Assembly Democrats are deploying the threat of a rarely used “legislative veto” to push for the easing of state restrictions on medical marijuana that advocates say have made it difficult for patients to access the drug and discouraged the opening of enough marijuana dispensaries to make the program work.
The Assembly yesterday passed a concurrent resolutionauthorized by a state constitutional amendment approved by voters in 1992. If the measure also passes in the Senate, the Department of Health will have 30 days to change or withdraw certain regulations governing medical marijuana. The measure may not be vetoed.
If the agency does not act, the Legislature can pass a second resolution that would invalidate the regulations, which could leave thein regulatory limbo. That appears unlikely to happen -- it’s uncertain if the Senate will even pass the first resolution -- but lead sponsor Assemblyman Reed Gusciora (D-Mercer) said the administration’s shackling of the marijuana program makes the threat necessary.
“That would certainly be a drastic measure,” he said Wednesday, referring to the invalidation of regulations. “But nonetheless, it's (needed) to force the issue with the Department of Health.”
“I'm at this point where I am pushing this legislation because the bottom line is there aren't enough dispensaries, and there's not satisfaction from patients or providers that the program is beneficial to anyone,” he said.
Gusciora and the other sponsors say several Department of Health regulations violate the intent of the medical marijuana measure signed into law by Gov. Jon Corzine in January 2010, shortly before Gov. Chris Christie took office. As a result, only three dispensaries are open, even though the law calls for the establishment of six. Gusciora said just one is doing well while the other two have struggled. A fourth dispensary has only a permit to grow medicinal marijuana.
Christie opposed the medical marijuana law when he was running for office, though in 2013 herelaxing some rules that kept children from participating in the program. This week he restated his opposition to a broader legalization of marijuana for recreational use, describing pot as “a gateway drug to other drugs” and calling potential taxes from marijuana
Among the disputed medical marijuana regulations is a requirement that doctors join a public registry before they can prescribe. The resolution also challenges a rule that minors obtain permission from two or three doctors, including a psychiatrist; prohibitions on home delivery and dispensary satellite locations; and the makeup of a panel that would recommend which conditions may be treated with marijuana.
“The very same doctors who can already prescribe morphine, who can prescribe opiates, they can't prescribe marijuana unless they register with the state. [The doctors] have a real problem with that,” Gusciora said. “They don't want to be designated by the state as quote-unquote 'pot doctors.' It's caused a chilling effect for doctors to sign up.”
Gusciora’s resolution also says the state should stop limiting the level of psychoactive THC in the drug or the number of strains of marijuana that can be grown, and should approve the use of edible forms for minors and others. He cited the much-publicized case of, a toddler from Scotch Plains who needed edible marijuana products to treat a severe epilepsy disorder. Her family moved to Colorado last year because edibles are not available in New Jersey.
“It's almost death by a thousand cuts,” Gusciora said. “The regulations have really greatly impeded patients' access to medical marijuana and doctors' ability to participate in the program, and other dispensaries from coming on board. Because, let's face it, even as nonprofits they still need to make money. If they're not going to have a sufficient patient base, they're just not going to open their doors.”In addition to the concurrent resolution, the Assembly yesterday passed two companion bills: one that would allow transfer of marijuana from one dispensary to another, and a second bill adding post-traumatic stress disorder to the list of qualifying conditions.
A Christie spokesman did not respond to emailed questions about the concurrent resolution, but the Department of Health says it is committed to implementing the medical marijuana law effectively.
Health Department spokeswoman Donna Leusner said 4,000 patients, 500 caregivers, and 325 physicians are participating in the program, and said 48 percent of patients qualify for a reduced registration fee of $20 every two years, compared to the standard $200 fee. Gusciora described the standard fee as “onerous,” saying it is higher than in other states and keeps patients from signing up.
Leusner said in an email that the physician registry was created to help patients find registered doctors, and said a psychiatrist must evaluate a participating child to watch for negative impacts on brain development and to provide information to the child’s family about the benefits and risks of the drug.
She noted that, a year and a half after Christie signed the law allowing production of edible medical marijuana for children, manufacturing standards for edibles were finally sent to the dispensaries on March 10. The Department of Health plans to put those standards into regulations. However, it is unclear when edibles will actually be available, and even then, elderly participants and others in the program will still only have access to smokeable marijuana.
Leusner declined to explain the continuing ban on home deliveries, which Christie demanded as part of a 2010 compromise with Gusciora that paved the way to implementation of the medical marijuana law. In the past. the department has cited safety concerns and the potential for diversion of the drug. A caregiver may be authorized to pick up the drug from a dispensary (after paying another $200 or $20 fee), and the department has tried to identify organizations that could help hospice patients who cannot travel.
“We would like to work with them on what their challenges are, but we have been unable to identify a hospice organization that wants to work with the program. (Perhaps they have concerns about jeopardizing federal funds since the federal government has classified marijuana as an illegal product with no medicinal value),” Leusner wrote in an email.
She also said the 2013 legislation lifted the strain limit and 33 strains are now available, but did not explain why the level of tetrahydrocannabinol (THC), marijuana’s main psychoactive ingredient, remains limited to 10 percent. In the past the department has said that U.S. studies have shown that marijuana with 10 percent or less THC is medically effective, and cited the Dutch government’s opinion that high-THC marijuana should be categorized as a hard drug such as cocaine and heroin.
Some of the difficulties related to medical marijuana, such as evaluation of proper THC levels, stem from its federal classification as a Schedule 1 drug, which limits scientific study. This month, U.S. Sen. Cory Booker (D-NJ), Sen. Kirsten Gillibrand (D-NY), and Sen. Rand Paul (R-KY) introduced athat would move marijuana to Schedule 2, ending a federal prohibition on medical use and permitting more research, and would remove the threat of prosecution for New Jersey patients.
But Gusciora said the New Jersey program’s troubles are ultimately not attributable to federal law or even to the state Department of Health. The Christie administration has at a higher level worked to hinder implementation of the state law, forcing legislators to take the extreme step of threatening to invalidate regulations promulgated by the executive branch, he said.
Since 1992, 167 such resolutions have been introduced on various issues but only seven have passed both houses and been filed with the Secretary of State, according to the Office of Legislative Services. In 2010 Gusciora sponsored one on medical marijuana that passed, but he and Christie subsequently reached theirand there was no followup resolution to invalidate any regulations. It appears the legislature has never passed a resolution that actually annulled a departmental rule.
“It's distasteful taking on the administration. That's why these concurrent resolutions are difficult,” Gusciora said. “The other party supplied votes on medical marijuana; I doubt they would want to take on the administration. And there may be Democrats that don't think that this is the right way to go either. You're causing a confrontation with the executive and legislative branch.”
“So, this should be done rarely, but I think this is one of those instances,” he said.
The other sponsors of the Assembly concurrent resolution are Assembly members Tim Eustace (D-Bergen), Thomas Giblin (D-Essex) , Cleopatra Tucker (D-Essex), and Ralph Caputo (D-Essex). There is no Senate version yet, but Gusciora said it will be introduced by Sen. Nicholas Scutari (D-Middlesex, Somerset, Union), a sponsor of the original medical marijuana law and other.