Hello, and welcome to Thomson Reuters’ Legal Executive Institute podcast. Today we’re discussing the hot topic of medical marijuana and its legal status. Speaking with us today are two partners from the law firm of Garfunkel Wild, Jim Dering and Sandy Jensen. Welcome, both of you.
Jim Dering: Thank you.
Sandy Jensen: Thank you.
Legal Executive Institute: To start us off, obviously medical marijuana has been in the news quite a bit. Could you explain where we are in terms of the legality of medical marijuana use? Is it purely dependent on which state you live in?
Sandy Jensen: Marijuana continues to be classified as a Schedule I substance under the Controlled Substances Act (CSA). Schedule I drugs are those that are determined to have a high potential for abuse and for which there’s no acceptable medicinal value. Under federal law, the CSA makes it illegal to manufacture, distribute, dispense and possess marijuana. But despite this, a total of 29 states including the District of Columbia and Puerto Rico, have enacted medical marijuana programs. In those states that have enacted such a program, medical marijuana is legal with respect to that state only if the requirements of the program are met. Again, there’s no exception in the Controlled Substances Act for marijuana use for medicinal purposes and its manufacture, distribution, possession and use continues to be illegal under federal law.
Under the prior administration, the Department of Justice took the position in a series of memos to federal U.S. attorneys, that it would focus its enforcement resources on the most significant threats and activities that interfered with a number of enforcement priorities that they included in the memo, including preventing the sale of marijuana to minors and diversion. The memo also stated that in states that have a legalized marijuana program and have strong and effective regulatory and enforcement systems, they would really leave it up to the states to enforce their own laws related to this. That gave some comfort to participants of a state-regulated program that the feds wouldn’t come after them, basically.
In addition, legislation was also passed in 2014, the Rohrabacher-Farr legislation. It was part of a federal spending bill that prohibited the Justice Department from spending funds appropriated to it that interfere with the implementation of state medical marijuana laws. This was recently renewed until September 30, 2017. It continues to be illegal under federal law but legal under some state laws.
Legal Executive Institute: You had mentioned the previous Department of Justice stance under the Obama administration. Certainly, now under the Trump administration and the new Department of Justice Head, Jeff Sessions, that’s changed a bit. They’ve indicated a strong stance against legalizing the use of recreational marijuana and have kind of even sent mixed signals on the use of medical marijuana. Where does that stand, and what do you think could be coming out of the new Department of Justice?
Sandy Jensen: Yes, there is uncertainty on what position the current administration will take on state medical marijuana laws. We had a statement from Press Secretary [Sean] Spicer that stated that the president sees a big difference between the use of marijuana for medical purposes and marijuana for recreational purposes. Then in a signing statement that accompanied his signature on a bill that would continue the Rohrabacher-Farr amendment, the president noted that he would treat this provision consistently with his constitutional responsibility to take care that the laws be faithfully executed. It’s unclear what he meant by this, whether he was stating an intent to pursue enforcement of violations of the CSA related to medical marijuana. It’s been reported that Attorney General Sessions remarked then in an appearance that medical marijuana has been hyped maybe too much. The issue would then be where does that leave the state law programs if the administration did take a strong stance against state medical marijuana laws?
Legal Executive Institute: Let’s look at an individual state. I know both of you did a lot of work with the Division of Legal Affairs in the state of New York, in fact drafting the regulations on medical marijuana. Where does the state stand now? What is the legal status of medical marijuana in New York?
Jim Dering: Governor Andrew Cuomo signed the Compassionate Care Act, which is New York State’s medical marijuana program, into law on July 7, 2014. The Compassionate Care Act essentially required the New York State Department of Health to implement a medical marijuana program within 18 months, which it did accomplish. Registered organizations began dispensing medical marijuana in January 2016.
