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Cannabis Legalization in Urban Areas

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Cannabis Legalization in Urban Areas Cannabis Law in New York State and in the United States Noah Potter, Esq. [email protected] New York State Bar Association, Committee on Cannabis Law January 23, 2018 Rapid growth in cannabis legalization since 2014 Medical use The Compassionate Care Act passed in 2014 (seventeen years after medical cannabis legislation was first introduced into the legislature); it creates a pharmacy model of access to cannabis. Expanded/modified several times since commencement of program in January 2016. Full legalization “Marihuana Regulation and Taxation Act” introduced in both houses every legislative year since December 2013; proposes to create an alcohol model of access to cannabis. Hemp Industrial Hemp Program created 2015 Expanded dramatically since creation. Cannabis Law in New York State and the United States 2 About me Joined drug policy reform movement in 1993 due to interest in psychedelic therapies. B.A., Columbia College, 1995 – political science; focus on the evolution of the federal substance abuse prevention and treatment bureaucracy. J.D., Cardozo School of Law, 2000. Commercial and corporate control litigation in New York City since 2000. Of Counsel to the Hoban Law Group, a Denver-based, nationwide “cannabusiness” boutique law firm. Former chair and current member of the New York City Bar Association’s Committee on Drugs and the Law. Member of the New York State Bar Association’s Committee on Cannabis Law. Author of the Psychedelic Law Blog. Cannabis Law in New York State and the 3 United States Context of cannabis policy change in New York State • 1927 – beginning of cannabis prohibition under New York law. • 1937 – beginning of federal cannabis prohibition. • 1944 - LaGuardia Commission Report: rejected the “gateway theory” and other standard prohibitionist arguments. • 1965 – first public demonstration for legalization organized by Allen Ginsberg. • 1967 - Tompkins Sq. Park “smoke-in”; begins nationwide wave of outdoor cannabis gatherings. • 1977 - statutory decriminalization of personal use amounts of cannabis. • 1980 – “Olivieri Statute” (Public Health Law Art. 33-A) - medical cannabis statute, never- implemented. • 1990s – “Medical marijuana” buyers clubs form. • 1996 – People v. Moore 167 Misc.2d 994 (N.Y. Cty. Crim. Ct. 1996) – implicit recognition of medical use of cannabis by Manhattan D.A. Morgenthau. • 1997 - Assembly Member Richard Gottfried begins introducing medical cannabis legislation following passage of Proposition 215 in California in 1996. • 2013 – Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes begin introducing full adult legalization legislation, the “Marihuana Regulation and Taxation Act.” • 2014 – Enactment of “Compassionate Care Act,” current medical cannabis law. • 2014 – creation of Industrial Hemp Program. Cannabis Law in New York State and the 4 United States Context of cannabis legalization efforts in New York State, cont’d • Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Jersey, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and West Virginia, and the District of Columbia have legalized some form of medical use. • Nine states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont and Washington) and the District of Columbia have legalized the adult use cannabis market. In January 2018 the NH House of Representatives passed a legalization bill. Cannabis Law in New York State and the 5 United States What is a “medical cannabis” law? • Comes from the medical necessity defense, an affirmative defense to criminal prosecution. • First recognized in U.S. v. Randall, 104 Daily Wash. L. Rep. 2249 (Super. Ct. D.C. Nov. 24, 1976). The defendant, a glaucoma patient, argued that his possession of marijuana was medically necessary because he was using it successfully to save his vision in the absence of any other effective treatment. Judge Washington of the District of Columbia Superior Court engaged in an extended examination of the law of medical necessity as a defense to criminal prosecution and the history of marijuana prohibition before acquitting Randall. • Other states followed. See, e.g., State v Diana, 24 Wn. App. 908, 604 P.2d 1312 (Ct Appeals Div. Three 1979); Jenks v Florida, 582 So. 2d 676 (Ct Appeal of Florida, First District 1991). • In 1996 California voters made the affirmative defense a matter of statute via ballot initiative, Proposition 215. Cannabis Law in New York State and the 6 United States What is a medical cannabis law, cont’d Originally two sets of actors: (a) the physician who certifies that in his/her professional medical opinion the