There’s a “gray area” in Hawaii’s up-and-coming medical marijuana dispensary program that few are talking about: In order for dispensaries to procure their first batch of cannabis, someone’s going to have to break the law.
The dispensary law does not provide a legal way for licensees to acquire their initial seeds or plants, and marijuana remains a federal Schedule 1 drug that is illegal to transport from the mainland and also is illegal to sell under current state law.
The state Department of Health, which oversees Hawaii’s medical marijuana programs, “does not have information” about ways to obtain marijuana, DOH spokeswoman Janice Okubo said in an email, and rules “do not include any requirements for reporting on the initial acquisition of plants or seeds by licensees.”
Rules only cover the licensing requirements after that initial acquisition of marijuana, Okubo said.
“This appears to be a gray area,” the Hawaii County Prosecuting Attorney’s office said in a written statement. “The law doesn’t address this.”
The conundrum isn’t new. When Hawaii legalized cannabis for medicinal purposes in 2000, the law similarly didn’t outline a legal mechanism to access that initial product, or even buy it at all. Sixteen years later, patients can either grow their own medicine — a maximum of four plants — or, share with a registered caregiver, who can grow up to seven for use jointly.
The eight companies selected to open the first dispensaries in April will provide for the first time a way to legally purchase the drug. Each company can open up to two retail shops and two production centers. Each can grow up to 6,000 plants — 3,000 per grow center.
“(Initial acquisition) is a black box, unfortunately,” said Stephen Pingree, a Honolulu-based attorney who advertises himself online as a marijuana compliance lawyer. “It’s a glaring example of the inconsistency and confusion between having a state legal marijuana program and a federal law that makes everything that state is doing illegal. What you have is this gray area … to date, there is no clearly defined procedure for dispensaries to obtain that original marijuana product.”
Procurement options involving illegal activity abound. One could accept a large donation — or purchase — from an island resident with plants, or could use plants they’ve illegally grown themselves.
A dispensary operator in Colorado told the Tribune-Herald about online marijuana seed stores based abroad that will “guarantee” delivery — seeds arrive in discreetly wrapped packages and are re-sent should mail be intercepted, he said.
“Somehow, these things just have to kind of miraculously appear,” said Andrea Tischler, chairwoman of the Big Island chapter of Americans for Safe Access. “Short of Jesus showing in the heavens, I don’t think that’s going to happen … the original batch I know is going to be obtained illegally. You can’t (legally) transport it through the mail. You can’t bring it in from (another) state, so how are they going to get those clones or seeds?”
State Rep. Joy San Buenaventura, D-Puna, who last year voted in favor of legislation establishing the dispensary system, said the law was purposely written without guidance in order to get dispensaries open as quickly as possible.
She said operators chosen are assumed to have the capacity to legally get the product, since each is getting started with advice from an attorney.
“Let’s face it, it’s been 15 years since we legalized marijuana without (providing) people a way of (buying) it,” San Buenaventura said. “We want to get this thing off the ground … . As things go on, hopefully we will be able to see what the (loopholes in the law) are.”
Former banana farmer Richard Ha and retired Waimea-based attorney Shelby Floyd were selected in April to open the Big Island’s first dispensaries. Floyd declined to share any new information regarding dispensary plans, and Ha did not return calls for comment.
Ha previously told the Tribune-Herald he was “looking for guidance as to what’s going to be allowed” to obtain his initial marijuana product.
