The Montana Supreme Court commercializes medical marijuana

Mont. Cannabis Indus. Ass’n v. State, DA 15-055 (Mont. Feb. 25, 2016).

A big jar of Purple Diesel (credit: flickr / Dank Depot)

A big jar of Purple Diesel (credit: flickr / Dank Depot)

In 2004, Montana legalized medical marijuana by initiative. In 2011, the Montana legislature amended that law to put more restrictions on medical marijuana. Most notably—and this is where Montana diverges from other states to have legalized medical marijuana—medical marijuana would no longer be commercialized: you could give medical marijuana away, but you could no longer sell it. And one provider couldn’t give it away to more than three people.

A medical-marijuana group has challenged these restrictions, and others, claiming that they deny due process and equal protection. Perhaps surprisingly, not all of these challenges fail. The court holds—applying state constitutional law—that an “absolute prohibition” on buying and selling marijuana isn’t constitutional. The reasoning is rather unclear, but the court seems concerned that decommercializing marijuana risks feeding the black market. Yet commercializing marijuana also has risks. Studies indicate it’ll increase marijuana use—which, fine, isn’t the end of the world, but most of us know somebody who seems psychologically, if not physiologically, dependent on pot. It seems at least reasonable to want to decriminalize marijuana but not commercialize it. Some policy analysts even think it’s the best solution.

What this opinion doesn’t make clear is how far the Montana Legislature can go in regulating the commercialization of medical marijuana. It’ll be interesting to see if and how the Legislature reacts.