How marijuana became legal

Medical marijuana is giving activists a chance = to show=20 how a legitimized pot business can work. Is the end of prohibition upon = us?

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By Roger=20 Parloff, senior editor

Last Updated: September 14, 2009: 1:30 PM = ET

Irv = Rosenfeld is one=20 of four U.S. citizens who get their medical marijuana from the = federal=20 government.

Stephen = DeAngelo=20 founded Harborside to show that a marijuana dispensary could make = a=20 positive contribution to a = community.

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(Fortune Magazine) -- When Irvin Rosenfeld, 56, picks me up at the = Fort=20 Lauderdale airport, his SUV reeks of marijuana. The vice president for = sales at=20 a local brokerage firm, Rosenfeld has been smoking 10 to 12 marijuana = cigarettes=20 a day for 38 years, he says.

That's probably unusual in itself, but what makes Rosenfeld = exceptional is=20 that for the past 27 years, he has been copping his weed directly from = the=20 United States government.

Every 25 days Rosenfeld goes to a pharmacy and picks up a tin of 300=20 federally grown and rolled cigarettes that have been sent there for him = by the=20 National Institute of Drug Abuse (NIDA), acting with approval from the = U.S. Food=20 and Drug Administration.

Rosenfeld smokes the marijuana to relieve chronic pain and muscle = spasms=20 caused by a rare bone disease. When he was 10, doctors discovered that = his=20 skeleton was riddled with more than 200 tumors, due to a condition known = as=20 multiple congenital cartilaginous exostosis. Despite seven operations, = he still=20 lives with scores of tumors in his bones.

Rosenfeld is one of four people in the United States whom the federal = government supplies with medical marijuana. Each is a living anomaly = because,=20 officially, the U.S. Drug Enforcement Administration, NIDA, and the FDA = all take=20 the position that marijuana has "no currently accepted medical use." =

That's the only way federal law can continue to classify marijuana, = like=20 heroin, as a "Schedule I controlled substance," forbidden from being = prescribed=20 by doctors. (Numerous dangerous, psychoactive, and addictive opium = derivatives,=20 by contrast, are more leniently classified as Schedule II drugs, = allowing=20 prescription use.)

Over the years the government's position has become progressively = more=20 embattled, if not untenable.

Thirteen states now have laws that let residents use marijuana = medicinally,=20 typically to alleviate chronic pain (particularly nerve pain caused by = diabetes,=20 AIDS, and hepatitis); manage movement disorders and muscle spasticity=20 (especially for multiple sclerosis patients); as an anti-nausea and=20 anti-vomiting agent (for those, say, undergoing chemotherapy); and as an = appetite stimulant (yes, as in "the munchies") for those with wasting = diseases=20 like AIDS and cancer.

Another 15 states are weighing legislation or ballot initiatives that = could=20 turn them into medical marijuana states by next year.

The acceptance of medical marijuana has implications that extend far = beyond=20 helping those suffering from life-threatening diseases. It is one of = several=20 factors -- including demographic changes, the financial crisis, and the = widely=20 perceived failure of the war on drugs -- reopening the country's = 40-year-old=20 on-again, off-again shouting match over whether marijuana should be = legalized.=20

This article is not another polemic about why it should or shouldn't = be.=20 Today, in any case, the pertinent question is whether it already has = been -- at=20 least on a local-option basis. We're referring to a cultural phenomenon = that has=20 been evolving for the past 15 years, topped off by a crucial policy = reversal=20 that was quietly instituted by President Barack Obama in February.

First, some necessary background. Under President George W. Bush (and = under=20 President Bill Clinton before him, for that matter), the U.S. Justice = Department=20 treated state medical marijuana laws as nullities. Such laws were = contradicted=20 and therefore preempted by federal drug laws, the Justice Department = reasoned,=20 and the U.S. Supreme Court upheld that position in 2005.

0:00 /5:02The legitimization of selling = pot

Accordingly, the federal government has periodically raided and = prosecuted=20 defendants who at least claimed to be complying with state medical = marijuana=20 laws, and when it did, defendants were forbidden from telling juries = about the=20 existence of those laws.

In late February, President Obama signaled a new approach. His = attorney=20 general, Eric Holder, confirmed at a press conference that he would no = longer=20 subject individuals who were complying with state medical marijuana laws = to=20 federal drug raids and prosecutions.

This understated act -- a simple pledge not to act, really -- could = have=20 enormous consequences. It potentially leads to exactly the same endpoint = as the=20 Twenty-First Amendment, which repealed the federal prohibition on = alcoholic=20 beverage sales.

Here's how. When states make a legal loophole allowing medical use of = marijuana, they must grapple with the messy question of what precisely=20 constitutes medical use. After all, doctors regularly prescribe powerful = drugs=20 like Valium, Viagra, Prozac, and -- give us a break -- Botox to patients = who are=20 hardly at death's door.

If a state doesn't tightly limit what "medical use" means, the camel = can get=20 its nose under the tent.

That's what happened in California. Like most medical marijuana = states,=20 California permits doctors to "recommend" marijuana use for patients who = suffer=20 from specific serious diseases. (Drafters of the law avoided the word=20 "prescribe" in an attempt to sidestep conflict with federal law.)

California's law then adds a catchall provision that lets doctors = also=20 approve marijuana use for "any other illness for which marijuana = provides=20 relief." In practice, doctors -- largely protected from second-guessing = by=20 confidentiality privileges -- have been free to make the final call as = to which=20 conditions those might be.

This is, after all, the norm vis-=E0-vis medicines. Once a = pharmaceutical has=20 been FDA-approved for one use, doctors can lawfully prescribe it for = other,=20 so-called off-label purposes, even though the drug has not yet been = certified as=20 safe or effective for them.

