by Harper G. Street
Historically, when the media has discussed the question of marijuana legalization in the United States, Louisiana was not among the states that experts predicted would ever pass pro-cannabis legislation. Since 2015, however, the state has taken several steps to ensure that medical marijuana becomes available to people suffering from ailments that can be treated with THC products. Though it has been a slow and incremental process, the proliferation of marijuana legislation in Louisiana evidences that the legislature is taking meaningful steps to formulate the most progressive drug-related policy the state has ever seen.
Notably, Governor John Bel Edwards recently signed House Bill 391 into law, allowing, in part, for the Louisiana Medical Marijuana Program to provide raw, smokable cannabis to its patients with a doctor’s recommendation. Prior to the enactment of this bill, only THC oils, edible gummies, and processed tinctures were available for patients in the program to purchase. These changes not only have the benefit of pushing Louisiana towards adopting a more progressive marijuana policy as a whole, but they also make medical marijuana itself much more readily available to the numerous patients who truly need it.
To adequately articulate the progress that Louisiana has made with the enactment of House Bill 391 and other marijuana legislation, this Piece will first touch on the history of Louisiana’s Medical Marijuana Program. This historical section will begin by examining the strictly regulated and rigid early days of the program before discussing the more progressive policies that are in place today. Next, this Piece will outline and analyze the provisions of House Bill 391 and the changes it promulgated within the law. Finally, this Piece will look ahead, examining and discussing further changes and progress to the state’s cannabis laws that may take effect in the future.
I. The History of Louisiana’s Medical Marijuana Program
Though medical THC products did not truly become available in Louisiana until around 2015, legislation seeking to legalize the product has been around in the state for much longer. Shockingly, Louisiana was technically the first state in the country to legalize medical marijuana in the late 1970s. In 1978, former state senator Tony Guarisco sponsored a bill, which Governor Edwin Edwards later signed into law, legalizing medical marijuana for patients with glaucoma and for those undergoing chemotherapy. One of the key aspects of this legislation was its creation of the Marijuana Prescription Review Board, whose members were to be appointed by the state Department of Health and Human Resources (Health Department) secretary. The bill also charged the Health Department with contracting with national groups for the production and distribution of the cannabis products. However, Senator Guarisco’s bill was never truly put into effect, as the Health Department reportedly never followed through on its duties in any significant manner.
In 1991, the Louisiana Legislature amended the 1978 law to include spastic quadriplegia, a form of cerebral palsy, to its list of conditions that qualified patients for medical marijuana prescriptions. However, deficiencies in the statutory framework concerning the cultivation and distribution of the product prevented patients who would qualify under the new statute from actually obtaining any medical cannabis. Additionally, legislative attempts to facilitate the distribution of medical marijuana in 1994 and 2014 similarly failed to create a system from which the state could actually provide patients with the product. The main issue with the legislation enacted during those years was that “while the prescriptive side was legally established, there was no framework for the growth and dispensing of the product.” However, in 2015, the Louisiana Legislature began to take affirmative steps to establish a system that actually allowed for the state’s Medical Marijuana Program to fulfill its goals.
Louisiana “officially” legalized medical marijuana in 2015 with the passage of Act 261, otherwise known as the Alison Neustrom Act. Though this legislation was a promising first step, the restrictive wording of the Act continued to impede the full effectiveness of the state’s program. In the original draft of Act 261, its inaccurate “use of the word ‘prescribe,’ meant that the act was still limited in its usefulness.” Due to the Schedule I status of cannabis at the federal level, physicians cannot actually prescribe medical marijuana, but they are allowed to recommend it. Because Act 261 used the word “prescribe” in its provisions, it was both inaccurate and virtually useless due to the fact that federal law barred the action the statute purportedly provided for. However, Acts 96 and 343, enacted in 2016, sought to remedy this issue. Act 96 specifically corrected the erroneous language of Act 261 by replacing the word “prescribe” with the word “recommend,” which more accurately reflected the process the original act sought to authorize. Act 96 additionally expanded the number of qualifying conditions that allow for patients to enter into the program. Act 343 enacted important legal protections to prevent patients participating in the program from being subject to prosecution. Moreover, in 2020, Act 147 was enacted to provide legal protections to physicians and medical facilities that were involved in the medical cannabis industry.
Finally, in 2020, the passage of Act 286 expanded access to medical marijuana by allowing doctors to recommend medical cannabis products “for any condition that is debilitating to a patient, provided that the doctor is qualified to treat that illness.” With the passage of each of these new acts, the state’s Medical Marijuana Program continued to make medical marijuana more accessible for qualifying patients. This trend of progressive cannabis legislation reached new heights with the passage of House Bill 391 in June 2021.
II. House Bill 391
The most recent instance of pro-cannabis legislation arising out of the Louisiana Legislature is House Bill 391. In pertinent part, House Bill 391 sought:
To amend and reenact R.S. 40:1046(A)(1) and to enact R.S. 40:1046(A)(5) and (C)(2)(1), relative to recommendation by physicians of marijuana for therapeutic use, known as medical marijuana; to provide for forms of medical marijuana which a physician may recommend; to establish limitations on dispensing of certain forms of medical marijuana; to provide for rules and regulations of the Louisiana board of Pharmacy relative to medical marijuana; to provide for an effective date; and to provide for related matters.
