Letter to the Department of Health by Dr. Berg
December 13, 2023
Aloha DOH, Medical Cannabis Registry Program,
Thank you for sending me the “State of Hawaii’s regulations concerning growing cannabis for personal medical use”. Can you please refer me to the actual official written published department guidelines/regulations that explicitly state the guidelines as was stated in the above email. It is very important that I understand the details so I may refer my patients to the regulations as stated in the law or in an official state document.
As you can imagine, this will affect a lot of patients in a severe way. I have some important questions about the regulations.
1. If a patient would go into the hospital (or leave town for another reason) and they have plants at home, can their adult son or daughter, mother, father, or anyone else water their plants? Can they harvest the plants if they would go bad before the patient returned?
2. Can someone help another patient prepare their medicine in an edible or some other form if they are unable to prepare it themselves?
3. Can someone help trim the plants if the patient has severe arthritis or some other condition? What would happen if their caregiver was unavailable?
4. Can someone lease space to a patient so that the patient can grow on that leased property that they are given control through the lease?
5. As the law stands now, does the state DOH plan on enforcing the end of the caregiver law and the no more than 5 growing patients per TMK property law in 2025?
6. How long will you give patients/growers to change their situation if they find themselves naively not following the regulations?
7. Can one patient give cannabis or cannabis products to another person (for no fee)?
I have the opportunity to clarify the law for my clients and I would like to represent the law and regulations as they are officially printed. Thus, plus send me or refer me to the actual Hawaii State law and regulations regarding these issues.
I am most appreciative,
James Berg, MD
Response from the Department of Health
December 18, 2023
Aloha Dr. Berg:
Thank you for taking the time to obtain the details of the regulations around medical cannabis cultivation. It’s important to the Office of Medical Cannabis Control & Regulation that patients can safely use a caregiver to grow their medical cannabis plants. Cannabis is an illegal substance under federal law and is still considered a controlled substance under Hawaii’s state law. Because of this, we wish to ensure that patients know what their rights are, as well as the limits of those rights, for growing medical cannabis under Hawaii state law.
Please find below responses to your specific questions (with links embedded in the name of the statute) and let us know if you need further clarification.
Question: Can you please refer me to the actual official written published department guidelines/regulations that explicitly state the guidelines as was stated in the above email. It is very important that I understand the details so I may refer my patients to the regulations as stated in the law or in an official state document.
Hawaii’s medical cannabis law allows a qualifying patient to possess an adequate supply of cannabis, which includes growing 10 cannabis plants. See the definition of “adequate supply” in section 329-121, HRS. The law also recognizes that many patients need assistance to access medical cannabis and allows for the patient to designate a caregiver to grow cannabis on behalf of the patient, prepare cannabis for consumption by the patient, and administer cannabis to the patient. Section 11-160-27, HAR. There is nothing in the law that would allow someone other than the caregiver to assist a patient in growing and caring for their cannabis plants, or to prepare manufactured cannabis products for the patient. However, the law does allow for a medical cannabis dispensary to grow, manufacture, and dispense cannabis and manufactured cannabis products to patients if the dispensary has a license issued pursuant to chapter 329D, HRS. Section 329D-2, HRS.
As you can imagine, this will affect a lot of patients in a severe way. I have some important questions about the regulations.
- If a patient would go into the hospital (or leave town for another reason) and they have plants at home, can their adult son or daughter, mother, father, or anyone else water their plants? Can they harvest the plants if they would go bad before the patient returned?
Hawaii law protects only registered patients and their designated primary caregiver. Nothing in the law allows for anyone else to cultivate medical cannabis plants. We recommend that patients plan ahead by registering a caregiver now. Patients experiencing emergency situations can email or call the Medical Cannabis Patient Registry Program and request an expedited change request to register or change their primary caregiver.
- Can someone help another patient prepare their medicine in an edible or some other form if they are unable to prepare it themselves?
Similar to the above, only a registered primary caregiver can prepare the patient’s medicine. Patients may register a caregiver if they anticipate needing that assistance.
- Can someone help trim the plants if the patient has severe arthritis or some other condition? What would happen if their caregiver was unavailable?
Only if the other person is registered as the primary caregiver. Section 11-160-26, HAR, specifies the requirements for being a caregiver. If the caregiver is unavailable, we recommend the patient changes the registration to designate another person who can assist. Patients experiencing emergency situations can email or call the Medical Cannabis Patient Registry Program and request an expediated change request to register or change their primary caregiver.
- Can someone lease space to a patient so that the patient can grow on that leased property that they are given control through the lease?
Section 11-160-16(a)(6), HAR, requires that the patient or primary caregiver reside at, own, or control the grow site for their cannabis plants. A patient or their caregiver may lease a site to grow cannabis. However, only the patient or the caregiver can grow the patient’s cannabis plants. The landlord, or anyone else other than the patient or primary caregiver, is not allowed to touch the plants. Patients that attest to having control over a grow site are attesting that they intend to use the grow site to grow their own cannabis, or have their caregiver grow cannabis for them.
- As the law stands now, does the state DOH plan on enforcing the end of the caregiver law and the no more than 5 growing patients per TMK property law in 2025?
OMCCR has submitted a proposal for the upcoming legislative session for a bill to allow for continued primary caregiver cultivation. If the Legislature passes the bill, then patients would be able to continue to designate a primary caregiver to grow their cannabis plants. Limitations on the number of patients per grow site are determined by the Legislature, and there could be bills introduced to change the limits in the upcoming legislative session.
- How long will you give patients/growers to change their situation if they find themselves naively not following the regulations?
We encourage patients to make any changes as soon as possible. Section 11-160-16(a)(6), HAR, requires changes to be made within 10 working days after any change to information previously submitted by the patient. If patients need assistance or have difficulties, please have them contact the Medical Cannabis Patient Registry Program.
- Can one patient give cannabis or cannabis products to another person (for no fee)?
No, patients cannot give cannabis or cannabis products to anyone else, including other patients.
Thank you,
Medical Cannabis Registry Program