When we last checked on the status of New York’s marijuana laws, we were pleased to report that a bill to legalize recreational use had been introduced in the New York Senate. We are disappointed to report today that this bill has been stuck in the Senate’s Finance Committee since January 14, 2015. More disappointing, however, is the status of New York’s medical marijuana program.
On April 1, the New York Department of Health finalized regulations for the state’s medical marijuana program under the Compassionate Care Act. If only the Department of Health intended the regulations to be an April Fools’ joke. Considering the final regulations, one wonders whether the Empire State is serious about its medical marijuana program. Are the authorities out of touch with reality? Do they have unrealistic expectations? Are they trying to sabotage the program? Any of these conclusions could be drawn from these regs.
As a brief refresher, New York’s medical marijuana program under the Compassionate Care Act was intended to be the most restrictive of all the states that have legalized medical use. The limitations include, among other things: an outright prohibition on the use of the raw plant in any form (i.e., smoking); a limited choice of only five strains available from twenty dispensaries state-wide; and a short list of just ten qualifying conditions for which the drug could be prescribed.
Draft regulations for the program were first published on December 17, 2014. After publication in December, the Department of Health welcomed comments about the draft regulations by any interested party. Despite receiving hundreds of comments from the spectrum of interested parties, including potential patients, prescribing doctors, and interested politicians, no substantive changes to the draft regulations were ultimately made. Some typos were corrected and some formatting issues were ironed out. The department’s position on most comments in its Summary of Assessment of Public Comment was generally that the regulations were sufficient or that the commissioner will address the issue later.
The consensus is that the program as regulated will be unworkable. The sponsor of the law, Assemblyman Dick Gottfried, perhaps best summarized the situation, saying that the final regulations are needlessly restrictive and “gratuitously cruel.” “I don’t know how anyone would get a license to produce and dispense medical marijuana in New York.” In contrast, the spokeswoman for the Department of Health labeled the legislation as “balanced.” Here is the full statement released by the department in response to a request for comment:
New York State – recognizing that possession and use of marijuana is illegal in the United States but that scientific evidence supports the efficacy of using cannabidiol in treating debilitating and life threatening illnesses and conditions – has created balanced legislation that ensures appropriate access through comprehensive regulations and safeguards. The State developed the regulations through this very critical lens to ensure that the entire program would not be subject to enforcement action or legal challenges. Expanding the initial set of regulations would have subjected the State to unnecessary scrutiny and jeopardized the program’s ability to move forward in any meaningful manner. The Compassionate Care Act and the final regulations strike the required balance by implementing a strong and effective medical marijuana program in New York State.
So where does the program go from here? Assemblyman Gottfried believes the legislation can be fixed: “We’re gonna be looking at possible amendments to the law that will remove some of the obstacles. I don’t know whether the administration would ultimately sign that legislation. We’ll see. There is certainly a lot that the administration could do under the existing law to dramatically simplify the regulations that they’ve put in place.”
It’s hard to imagine that some adjustments to existing provisions could transform the program to be on par with other states’ regimes. Perhaps the broad authority granted to the commissioner, currently Dr. Howard Zucker, will be the cure. Under the regulations, the commissioner is given broad authority to, among other things, increase the number of registered dispensing organizations, to authorize nurse practitioners to prescribe the drug, to expand the list of qualifying conditions (with the department’s guidance), and to, presumably, approve the plant form of the drug. In other words, the solution in New York may be to voice your concerns with the commissioner of the Department of Health.
We hate what we are seeing in New York these days, but what do you think?