The primary objective of this bill is contained in the phrase: “to provide for forms of medical marijuana which a physician may recommend.” This particular provision relates to the goal of making smokable, natural cannabis flower an available form of medical cannabis to patients in the state’s Medical Marijuana Program.
This legislative goal was effectuated in the provisions of Louisiana Revised Statutes § 40:1046(A)(1) when Governor John Bel Edwards signed House Bill 391 into law. Prior to the enactment of House Bill 391, § 40:1046(A)(1) provided that physicians licensed to practice medicine in the state could recommend cannabis-based products in any form as permitted by the rules and regulations of the Louisiana Board of Pharmacy “except for inhalation, and raw or crude marijuana.” After the enactment of House Bill 391, however, the phrase “except for inhalation, and” was stricken from the statute, thereby allowing doctors to recommend raw, smokable marijuana. The term “raw or crude marijuana” as it is used in the statute refers to the flower of the plant, rather than the oil concentrates and edibles that were formerly the only permissible medical cannabis substances that physicians could recommend.
While the statute does provide for new forms of medical cannabis products that physicians can recommend, it also places a number of limitations on the pharmacies that can distribute these products. In addition to amending the provisions of § 40:1046(A)(1), House Bill 391 also enacted Louisiana Revised Statutes § 40:1046(A)(5), which provides, in pertinent part:
No pharmacy authorized to dispense marijuana for therapeutic use in accordance with the provisions of this Section shall dispense more than two and one-half ounces…of raw or crude marijuana every fourteen days to any individual patient . . . [further] [n]o pharmacy authorized to dispense marijuana for therapeutic use in accordance with the provisions of this Section shall dispense raw or crude marijuana to any person under twenty-one years of age without a recommendation from a physician specifically recommending marijuana in raw or crude form for that person.
As evident from this statutory provision, the state—while undoubtably moving toward a more progressive stance on the use of marijuana—is still taking extensive measures to ensure that the substance is recommended and used cautiously. To further ensure caution in the prescription and distribution of smokable cannabis, the enabling legislation placed a limit on the number of marijuana pharmacy permits that can be granted in the state. As such, the Louisiana Board of Pharmacy divided the state into nine separate regions, providing a marijuana pharmacy permit to one? specifically selected pharmacy located in each of the nine regions.
Among the most prominent benefits of this new legislation is that it provides patients in Louisiana’s Medical Marijuana Program with a much more affordable option to satisfy their therapeutic needs. Ruston Henry, owner and pharmacist at H&W Drug Store—the permitted medical marijuana dispenser for the “Metropolitan” region—noted that “he expects many of his patients to switch from the newer forms of marijuana, like vapes, creams, and edibles, to the raw version.” This is because medical marijuana in its crude, natural form is cheaper to process compared to the more modern forms of cannabis like the oils and gummies which the statute previously limited recommendations to. Ruston went on to note that the cost-saving in the processing stage of the process “is passed onto the customers,” further stating that “if you decrease the cost, it’s one less barrier that’s an impediment to the patients.” All of this means that more people than ever will be able to participate in Louisiana’s Medical Marijuana Program, most importantly those patients who are already burdened with high medical costs due to their underlying conditions.
III. Looking Forward
Given the recent trend in Louisiana of increasingly progressive, marijuana-friendly legislation, it stands to reason that the state could see complete legalization of cannabis products for recreational use in the not-too-distant future. As polling data suggests, 55% of Louisianians support potential legislation permitting the possession of small amounts of marijuana for recreational use. Moreover, Governor John Bel Edwards himself stated that the legalization of recreational marijuana use is all but inevitable, though likely to occur after he is out of office.
Despite the existence of public support for the legalization of recreational use, Louisiana state legislators have yet to pursue such legislation. However, in 2020, State Representative Marcus Bryant did put forth a measure requesting a study to explore the impact of cannabis legalization in Louisiana. Despite his efforts, though, the measure failed to progress through the house for further debate. Regardless of this shortcoming, it is clear that many within the public and the legislature itself are looking to continue toward complete marijuana legalization in the near future.
One obstacle to the full legalization of marijuana in Louisiana comes from its powerful constituency of state sheriffs. When faced with the proposition of full-scale legalization, the Louisiana Sheriffs Association stated that “it would lead to an increase in traffic accidents and teenage suicides,” though the association did not provide any support for these statements. Though the Sheriffs Association acknowledged the tax revenue that could be generated by marijuana legislation—which is estimated to top $100 million—it stands firm in its position that it is not worth the public health risk. However, the political sway of such groups may begin to have less of an effect on the opinions of state legislators if public support for legalization continues to move on its current upward trajectory.
