BLOGGER HTML TEMPLATE AS OF 4/15/16 BEFORE REDIRECTION TO WORDPRESS New Amsterdam Psychedelic Law Blog: January 2014

Tuesday, January 14, 2014

Test whether Cuomo is serious: when do we see the Executive Order?

The articles and comments I have seen concerning Governor Cuomo's proposal to re-implement the old, defunct Oliveiri Statute by executive order have been uniformly skeptical of his plan.

Some of them made the objection I did, which is that no hospital worried about losing federal funding is going to participate (although the article at the foregoing link indicates that there are hospitals interested in the idea).

I believe there is one fundamental question that must be addressed, ahead of all questions about whether hospitals will participate, what patients will be eligible and what will be the source of the cannabis (if Cuomo succeeds in hoodwinking the legislature into letting his executive order bypass the legislation that would create a licensed private-sector supply side).


We need a date certain by which he will issue the executive order, a statement as to who will be the point person to implement the order, and a date by which regulations will be promulgated. I explained in my first post on this topic that Governor Christie of New Jersey pulled a similar ploy in 2010: he tried to obstruct implementation of that state's program by proposing that Rutgers University grow cannabis as an alternative to implementing the duly-enacted statute. The New Jersey statute, enacted before Christie became governor. provide for creation of six "Alternative Treatment Centers." Although the statute as enacted called for creation of the ATC's and promulgation of regulations, the Christie administration failed to promulgate regs and instead Christie suggested ignoring that part of the statute and handing off cultivation to Rutgers. That didn't work but it delayed things for a little while.

Back to New York: I expect that unless people demand a date certain by which the executive order will be issued, Cuomo will delay until far enough along in the session that there will be insufficient time for advocates to analyze whether the plan is viable before this issue disappears into the whirlpool of other policy disputes. There was a big news splash when the Governor made his announcement, Assembly Member Richard Gottfried has stated that the Governor's support for implementation of a medical cannabis supply is good but new legislation is needed, and now all is quiet.

If Governor Cuomo is serious - and his announcement is not simply a political ploy - then he must state a date certain by which the order will be issued. Otherwise, his proposal is just a means of derailing the Gottfried-Savino medical cannabis bill and the Krueger-Peoples-Stokes general legalization bill.

Tuesday, January 7, 2014

The New York Times opposes the Cuomo proposal, calls on him to support the existing legislation

The New York Times today said that Governor Cuomo's proposal to distribute cannabis through hospitals may be too restrictive and called on him to support the Gottfried/Savino bill.

The Times put forth different reasons then I identified (that it's fundamentally unworkable since it would jeopardize federal funding of any participating hospital): the editorial board said that hospitals scattered across the state may not be sufficient to supply patients and there may not be adequate strains.

In other words, you have your pick of reasons why this proposal is a non-starter.

Cuomo has now stated that there should be a functional medical cannabis distribution system in New York. The only question is what type.

It is incumbent upon him and anyone else who opposes the Gottfried/Savino bill to explain with particularity what is the basis for their opposition. 

Monday, January 6, 2014

New York already is a medical cannabis state: what does the Senate propose now?

Upon further reflection following my first post on the Cuomo announcement and triggered by an interchange with a friend, I had the following thought:

Governor Cuomo's stated intent to resurrect and give effect to the Oliveiri Statute is a direct challenge to the Senate opponents of the medical use of cannabis. New York already is a "medical cannabis" Fn1 state and has been for thirty+ years by virtue of the Oliveiri Statute of 1980.

Since medical cannabis has been the law in New York state for decades, the Senators cannot legitimately oppose the medical use of cannabis per se.
They can only object to the manner of distribution and perhaps the scope of maladies for which it is available.
Therefore, the Senate must put forth its counterproposal for a distribution system, not argue as to whether there should be one under the law - because there already is one under the law.

