3 degrees of marijuana legalization

(Editor’s note: This story is part of a recurring series of commentaries by cannabis experts. Julie A. Werner-Simon is a law professor, assistant professor at Drexel University School of Law, legal analyst for the Cannabis as an Emerging Business course at Drexel’s LeBow College of Business, and former federal prosecutor. This is the first installment of a three-part series).

In America, more than nine out of ten people live in a place where marijuana is more or less legal.

Although marijuana use has been illegal at the federal level for more than 50 years, 328 million of the 335 million U.S. residents (including those in the District of Columbia and four densely populated U.S. territories, the U.S. Virgin Islands, Puerto Rico, the Northern Mariana Islands, and Guam) have embraced at least one of the three levels of legalization.

first-degree conditions

There are states (and territories) in the first tier, i.e. states that have cannabis programs for adult use and have set implementation dates for those programs or passed laws legalizing cannabis for adult use.

First degree regulations allow adults in a state or territory to purchase marijuana legally (under state or territory law) without having to prove a medical condition.

The list of states and territories where adults in the first degree are legalized includes 16 states (Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, Virginia, Washington) as well as the District of Columbia, Guam, and the Northern Mariana Islands.

Second-degree conditions

Next come the second-tier locales, which have legalized, implemented, or established dates for medical marijuana programs, allowing patients broad access to cannabis for the treatment of various conditions.

Almost all states start with medical programs and then, years later, move on to coexisting adult first degree programs.

Second-degree programs vary widely, but in general, states and territories with second-degree programs allow patients to possess and smoke at least medical cannabis.

There are now 36 states, plus the District of Columbia and the U.S. territories – Guam, Puerto Rico and the U.S. Virgin Islands – in the second tier.

That’s more than twice as many as those that are also suitable for adults.

There are two exceptions to the American custom of starting the second degree before reaching the first degree:

  • South Dakota, which became a first and second state in the November 2020 election by simultaneously legalizing medical and recreational marijuana (an effort that the state’s elected officials had to face).
  • The U.S. territory of the Northern Mariana Islands, which legalized marijuana for medical and adult use by law in 2018.

Third degree conditions

There are also third-tier states that include even fewer locations, namely states (no U.S. territory has this status) with severely restricted access to medical marijuana products (SLA).

SLO status often precedes approval of a second-degree medical application.

Over the years, third-grade places have become accustomed to the availability of limited programs (some even call their SLOs medical marijuana programs).

Then, through a voter initiative or legislation, the SLO drops the third-grade cocoon and turns it into a second-grade medical assistance program.

States like Florida, Missouri, and Oklahoma, for example, have moved up from OAC status to full-fledged second-tier states for medical marijuana.

However, in March 2021, Republican lawmakers in Florida filed a bill to return to SLO status that called for a significant reduction in the amount of THC allowed in medical marijuana in Florida.

According to the Miami Herald, lawmakers say marijuana abuse by doctors and patients (who use [Florida’s second-degree medical program] to … get rich and high) will lead to a marijuana addiction crisis. Florida remains a second-rate state when it comes to the press.

Iowa, meanwhile, is in third grade but has not yet accepted second-degree status.

A sign of this movement occurred in June 2020, when the governor of Iowa lifted the low THC restriction for ESL patients, but then manually imposed a quantitative restriction (4.5 grams for 90 days) for Iowans in his program.

Under Iowa’s restrictive law, smoking marijuana is still illegal.

Third-degree ESL states Texas and Georgia are among those allowing treatment with low-THC marijuana and also expanding the ESL patient population and preparing them for future second-degree status.

Other states described in the National Conference of State Legislatures database have a university research component, such as Alabama, which, among other various features, allows research on low-THC substances only on a University of Alabama campus.

Tennessee also allows only one of its public universities to conduct cannabis research on epilepsy disorders using a low-THC drug, while Kentucky allows medical schools and public universities (which receive research grants) to use low-THC drugs to study epilepsy disorders.

And Georgia passed a law in 2015 that allows the state’s university system to study the effectiveness of low-THC oil on terminal cancer, seizures and other refractory diseases in a limited setting.

All OAS member states have enshrined their status in their legislation, and some have named persons with serious diseases in draft legislation.

South Carolina’s 2014 ALS program, for example, is called Julian’s Law and is named after a child born in the state who developed epilepsy at age two and then moved with his family to Colorado for medical marijuana treatment.

Although South Carolina designates its ESL participants as medical marijuana patients, the state only allows limited use by people with uncontrolled epilepsy, defined in law as use that does not respond to traditional medication.

Patients in South Carolina, like other patients with similar SLOs, may only have access to low-THC cannabis in the form of oil.

North Carolina also allows the use of certain cannabis products to treat all forms of epilepsy.

Such is the case in Indiana, where a 2017 law allows the use of low-THC products to treat epilepsy.

Wisconsin allows use for epileptic seizures, while Wyoming allows both epilepsy and seizure disorders.

Texas also passed a limited access law in 2015 and 2019.

There are currently 11 SLA countries: Alabama, Georgia, Iowa, Indiana, Kentucky, North Carolina, South Carolina, Tennessee, Texas, Wisconsin and Wyoming.

In total, more than 120 million people live in a state, territory, or District of Columbia of the first degree, and 117 million people in places that are medicolegal only in the second degree. In addition, 89 million people represent third-grade states where access to marijuana is severely restricted. In total, more than 328 million people live in a state or territory where marijuana is legal to some degree.

(At this point, look out for part two of Werner-Simon’s post on the legalization of marijuana in the United States. The next part will detail the places in the U.S. where marijuana is still completely illegal.)

Julie A. Werner-Simon is a legal analyst for the Cannabis as an Emerging Business course at the Drexel LeBow School of Business. She can be reached at [email protected].

The previous version of this series can be found here.

To be considered, please send your application to [email protected] with the subject Guest Column.

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