public Health reports. The greatest issue facing the medical cannabis industry in Illinois continues to be the anemic number of registered qualifying patients. As of the latest reports, there are only 0.5 patients per 1,000 Illinois residents. By contrast, there are 18.4 patients per 1,000 residents in Michigan. Moreover, approximately one-third of all Illinois patients reside in Cook County, meaning that there is little to no market for medical marijuana in most other areas of the State. Such small numbers, combined with the Act’s statutory sunset and the opposition of Governor Rauner, as well as the continued illegality of cannabis-related activity at the federal level, make it difficult for businesses to justify the high costs necessary to start and operate a marijuana-related business in Illinois.

Many advocates cite the list of qualifying medical conditions as the primary culprit behind Illinois’ limited patient population. Unlike 18 of the 23 jurisdictions who have medical marijuana statutes, an individual cannot qualify for a registry identification card in Illinois if they have only “chronic pain.” The inclusion of such a condition dramatically expands the number of eligible patients in a state. In Michigan, for example, statistics released by the state Department of Licensing and Regulatory Affairs show that nearly 93 percent of all patients, approximately 169,000 individuals, list “severe and chronic pain” as a qualifying medical condition.

The Medical Cannabis Advisory Board (the “Board”), which was created by the Act to recommend additional qualifying conditions to the Department of Public Health, has now recommended that a number of new conditions be added to the list, but has been repeatedly rebuffed by Governor Rauner’s administration, much to the consternation of the medical professionals and patient advocates who comprise the body. In May 2015, the Board first recommended 11 new conditions, including post-traumatic stress disorder, osteoarthritis, migraines, and anorexia nervosa. However, those recommendations were rejected by Department of Public Health Director Nirav Shah, an appointee of Governor Rauner. In October of last year, the Board recommended eight new conditions, all of which were contained in their May 2015 recommendations, and all of which were again rejected by Director Shah. Nevertheless, on May 2, 2016, the Board again recommended the addition of 10 new conditions, its eight conditions from October 2015, as well as Type 1 diabetes and panic disorder. It remains to be seen if the third time will be the charm for Illinois’ patient advocates.

Today, the future of medical cannabis in Illinois remains unclear. The pilot program is set to sunset on January 1, 2018, and last September, Governor Rauner issued an amendatory veto of legislation that would have extended the sunset by four years, instead proposing to extend the program to four months. As the Legislature did not concur in the amendatory veto, the legislation altogether failed to take effect. With patient numbers steadily climbing, but remaining low, and a seeming unwillingness to expand the list of qualifying conditions, many wonder about the future of the program. However, advocates continue to negotiate with Governor Rauner, and there is a sense in Springfield that a compromise will be reached prior to the expiration of the pilot program. Dykema will continue to stay abreast of developments in this area and to provide insight and information as events occur.

Interestingly enough, while the future of medical marijuana in Illinois continues to evolve, Illinois-based pharmacy chain, Walgreens, recently posted an article entitled “Clarifying Clinical Cannabis” on its Tumblr page. The post, which Walgreens has averred is “strictly informative” has been met with significant praise from marijuana advocates, if only because it shows the willingness of a major corporation to begin acknowledging the potential benefits of cannabis usage. The post, written by a pharmacist for Walgreens and the University of Illinois at Chicago, notes that, while marijuana has not been approved by the federal Food and Drug Administration and may result in impairment to lungs, memory, and judgment, it has also been shown to “provide[] pain relief in ways traditional pain medicines don’t” and to potentially “improve appetite and relieve nausea in those who have cancer and… help relieve symptoms such as muscle stiffness in people who have multiple sclerosis.” Thus, while the State’s governor continues to call for more studies to provide evidence of the benefits of medical cannabis, one of Illinois’ largest corporate employers has now publicly discussed those very benefits.

For more news and analysis on marijuana-related legal and policy developments in Illinois, check back to Dykema’s Cannabis Law Blog.