Category: Medical Marijuana

DOH MEDICAL MARIJUANA EXPANSION SET FOR COLLISION COURSE WITH THE LEGISLATURE

These days we are reminded daily of the growing pervasiveness of the combat sport affectionately known as Trenton Politics.   These high level and demonstrably public squabbles include, but are most-assuredly not limited to, whether to impose additional taxes on those making over seven figures, the extent to which the identity of donors to so-called “dark money” groups should be disclosed, and whether the state should reduce spending on public employee benefits. Also tied up in the overtly quarrelsome atmosphere of Trenton politics is how to expand New Jersey’s Medical Marijuana Program to cover a shortening supply. 

Despite having previously kept the medical marijuana legislation closely tied to recreational use and liberal social justice reforms, the Legislature has recently agreed to remove the tether and allow these issues to be considered separately.  It endeavored to quickly move the medical marijuana legislation through both houses, and allow the public to vote on legalization for recreational use. 

The resulting bill is comprehensive.  Notably, the legislation calls for the creation of a five-member Cannabis Regulatory Commission in, but not of, the Department of Treasury.  This Commission would be charged with overseeing the licensing and regulation of cannabis for patients with diagnosed illnesses such as opioid use disorder, glaucoma, anxiety, inflammatory bowel disease, Tourette’s syndrome, post-traumatic stress disorder (PTSD), multiple sclerosis, muscular dystrophy and others. The bill establishes an Office of Minority, Disabled Veterans, and Women Medical Cannabis Business Development and contains an aspirational goal of having 30% of the market participants consist of members of those groups.  It also would make it unlawful to discriminate against medical marijuana prescription holders in employment, housing, education, and child custody.  Further, the bill sets clear testing standards for medical cannabis and cannabis products and requires the Commission to provide an annual report to the Governor and Legislature detailing, among other things, the number of applications received, the number of applications rejected, motor vehicle stops related to marijuana and statistics on the racial, gender, ethnic and age breakdown of those who continue to be arrested for marijuana offenses.      

After several technical amendments, the bill passed the Senate on May 30th.  The Assembly is set to vote on the bill Monday, June 10th and, by all indications, will pass it by a large margin.  It could therefore be on the Governor’s desk for his consideration as early as that same day.  The Governor and the Department of Health (DOH), however, chose not to wait until the bill made it through the Legislature before responding to the legislative initiative.  Rather than wait the extra week, on June 3rd, the DOH issued a Request for Applications (RFA) announcing plans to begin accepting applications on July 1st for thirty-eight new medical cannabis establishments in North Jersey, the same number in Central Jersey and thirty-two in the Southern part of the State.

Obviously, the DOH could not condense a massive 130-page piece of legislation into a 12-page RFA.  The question thus becomes: does the Governor go along with the clearly well-thought out plan of the Legislature and sign the bill or does he go it alone?   Will this bill just become yet another pawn in the chess match underway between the Governor and the Legislature?  And, if the Governor decides NOT to sign the bill, does the Legislature have the political will to muster up 27 votes in the Senate and 54 votes in the Assembly and override the veto?  Some would say, if there was ever an occasion for the Legislature to override the Governor, it is when the question before them is whether to allow the Governor to ignore their work.  

Weighing in favor of the Governor taking out his pen and affixing his John Hancock is the fact there are several provisions not mentioned in the RFA but included in the legislation that would be very attractive politically.   For example, the creation of an Office of Minority, Disabled Veterans, and Women Business Development along with the goal of having 30% of the permits awarded to disadvantaged groups will be difficult for the Governor to disregard. Also, the annual reports, testing standards and sheer comprehensive nature of the legislation may very well encourage the Governor to choose cooperation.

However, some Trenton insiders think the Governor would be inclined to veto the bill – choosing to favor having full power of the program in the hands of the Department of Health, rather than in an independent Commission with five members (two of which will be appointed by Legislative leaders Sweeney and Coughlin).  Still yet, might the Governor postpone his action and use consideration of this bill as leverage to encourage legislative approval of the millionaire’s tax? 

Signature, veto, and override are all possible.  Drama, however, is certain.   

Stay tuned.

NEW JERSEY SEEKS TO EXPAND MEDICAL MARIJUANA PROGRAM

After the New Jersey Legislature was unable to come to an agreement on the terms of a bill to legalize recreational marijuana, they have refocused their efforts to greatly expand New Jersey’s current medical marijuana program.