Accordingly, California doctors are authorizing patients to take = marijuana to=20 relieve such ailments as anxiety, headache, premenstrual syndrome, and = trouble=20 sleeping. "You could get it for writer's block," comments Allen St. = Pierre, the=20 executive director of the National Organization for the Reform of = Marijuana=20 Laws.

Some California doctors voluntarily report the breakdown of patient = medical=20 conditions for which they have approved marijuana use in the Alameda, = Calif.,=20 medical newsletter O'Shaughnessy's.

They commonly report that more than a quarter of their marijuana=20 authorizations have been prompted by patients suffering from conditions = like=20 "anxiety" or "insomnia." (The most common complaint is "chronic pain.") =

As a result, in most of California's coastal metropolitan areas, = marijuana is=20 effectively legal today. Any resident older than 18 who gets a note from = a=20 doctor can lawfully buy the stuff, and doctors seemingly eager to write = such=20 notes, typically in exchange for a $200 consultation fee, advertise in=20 newspapers and on websites.

There are an estimated 300,000 to 400,000 medical marijuana patients = in the=20 state now, and the figure is rapidly growing.

More astonishingly, there are about 700 medical marijuana = dispensaries now=20 operating in California openly distributing the drug.

These dispensaries -- called "compassionate-care clinics" by the = solemn and=20 "pot shops" by the skeptical -- are decidedly outpatient facilities, = with not a=20 few patients arriving on bicycles, roller skates, or skateboards. (They = often=20 get discounts for doing so, because it's greener than using a=20 fossil-fuel-powered car.)

The dispensaries sell marijuana and its concentrated resin forms, = hashish and=20 kif, sometimes alongside a range of enticing, non-inhaled alternatives,=20 including marijuana-imbued brownies, cookies, gelati, honeys, butters, = cooking=20 oils ("Not So Virgin" olive oil), bottled cold drinks ("enhanced" = lemonade is=20 the most popular), capsules, lozenges, spray-under-the-tongue tinctures, = and=20 even topically applied salves.

In Los Angeles a high-end three-store chain called the Farmacy = employs a=20 pastry chef to oversee production of all its baked goods. Most = dispensaries also=20 sell potted plants and seeds for patients who are either thrifty or=20 entrepreneurial.

All these establishments are engaged in what federal penal statutes = still=20 humorlessly define as narcotics trafficking. The dispensaries' = affiliated=20 marijuana farms and plant nurseries are sometimes of sufficient size to = subject=20 operators to mandatory-minimum five-year federal prison terms.

And this, mind you, is a situation that evolved almost entirely = during the=20 Bush administration, when the U.S. Drug Enforcement Administration was = still=20 routinely threatening dispensary landlords with forfeiture of their = premises,=20 periodically raiding clinics and seizing inventories, and criminally = prosecuting=20 the most brazenly abusive operators.

Luke Scarmazzo, who aired a rap video on YouTube two years ago = boasting of=20 all the money and great sex he was getting from running the California=20 Healthcare Collective in Modesto, Calif. -- "Fuck the feds!" was one = ill-advised=20 lyric -- was sentenced in federal court this past December to almost 22 = years of=20 imprisonment on a continuing criminal enterprise conviction. (He has = appealed.)=20

While the situation in California is unusual, it's becoming less so. = There=20 are now 15 dispensaries in Colorado, according to weedmaps.com, one of = many=20 online marijuana dispensary and physician ("pot-doc") locator services. = In=20 Oregon nearly one in four active physicians has authorized at least one = of his=20 patients to grow marijuana for medical use.

New Mexico hopes to have the nation's first state-licensed medical = marijuana=20 farm and distributorship up and running by the time this article is = published.=20 New Mexico's law was enacted two years ago, but state officials hadn't = dared=20 implement it until Attorney General Holder blew the all clear in = February.

This is the sense in which President Obama's understated pledge not = to=20 interfere with state medical marijuana laws potentially achieves for = that=20 intoxicant what the Twenty-First Amendment accomplished for beer, wine, = and=20 booze during the Great Depression.

Repeal, remember, simply returned to the states the right to decide = whether=20 to permit alcoholic beverage sales, and, if so, when and how. If a state = permitted sales, it could also enforce minimum- age requirements, limit = store=20 hours, set zoning restrictions, and levy taxes. If it prohibited sales, = it could=20 bask in righteousness but exercise no control over the traffic that = would occur=20 anyway.

Over time nearly every state fell in line behind the tax-and-regulate = model.=20 (During Prohibition, federal law did contain an exception allowing = alcoholic=20 beverage sales for medical purposes. Nevertheless the case for medical = booze was=20 never compelling, and after repeal no state chose to condition the = legality of=20 alcohol sales upon a showing of medical need.)

"I think we're going to have exactly that kind of local option with = marijuana=20 [that we now have with alcohol]," says Keith Stroup, 65, NORML's = founder,=20 two-time past executive director, and current legal counsel. "Once that = happens=20 it will be like gambling."

Initially only Nevada permitted gambling, and then it was just Nevada = and New=20 Jersey. "But over a period of time," Stroup says, "the morality part of = the=20 issue kind of dissipated, and there were more and more needs for new = revenue,=20 and today almost every state in the country allows legalized gambling." =

Marijuana activists thought they were close to legalization once = before. From=20 1973 to 1978 activists won decriminalization in 11 states. = ("Decriminalization"=20 is a grab-bag term but usually refers to schemes under which first-time=20 possession of small quantities of marijuana becomes a noncriminal = violation,=20 akin to a parking ticket. Decriminalization falls short of legalization, = in that=20 sale and distribution remain serious felonies.)

In 1977, President Jimmy Carter endorsed a federal decriminalization = bill.=20 But the bill went nowhere, and soon the movement was all but obliterated = by the=20 return swing of the cultural pendulum, now known as the Reagan = Revolution. There=20 would be no new state or federal marijuana reforms for the next 16 = years.

