Attorney Larry Mishkin describes Illinois law regarding the use of medical cannabis.RoundTable photo

Getting your Evanston news from Facebook? Try the Evanston RoundTable’s free daily and weekend email newsletters – sign up now!

The four-year Compassionate Use of Medical Cannabis Pilot Program, Illinois’ pilot program allowing the use of marijuana to address certain medical conditions, became effective in January 2014.

A dispensary is expected to open in Evanston this fall. The State has imposed several limitations on the distribution and use of medical marijuana, and use of the drug in any way is still against federal law, said Lawrence Mishkin, an attorney in private practice.

Mr. Mishkin gave a presentation, “Medical Cannabis and Illinois Law as it Pertains to Patients” on July 1 at the Evanston Public Library as part of a program sponsored by the nonprofit organization My Compassion. He said the State law permitting the use of medical marijuana conflicts with federal law, listed some of the State’s regulations for medical marijuana and described a pas de deux between federal and state enforcement of marijuana laws.

“The most important thing to remember is – and it’s a very, very important rule – [the use of marijuana] remains illegal under federal law,” Mr. Mishkin said. “Federal law will trump the state law, and [users] are vulnerable to arrest and prosecution,” he added.

“Illinois is a very, very heavily regulated state. … We don’t want the feds to come knocking at our door,” Mr. Mishkin said.

There is a possibility that the federal government may go easy on users of medical marijuana, however. A 2014 memo from then-Deputy Attorney General James Cole, however, may limit the circumstances under which federal prosecutors will tread into state-permitted marijuana activity. (See sidebar below)

Those suffering from certain debilitating diseases such as HIV/AIDS, multiple sclerosis or hepatitis C may ask their physician for certification to obtain a card that allows the patient to purchase up to 2.5 ounces of medical marijuana every two weeks. There are more than 40 qualifying diseases/conditions, and the list is still being compiled.

Applications for an identification card to participate in the pilot program have been available since last September, and are still available online at the Illinois Department of Public Health website, http://www.dph.illinois.gov.

The applicant must describe the disease or condition and submit a statement from a physician that certifies the diagnosis and a consent form for fingerprinting. Those unable to use the online application may mail application materials to the Illinois Department of Public Health, Division of Medical Cannabis in Springfield.

The certifying doctor must have a relationship with the patient and must state that in her or his opinion the patient would benefit from medical marijuana.
The fortnightly legal dose of medical marijuana may come in different forms, but the 2.5 oz. limit applies to the medicinal aspect. The measurement, Mr. Mishkin said, is the actual weight of the leaves, if the product is to be smoked. If it is in the form of a concentrate, tetrahydrocannabinol (THC), for example, then the weight for legal purposes is the weight of the product. “It is still not entirely clear” how the weight of an edible product will be considered, but “it must have on the package the amount of THC in the edible food,” he said.

A patient who is certified to use medical marijuana may smoke “in private residences or in a ‘private public place’ such as a smoking club. You can transport it in its original packaging,” Mr. Mishkin said.

How employers will treat employees using medical marijuana is not clear, Mr. Mishkin said, because there is no case law in Illinois, “so the first person in Illinois who winds up getting fired will be the test case in Illinois. A person using medical marijuana but who is not impaired during work hours – having smoked or taken the medical marijuana the night before – may still find himself or herself in conflict with an employer if the business has a zero-tolerance policy.

“Reach out to an attorney if you have questions about the use of medical marijuana,” Mr. Mishkin said, “but by understanding the rules, you can make this as low-risk as possible.”

Without explicit action by the Illinois General Assembly, the pilot program will expire on Dec. 31, 2017.

The Cole Memorandum

In a memo dated Feb. 14, 2014, James Cole, Deputy U.S. Attorney General under Attorney General Eric Holder, referred to guidelines of Aug. 29, 2013, as “guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act (CSA).”

The memo instructed Department of Justice attorneys and law enforcement officials to focus on the eight priories in enforcing CSA against marijuana-related conduct. Among these priorities are preventing the distribution of marijuana to minors; preventing the revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; preventing state-authorized marijuana activity from being used as a cover or pretext for trafficking of other illegal drugs or other illegal activity; preventing violence and the use of firearms in the cultivation and distribution of marijuana; and preventing public health, safety and environmental consequences associated with growing and consuming marijuana.

Since then, the United States has a new Attorney General, Loretta Lynch, and a new Deputy Attorney General, Sally Quillian Yates.

“The word is that Attorney General Lynch is ‘so-so’ on the program,” Mr. Mishkin told the RoundTable, adding that he does not think the policy will be changed during the Obama administration.