Cuomo’s Cautious Medical Marijuana Deal

The landmark medical marijuana deal announced by Gov. Andrew Cuomo and state lawmakers Thursday paves the way for a drug program that mirrors existing programs in 22 states and the District of Columbia.

But New York’s comprehensive medical marijuana program will incorporate three unusual components: a sunset clause, a kill switch and a prohibition on smoking the drug.

All three were included at the insistence of Gov. Andrew Cuomo, who demanded a smoking ban during negotiations and repeatedly emphasized the potential risks of legalizing marijuana for patients struggling with severe illnesses. The governor said that the compromise bill “strikes the right balance” between helping those in pain and preventing abuse.

“We also have a fail-safe in the bill, which gives me a great deal of comfort, which basically says the governor can suspend the program at any time on recommendation of either the State Police superintendent or the commissioner of health, if there is a risk to the public health and the public safety,” Cuomo said at a Capitol press conference to announce the agreement.  

State Sen. Diane Savino, who championed the legislation that provided a template for the final agreement, researched medical marijuana programs in other states and said that she had fine-tuned her bill, the Compassionate Care Act, based on what had worked well elsewhere and what had not.

One conclusion she drew was that smoking marijuana can be more effective for some patients since the dosage can be controlled more precisely, an argument echoed by some patient rights advocates. Of the 22 states that allow medical marijuana, New York will be just the second to ban smoking as a delivery method for patients, following Minnesota.

However, some states have passed legislation that is even more limited than in New York. In addition to the 22 states that allow medical marijuana, another eight—Alabama, Iowa, Kentucky, Mississippi, South Carolina, Tennessee, Utah and Wisconsin—have enacted more restrictive laws that only let patients use cannabidiol, or CBD, a medical grade oil extracted from the plant. A CBD bill in Missouri passed the state Legislature and is awaiting the governor’s signature.

“You can’t stand in the way, because there are other delivery methods that are as effective—vaporizing is one of them,” Savino told reporters after the announcement Thursday. “Many patients have actually started now using the e-cigarette version with medical marijuana as well. But for the children, who you’ve all seen here daily, who will benefit from oils, how could we say no and stay in the way on smoking?”

The compromise measure in New York also incorporates a seven-year sunset, after which the program would expire or would have to be renewed, and it gives the governor the authority to shut down the program on the recommendation of the health commissioner.

“The kill switch thing is overkill in a lot of ways,” said Gabriel Sayegh, the state director for the Drug Policy Alliance in New York. “In the previous bill the governor had that ability anyways because everything ran through the Department of Health, the licensing and everything else. As advocates, we would much prefer there to be some protection in a program like this so that if another governor comes in and wants to turn this into another political thing, or even if this governor changes his mind, you don’t want to be in that situation of being subjected to that kind of executive whim.”

Sayegh also argued that the sunset provision is unnecessary, citing successful programs already up and running across the country.

“We know how to build them and make them work,” he said. “A sunset provision would make sense if New York went first. Going number 23 it makes a lot less sense. That said, frankly once patients get access to this, and we’re going to work for that to happen expeditiously, and the benefits of this start to be seen, it will hopefully be difficult for them to try to end the program.”

Otherwise, the bulk of the pending legislation in New York borrows from programs in a growing number of states across the country. Currently lawmakers in Ohio, Kentucky, Pennsylvania and Florida are weighing bills that would create comprehensive medical marijuana programs. Florida residents will vote on a ballot measure to legalize medical marijuana in November. Maryland and Minnesota have also enacted in the last month limited medical marijuana study programs exploring the use of other forms of the drug.  

As in other states, the bill introduced by the Cuomo administration Thursday evening has a list of diseases that qualify for medical marijuana as well as a broad list of symptoms patients must exhibit to obtain the drug. New York’s program would cover nearly a dozen diseases—relatively few compared to some states—including cancer, HIV or AIDS, Parkinson’s disease, spinal cord injuries, multiple sclerosis, epilepsy and Huntington’s disease. The drug could also be used to treat severe or chronic pain, severe nausea and severe or persistent muscle spasms.

The state Health Department could later add to the list of qualifying diseases and symptoms, although overturning the smoking ban would have to be taken up in the Legislature.

It is unclear what dosage amounts will be allowed under the governor’s bill, but the Compassionate Care Act would have allowed no more the more than 2 ounces of marijuana in a 30-day period. That would be on par with most other states, which range from 2 to 2.5 ounces. (The exceptions include Alaska, which allows just one ounce, and Washington, with 24 ounces.)

Patients under the age of 18 would be allowed to use medical marijuana in New York, but the application for registry would have to be made by a person over the age of 21 and a parent or legal guardian must be designated as a caregiver to the patient. Many states have similar laws allowing the use of medical marijuana for minors. Only Connecticut and Delaware ban the use by minors.

For all the concerns that critics still have with the final bill, Savino said the important thing is that those who need medical marijuana will have access to  it in as soon as 18 months. 

“We didn’t have anything in New York last week,” Savino said. “We will have a program. You can always expand that program, you can always improve that program. But the important thing is you have the program.” 

Click here to see how the New York legislation compares to other medical marijuana laws: Medical Marijuana, State by State