"Here's what's different now," asserts Ethan Nadelmann, the head of = the Drug=20 Policy Alliance, which favors marijuana legalization on a = tax-and-regulate=20 model. "First, in the late 1970s no more than 30% of the American public = supported making marijuana legal. Now it's breaking 40%."

That jump reflects an important demographic change, Nadelmann notes. = "Back=20 then there was a whole older generation of Americans who didn't know the = difference between marijuana and heroin," he says. "Now that generation = is=20 mostly gone. The people in power are baby boomers, a majority of whom = actually=20 smoked marijuana."

The past three Presidents have all more or less admitted trying the = drug,=20 Nadelmann continues, and the current one, when asked if he inhaled, = famously=20 retorted, "I thought that was the point."

Beyond the demographic change, there is a perception that after 40 = years of=20 blood, sweat, and tears, the war on drugs -- formally declared by = President=20 Richard Nixon in 1969, a month before the Woodstock festival -- has = failed to=20 reduce the availability of illegal drugs, has enriched and empowered=20 organized-crime gangs, and has subjected millions of people to arrest = who pose=20 little threat to anyone but themselves.

On top of that, we're now mired in the worst economic environment = since the=20 Great Depression, which makes the prospect of collecting taxes on = marijuana=20 sales as alluring to contemporary politicians as beer, wine, and liquor = taxes=20 looked to President Franklin Delano Roosevelt and his party when they = took=20 office in 1933, the year Prohibition was repealed.

Assuming a national consumer market for marijuana of about $13 = billion=20 annually, Harvard economist Jeffrey Miron has estimated that = legalization could=20 be expected to bring state and federal governments about $7 billion = annually in=20 additional tax revenue, while saving them $13.5 billion in = prohibition-related=20 law enforcement costs.

In California, where the fiscal crisis is so grave that the state has = had to=20 issue vendors more than $1 billion in IOUs, a Field Poll published in = April=20 showed that 56% of the state's population favored legalizing marijuana,=20 prompting Gov. Arnold Schwarzenegger to call for an "open debate" on the = question. A legalization bill has been introduced in the state = legislature, and=20 the state board of equalization has estimated that if passed, it would = bring in=20 $1.4 billion in new revenue, a seemingly conservative estimate.

It's even possible that legalization would reduce national = health-care costs,=20 by easing demand for costly pharmaceuticals.

In the most recent issue of O'Shaughnessy's, one doctor = reported that=20 his cannabis patients had either stopped or cut back their use of = "analgesics of=20 all kinds [including] Tylenol, aspirin, and opioids; psychotherapeutic = agents=20 including anti-anxiety medications, anti-depressants, anti-panic,=20 obsessive-compulsive, anti-psychotic, and bipolar agents; = gastrointestiminal=20 agents including anti-spasmodics and anti-inflammatory medications; = migraine=20 preparations; anticonvulsants; appetite stimulants; immuno-modulators = and=20 immunosuppressives; muscle relaxants; multiple sclerosis management = medications;=20 ophthalmic preparations; sedative and hypnotic agents; and Tourette's = syndrome=20 agents."

"Medical marijuana is God's little joke on the [marijuana] = prohibitionists,"=20 says Richard Cowan, 69, a longtime legalization activist who claims he's = smoked=20 almost every day since 1967. "There is clearly a medical need, and it = ranges=20 from minor to life-saving.... From my perspective, the dividing line = between=20 medical and nonmedical should not be decided by the police."

Medical marijuana is clearly the crowning factor making things = different this=20 time. Not only is it changing perceptions of the drug, but it has also = given=20 legalization advocates in California a first-ever opportunity to devise = and=20 showcase a business prototype.

They've been afforded the chance to show a skeptical public that a = safe,=20 seemly, and responsible system for distributing marijuana is possible. = If they=20 succeed, they'll convince the fence sitters and lead the way to a = nationwide=20 metamorphosis.

If they fail, the backlash will be savage. If communities cannot = adequately=20 regulate the dispensaries, they'll descend into unsightly, = youth-seducing,=20 crime-ridden playgrounds for gang-bangers, and this flirtation with = legalization=20 will conclude the way the last one did: with a swift and merciless swing = of the=20 pendulum.

Pot's medical history

Marijuana, whose botanical name is cannabis, has been used = medicinally -- and=20 as an intoxicant, of course -- for thousands of years in Eastern = cultures. It is=20 believed to have been introduced to Western medicine in the early 19th = century=20 by a British doctor, W.B. O'Shaughnessy, who learned about it while = stationed in=20 India (and for whom the medical cannabis newsletter is named).

Several well-known pharmaceutical companies, including Eli Lilly (LLY,=20 Fortune=20 500), sold cannabis in powdered or tincture forms in the early 20th = century=20 as a painkiller, antispasmodic, sedative, and "exhilarant." (For this = article=20 Fortune asked Eli Lilly for historical details on its cannabis sales, = but a=20 spokeswoman responded, "Due to competing priorities, we ... are unable = to=20 facilitate your query.")

Though cannabis remained listed in the U.S. Pharmacopeia -- a = standard desk=20 reference for drugs -- until 1942, its use in Western medicine began = declining=20 in the late 1800s, according to a history of cannabis written by Harvard = psychiatrist Lester Grinspoon titled "Marijuana: The Forbidden = Medicine."

The decline, Grinspoon writes, was due in part to the rise of more = stable and=20 effective pharmaceuticals -- though many of them later proved to have = grave=20 potential side effects -- and because modern hypodermic syringes could = deliver=20 faster pain relief using opiates. (Opiates were soluble; cannabis = wasn't.)