[Fn 1. A/K/A "medical marijuana" for all you people searching "New York," "license," "grow" and "marijuana"]

Sunday, January 5, 2014

Major development in New York State: Governor Cuomo proposes a medical cannabis law - that's functionally unworkable

According to the New York Times, New York Governor Andrew Cuomo has announced that he will propose to distribute cannabis for medical purposes through hospitals. The idea is that he will reactivate the "Oliveiri Statute," New York State's medical cannabis law from the early 1980s that has sat unused on the statute books for decades.

I consider his proposal dead on arrival. The practical import of the Governor's proposal is that he is now on record as supporting a medical cannabis distribution scheme, leaving Senate Republicans as the sole holdouts. There is now one less major obstacle to enactment of a medical cannabis for New York State. The only question is what will be the form. 

The Governor's proposal is unworkable - and unnecessary

Governor Chris Christie in New Jersey proposed the same thing in that state back in 2010 as an attempt to delay implementation of the New Jersey med cannabis bill: instead of promulgating regulations giving effect to the statute as enacted, he said that Rutgers University would grow cannabis for the program and Rutgers said so oh no we won't, we're federally-funded and we're not going to jeopardize our federal funding by violating federal law, which prohibits all cultivation, distribution and possession of cannabis for any and all purposes. The proposal that Rutgers distribute faded away quickly.

Moreover, the idea of distributing cannabis through hospitals in the guise of open-ended "clinical trials" is long obsolete.

The Oliveiri statute was created in the early 1980s as part of a wave of similar statutes in other states; that was a time when it seemed that the federal government would permit clinical trials of cannabis and therefore a state could distribute cannabis to patients in the guise of an open-ended clinical trial. However, this idea died in the long night of the Reagan/Bush administrations, when the DEA rejected its own Administrative Law Judge's ruling  in 1988 that cannabis be moved out of Schedule I and the Bush Administration closed the Compassionate IND program to new patients (that being the program by which the federal government distributes cannabis from its grow operation in Mississippi directly to patients, only four of whom remain alive). 

The distribution model that is currently in place is retail dispensaries operated by private citizens.
The state medical cannabis laws that have emerged since 1996, when a voter initiative in California (Proposition 215) legalized medical use have left the Oliveiri distribution model in the dust - due to total intransigence at the federal level. The retail dispensary is the model which New York State Assembly Member Richard Gottfried has been attempting to make law since 1997. He has introduced the bill every year and every year the bill has become more restrictive as opposition from Senate Republicans leads advocate to hope that their compromises will lead the opponents to meet them halfway.

In other words, Governor Cuomo has taken the bold step of proposing...a medical cannabis scheme that is functionally impossible - and also unnecessary since all that is necessary is for him to endorse the Gottfried/Savino bill.

I am curious to see what the Hospital Association of New York State and similar folks, such as New York health lawyers, say about his plan.

If this proposal is dead on arrival then it's not really a legitimate attempt to enact a medical cannabis system. 
It is likely an attempt to derail both the Gottfried/Savino medical-use-only bill and Senator Liz Krueger's full legalization bill. On the other hand, it could be an attempt to pass the buck on the medical cannabis bill which Gottfried has attempted to pass for fifteen+ years: Cuomo may be trying to put the spotlight on the opponents in the Senate and force them to explain their opposition now.

The irony is that the Times article portrays Cuomo's plan as the executive branch's attempt to overcome the longstanding failure of the legislative branch to pass Gottfried's medical cannabis bill when the opponents of Gottfried's bill in the legislature have been saying that if Cuomo doesn't support a medical bill then why should we?

(The Governor's proposal also could provide a new challenge to the federal government's policy of preventing  clinical trials of cannabis: presumably implementing the Oliveri Statute wouldn't be a problem if the federal government would reopen the Compassionate IND Program and direct the National Institute on Drug Abuse's farm at the University of Mississippi to distribute to hospitals.)

On the whole, the Governor's announcement is a positive step forward - at least if you believe that, now that the other states have moved on to full legalization, there is any purpose in enacting a medical-use-only law.