Personal Agreements: OMMP grower and patient contracts
After the dust settles from a legislative session we are always left wondering what happened. Especially after this session which was crazy, fast-paced and chaotic. With the primary piece of legislation being House Bill 3400 there is so much to pull apart (and I will in a really long post). It feels as though the focus has been on big picture policy and not on the practical changes that have occurred. With that being said, tucked away in HB 3400 is this section:
SECTION 83. Notwithstanding ORS 475.304 (7), a person responsible for a marijuana grow site may enter into an agreement with a registry identification cardholder under which the registry identification cardholder assigns, to the person responsible for the marijuana grow site, a portion of the right to possess the seeds, immature marijuana plants and usable marijuana that are the property of the registry identification cardholder.
The section is titled Personal Agreements and we have been waiting for something like this for a very, very long time. One of the biggest challenges of the OMMP is that the patient owns everything all of the time. That means they own the plant and the flower and the trim – everything. Even though the cultivator invests the money, does the work and likely distributes it to people other than the patient it all belongs to the patient and they can claim it at any time. You can see this reflected in statutory language and even in the dispensary transfer forms. While this ownership system might make sense under a purely medical program, under the commercial medical system it has made zero sense.
Section 83 is the fix. Think of it as the ability for the grower to claim their property interest in their product right out of the gate. Essentially a grower may now enter into a contract (yes that means a real document between a grower and a patient that all parties will sign) where the patient signs over their interest to the grower. Couple this with the fact that the Oregon legislature has removed the reimbursement language from the dispensary piece of the medical program and you have a system that actually looks and feels like a real commercial program.
We will post a sample version of a contract like this but remember this is a binding contract so it is important to think carefully about what goes in it and consider having a lawyer draft it or at least review it. Here are a few things that should be included:
- patient and grower name, OMMP card number, date card expires
- how much product is being released to grower
- how much, if any, interest will the patient retain
- what is the patient getting in return for the use of their card, if anything
- is there any financial compensation being included for any party
- what is the grower’s obligation to the patient
- if there is medicine going to the patient how much and when
- what happens if grower can’t perform and provide patient the agreed medicine or compensation
- are there circumstances where the amount, either medicine or financial compensation, might change
- what happens when it is time to renew, who pays and who has the responsibility to make sure that renewal occurs
- how much access, if any, does the patient have to the garden or information about production
- actual language that releases property interest
There are many more pieces that should go into a Personal Agreement. This list is absolutely not exhaustive. Each one of these documents should be commemorating the specific agreement between a patient and their grower. If you are establishing a medical garden or participating in the system now it is time to get your agreement in place. Think of it as progress.
As a side note – look carefully at the statutory language in Section 83 and you will see something new. The term “person responsible for a grow site”. This is also a new concept for cultivators but is pulled from the dispensary program. The OHA will be making rules around this term so stay tuned.