Then, in the early 1900s, states began outlawing cannabis, which had = become=20 associated in legislators' minds with violent crime and psychosis. The = drug was=20 then being used in the U.S. mainly by Mexican migrant workers in the = West and=20 African Americans in the South, so apprehensions about it may have been=20 intertwined with racial and ethnic fears. In 1937 the federal = government, over=20 the objections of the American Medical Association, effectively outlawed = cannabis.

Modern-day medical assessments of marijuana's properties have not=20 corroborated the outsize dangers that lawmakers had attributed to the = plant.=20 While it is a "powerful drug," concluded an Institute of Medicine report = conducted in 1997 at the behest of the White House Office of National = Drug=20 Control Policy, its "adverse effects ... are within the range of effects = tolerated for other medications."

Yes, someone who is high on marijuana shouldn't drive -- his motor = skills and=20 mental powers are impaired -- but that's true of alcohol and many = prescription=20 drugs too.

The long-term risks to chronic users appear to center mainly on the = generic=20 dangers of smoking (respiratory disease and possibly lung cancer) and = upon the=20 "mild and short-lived" withdrawal symptoms that a minority of marijuana = users=20 experience, according to the IOM experts. They considered marijuana less = addictive than tobacco, codeine, or Valium.

Still, many doctors are squeamish about recommending marijuana to = patients --=20 putting aside issues of legal liability. To begin with, most = pharmaceuticals=20 consist of a single, purified chemical compound. Such drugs are = susceptible to=20 double-blind, placebo-controlled testing, and once they are approved, = doctors=20 can prescribe known dosages.

Marijuana, in contrast, consists of the dried, ground-up flowers of a = highly=20 variable plant. It is made up of at least 400 compounds, including more = than 60=20 that are unique to cannabis, known as cannabinoids, several of which are = believed to have therapeutic effects. The proportions of these compounds = vary=20 greatly from plant to plant. A plant may attract harmful molds.

Lighting a match to the mix then introduces a whole new set of = variables.=20 Finally, smoking -- even putting aside its health risks -- is an = idiosyncratic=20 delivery system. Everyone smokes differently, so one never knows how = much of=20 which compounds the patient is receiving. These factors all make = marijuana hard=20 for researchers to test meaningfully and hard for doctors to prescribe=20 confidently.

Accordingly, even those doctors who recognize the therapeutic powers = of=20 marijuana often prefer the notion of looking for one or two key active=20 ingredients in it, isolating them, and then devising a delivery system = that=20 would not involve smoking.

And that's been done. In 1986 the FDA approved a synthetic version of = what=20 has long been recognized to be the main psychoactive ingredient of = marijuana --=20 delta-9-tetrahydrocannabinol, or THC. After rigorous testing, the FDA = found THC=20 to be safe and effective for the treatment of nausea, vomiting, and = wasting=20 diseases. This lawful, Schedule II drug, trade-named Marinol, is taken = orally,=20 by capsule.

The trouble is, for many patients Marinol turns out to be inferior to = good=20 old-fashioned pot. Smoked marijuana is much faster acting and, as a = consequence,=20 easier for patients to control in terms of dosage. The patient inhales = as much=20 as he needs and then stops. In contrast, with a THC pill the patient can = easily=20 ingest more than he can handle.

"Oral THC is slow in onset of action but produces more pronounced, = and often=20 unfavorable, psychoactive effects that last much longer than those = experienced=20 with smoking," according to a 2008 report published by the American = College of=20 Physicians. (Incidentally, the FDA-approved warnings for Marinol -- pure = THC --=20 do not flatly forbid patients from driving under its influence. Rather, = they=20 simply caution patients not to do so "until it is established that they = are able=20 to tolerate the drug and to perform such tasks safely.")

Still, despite the disappointing performance of oral THC, many = doctors want=20 to continue exploring faster-acting THC delivery systems, including a = skin patch=20 or a suppository.

Meanwhile we're still awaiting hard proof that smoking marijuana can = actually=20 cause lung cancer. That evidence has proved surprisingly elusive, maybe = in part=20 because typical marijuana users smoke so much less than typical tobacco = smokers.=20

In any case, marijuana users are increasingly turning to a means of=20 inhalation that does not involve smoking known as vaporization. With a = vaporizer=20 -- the Volcano brand is the best known -- users heat marijuana to a = temperature=20 sufficient to vaporize the cannabinoids but insufficient to spark = combustion and=20 most of its associated noxious gases. The vapors are captured in a = balloon and=20 then inhaled.

The government's compassionate-use = program

As a teenager Irv Rosenfeld was a strong opponent of marijuana use. = He would=20 sometimes give talks against marijuana at local schools. "I'd hold up = bags of my=20 prescription drugs and say, 'Be thankful you're healthy,'" he recounts. = He was=20 then taking prescription muscle relaxants, sleeping pills, = anti-inflammatories,=20 and a range of addictive, debilitating, opioid painkillers, including = codeine,=20 Demerol, and Darvon.

Shortly after Rosenfeld started college at the University of Miami, = he caved=20 in to peer pressure and tried pot. "Nothing happened," he says. (To this = day=20 Rosenfeld maintains that he never has been able to get high from = marijuana. In=20 my six or so hours with him, during which he drove me from Fort = Lauderdale to=20 Miami and back, all the while chain-smoking joints, I never noticed any = apparent=20 impact on him, other than an occasional cough.)

Rosenfeld continued smoking socially when others did. "About the 10th = time,"=20 he continues, "I was playing chess when I realized that I'd been sitting = still=20 for 30 minutes." Normally he couldn't do that because his muscles would = begin to=20 ache and he'd have to change position. "I hadn't taken a pill in six = hours. Just=20 then someone handed me the joint, and it hit me. The only thing I'd done = different was smoke pot."