On May 23, 2019, the New Jersey Assembly overwhelmingly passed the “Jake Honig Compassionate Use Medical Cannabis Act” by a vote of 65-5.  The bill, if ultimately adopted by the New Jersey Senate and Governor, would greatly increase patient access to medical marijuana.  Key elements of the bill include expanding the number of permits for medical marijuana businesses, increasing the limits on the amount of medical marijuana a patient can purchase, limiting the number of appointments a patient must have with a physician before a formal recommendation for medical marijuana treatment and expanding the methods by which patients can obtain medical marijuana.

Under the bill, the number of permits for medical marijuana businesses would be increased from twelve to twenty-three. Additionally, it would break up the permitting system to allow businesses to seek permits for only one aspect of the medical marijuana business such as retail sales, growing or manufacturing.  Under the current system, businesses are required to engage in all aspects of the market including growing, packaging, processing and sales.

The amount of medical marijuana patients are permitted to purchase would also be increased from two to three ounces per month.  The bill would also eliminate the requirement that the patient have at least a year long history of regular visits with the prescribing physician, prior to a recommendation for medical marijuana treatment. Patients and advocates had previously criticized these limitations arguing they prevented or delayed certain patients from obtaining access to needed medication.

The bill also increases access for patients who may be unable to travel to a dispensary to pick up their medication by permitting deliveries and increases the number of designated caregivers who can pick up a patient’s medication from one to two.

Under the new bill, a five-member Cannabis Regulatory Commission (the “Commission”) in the New Jersey Department of Treasury would be set up to assume the oversight and regulatory powers previously designated to the New Jersey Department of Health (the “DOH”).  The Commission would include at least one “social justice” member representative from a national organization with a “stated mission of studying, advocating, or adjudicating against minority historical oppression, past and present discrimination, unemployment, poverty and income inequality, and other forms of social injustice or inequality.”

Other aspects of the proposed bill include a sales tax of 6.625% to be phased out on January 1, 2025, authorizing municipalities with a dispensary within their borders to impose a 2% transfer tax, permitting municipalities to enact ordinances creating consumption areas for patients, authorizing physician assistants and some advanced-practice nurses to recommend medical marijuana treatment, and permitting patients who have received medical marijuana cards in other states to receive their medication in New Jersey for a period of up to six months.

The bill passed the Senate on May 29, 2019 by a vote of 33-4.  However, the Senate’s bill included a last minute amendment which would allow cannabis industry employees to unionize.  Accordingly, the Assembly must re-vote on the amended bill before it is presented to the Governor for final approval.  That vote may come as soon as June 10, 2019.

The Governor has not indicated whether he would sign the bill in its current form.  However, the DOH, on June 3, 2019, announced plans to begin accepting applications for 108 new medical marijuana businesses.  That number contradicts, and is significantly higher, than that in the proposed legislation.  Under the DOH’s plan, the new licenses would be split by regions with thirty-eight licenses each in the North and Central Regions and thirty-two in the Southern Region.  The DOH indicated it wishes to see these licenses result in twenty-four new growers, thirty new processors and fifty-four new retailers.

It is clear New Jersey is ready to expand its medical marijuana program.  However, given the separate, and somewhat conflicting, efforts to do so, it remains unclear exactly what the final terms of that expansion will be.

New Jersey Expands Its Medical Marijuana Program

Almost immediately upon taking office Governor Murphy issued Executive Order No. 6 directing the New Jersey Department of Health (the “DOH”) to undertake a review of all aspects of New Jersey’s Medical Marijuana Program (“MPP”) with a focus on ways to expand access to marijuana for medical purposes.  On March 23, 2018, the DOH issued its report with various recommendations for expanding the program. These recommendations fall into three categories: (1) Department Action Items; (2) Regulatory Action Items; and (3) Statutory Recommendations.

Department Action Items

Department Action Items will be implemented directly by the DOH without the need for formal rulemaking or any legislative action and will go into effect immediately.  These items include:

  • The addition of five new categories of debilitating medical conditions for which medical marijuana can be prescribed, including: (1) chronic pain related to musculoskeletal disorders; (2) migraines; (3) anxiety; (4) chronic pain of visceral origin; and (5) Tourette’s Syndrome; and
  • The development of a Mobile Access Portal for patients’ caregivers and physicians which will include the ability to securely upload documents and submit payments via smartphone or tablet.  The DOH is targeting spring 2019 for the portal’s implementation but, as an interim measure, has developed a program to provide mobile access to the current registry and payment processing system.  This access will go live in spring 2018.