patient would benefit from cannabis and (b) the patient who acquires cannabis or a caregiver who provides cannabis to the patient. Now usually three sets of actors: (a) physician, (b) patient (possibly with a caregiver) who cultivates or otherwise acquires cannabis and (c) a third-party supply-side entity. Cannabis Law in New York State and the 7 United States Medical use of cannabis in New York • 1980 – “Olivieri Statute,” PHL Art. 33-A, creates medical cannabis statute (never implemented). • People v. Moore, 167 Misc.2d 994 (N.Y. Cty. Crim. Ct. 1996) – D.A. Robert Morgenthau declines to prosecute Medical Marijuana Buyers Club provider. • Assembly Member Richard Gottfried begins introducing medical use legislation in 1997, i.e., immediately after passage of Proposition 215 in California in 1996. Cannabis Law in New York State and the 8 United States Evolution of the medical cannabis law, cont’d Bill started as liberal, like the first generation of statutes; it became progressively more restrictive. For example, the 2010 version provided: • Individual cultivation • Retail dispensaries could be only non-profit organizations • Complete physician discretion in certifying patients See “Growing and selling marijuana in New York under the proposed medical marijuana law,” psychedeliclaw.com, May 27, 2010. Cannabis Law in New York State and the 9 United States The current system • Governor Cuomo signed the “Compassionate Care Act” into law in July 2014. The New York system is among the most restrictive in the United States. • Program is administered through the State Department of Health. • Pharmacy model. • Five “Registered Organizations” – complete vertical integration (all stages on the supply side, from cultivation through retail sale); the Department of Health recently announced it is licensing five additional Additional Organizations. • Maximum of 4 “dispensaries” per Registered Organization. • Cannabis is available only in highly-processed forms, e.g. liquid and oils for vaporization or inhalation and capsules. The raw botanical form of the plant and infused edibles are prohibited. (No smoking is permitted so as not to undercut the multi-decade campaign against tobacco.) No personal cultivation is permitted. Cannabis Law in New York State and the 10 United States Patients PATIENTS Participation in the program is limited. A patient can be certified to use cannabis only if s/he has a (a) “serious condition” enumerated in the statute: (a) cancer, (b) HIV+ positive status or AIDS diagnosis, (c) amyotrophic lateral sclerosis (Lou Gehrig’s Disease), (d) Parkinson’s disease, (e) multiple sclerosis, (f) damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, (g) epilepsy, (f) inflammatory bowel disease, (g) neuropathies, (h) Huntington’s disease, (i) PTSD and (j) chronic pain AND (b) any of the following conditions where it is clinically associated with, or a complication of a serious condition or its treatment: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, severe or persistent muscle spasms, or other conditions added by DOH. Cannabis Law in New York State and the 11 United States Patients, cont’d • A patient can be certified by a physician, a nurse practitioner or a physician’s assistant qualified to treat the particular serious condition applicable to the patient. • A patient can obtain only a 30-day supply of cannabis product. • Caregivers can be certified. Cannabis Law in New York State and the 12 United States The current system, cont’d Registered Organizations: • Complete vertical integration: cultivation, through processing, through retail sale. • Manufacturing/processing sites of RO’s are spread around the state (distant from their dispensaries). • Pharmacist onsite at dispensary. • Product-testing by independent laboratory. • Must be party to “labor peace agreement.” • DOH pre-approval of pricing, packaging and safety insert. • Electronic-filing requirements. Cannabis Law in New York State and the 13 United States The current system, cont’d Protections for actors in the medical cannabis market. PHL 3369 • No criminal or civil penalties for patients, caregivers, practitioners, registered organizations or their employees solely for any action or conduct under the CCA. • Being a certified patient shall be deemed to be having a disability for the purposes of certain sections of the Human Rights Law, the Civil Rights Law, the Penal Law, and Criminal Procedure Law. However, employers are not barred from enforcement of policies prohibiting drug use. • Being a patient or otherwise acting in accordance with the CCA shall not be a consideration in a proceeding pursuant to applicable sections of the Domestic Relations Law, the Social
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