Federal Government, New York State Pass New Medical Marijuana Laws

January 1, 2016 | Health Services

The Federal government and New York State have implemented additional legislation that will likely expand access to medical marijuana for patients hoping to use it.

The Senate passed an appropriations bill that had previously been passed by the House of Representatives that contains additional funding for the Department of Veterans Affairs (the “VA”). H.R. 2029 contains within its funding provisions that prohibits the VA from interfering with a veteran’s participation in, or denying service to a veteran participating in, state-approved medical marijuana programs. While VA physicians had previously been barred from “recommending” (the functional equivalent of prescribing in the medical marijuana context) medical marijuana for patients’ use, this legislation would remove those barriers. While seemingly a small step, it is an important legislative move towards Federal acceptance of medical marijuana programs. State medical marijuana programs have proliferated in recent years under a policy of non-enforcement of the Federal prohibition on the sale and use of marijuana, but there has been little movement on the legislative front to substantively change the Federal prohibition on medical marijuana. H.R. 2029 follows similar moves to change the Federal government’s marijuana enforcement through appropriations; in December 2014 Congress passed an omnibus budget bill that contained an amendment that prohibited the Department of Justice from using its appropriations in the bill to enforce Federal marijuana laws against state’s legalized marijuana regimes. The bill has been signed into law by President Obama.

In addition, New York State took a more substantive step towards increasing access to medical marijuana in the state when Governor Cuomo signed into law two bills that together allow for emergency access to patients that may benefit from medical marijuana. It is not, however, clear how this new law will affect the medical marijuana landscape in New York. Though the bill calls for the Department of Health (the “DOH”) to immediately accept applications from patients to approve their use of medical marijuana, the DOH has not yet created an application for the expedited use of medical marijuana, nor has it yet accepted any patients under the regulatory regime in promulgated under the Compassionate Care Act (which can be read about here). The law calls for regulations on the special certification of patients for emergency use of medical marijuana, but allows for applications “that otherwise conform with the requirements” of the law to be accepted by the DOH prior to its drafting of regulations. Further, the law allows the DOH to waive the current requirements that medical marijuana be grown, manufactured, and dispensed only by one of the five Registered Organizations licensed pursuant to the Compassionate Care Act. Instead, the law allows for medical marijuana to be distribute within New York by entities that are licensed to do so in jurisdictions with laws that are “acceptable” to the DOH and “consistent with the legislative intent and purpose” of the Compassionate Care Act. While the language of the law allows for marijuana producers in other states (and other countries, such as Canada) to operate within New York State, it is unclear how effective this approach can be, as the Federal government strictly prohibits the transportation of marijuana across state lines even if it is travelling directly between two states (or a state and a country) that allow for marijuana to be distributed pursuant to each jurisdiction’s law. In his memorandum signing the bills into law, Governor Cuomo does not address this discord, but rather states that he is sensitive both to patient’s needs and the Federal enforcement of marijuana-related laws. Adding to the potential issues of importing medical marijuana, the Compassionate Care Act has relatively stringent requirements for the manufacturing, packaging, and administering of medical marijuana, and it is unclear if imported versions of the product could be considered “consistent with the legislative intent and purpose” of the Compassionate Care Act. Further, from a practical standpoint, while the Registered Organizations licensed pursuant to the Compassionate Care Act and its regulations have been preparing to manufacture and distribute medical marijuana, the start date for distribution by those Registered Organizations is not until January 2016, and it is unclear if any yet have the capability to provide emergency access. Therefore, while nominally expanding medical marijuana access, it remains uncertain if this new law will actually expedite or expand access prior to the planned start date of New York’s medical marijuana program in January 2016.

One final noteworthy development regarding New York’s medical marijuana regime is that in Governor Cuomo’s memorandum, he calls for the DOH to complete a comprehensive assessment of county-level population and medical data to ensure the medical marijuana program’s dispensary locations fill the public’s need. Governor Cuomo states that he seeks to “ensure all new Yorkers with a certified need have access to medical marijuana” and that this DOH analysis will “help inform the continued growth and development of the medical marijuana program, and, more specifically, inform whether additional manufacturers and dispensaries are necessary to improve access statewide,” providing the strongest suggestion yet that New York’s medical marijuana program will grow beyond the initial five Registered Organizations and 20 dispensaries currently licensed.

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