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Hawaii’s 17 Years of Missteps in Legalization Blamed on Ambivalence, Lack of Leadership

In the year 2000, Hawaii became the first state to legalize medical cannabis through the state legislature. Act 228 created a medical cannabis registry program that allowed medical cannabis cardholders to grow their own cannabis or have a caretaker grow for them. On July 31, 2017, Hawaii finally certified a cannabis testing laboratory, the most recent hurdle to the opening of a medical cannabis dispensary.

The original law came at the tail end of a period of progressive innovation in the Hawaii state legislature. Optimism was in the air and decriminalization in Hawaii seemed to be right around the corner. Unfortunately, a feeling of optimism is where the progress ended. The fledgling medical registry program was placed in the State of Hawaii Department of Public Safety, where it sat latent for the next fifteen years.

Hawaii legislators finally took action on annually introduced medical cannabis legislation in 2015. This time, the goal was to move the registry program from the Department of Public Safety to the Department of Health (DOH) to create a more patient-centric program, and concurrently establish a medical cannabis dispensary program so that patients could gain safe and reliable access to medicine.

In a state where government is dominated by Democrats, one would think that the Hawaii legislature would create and adopt progressive and liberal medical cannabis legislation. Initially, they made every effort to do that, including language for a horizontally integrated dispensary license system, a minimum of 26 licenses, and a greater number of qualifying conditions. Unfortunately, that progress was thwarted by eleventh hour changes to previously crafted “good policy.” Since the passage of Act 241, ambivalence and lack of administrative leadership continue to plague the development of Hawaii’s dispensary program.

“Our legislators did a great job in developing and passing some very progressive legislation,” Hawaii Dispensary Alliance Executive Director Christopher Garth says. “Unfortunately, this was all in vain. Governor Ige’s lack of agency or urgency to loft our dispensary program have nearly crushed the hopes of Hawaii’s patients and those who have dedicated years and small fortunes to deliver medicinal cannabis to those in need. There was no push to or from the governor’s administration to move the program forward. Every stall in the program’s implementation comes from his lack of initiative and engagement in the markets—whether it’s the patient market, the tourist population, or the overall industry.”

In the end, the governor’s conservative, “let’s wait and see what happens” attitude led to the implementation of a medical cannabis dispensary law devoid of any progressive language. Instead, it was chock-full of hollow over-regulation that allows the administrative agency to do the bare minimum while claiming success for non-action.

As part of Act 241, Hawaii established a vertically integrated licensing system and awarded eight licenses in the spring of 2016. With each licensee responsible for the entire operation from seed to sale, legislators were hoping to establish a legitimate, albeit conservative, cannabis industry, where vetted industry players would create a safe, patient-centric program for the community. Initially, each licensee was allowed two retail outlets and two production centers in the same county. The law called for one licensee on Kauai, three on Oahu, two on Maui, and two on the Big Island.

Almost immediately, the inefficiency and impracticality of the vertically integrated system became apparent. Most apparent was the distribution of the licenses per island in relation to the patient demographics. Even though the Big Island had the highest number of registered patients, Oahu was given more licenses. Also, having only eight licensees paying license fees left the Department of Health severely underfunded to administer the new program.

The licensees took much longer than anticipated to find appropriate real estate, and build out their production facilities and retail outlets. The Department of Health took its time executing the contract for its seed-to-sale tracking software, BioTrackTHC, holding back the dispensaries from starting their grow operations by almost a full year.

Now, in 2017, the dispensaries have yet to open their doors, and the Hawaii legislature is protecting the current licensees in a state-mandated oligopoly. While original versions of the law provided DOH with the ability to increase the number of dispensaries, up to as many as one dispensary per 500 patients, in 2017 the legislature inserted new language postponing that assessment until at least October 1, 2018. Everything points to a lack of leadership at the highest level.

One chief cause of the delay in the dispensary’s opening is the Department of Health’s flagging efforts to certifying laboratories. One laboratory was finally certified on July 31, 2017, over a year after dispensaries were legally permitted to open. Two other laboratories are seeking certification as well, and one in particular, PharmLabs Hawaii, has been vocal about DOH’s regular changing of the finish line requirements and certifications.

“DOH is new to this,” Pharmlabs Hawaii Chief Administrative Officer Michael Rollins says. “They have never certified a lab before to ISO standards for any purpose in the state. I would like to figure out a mechanism to rewrite the law to allow more labs to function on each island. Otherwise, there is no encouragement for the laboratories.”

Currently, three dispensaries are ready to put product on the shelves. They have cultivated flower ready to go, and are awaiting lab results. Under the law, cannabis must be tested for heavy metals and pesticides. If the tests confirm safe product, a dispensary could open as early as August or September, according to Department of Health Director Keith Ridley.

While the dispensary program has largely failed—more than two years later and patients are still waiting for a dispensary to open—gains have been made in patient protections. The law offers patients a robust list of qualifying conditions for the registry program. At the end of the past legislative session, the governor quietly signed a bill that decriminalized paraphernalia.

Americans For Safe Access gave Hawaii an overall B grade in its annual report, “Medical Marijuana Access in the United States: A Patient-focused Analysis of the Patchwork of State Laws.” The bulk of Hawaii’s grade came from points earned for patient protections.

Garth is still concerned that when the first dispensaries do open, they will not provide the benefits that patients seek. “Due to the unique restraints of our vertically integrated system, prices will be almost double the black market, product diversity will be low, and those most in need will have a difficult time reaching and accessing the facilities.”

Stigmatization also remains a problem in the state. The Department of Public Safety and the chief of police are publicly against the cannabis programs. In addition, the governor, many legislators, and the Department of Health, remain dangerously ambivalent toward the program and refrain from any public service or engagement to promote the program.

In the 17 years since the adoption of Hawaii’s medical cannabis registry program and the two-plus years it has taken to see even one dispensary become operational, it is apparent that realistic timelines, a horizontally integrated licensing system, legislative support, and gubernatorial leadership are all key ingredients for a successful medical cannabis program.

With patient protections on lock and reciprocity on the table for the next legislative session, perhaps Hawaii can learn from its own mistakes and get back on track to reclaim its progressive legacy.

Kevin Whitton

Kevin Whitton

Kevin Whitton is the voice of the Hawai‘i Dispensary Alliance, driving its publications, messaging, and branding. With a BA in sociology and over a decade of experience in publishing and journalism as editor of four Hawai‘i regional publications—including Green Magazine Hawai‘i, a sustainability publication he founded in 2008—he is responsible for publishing the Hawai‘i Dispensary Alliance Industry Update; crafting and disseminating industry information for membership, industry stakeholders, patients and doctors; and leading the alliance’s public relations campaigns. Whitton is committed to sharing a positive public narrative that serves patients, communities, and businesses while growing Hawai‘i’s legitimate cannabis industry.

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