Rosenfeld ran repeated experiments, and both he and his surgeon = became=20 convinced that marijuana helped him more than his prescription drugs, = with fewer=20 side effects. In 1971, with the blessing of his doctors and the = indulgence of=20 sympathetic police officials, he began smoking marijuana to treat his = pain.

Then, in 1976, Rosenfeld learned of the extraordinary case of Bob = Randall=20 (now deceased). Randall, who had severe glaucoma, had been prosecuted = that year=20 for marijuana possession in the District of Columbia but won acquittal = after=20 advancing a "medical necessity" defense. Randall's doctors had testified = that he=20 risked going blind without marijuana to relieve the pressure within his=20 eyeballs.

Randall then brought a civil suit against the government. In 1978 a=20 mind-boggling settlement was reached: The government agreed to supply = Randall=20 with marijuana for the rest of his life.

The government had the capacity to strike such a deal because since = 1968,=20 NIDA had been growing a small quantity of marijuana for research = purposes under=20 contract with the University of Mississippi's pharmacy school. FDA and = NIDA=20 officials theorized that the U.S. government could lawfully become = Randall's=20 supplier if they observed the pretense that he was part of a clinical = study to=20 investigate a potential new drug. A research "protocol" was drawn up, = though the=20 study design called for just one patient: Randall.

Rosenfeld drew up a similar protocol for a clinical study of himself. = With=20 the help of supportive doctors and threatening lawyers, Rosenfeld became = the=20 second patient to pry his way into what became known as the = compassionate-use=20 investigative new drug program.

By 1991 the compassionate-use program had grown to include 13 = patients. That=20 year, after Randall counseled AIDS advocacy groups on how to seek = admission to=20 the program, it suddenly found itself deluged with 40 new applications. = In early=20 1992, seeing the unworkable direction in which matters were headed, the=20 government shut the program down, though the 13 existing patients were=20 grandfathered in. Today just four are left, including Rosenfeld.

For them, federal marijuana grown at the University of Mississippi is = sent to=20 a contractor in Research Triangle Park, N.C., where it is rolled into = cigarettes=20 on an old machine obtained from the local tobacco industry. About every = five=20 months the contractor sends six tins of the cigarettes to the pharmacy = where=20 Rosenfeld picks them up.

Rosenfeld's weed is hardly connoisseur quality by contemporary = California=20 dispensary standards. The government grows its crops only sporadically, = so it=20 dries the harvested flowers and places them in cold storage. When I = visited him=20 in June, Rosenfeld was smoking marijuana harvested nine years earlier. = Because=20 Rosenfeld finds the government's cigarettes too dry, he unwraps them, = rehydrates=20 the marijuana by placing it in a container with lettuce, and then = re-rolls his=20 own joints, he says.

Rosenfeld's cigarettes are also not very potent by contemporary = standards.=20 They contain around 3.5% THC, which was about the average strength of = dope=20 seized in domestic street busts in 1996, according to NIDA data.

By contrast, marijuana seized from such busts in 2007 had an average = potency=20 of about 4.8%, while the fresh "manicured bud" available at today's best = California dispensaries boast THC content ranging from about 6% to 22%. =

It's as if Rosenfeld were receiving vanilla ice cream joylessly made = in the=20 Soviet Union and stored for decades, when there's fresh Ben & = Jerry's=20 Chocolate Chip Cookie Dough for sale just around the corner.

Still, Rosenfeld's not complaining. The government charges him = nothing, so=20 his only costs are medical consultations and pharmacists' fees -- about = $50 a=20 month. Subpar or not, the 8.3 ounces he receives every 25 days would = cost him=20 more than $2,000 on the street.

The battle to legalize marijuana

After the compassionate-use program was shut down, medical marijuana=20 activists had one last hope for changing federal policies. Back in 1972, = NORML=20 and other groups had sued the predecessor of the DEA to force the = rescheduling=20 of marijuana as a prescribable drug, and incredibly, two decades later, = the=20 litigation was still raging.

During 14 days of hearings in 1986 the plaintiffs had presented many=20 anecdotal accounts of nearly miraculous experiences patients had had = with=20 marijuana. Rosenfeld testified, as did the psychiatrist and medical = historian=20 Grinspoon, who related not only the evidence his research had unearthed = but also=20 a personal anecdote.

In 1972, Grinspoon's own teenage son, who had leukemia, began = undergoing=20 chemotherapy. "He would start to vomit shortly after treatment and = continue=20 retching for up to eight hours," as Grinspoon later described the ordeal = in his=20 book. "He vomited in the car as we drove home, and on arriving he would = lie in=20 bed with his head over a bucket on the floor."

Having heard that marijuana could help, Grinspoon's wife proposed = that the=20 couple let their son try it, but Grinspoon refused because it was = illegal. His=20 wife then defied him, secretly smoking marijuana with the teenager = before one of=20 his treatments. This time there was no vomiting, and in fact, on the way = home=20 the child asked to stop for a submarine sandwich. "From then on he used=20 marijuana before every treatment, and we were all much more comfortable = during=20 the remaining year of his life," according to Grinspoon's account.

In 1988 the administrative law judge hearing the case ruled in = NORML's favor.=20 "Marijuana, in its natural form, is one of the safest therapeutically = active=20 substances known to man," Judge Francis Young concluded. Young was = referring to=20 the fact that it is almost impossible to overdose fatally on marijuana, = a=20 circumstance that distinguishes it from virtually any other drug. "By = any=20 measure of rational analysis," Young concluded, "marijuana can be safely = used=20 within a supervised routine of medical care."

In one of those maddening circularities of federal administrative = law,=20 however, the DEA's appeal from Judge Young's ruling was heard by John C. = Lawn,=20 then administrator of the DEA itself. Not surprisingly, in 1989, Lawn = overturned=20 all of Young's findings.

