• NYS Department of Health Developing Regulations Governing Use of Medical Marijuana for Official Launch in January 2016
  • October 2, 2014 | Authors: Alexander L. Betke; Emily E. Whalen
  • Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP - Albany Office
  • As one of its final acts of the 2014 legislative session, the New York State Legislature passed the “Compassionate Care Act” making New York the twenty-third state to permit the use of medical marijuana. This new law will allow doctors to prescribe marijuana in a nonsmokeable form to patients suffering from a list of enumerated diseases and afflictions. While the legislation was signed into law in early July 2014 and included an immediate effective date, the program will not officially launch until 18 months later, at which point registration of patients and issuance of identification cards shall commence. Over the course of those 18 months, the New York State Department of Health will work to develop the regulations governing administration of the program; until those regulations are developed, many questions and aspects of the program remain unanswered and unclear.

    With the enactment of the medical marijuana legislation in New York State, a patient suffering from a serious condition will be permitted to consume marijuana, as prescribed by a practitioner, via oils, vaporizers or ingestible forms. A serious condition is a life-threatening medical condition such as epilepsy, multiple sclerosis, amyotrophic lateral sclerosis (ALS or Lou Gherig’s Disease), Parkinson’s disease, Huntington’s disease, neuropathies, spinal cord injuries, cancer, and HIV/AIDS. The law also allows for the Department of Health, at its discretion, to decide whether the drug may be used to treat several other conditions, including Alzheimer’s disease, muscular dystrophy, dystonia, post-traumatic stress disorder (PTSD) and rheumatoid arthritis. While a degree of discretion has been built into the law, the list of conditions eligible for treatment remains quite narrow because the law is in no way intended to allow for the prescription of medical marijuana for minor maladies. Any patient receiving a prescription for medical marijuana must first be certified by a practitioner who has received special training on medical marijuana and its potential side effects.

    New York State’s program employs a “seed-to-sale” model, meaning the same company will produce and package the marijuana and operate the dispensaries. The state plans to authorize as many as five manufacturers to grow and sell the drug statewide, but the law does not specify where those manufacturers will be located. Applicants must detail their intended activities, provide proof that the applicant is of good moral character, and has the right to use sufficient land, buildings, equipment and any other premises necessary to participate in production or dispensing. Applicants unable to meet this proof may instead post a bond of no less than $2 million. The Department will have the discretion to grant registration or a license to an applicant who meets the previously mentioned requirements as well as to require further evidence to satisfy approval of an application.

    Despite the fact that a medical marijuana law is now on the books in New York State, there remain many outstanding questions that will need to be answered prior to the program’s official launch, not the least of which is how the state’s program will lawfully operate when the federal law regarding this issue is conflicting. While written to ensure that New York’s program can be strictly regulated and controlled by the Department of Health and members of the executive branch, the medical marijuana law leaves many things to the discretion of the Department of Health. Many of the details will remain unknown until regulations are written and the program becomes operational. While the state prepares to start dispensing medical marijuana to patients suffering from a serious condition, New Yorkers will gain a clearer picture of how the law will affect various groups and individuals.