Where Will Cuomo Get His Medical Marijuana?

The New York Times

reports that Gov. Andrew Cuomo, perhaps having noticed
that four-fifths of New Yorkers
support legal access to medical marijuana, has reversed his
position on the issue. According to the Times, Cuomo will
announce in his State of the State speech on Wednesday that
he plans to make marijuana available to patients with
specified conditions through a state-controlled distribution
system. That system supposedly is authorized by an obscure
law establishing something called the Antonio G. Olivieri
Controlled Substance Therapeutic Research Program.

The New York law is one of several medical marijuana bills
passed by state legislatures in the early 1980s, a period when even
Newt Gingrich, later known as a hardline drug
warrior, thought patients who could benefit from cannabis
should be able to obtain it legally. In 1981, a few years after the
federal government was compelled by a court order to start
supplying a small number of patients with cannabis under the
so-called
Compassionate Investigational New Drug (IND) Program, the
Georgia congressman introduced
a bill “to provide for the therapeutic use of marihuana in
situations involving life-threatening or sense-threatening
illnesses and to provide adequate supplies of marihuana for such
use.” That bill never passed, but similar ones did at the state
level. They typically did not amount to much because obtaining a
legal supply of marijuana proved impractical.

It is not clear how Cuomo plans to overcome that obstacle.
New
York’s law instructs the Department of Health to seek “an
investigational new drug permit” from the Food and Drug
Administration (FDA), meaning that legislators imagined the medical
marijuana program would proceed with the federal government’s
blessing. It says the commissioner of health “shall obtain
 marijuana through whatever means he deems most appropriate,
consistent with regulations promulgated by the National Institute
on Drug Abuse,  the Food and Drug Administration and the Drug
Enforcement Administration.” If proceeding with federal approval is
not feasible, the law says, the commissioner shall conduct an
inventory of available sources” including “the New York State
Police  Bureau of Criminal Investigation and local law
enforcement officials.”

The Times notes that “state and federal laws prohibit
growing marijuana, even for medical uses,” so “New York will have
to find an alternative supply of cannabis.” It cites unidentified
officials as saying “the likely sources could include the federal
government or law enforcement agencies.” The only source of
marijuana that is authorized by federal law is the crop grown at
the University of Mississippi for the National Institute on Drug
Abuse (NIDA). That is the source of cannabis for the federal IND
program, which the first Bush administration closed to new patients
in 1992. In the unlikely event that NIDA agrees to share its pot,
which would require approval from the FDA and the DEA, the program
contemplated by Cuomo would be legal. But if he instead tries to
use marijuana seized by “law enforcement agencies,” as the
Times suggests, he would be violating federal law.
Likewise if the state tried to grow its own crop.

These schemes would violate the Controlled Substances Act in a
way that merely exempting the medical use of marijuana from state
penalties does not, because state officials would be directly
involved in supplying marijuana. That is not the case in any of the
states that currently allow medical use of cannabis, where
cultivation and distribution are handled by private parties. At the
same time, relatively few patients would benefit from Cuomo’s
plan.

The Antonio G. Olivieri Controlled Substance Therapeutic
Research Program, named after a former New York City councilman and
state legislator who used marijuana to relieve the side effects of
cancer chemotherapy before dying from a brain tumor in 1980, is
“limited to cancer patients, glaucoma patients and patients
afflicted with other diseases as such diseases are approved by the
commissioner [of health].” The Times says Cuomo’s plan
would “allow just 20 hospitals across the state to prescribe
marijuana to patients with cancer, glaucoma or other diseases that
meet standards to be set by the New York State Department of
Health.” Those rules are far stricter than the criteria used by
states such as California and Colorado; the initial list of
qualifying conditions is even shorter than the one used
in New
Jersey, which has one of the country’s strictest medical
marijuana laws. In short, Cuomo is planning a medical marijuana
program that will be strictly limited but will probably violate
federal law if it happens at all. 

The Times notes that “medical marijuana bills have
passed the State Assembly four times—most recently in 2013—only to
stall in the Senate, where a group of breakaway Democrats shares
leadership with Republicans, who have traditionally been lukewarm
on the issue.” Hence Cuomo “has decided to bypass the Legislature
altogether.” Whether he can actually do that remains to be
seen.