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Almost legal: the strange way New York decided to allow medical pot

Written by Craig Rothstein

Is New York’s medical marijuana policy set up to fail?

It’s nearly impossible for me to write a story about marijuana policy because I carry the intrinsic bias of a former cancer patient who used marijuana to combat the laundry list of side effects that come packaged with traditional chemotherapies.

My cancer came before the immunotherapy craze. I received six months of old school chemo, the second-hand military grade chemical stuff. Marijuana was the only thing that quelled the nausea, fatigue, aches, depression, and host of other ills assailing me through that treatment.

Not long ago, marijuana had no recognized medical value anywhere in the United States. Now marijuana is legal in 29 states and the District of Columbia. In some states, notably Colorado, even the recreational use of marijuana has been codified by the legislature.

In July 2014, New York became a part of this group when Governor Cuomo and the legislature enacted the Compassionate Care Act, a strict set of regulations over the production, dispensation, and use of medical marijuana in New York State. The policy proceeds along well-trodden ground. Administered by the NY Department of Health’s Medical Marijuana Program, it defines a set of requirements for healthcare practitioners to become eligible to prescribe marijuana; it defines a short list of medical conditions that qualify for marijuana use; and it tightly regulates who can grow and sell marijuana.

The Compassionate Care Act also defines the form in which marijuana can be used. According to an email I received from the Department of Health, “Approved forms of medical marijuana in New York State include capsules, as well as liquid and oils for oral administration or vaporization.” The plant itself, however, remains illegal. This would seem to accomplish a political objective for Governor Andrew Cuomo, who many believe will run for president in the 2020 election. Cuomo can claim compassion for the sick, while maintaining a toe in the War on Drugs party line.

For the business community, which as it often does, had a hand in the writing of the legislation, the barriers to entry prevent everyone from throwing their hats into what’s likely to be a very lucrative ring. The requirements for laboratories, dispensaries, and standardization of the product mean serious investment. Only five companies have been approved so far to produce and sell medical marijuana in New York.

What’s curious, though, is that by setting this plan in legislation, New York has created a de facto pharmaceutical industry. When asked if this may cause overlap and confusion with the mission of the FDA, the NY Department of Health responded, “At this time, the FDA does not regulate the manufacture, distribution, and dispensing of medical marijuana products.”

Of course, the FDA, according to its mission statement, “is responsible for protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, and medical devices ”(1). New York, in creating a medical product from marijuana and regulating it as such, seems to have created an inevitable showdown, not with the federal government’s Justice Department, but with the FDA.

The conclusion of all this is a cliff hanger. People from business, politics, policy, and science, all came together to write the Compassionate Care Act, moving New York’s often intransigent legislature on a true hot button issue. The law appears flawed, if for no other reason than that it empowers the state with a traditionally federal responsibility. Will the policy stand? For now, the ball seems to be in the FDA’s court.