Lawn gave short shrift to anecdotes like Grinspoon's and Rosenfeld's. = "These=20 stories of individuals who treat themselves with a mind-altering drug = ... must=20 be viewed with great skepticism," he wrote. "Many of these individuals = had been=20 recreational users of marijuana prior to becoming ill. These = individuals' desire=20 for the drug to relieve their symptoms, as well as a desire to = rationalize their=20 marijuana use, removes any scientific value from their accounts."

Lawn also stressed the absence of any controlled clinical studies = proving=20 marijuana's safety or efficacy. He was right; such studies didn't exist = (at that=20 time), both because of the inherent difficulties of performing them on a = whole=20 plant and the unique difficulties of performing them on an illegal = plant. To=20 even obtain marijuana for such tests, researchers would have had to = first win=20 approval from three federal bureaucracies - the DEA, the FDA, and NIDA = -- a=20 daunting task even assuming the best of good will on everyone's part. =

As for the controlled studies showing that marijuana's chief = psychoactive=20 ingredient -- THC, in the form of Marinol -- was safe and effective for = treating=20 certain medical conditions, Lawn saw them as simply proving conclusively = that=20 there could be no conceivable excuse for smoking marijuana. To whatever = extent=20 THC might be helpful, patients could use Marinol.

In 1994 the federal court of appeals for the District of Columbia = upheld=20 Lawn's decision, and the activists' last hope for achieving reform at = the=20 federal level died.

So they turned to state government. In 1996 a group of marijuana = activists in=20 California got enough signatures to put a legislative initiative on the = ballot=20 known as Proposition 215. It called for permitting medical marijuana = patients or=20 their "primary caregivers" to possess marijuana on the "recommendation = or=20 approval" of a physician.

The measure passed with a 56% majority, and California became the = first=20 medical marijuana state. Precisely what that meant, though, remained = totally=20 unclear. Prop. 215 did not specify how much pot patients could possess, = and it=20 said nothing about the way patients would obtain it. Nothing in the = initiative=20 explicitly legalized sales or distribution of any kind.

Nevertheless, a few intrepid souls opened dispensaries.

Dispensaries - A legal gray area

"In the immediate wake of passage of Prop. 215 in 1996," recalls = Stephen=20 DeAngelo, who would later open what is now Oakland's largest dispensary, = "local=20 governments tended to take a hands-off attitude toward medical = cannabis." They=20 wouldn't explicitly license dispensaries to open, he says, but they also = didn't=20 instruct the police to go shut them down. "Dispensaries were tolerated = but not=20 sanctioned."

Even those local politicians who supported the goals of Prop. 215 = were=20 reluctant to regulate in the area, because any such effort would have = had to=20 begin with dispensary operators filling out forms providing = incriminating=20 information about themselves. Any such documents could then have been = subpoenaed=20 by federal prosecutors and used to shut the operators down or put them = in=20 prison.

DeAngelo, now 51, was then a longtime marijuana activist but also a=20 businessman. From 1990 to 2000 he founded and headed the industrial hemp = company=20 known as Ecolution. (Hemp, from which rope and other products are made, = is a=20 non-psychoactive strain of cannabis. Hemp products are legal in this = country,=20 but growing hemp is not.) Excited by the medical cannabis phenomenon in=20 California, DeAngelo moved there in 2001, when the legal environment was = still=20 extremely gray.

He found two main types of dispensary managers operating at that = time, he=20 recalls. "The best of them were the well-motivated activists who brought = really=20 good intentions ... but had, for the most part, no business experience=20 whatsoever and no capital to invest. Despite that, they managed to = thrive,=20 simply because they were the only game in town.

"This engendered a second wave of operators, who were attracted by = the money,=20 as opposed to the cause," DeAngelo continues. "A whole new wave of = dispensaries=20 got thrown up, which I refer to as 'thug dispensaries.' These were = operations=20 run by people who had a background in illicit activities, whether it was = selling=20 cannabis or other drugs on the street, or trading in illegal firearms, = or in the=20 porn industry or gambling industry -- people comfortable operating in = the gray=20 zone. Very rapidly you began to see some big problems. Several armed = robberies.=20 You had a spate of stories about operators being arrested.

"As a patient," says DeAngelo -- he uses marijuana to relieve pain = from a=20 degenerative disk disease -- "I was profoundly unhappy about it. As an = activist=20 I became concerned because these types were really hurting the public = image of=20 medical cannabis."

In an effort to improve the Wild West atmosphere, the California = legislature=20 then passed Senate Bill 420 ("420" is a slang term for pot), which took = effect=20 in 2004. This law fleshed out a bit more about the way Prop. 215 would = work,=20 requiring counties to issue identification cards to patients who sought = them (to=20 help them in their interactions with the police) and setting up minimum=20 guidelines for how much marijuana patients could possess: eight ounces = of dried=20 marijuana plus either six mature plants or 12 immature plants. (Counties = could=20 allow higher amounts.)

Though SB 420 was still silent on the issue of dispensaries, it did = contain a=20 provision that protected patients or caregivers who "associate ... in = order=20 collectively or cooperatively to cultivate marijuana for medical = purposes."=20 Accordingly, nearly all the dispensaries in California now claim to be = patient=20 "collectives" or "cooperatives," protected under this provision.

At the same time another provision of SB 420 seemed to cut against = the idea=20 that dispensaries were legal -- at least as many of them were (and still = are)=20 being run. It said that nothing in the law should be construed to = "authorize any=20 individual or group to cultivate or distribute marijuana for profit." =

"In my opinion," says Bill Panzer, a criminal-defense lawyer and = marijuana=20 legalization advocate who helped draft Prop. 215, "the vast, = overwhelming=20 majority [of dispensaries] are not legal, because they're not = collectives or=20 cooperatives. If somebody owns the store, sells marijuana, and at end of = day=20 takes the extra money and puts it in his pocket and goes home, that's = not a=20 collective."

