New Jersey Expands Its Medical Marijuana Program

by Paul L. Croce

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.