Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, January 9, 2014

Questions about Governor Cuomo's Marijuana Initiative

I am thrilled to be joining this blog as a guest.  These are exciting times for those of us who have been following marijuana law and policy and I'm thrilled to have the opportunity to blog here for a bit.  You can also read the series Joel Warner and I are writing for or check out my academic writing on this and other subjects here.

New York Governor Andrew Cuomo announced the other day that he was using his executive powers to make medical marijuana available to those in need in his state.  What he envisions, though, is quite different from the free-for-all of states like California or the carefully regulated medical marijuana market in my home state of Colorado.  Rather, the governor seems to envision a very narrow exception to New York's general marijuana prohibition.  The plan would allow hospitals to administer marijuana to a narrow range of patients, principally those with life- or sense-threatening illnesses.

As enlightened as this approach seems, it also raises concerns.  For example, any doctor prescribing marijuana risks losing her license.  Marijuana is still classified by the federal government as a Schedule I narcotic, a drug with a high likelihood of addiction and no safe dosage.  Other medical marijuana states finesse this obstacle by requiring a doctor's "recommendation" rather than a "prescription".  Cases from the abortion context seem to indicate that a doctor cannot be enjoined from speaking with her patient about any potential treatment option.  Yet, when Governor Cuomo spelled out his plans in his State of the State address, he spoke of New York doctors being allowed to "prescribe" marijuana.

Another question that needs answering is exactly where this medical marijuana will come from.  While the 1980 law on which the governor draws envisioned federally-provided medical marijuana, it is not clear that that option is still available.  Furthermore, production of marijuana, even for medical purposes, remains criminal in New York as a matter of both state and federal law.  While early articles mentioned marijuana seized by law enforcement as a potential source, it is hard to imagine black-market marijuana being a part of a careful medical program. Furthermore, requiring health care providers in state-run hospitals to distribute marijuana to their patients would bring state and federal law into direct conflict; it is for this reason that other marijuana states have considered, but rejected, state-run dispensary models.

In the current issue of Rolling Stone, Bruce Barcott writes of the importance of multiple models of marijuana regulation, citing the differences between the approaches taken by Colorado and Washington State to legalizing recreational marijuana.  Governor Cuomo's initiative is an example of a new and innovative approach to medical marijuana, but at the moment it seems to raise at least as many questions as it answers.

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Nice post Sam.
I agree that the NY plan is fundamentally flawed, but I want to elaborate a bit on the distinction between recommending and prescribing marijuana. A physician needs the DEA’s permission to prescribe any controlled substance. Without this DEA registration, a physician cannot prescribe most drugs, including pain killers, seizure medications, antibiotics, and so on. And under DEA regulations, it is unlawful to “prescribe” any Schedule I controlled substance, including marijuana, at least outside of an FDA approved trial. So if a physician in NY were to “prescribe” marijuana to a patient, the DEA might yank her registration. The physician might not lose her medical license, which is issued and controlled by the state, but the DEA’s sanction would be nearly the same thing, since the physician could no longer prescribe most drugs to her patients. As a result, physicians would be leery of discussing marijuana with patients and few people would take advantage of the state plan. Indeed, a number of states including Virginia still have medical marijuana laws on the books; those laws date back to the late 1970s and early 1980s, but because they require physicians to issue prescriptions, they have been wholly ineffective.
By contrast, a physician does not need the DEA’s permission to merely “recommend” a drug. In most states, this recommendation merely entails a physician telling a patient that he “might benefit from the use of marijuana.” Importantly, the DEA cannot strip a physician’s registration merely for “recommending” marijuana. This may seem like a silly distinction, but the Ninth Circuit has held that merely recommending marijuana to a patient is protected speech under the First Amendment, see Conant v. Walters, 309 F.3d. 629 (2002), and the DEA seems to be following that decision nationally. This is why all states with effective medical marijuana laws (the 20 states including California that have adopted them since 1996) merely require a physician’s recommendation. It shields physicians from DEA sanctions, making them more likely to actually discuss marijuana with their patients.

Posted by: Rob Mikos | Jan 10, 2014 8:45:38 AM

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