Medical marijuana nursery. Photo: Shutterstock

Since Gov. Andrew Cuomo signed the Compassionate Care Act (N.Y. Pub. Health L. §3369 (2014)) (CCA), into law in July 2014, legalizing medical marijuana in New York state, the landscape for legal cannabis in New York has changed considerably. What originally was seen as one of the most restrictive medical marijuana laws in the country, viewed by some as so narrow and limited in scope that it was intended to fail, has evolved considerably as the atmosphere in the United States with regard to legal access to marijuana has changed.

The medical marijuana program created by the CCA, administered through the State Department of Health, established five “Registered Organizations” (ROs) for the distribution of cannabis. Each of these entities is allowed to be involved in all phases of the medical marijuana project created by the statute, from cultivation of marijuana plants to retail sales of the product. Cannabis, which was to be available only in capsules or liquid and oils (for vaporization or inhalation), may only be sold through authorized dispensaries. Each Registered Organization, however, was allowed to have only four dispensaries—a total of 20 in a state of more than 19 million people. Participation in the program was limited to persons with a handful of serious conditions—including cancer, AIDS and multiple sclerosis—and thus excluded many individuals who might benefit from it.

Further, to participate in the program an individual must be certified by a physician who is registered with it. One significant provision in the CCA that received little attention at the time it was signed deems persons covered by the program to be disabled under the New York State Human Rights Law. N.Y. Executive Law §296 (2005). And, the CCA prohibits any criminal penalties for physicians, patients or ROs for participating in the program.

Implementation of the CCA began in 2015 when the New York State Department of Health promulgated regulations. On July 31st of that year, licenses were awarded to five ROs and a certification course for physicians became available. ROs began dispensing medical marijuana to patients in January 2016. That same month, the first major change in the CCA's initially narrow reach took place: Nurse practitioners and physicians' assistants were permitted to certify patients to take part in the program in addition to doctors, greatly increasing the number of practitioners potentially authorized to approve new patients for using medical marijuana. Noah Potter, Presentation at the New York State Bar Association, Committee on Cannabis Law: Cannabis Law in New York and in the United States (Jan. 23, 2018).

Major Swing in Public Opinion Prods New York

Far from being a ground-breaker, as it has been in other areas, New York is the 23rd state to legalize medical marijuana. Nancy Guzenhauser Popper et al., “New York State's Medical Marijuana Law Gives Workplace Anti-Discrimination Protection,” Act Now Advisory (Epstein Becker & Green, Aug. 1, 2014). The fact that the legislature and governor passed and signed even the restrictive bill they did in 2014 reflects the dramatic shift in the public mood on this issue nationally. In the year that the CCA was passed, one poll showed 88 percent of New Yorkers favoring allowing medical marijuana to be used with a doctor's recommendation. Compassionate Care NY, Polling Data, (Feb. 19, 2018). Three years later, another poll revealed that 60 percent of Americans favored outright legalization of marijuana for all purposes. Robert A. Mikos, “Risky Business? The Trump Administration and the State-Licensed Marijuana Industry” 2 (Vanderbilt L. Sch. Legal Studies Research Paper Series, Working Paper No. 17-25, 2017). Adding to the climate in favor of changing the law in New York on this issue is the fact that New York's neighbors, New Jersey, Connecticut, Vermont and particularly Massachusetts, have all moved more rapidly to legalize marijuana.

Recent Changes in the Medical Marijuana Program

Although the program established by the CCA is not without its problems (To this day, none of the ROs are yet operating in the black, patient recruitment is not at the level that some would like and a number of counties still have no marijuana dispensaries.), beginning approximately one year ago the governor and the Department of Health began to implement a series of reforms in the medical marijuana program that have made it much less restrictive and arguably pointed the way to New York eventually joining its adjacent sister states as fully “marijuana friendly” jurisdictions.

The first major change in the nature and scope of the program took place at the end of 2016 when the Department of Health added “chronic pain” as a qualifying condition for medical marijuana. Because chronic pain is a side effect of many medical conditions, medical marijuana became available to far more people, and in June 2017 the Department announced that more than 7,000 new certified patients had been added to the program. At about that same time, the number of registered practitioners in the state passed 1,000 and physicians wishing to join the program were allowed to register online and begin certifying individuals that same day. Press Release, Department of Health, New York State Department of Health Announces Enhancements to Medical Marijuana Program (June 22, 2017) (on file with author). Equally significant, in August the Department doubled the number of approved ROs in the program to 10.

The medical marijuana program expanded yet again in November 2017 when Governor Cuomo signed legislation adding post traumatic stress disorder, a relatively widespread psychological disorder, to the list of qualifying conditions. And, on December 8th, the Department of Health announced the filing of regulations that would upgrade the program still further. Perhaps the most important of these is a regulation significantly increasing the forms in which marijuana could be sold. The new forms include ointments, patches, tablets, lozenges and even solid and semi-solid non-smokable plant material—in effect, everything but the kind of pot used in joints. Even home delivery of medical marijuana is permitted under the new regulations. Clearly, the medical marijuana program continues to evolve in the direction of being more accessible and user-friendly.

A Bridge Too Far, or an Inevitable Step Forward?

Following the 2016 election, eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington) had legalized marijuana for general adult use, with Vermont poised to become the ninth after its legislature passed a legalization law in January 2018. See Potter, supra at 5. As early as 2013, a proposed statute called the Marihuana Regulation and Taxation Act, or MRTA, that would fully legalize marijuana was introduced in the New York State legislature. S. 3040, A.03506. The MRTA did not pass in 2013, but has been reintroduced (though, obviously, not enacted) in subsequent sessions up to 2017. (In 2015, the New York City Council went on record as supporting the MRTA.) The breadth of the intersection of legalized marijuana, medical and otherwise, with many areas of New York law is illustrated by the number of New York statutes that would need to be amended should the MRTA be enacted: the Public Health Law, Vehicle Traffic Law, Penal Law, Alcoholic Beverages Control Law, Tax Law, Criminal Procedure Law, CPLR, General Business Law, Finance Law and Human Rights Law. See Potter, supra at 21.

A potential breakthrough occurred in January 2018 when Governor Cuomo announced that he wants New York state to fund a study by the Department of Health of legalizing marijuana for recreational as well as medical use. Josefa Velasquez, “Gov. Cuomo Proposes Study of Recreational Marijuana Legalization,” N.Y.L.J. (Jan. 16, 2018). The Governor noted legalization efforts in neighboring states, and stated “marijuana—things are happening.” The proposed study would be part of negotiations with both houses of the legislature, and a final spending plan is due in April 2018. One impetus for the Governor's action may have been the view that New Yorkers can easily obtain legalized pot from neighboring states, and that continuing to criminalize it here—with the resulting, continued toll of thousands of arguably pointless and harmful arrests for marijuana possession—makes little sense. Id.

Of course, it is too early to tell, but the Governor's initiative may be the first step toward New York joining, in the next few years, Massachusetts and other states in legalizing marijuana for general adult use. The implications of such a development for New York law in many areas and for the legal community are immense, one reason why the New York State Bar Association recently formed a Committee on Cannabis Law to track developments and advise the bar in New York. Press Release, New York State Bar Association, Committee on Cannabis Law (July 2017) (on file with author). In sum, New York has realized significant changes in this area since the passage of a narrow, limited piece of legislation that many saw as having little impact less than four years ago.

Geoffrey Mort is of counsel, and Desiree Gustafson is an associate, at Kraus & Zuchlewski.