Despite maintaining a reputation as one of the toughest states in the country on drug use, Louisiana has shown progress in the sphere of its marijuana policy. Though initial attempts to provide medical marijuana to patients in need were not without impediments, the state’s medical cannabis program is now operating in a relatively effective manner as a result of recent legislation. Most notably, the passage of House Bill 391 now allows for the Louisiana Medical Marijuana Program to reach more in-need patients than it ever has before with the legalization of smokable raw cannabis. If this legislation is any indication of the direction in which the state is headed, then it is very possible that Louisiana could see the full legalization of marijuana for both medical and recreational use in the future. Considering that public approval of marijuana legalization is relatively high in the state, it stands to reason that the state’s legislators will soon give in to the demands of their constituents. Among other benefits, such a move will help to further modernize a state that is in dire need of progress.
 A Brief History of Medical Marijuana in Louisiana, Transformative Health Ctr., https://transformativehealthcenter.com/history/#:~:text=You%20might%
20be%20surprised%20to,Edwards%20signed%20it%20into%20law [https://perma.cc/CX6H-GY8X] (last visited Mar. 8, 2022) (explaining that “Louisiana . . . [was] long considered to be among the more restrictive states where marijuana use is concerned”).
 Louisiana Marijuana Laws, Leafly, https://www.leafly.com/learn/
legalization/Louisiana [https://perma.cc/28QN-FSBG] (last visited Mar. 8, 2022).
 See Paul Braun, Take a Look at the New Louisiana Laws that Take Effect Jan. 1, WWNO – New Orleans Public Radio (Dec. 31, 2021 6:54 AM), https://www.wwno.org/2021-12-31/take-a-look-at-the-new-louisiana-laws-that-take-effect-jan-1 [https://perma.cc/6WJP-L68G]; see also Act 424, H.B. 391, 2021 Leg., Reg. Sess. (La. 2021); La. Rev. Stat. § 40:1046(A)(1), (5) (2022).
 See A Brief History of Medical Marijuana in Louisiana, supra note 1.
 See Emily Lane, A Short History of Medical Marijuana in Louisiana, The Times-Picayune (June 6, 2015), https://www.nola.com/news/politics/
 See Louisiana marijuana laws, supra note 2.
 Id.; see also Act 261, S.B. 143, 2015 Leg., Reg. Sess. (La. 2015); La Rev. Stat. § 40:1046 (2015).
 See Louisiana marijuana laws, supra note 2
 Id.; see also Act 96, S.B. 271, 2016 Leg., Reg. Sess. (La. 2016); Act 343, S.B. 180, 2016 Leg., Reg. Sess. (La. 2016).
 Id.; see also Act 147, H.B. 418, 2020 Leg., Reg. Sess. (La. 2020).
 Id.; see also Act 286, H.B. 819, 2020 Leg., Reg. Sess. (La. 2020).
 Act 424, H.B. 391, 2021 Leg., Reg. Sess. (La. 2021); La. Rev. Stat. § 40:1046(A)(1), (5) (2022).
 H.B. 391, 2021 Leg., Reg. Sess. (La. 2021).
 Act 424, H.B. 391, 2021 Leg., Reg. Sess. (La. 2021); La. Rev. Stat. § 40:1046(A)(1) (2022).
 La. Rev. Stat. § 40:1046(A)(1) (Aug. 1, 2020 – Dec. 31, 2021).
 La. Rev. Stat. § 40:1046(A)(1) (2022).
 Id. § 40:1046(A)(5)(a), (b) (2022).
 Marijuana Pharmacies – The Beginning of the License Process, La. Bd. of Pharm. (Mar. 8, 2022), http://www.pharmacy.la.gov/index.cfm?md=page
 Id. These nine regions are: Acadian, Capitol, Central, Metropolitan, Northeast, Northwest, Southeast, Southwest, and Teche.
 Id. The Metropolitan region is comprised of Jefferson, Orleans, Plaquemines, and St. Bernard Parishes.
 David Jones, Flower Form of Medical Marijuana Becoming Legal in Louisiana on Jan. 1, KALB (Dec. 28, 2021, 3:15 PM), https://www.kalb.com/2021/
 Sam Karlin, On Sports Betting and Recreational Marijuana, Most Louisiana Residents Say, ‘Yes, I’m for Them’, The Advocate (Apr. 18, 2019, 7:03 AM), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_f3ac9b78-61d1-11e9-9f95-2b69082e8fdc.html [https://perma.cc/934G-XZUF].
 Kyle Jaeger, Louisiana Governor Says Marijuana Legalization Will Likely Happen in His State—But Not While He’s in Office, Marijuana Moment (June 16, 2021), https://www.marijuanamoment.net/louisiana-governor-says-marijuana-legalization-will-likely-happen-in-his-state-but-not-while-hes-in-office/ [https://perma.cc/E9MU-4YMB].
 See Louisiana Marijuana Laws, supra note 2.
 Id.; see also H.R. Con. Res. 89, 2020 Reg. Sess. (La. 2020).
 Julie O’Donoghue, Will Louisiana Fully Legalize Marijuana? 10 Things to Know About the Debate, La. Illuminator (Apr. 28, 2021, 10:41 AM), https://lailluminator.com/2021/04/28/will-louisiana-fully-legalize-marijuana-10-things-to-know-about-the-debate/ [https://perma.cc/HH7J-CS87].