Regulatory Action Items

Regulatory Action Items will require the DOH to go through the formal rulemaking process including a notice and comment period.  However, the DOH is taking steps to implement some of these items in advance of the formal rulemaking process.  These items include:

  • Reducing the biannual registration fee from $200 to $100 and expanding access to reduced registration fees of $20 to senior citizens and military veterans. The DOH will immediately begin charging these reduced fees in advance of the formal rulemaking process;
  • Permitting Alternative Treatment Centers (“ATC”) to dispense at satellite locations and have more than one cultivation site in order to increase supply and access. In advance of the formal rulemaking process, the DOH will consider requests from ATC’s for waivers of the one location restriction on a case-by-case basis;
  • Elimination of the physician registry which requires physicians interested in providing care to patients in the MPP to register with the DOH and have their names listed on the DOH’s website.  This will permit any New Jersey physician in good standing and in the possession of a CDS registration issued by the State Division of Consumer Affairs to authorize medical marijuana for their qualifying patients.  The DOH will continue to publish a list of physicians interested in providing care to qualifying MMP patients.  However, inclusion on the list will now be optional.  In advance of formal rulemaking, the DOH will begin transition in spring 2018 to eliminate the current physician registry procedure;
  • Streamlining the process for the addition of debilitating medical conditions for which medical marijuana can be prescribed. The DOH intends to remove the requirement that petitions for the addition of debilitating medical conditions be referred to the Medical Marijuana Review Board.  This will permit the Commissioner of the DOH to add debilitating conditions in extraordinary circumstance without a lengthy review process;
  • Permitting designation of a second primary caregiver for patients in the MPP.  The second primary caregiver will be subject to the same requirements as the primary caregiver.  In advance of formal rulemaking, the DOH intends to lift the one-person primary caregiver designation upon request;
  • Creating an endorsement system within the ATC permitting process that would allow ATC’s to engage in one or more of the following activities: (1) cultivation and harvesting of usable marijuana; (2) manufacturing and processing of usable marijuana; and (3) dispensing usable marijuana.  This revision would permit the DOH to approve ATC’s to perform the specific activities for which they are qualified, rather than limiting approval to ATC’s qualified to perform all of these activities;
  • Elimination of the 10% THC limit on products sold.  In its report the DOH pointed to an analysis performed by the State of Minnesota which found that higher potency THC treatments provide more effective treatment for a number of conditions; and
  • Elimination of the requirement of a psychiatrist’s evaluation prior to a physician authorizing medical marijuana use by minors. The DOH indicated in its report that the current requirement creates an artificial barrier to care, and there should be parity in the treatment of patients regardless of age.

Statutory Recommendations  

The DOH’s report recognizes that certain recommendations require revisions to the Compassionate Use Medical Marijuana Act (“CUMMA”) and thus fall beyond its authority. Therefore, it recommends working with the Legislature to revise CUMMA in a manner which will permit the following changes to the MMP:

  • Permitting edible products for all patients. Currently the CUMMA restricts use of edible products to qualifying patients who are minors;
  • Permitting patients to register at more than one ATC;
  • Permitting the use of marijuana as a first line treatment.  Currently, the CUMMA states that certain medical conditions must be “resistant to conventional medical therapy” to be considered a debilitating medical condition appropriate for treatment by medical marijuana;
  • Increasing the permitted monthly supply to four ounces for most patients and an unlimited supply for hospice patients.  Currently, the CUMMA limits physicians to authorizing a limit of two ounces in a 30 day period for all patients;
  • Removal of the requirement that the original ATCs be not-for-profit entities.

In addition to the recommendations discussed above the DOH’s report indicates it will continue exploring additional areas that could expand patient access to medical marijuana including: (1) home delivery; (2) permitting external companies to conduct quality control testing; (3) development of provider education programs and dosing guidelines; (4) elimination of the state sales tax; and (5) review of the ATC permitting and background check process.

The review of the MPP and the DOH’s recommendations are designed to change what Governor Murphy has referred to as the “restrictive culture” of New Jersey’s MPP.  The changes that go into effect immediately will certainly foster that goal, and it will be interesting to see how the other recommendations will proceed through the regulatory and legislative processes in the coming months.  It seems clear that the State is intent on ensuring all patients in need of medical marijuana are not restricted from that access by bureaucratic barriers.