Medical Marijuana in New York: Still a Year Away

After much debate and some difficulties in the legislature, Governor Andrew Cuomo signed New York State’s Compassionate Care Act into law on July 7, 2014. The intentions of the lawmakers were clear: it would be one of the most restrictive medical marijuana laws in the country — if not the most restrictive. However, the program will not be up and running until January 2016 at the earliest, which will give officials time to develop and tweak the rules.

No Grass in New York.  Under the law adopted, the plant version of marijuana will not qualify as a drug and the raw plant may not be smoked. Patients will need to ingest the drug through edibles, oils, and vaporizers. Of the twenty-three states that have legalized medical marijuana, only Minnesota has a similar prohibition on smoking the plant.

Twenty Dispensaries for the Entire Empire State. New York will implement a “seed to sale” model, with the same company growing the plants, processing and packaging the product, and operating the dispensaries. A total of five licenses will be issued for growing the plant, with each licensed grower allowed to operate up to four dispensaries. It is expected that a total of twenty dispensaries could service the entire state, but an expansion of these numbers is understood as inevitable over time.

A Patient Must Have a “Serious Condition.” To be prescribed medical marijuana, one must be a resident of New York, be certified as needing marijuana by a licensed and qualified medical practitioner registered with the Department of Health, and the ailment must be a “serious condition,” as defined by the law. Serious conditions are defined as cancer, HIV/AIDS, ALS (Lou Gehrig’s Disease), Parkinson’s Disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication on intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s Disease, or as added by the Commissioner of the Department of Health. The Commissioner will consider a number of other conditions that may qualify prior to implementation of the program, including Alzheimer’s, muscular dystrophy, dystonia, post-traumatic stress disorder and rheumatoid arthritis. Noticeably lacking from the definition of “serious condition” is general, chronic pain. Illinois’ law also does not include chronic pain as a qualifying condition and only 650 patients in Illinois have so far qualified since applications were first accepted beginning September 1, 2014.

Only Five Strains of the Plant. On December 17, 2014, the Department of Health issued draft regulations for the program. Among other things, the regulations inexplicably limit to five the number of strains of medical marijuana that can be grown. One would expect this limitation will eventually be removed, as that will likely be necessary for New York researchers to participate in developing marijuana’s efficacy. Dozens of strains exist and new strains have recently been developed to treat and cure more illnesses. Certainly, the newest strains to treat epileptic children would not have been developed if all states had limited medical marijuana to five strains as New York intends to do.

Enter: the Lobbyists. One insider recently joked to a journalist that the Compassionate Care Act should be renamed the Lobbyist Employment Act of 2015. With only five licenses available, potential investors in the industry have scurried to align themselves with the most connected and powerful lobbyists. Lobbying records publicly available detail a Who’s Who in the medical marijuana industry retaining a Who’s Who in the New York lobbying market. Among those welcoming lobbying deals is Park Strategies, the lobbying firm run by former U.S. senator Al D’Amato. Lobbyists in New York will have a task specific to New York: working with the labor unions. New York’s Compassionate Care Act requires that union workers be hired as a condition of receiving a license. No other state with medical marijuana has such a requirement.

At this point, New York’s medical marijuana regime is going to be extremely limited and we anticipate it also being extremely expensive for anyone seeking to gain a foothold in it. If we had to compare it to any other state in which our lawyers have handled licensing applications, it would be Minnesota, whose program is just about as limited in most respects as New York’s. We do not like such limited programs as they are bad for patients, bad for business, and bad for competition. But just like those who will spend heavily for a chance to get in the ground floor of what may eventually be a much bigger program, we too will take what we can get, while both hoping for and pushing for more.