Cannabis war in the Empire State: transparency is victory

The newsmedia is abuzz with reports that both of New York’s US senators have requested that the Department of Justice favor Cuomo’s request to purchase high-CBD products from other states for use by children with severe epilepsy until New York’s program is operational. The New York Daily News rightly reported criticism from advocates that the request for federal permission to move cannabis in interstate commerce is a long shot and that Cuomo could just license someone to manufacture in New York State now.

The stories coming out now corroborate my statement yesterday that Cuomo appears to have chosen the most complicated option for getting cannabis immediately to patients.  The “problem” is not very difficult to solve:

A. Let patients and their caregivers cultivate cannabis. That was the intention of the original “medical marijuana” laws of the 1990s and 2000s – allow patients to grow and use cannabis without fear of prosecution. It’s that easy. Cannabis grows out of the ground with little difficulty.

B. For patients who need or want a low-THC/high-CBD strain allow specialists with the necessary experience to open up shop here and begin manufacturing immediately.

All of the “obstacles” that exist are of human invention and can be resolved easily if Cuomo wishes to do so. However, the record of Cuomo’s conduct as to cannabis law reform is a consistent pattern of sabotage dating back to last December when instead of engaging in an honest and open negotiation over the provisions of the proposed Compassionate Care Act he proposed an obviously ludicrous alternative (reimplementing the defunct and hopelessly obsolete Oliveiri research program). [fn]

I believe that Cuomo’s goal is to prevent implementation of a legal cannabis market (medical or otherwise) as long as possible and by any means necessary.

I have discussed at length on this blog how the New York medical cannabis legislation sickened and died in the course of becoming law. None of what is happening now should be any surprise.

Indulge me with a proposal for starting at a more productive point.
New York State does not need a waiver from the United States government for anything.
For immediate purposes, it does not need anything more complicated than (a) a directive from the Governor that state administrative agencies are to take no punitive criminal or civil action against New York citizens for cultivating and/or possessing cannabis as patients or caregivers for patients and (b) issuance of regulations yesterday – if not three months ago – governing emergency access, pending full implementation of the CCA, to specialized strains of cannabis (e.g. high-CBD/low-THC) that cannot be easily cultivated by amateurs, including expedited procedures for applying for a license.

Solving the problem of emergency access to cannabis is not really very complicated. In fact, it’s a decoy issue…a non-issue. What the voters and taxpayers of New York State really need is transparency.

Cuomo’s modus operandi from the beginning has been subterfuge and concealment. As discussed above, instead of engaging in an open and conversation with the bill sponsors in 2013 and 2014, he made vague statements through his spokesman Larry Schwartz suggesting that he would support a medical marijuana program that “made sense.” He kept silent the entire time that Senator Savino struggled to force the CCA out of the Health Committee in which Republicans had pinned down the bill for years and into the full Senate for a vote. Then he attacked and crushed the cannabis law reform movement – a collection of sick people, including young children, seeking legal, quality-controlled access to relief. Having reduced the CCA to a useless pile of rubble, in part by eliminating the advisory committee that would have ensured that the new system would have the most patient-, industry- and local government-friendly rules, he has proceeded to keep the entire program a mystery.

People who want to see implementation of a successful medical cannabis regulatory system in New York need to know the following:

– who in the Department of Health has been tasked with creating the office that will regulate cannabis
– what budget has been allocated to the task of creating the office
– who in DOH has been tasked with drafting regulations
– what resources does DOH plan to consult when drafting regulations
– does DOH intend to hold public hearings in the course of preparing the first full draft of regulations and if not why not
– what is the date certain by which DOH will issue its emergency access regulations
– what is the date certain by which DOH will issue its first draft of the full regulations

The optimal form of regulation is one conducted in the open, transparently, with maximum stakeholder participation and maximum regulatory deference to the needs of the stakeholders and the experience of other states. To date, the Executive Branch has been acting in a manner commensurate with this state’s official designation as the “Empire State.” The faster and farther the Empire is ejected from the cannabis market the sooner there will be a well-functioning legal medical cannabis market in New York.

FN. This tactic is equivalent to a tactic that NJ Governor Christie used in 2011 as part of his strategy of delaying operation of a medical cannabis market there: unilaterally deciding that the already-enacted statute should be changed so that only Rutgers University – an entity dependent on federal funds – would cultivate cannabis. Rutgers refused. It wasn’t a serious proposal anyway, just a delay tactic. Likewise, Cuomo’s outreach to the federal government is just a delay tactic.

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Author: Noah Potter Law

I'm a commercial litigator based in New York providing provide legal research, writing and strategic analysis as an independent contractor to other attorneys. I have unusually long experience with drug law and policy generally and with cannabis in particular dating back to my time as an undergraduate political science student at Columbia.

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