The proof-of-concept challenge

DeAngelo opened the Harborside Health Center dispensary in Oakland in = October=20 2006 as a proof-of-concept that might show the rest of the nation how = such an=20 establishment could provide top-flight patient services, adhere to the = letter of=20 the law, and interact with the surrounding community beneficially.

His clinic, across from a scenic stretch of Oakland harbor, is = identified=20 only by its address -- a large, block-letter "1840" painted on the = fa=E7ade of an=20 inconspicuous, gray-blue one-story building on Embarcadero Drive.

On the inside it's a spacious, wood-trimmed, tastefully appointed = room that=20 blends clean, contemporary lines with sparingly employed Eastern = medicinal=20 themes: a laughing Buddha here, a dancing goddess statuette there.

The mood is broken only by the metal detector at the door and the = multiple=20 casino-style cameras embedded in the ceiling. Oakland has a high crime = rate, and=20 precautions must be taken. There are at least three security guards = inside the=20 facility at all times, as well as two more outside, patrolling = Harborside's=20 100-car parking lot.

"Whenever a patient comes into the clinic for the first time," = explains=20 DeAngelo, "they sign a collective cultivation agreement. They authorize = all the=20 other patients in the collective to grow medical cannabis on their = behalf. That=20 sets up a 100% closed-loop distribution system that isolates my patients = from=20 any contact with the illicit market."

But that doesn't mean that every member of the collective actually = knows what=20 a hoe looks like. "For a variety of very valid reasons," DeAngelo = continues,=20 "most patients are unable to grow their own medicine. We act as a = clearinghouse=20 between patients who are able to grow and patients who aren't able to = grow."=20

Harborside now has 30,000 patients registered in its database, and = their=20 purchases of medicine bring in about $20 million annually in revenue, = according=20 to DeAngelo. "I'd rather not discuss my specific salary," he says. "I = can tell=20 you if I was working in any other industry and showed the kind of = financial=20 returns that this business has shown, I'd be paid three or four times as = much as=20 I'm making at Harborside."

First-time patients, upon stepping through the metal detector at = Harborside,=20 immediately undergo a thorough paperwork check. The patient produces his = doctor=20 recommendation, the clinic verifies its authenticity with the doctor, = and then=20 the clinic also verifies the doctor's credentials with the state medical = board.=20

About 600 patients come to Harborside each day, according to = DeAngelo, most=20 to buy marijuana, a few to supply it. Suppliers can bring in as much as = three=20 pounds at a time. (Bay Area police generally allow patients to transport = this=20 much, DeAngelo says.) The patient-grown marijuana is inspected for = quality,=20 examined for molds and fungi, and tested with a gas chromatograph mass=20 spectrometer to determine its THC content.

At Harborside, there are eight selling stations along a long counter, = each=20 near a glass case displaying the wide array of medicines available, = labeled as=20 to strain and THC content. "Our most popular strains are our purple = strains,"=20 says DeAngelo, "like Purple Urkle or Granddaddy Purple. The purples tend = to be=20 heavy indicas" -- one of the two main varieties of psychoactive cannabis = --=20 "with a very strong, relaxing effect. They have a characteristically = sweet,=20 almost candy-like flavor.

"Another popular family of strains is the Kush family," he continues. = "That=20 would include OG Kush, Baba Kush, and Pure Kush. The Kushes tend to be = more=20 sativa-dominant," referring to the other main variety of cannabis, which = is said=20 to produce a more cerebral, "daytime appropriate" high, with less body = impact.=20 "They have a pungent flavor as opposed to a sweet flavor."

At Harborside, I experienced a mild personal epiphany: I realized = that I=20 never really knew before what fresh marijuana smelled like. Though I had = easily=20 recognized, from East Coast college days 30 years back, the smell of = smoked=20 marijuana inside Rosenfeld's SUV, I had never before smelled the sweet, = herbal=20 fragrance suffusing Harborside. At first I incorrectly assumed it was = some sort=20 of incense being artificially introduced to mask the odor I was familiar = with.=20

As I further inspected Harborside's medicines, I also realized that I = had=20 never really known before what fresh, high-quality marijuana looked = like. I=20 remembered baggies half-filled with crushed brown twigs, leaves, stems, = and even=20 seeds. But the dispensaries sell only fresh "bud," which looks like = cute, plump,=20 fuzzy caterpillars curled in a ball.

After my education at Harborside I went on to explore some of the = other=20 approaches that marijuana entrepreneurs and activists are experimenting = with as=20 they try to rise to the proof-of-concept challenge.

Pioneering canna-businessman Richard Lee, also in Oakland, has opened = his=20 Blue Sky Caf=E9 dispensary as a coffee shop, taking his cue from = Amsterdam. Lee=20 acknowledges that he runs the Blue Sky as a for-profit business, a = situation=20 that the City of Oakland authorities have at least tacitly endorsed,=20 notwithstanding SB 420's apparent prohibition of "for profit" = distribution.

In 2004 the city, seeking to avoid being overrun by dispensaries, = passed=20 municipal regulations limiting the permissible number to four. Those = regs=20 required that dispensary operators not earn "excessive" profits, which = has been=20 understood to imply that some profit must be permissible. Lee was = granted one of=20 the city's four permits.

Lee has also opened an array of affiliated businesses in the = immediate=20 neighborhood of the Blue Sky, several of the few bustling businesses in=20 Oakland's otherwise depressed downtown. The best-known is Oaksterdam = University,=20 which trains medical cannabis entrepreneurs to navigate the business and = legal=20 challenges.

It also teaches trades to those who seek jobs as, say, a medical = cannabis=20 cultivator or "bud-tender," i.e., the quasi-pharmacist sales clerk who = helps=20 customers choose their medicine. Oaksterdam has now opened branches in = Los=20 Angeles and Sebastopol, Calif., about an hour north of Oakland, and = stages=20 conferences in Ann Arbor.