The basics of New York State’s medical marijuana program and how it works are this: A patient must have a qualifying serious condition, and there’s a list of what those are. They include things like cancer, Parkinson’s disease, multiple sclerosis, and more. In addition to that, the patient must have from a list an associated or complicating condition such as wasting syndrome, severe or chronic pain, severe nausea, etc. Patients with those conditions would, for example, speak with their treating practitioner about whether the use of medical marijuana is appropriate for their condition. If the practitioner determines that it is appropriate, and he or she is registered with the State Health Department’s medical marijuana program, they may issue the patient a certification for medical marijuana. If the practitioner is not registered with the program, he or she can refer the patient to a practitioner who is.
A couple of requirements with regard to certification. The practitioner must be providing continuing care for the patient in relation to the serious condition and be qualified by training or experience to treat the serious condition and the required clinically associated condition, symptom or complication. In addition, the practitioner must review the patient’s past treatments and be of the professional opinion that the patient is likely to receive therapeutic or palliative benefit from the medical marijuana for the serious condition. If these circumstances are met, the practitioner can certify the patient for participation in the program. After the patient is certified, he or she must register with the medical marijuana program through the State Health Department’s online patient registration system. After that registration is processed, the patient will receive a registry identification card that enrolls him or her in the program and allows them to obtain medical marijuana from a registered organization. A registered organization is an entity that’s authorized to produce and distribute medical marijuana in New York.
Also, in New York State under the medical marijuana program, approved forms of medical marijuana include liquids and oil for vaporization, or administration via an inhaler, as well as capsules to take orally. But under New York law, smoking is not permitted.
Legal Executive Institute: Really? That’s interesting. I wasn’t aware of that. It seems like a lot of rules to follow, both from the practitioner point of view, from the distributor, and certainly for the individual wishing to partake of this medical treatment. Looking at law firms, is there a need that can be addressed pertaining to the people involved in this field? Is that something law firms can get into or have an opportunity to address?
Jim Dering: Yes, there are definitely opportunities, whether it’s participants in the system, a registered organization, a practitioner, or even a certified patient, and also with regard to businesses generally who have commercial dealings with entities involved in the program.
Legal Executive Institute: Sometimes when these issues or different subject matters get a lot of attention like what medical marijuana is seeing now, law firms will try to set up a practice to put some feet on the ground in that area. Is that something law firms could do now? Would that be a smart strategy, or is there just still too much uncertainty out there?
Jim Dering: No, it’s definitely something that can happen now. I think a law firm would want to do a number of things. First, they’d want to develop a full understanding of the federal and state law and policy regarding medical marijuana. For federal purposes, as Sandy had mentioned, they would want to keep up to date with regard to federal policy in terms of how the new administration and Department of Justice plan on handling issues concerning compliance with the Federal Controlled Substances Act.
With regard to state law, I think attorneys would want to do a number of things. New York’s medical marijuana program is highly regulated, so they’d want to have full knowledge of the Compassionate Care Act and its implementing regulations. In doing that, it would be helpful to review materials regarding the history of the program and its development to have an additional perspective. Also, follow announcements and comments by the State Health Department with regard to any changes that it might be making to the program and keep abreast of those, and also follow Department of Health regulatory filings. There have been a number of regulations that have been filed relative to the medical marijuana program since the original implementing regulations.
Legal Executive Institute: Wow, I think that does represent a tremendous opportunity. As practitioners in this area, are you looking for something to happen next as far as stabilizing the uncertainty out there? Do you think there’s going to be some further response from the federal government, or do you think it’s just going to remain a state-by-state issue?
Jim Dering: That’s a good question. I think from the federal perspective we’re in a wait and see mode, but certainly from the state perspective the number of states that are implementing medical marijuana programs are increasing. With regard to the New York State program, it’s certainly here and moving forward. I think with regard to any federal developments, it’s a wait-and-see approach.
Legal Executive Institute: It certainly does seem a lot is happening in the medical marijuana area. Sandy, is there anything our listeners can tune into that can give them some more information on this?
Sandy Jensen: Sure. Jim and I will be presenting a webinar on New York’s medical marijuana program on Tuesday, June 20.
Legal Executive Institute: That sounds great. There’ll be more information on that on our website. Thank you both for joining us for today’s Legal Executive Institute podcast, and thank you for listening.