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Break Out Those Old Pot Prescriptions

Santa Clara County prioritizes medicinal marijuana — and limits recreational sales to deliveries.

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Despite what people on all sides of the question might say, declaring cannabis to be an "essential" service, thus keeping dispensaries open along with grocers and pharmacies, isn't necessarily an easy call. Most consumers of legal cannabis are recreational users, after all. Most of them don't need cannabis, as much as they might appreciate having it while they're stuck at home. Given that fact, if it's crucial that we eliminate human contact to the greatest degree possible, why should cannabis be excepted?

It's a dilemma that local governments have wrestled with since the middle of March, when six Bay Area counties, followed later by the state government, issued stay-at-home orders and forbade all but "essential" businesses to close down. Although "essential" included cannabis, the details of how pot businesses should be allowed to operate were let to local jurisdictions. San Francisco at first declared that cannabis shouldn't get the designation at all, but quickly backed off. A couple of weeks ago, Berkeley issued an order that cannabis shops had to close, even for curbside pickup. Only deliveries would be allowed. That order was rescinded in less than a day

Now it's Santa Clara County's turn. Last Wednesday, the county ordered that cannabis sales would have to be delivery-only, except for people with medical marijuana cards and a doctor's prescription.

A note on the county's Web site reads: "Non-medical cultivation, supply, and dispensing of cannabis are prohibited, with the exception of deliveries directly to residences. Dispensaries with a mixed clientele of both medical and non-medical customers can do in-person business only with medical customers." County officials did not respond to a request for comment. The County Board of Supervisors was scheduled to have an online meeting and hear from the public on Tuesday morning. James Anthony, a longtime cannabis attorney based in Oakland, said he didn't expect the board to make a decision quickly.

As of Tuesday, local dispensaries, customers, and some of their shops' suppliers were mounting a pressure campaign to get Santa Clara to back off, just as San Francisco and Berkeley had done. A petition drive had collected more than 18,000 signatures, according to the campaign's leaders. Late Monday, three San Jose City Council members sent a letter to the county Public Health Office, asking it to rescind the ruling.

The groundswell of support for the petition is not surprising. Demand for cannabis is generally higher across the board. Airfield Supply, a large dispensary in San Jose, and other shops are reporting higher sales since the stay-at-home orders were issued (though dispensaries that don't offer delivery are hurting). Chris Lane, Airfield's chief marketing officer, estimates that total sales are up by more than half since the stay-at-home orders were issued. Before that, deliveries made up about 5 percent of the shop's sales. After the pandemic hit, they rose to about 25 percent of total sales, with the rest coming from curbside pickup. Since last week, they now make up about 60-75 percent of sales, Lane said, and "there's way more demand than we can meet" with deliveries alone. The shop has doubled its fleet of four cars to eight, and all of them are working full time.

The bottom line for cannabis businesses and their customers is that, since cannabis has been deemed "essential" by the state, there's no good argument for treating it any differently than any other business. One big reason: while recreational sales make up the bulk of the business, lots of people really do need cannabis for medical reasons. And, especially since cannabis became legal in California, there's a murky middle ground, where many "recreational" users depend on cannabis partly to address health concerns, but don't have a medical marijuana card.

"'Medical marijuana' doesn't really mean anything since Prop 64," Lane said. People can still get medical marijuana cards, and Airfield and other shops in the county are now helping them do that, but it's a restriction that isn't applied to, say, people who want to buy aspirin at CVS, or a bag of donuts at Safeway for that matter.

"With the passing of Prop 64, a medical card was essentially deemed unnecessary," wrote Jocelyn Sheltraw, an executive at the cannabis-data outfit Headset, in an open letter to government officials posted on LinkedIn. "In fact," she continued, "according to officials in Santa Clara County, 95 percent of people do not hold medical cards."

If medical marijuana had been kept a separate business from recreational pot, it might be easier to shut down the recreational part, critics of these restrictions note. As it stands, it's impossible. What's more, many consumers who use cannabis to treat aliments are elderly or poor. "Both of these populations may have limited access to the Internet, which would prevent online ordering," Sheltraw wrote. "And equally as important, these patients may need consultation with dispensary staff to receive proper medical guidance."

Anthony warned that if the county's rule remains in place, "It would set a really bad precedent, and other governments around the state could follow suit."

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