The most open dispensaries I saw were two branches of the Farmacy = chain in=20 Los Angeles. They are full-service herbal medicine stores under the = management=20 of registered pharmacist JoAnna LaForce, with marijuana being sold=20 inconspicuously alongside scores of uncontroversial, legal plant = products with=20 putative healing powers. At these stores all members of the public, of = any age,=20 are welcome to enter, and only those who ask about marijuana are = required to=20 produce paperwork. "That way, a young mother with children can come into = a store=20 and not feel like a criminal," LaForce explains.

For my aesthetic taste, the most inviting dispensary I toured was the = immaculate Peace in Medicine facility in Sebastopol. Here, patients = enter a=20 handsome, freshly painted house -- the former sales office for a Ford = dealership=20 -- and come to what looks like a cheery doctor's waiting room.

After taking care of the paperwork, patients are summoned into the=20 dispensary. There, I mention to Robert Jacobs, 32, Peace in Medicine's=20 idealistic young executive director, how enticing the fresh medicine = smells. "If=20 it smells good, the body probably wants it," he responds, smiling a bit = and=20 sounding like Eve in the Garden of Eden.

I then notice a journalistic hole opening up in my reporting. Until = now I had=20 assumed that my haphazard, stale, youthful experiences with marijuana = would need=20 no refreshing in order for me to write a thorough article about medical=20 cannabis. Now I'm not so sure.

Unfortunately, most dispensaries are intransigent about serving only=20 California residents, and I am not one. I explain my quandary to Jacobs. = Listening back upon my words as they hang in the air, I realize that it = sounds=20 as if I've just asked him to break the law. He very politely declines. =

Taxing and regulating dispensaries

In the early days of dispensaries the California Board of = Equalization, which=20 collects state and local sales tax, refused to issue seller's permits to = dispensaries that sought them -- the necessary prelude to paying sales = tax in=20 the state. The board viewed such establishments as certainly illegal = under=20 federal law, and possibly illegal under state law.

In October 2005 the board changed tack and began allowing = dispensaries to pay=20 sales taxes if they wanted, and in 2007 it completed the reversal by = requiring=20 them to pay sales taxes and demanding that they do so retroactively to = October=20 2005.

The board assured the dispensaries in a February 2007 letter that it = would=20 now issue seller's permits even if the dispensary refused to answer = portions of=20 the standard application -- identifying the product sold, for instance, = or=20 listing suppliers -- due to "concerns about confidentiality or=20 self-incrimination."

Since sellers' permits do not require establishments to identify = themselves=20 as medical marijuana dispensaries, the board has no hard records on = sales taxes=20 collected from them. Unless there is extremely poor compliance by = dispensaries,=20 however, the numbers should be robust.

Harborside alone reported about $15 million in sales in 2008, for = instance,=20 and DeAngelo estimates that the average revenue for each of California's = 700=20 dispensaries probably ranges from $3 million to $4 million annually. If = so,=20 gross statewide medical cannabis sales are approaching $2.5 billion, = generating=20 taxes of around $220 million. That does not include the state and = federal income=20 taxes that dispensaries and their employees also pay, and employee = payroll=20 taxes.

In addition some localities, like Oakland, have begun imposing their = own=20 taxes. Each of Oakland's four dispensaries pays the city $30,000 = annually for=20 its license, plus a business tax on gross sales (over and above state or = local=20 sales tax).

This past July, Oakland increased that business tax 15 times over, = from $1.20=20 to $18 for every $1,000 in sales. Tellingly, the increase had been = sought by the=20 dispensary owners themselves, who well understand the importance of = being seen=20 as good citizens and becoming indispensable to the city's revenue = supply.

Has medical cannabis been a good thing for Oakland? "I think so," = says=20 Ignacio De La Fuente, Oakland's current deputy mayor and, from 1998 to = 2008,=20 president of its city council. "I was not one of the initial = supporters," he=20 concedes, and he still doesn't favor legalizing marijuana for = recreational=20 purposes. "But I became educated about the medicinal value of cannabis" = over the=20 years of debate, De La Fuente explains. "You kind of make a decision of, = Is this=20 measure worth the risk to help the people that really need it?"

On balance he believes it was, though he urges other localities = considering=20 legalizing medical marijuana to "do their homework about how they want = to=20 regulate establishments, so they don't become a problem or a nuisance." =

"It's not working," says Councilman Dennis Zine of Los Angeles, a = city that=20 began regulating its dispensaries late, and is now overrun. "Too many of = these=20 places have become distribution places for recreational purposes under = the guise=20 of medical," he says.

In 2007 the city set a deadline after which no new dispensaries would = be=20 permitted. A staggering 186 establishments met the cutoff, yet another = 736 filed=20 late applications, citing a "hardship" exception, and many of those = opened too.=20 Zine estimates that there are about 600 dispensaries in his city. He = seeks=20 tougher regulations, plus assistance from city, state, and federal = authorities=20 to help shut down any operator whose intent is "profit-making" as = opposed to=20 "compassionate" distribution for "medical purposes."

"I think the next five or six years are going to be incredibly = exciting for=20 this issue," says Stroup, who founded the National Organization to = Reform=20 Marijuana Laws 39 years ago. "I honestly believe we'll stop arresting = individual=20 smokers in almost all states and start to see the first one or two = states=20 experiment with a legalization bill."

Although Stroup originally wanted the "R" in NORML to stand for = "Repeal," he=20 was later talked into softening it to "Reform" by cooler, more = politically savvy=20 advisers. Now he thinks society might finally be closing in on his = original=20 goal.

Could be. Just watch out for those swinging pendulums.

First Published: September 11, 2009: 4:20 PM = ET