Medical Marijuana, Hemp & CBD

Featured Topics at NYSBA’s Committee on Cannabis Law’s First Legislative Program in Albany
On May 22, 2018, the New York State Bar Association’s Committee on Cannabis Law held its inaugural legislative CLE program.

Titled “Legislative Developments in Medical Marijuana and Industrial Hemp in New York,” the first part of the program focused on New York’s medical marijuana program. Sara Payne, Attorney at Barclay Damon, provided an overview, with a panel consisting of the Honorable Richard N. Gottfried, New York Assembly District 75; Axel Bernabe, Esq., Assistant Counsel to the Governor for Health; Jason Riegert, Esq., Division of Legal Affairs, NYS Department of Health; and Joshua Vinciguerra, Esq., Director, Bureau of Narcotic Enforcement, NYS Department of Health.

Gottfried explained the history of New York’s program, which is one of the country’s most restrictive. For example, the initial program only allowed physicians to prescribe medical marijuana for specific indications supported by clinical data. Since then, additional health care providers, now including nurse practitioners and physician assistants, are able to prescribe. A bill would add additional health care providers to be consistent with other controlled drug substances, specifically adding dentists and podiatrists. Another bill would allow those health care providers to prescribe like other drugs in the practice of medicine rather than a proscribed list.

Other initial restrictions in New York, as recounted by Gottfried, required approved medical marijuana dispensers to do all of their own seed buying, marijuana growing, processing, and dispensing (vertical integration). Another bill would expand the number of dispensaries, and while one registered organization may now sell marijuana products to other registered organizations, another bill would open the market to provide for other growers to sell their products to dispensaries. Gottfried concluded that medical marijuana continues to be an area with many complications, in part because it is still a Schedule I controlled drug substance (i.e., high abuse potential, no medical use, and severe safety concerns) that will be complicated by the possible expansion into adult use.

Bernabe defended New York’s more conservative medical marijuana program, noting how the program allows for a strong interaction between certified health care providers and hospitals, which has provided more oversight to confirm appropriate medical use. Bernabe expressed concern with an adult use program, because some adult use would likely be tied to medical, not recreational, use, which would not be so recorded. Bernabe said he thinks of medical marijuana like a Venn diagram: circles for (1) medical marijuana; (2) hemp/dietary supplements including cannabidiols (CBDs, the non-hallucinogenic drugs in cannabis); (3) adult use; and (4) substance abuse issues with cannabis or use of cannabis to help treat abuse issues with other drugs, such as opioids. The various intersections of these uses have implications for the public health and how the state taxes and regulates the products.

Vinciguerra agreed that New York’s compassionate care for medical marijuana was a very conservative program, in part to prevent backdoor recreational use. At this point, he said there are about 55,000 registered patients, 1,600 practitioners, and ten dispensaries that can dispense, primarily for chronic pain (60+%) with cancer (13%) and other neuropathies (9%) as the other main categories, with multiple sclerosis, epilepsy, Parkinson’s Disease, and HIV/AIDs each having much less use (each under 5%). Vinciguerra said it is counter-intuitive that New York’s medical marijuana program, which is restrictive, also collects good use data including when medical marijuana reduces the need for opioid drugs for pain. Payne agreed, noting that several studies had suggested that opioid use goes down 20-30% in states with medical marijuana programs.

Riegart also described New York’s medical marijuana program as unique and compared/contrasted it to California’s approach, which dispenses medical marijuana much more liberally at a lower cost, even allowing individuals to grow their own product, once recommended by a physician. New York’s program, however, sets a maximum price for medical marijuana, and has eased some of its initial regulations. While New York’s regulations now permit hospital patients to self-administer medical marijuana, there are still possession issues, e.g., patients require a certification card to possess medical marijuana, which can become tricky in certain settings, such as schools or assisted living. This is because New York also imposes restrictions on designated caregivers, i.e., each designated care giver can have no more than five patients. In addition, Riegart noted that concerns persist regarding the availability of laboratory-quality medical marijuana to conduct clinical research for the designated medical uses.

During a question-and-answer period, some key themes emerged. Bernabe said New York thinks it is critical to approve and inspect each dispensary’s product, rather than assuming it is acceptable once prescribed. Bernabe and other speakers thought it was important for FDA approval of CBDs or other medical products from cannabis to get more patients on board, but they thought drug scheduling would be specific to each product rather than a class-wide approach to cannabis or CBDs.

The Committee on Cannabis Law will hold its next CLE program on August 14 in Buffalo focusing on issues related to patient perspectives on New York’s medical marijuana program and the adult use bills under consideration.



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