ACR151

A Concurrent Resolution concerning legislative review of Department of Health and Senior Services draft proposed rules to implement the “New Jersey Compassionate Use Medical Marijuana Act.”

Whereas, Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement; and

Whereas, In 2010, the Legislature enacted the “New Jersey Compassionate Use Medical Marijuana Act,” P.L.2009, c.307 (C.24:6I-1 et al.), as amended by P.L.2010, c.36 to change the effective date of the act from July 1, 2010 to October 1, 2010; and

Whereas, On October 6, 2010, the Department of Health and Senior Services posted on its Internet website draft proposed rules to implement the act, pending publication of same in the New Jersey Register; and

Whereas, Section 3 of the “New Jersey Compassionate Use Medical Marijuana Act,” defines “debilitating medical condition” to mean:

(1) one of the following conditions, if resistant to conventional medical therapy: seizure disorder, including epilepsy; intractable skeletal muscular spasticity; or glaucoma;

(2) one of the following conditions, if severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome results from the condition or treatment thereof: positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or cancer;

(3) amyotrophic lateral sclerosis, multiple sclerosis, terminal cancer, muscular dystrophy, or inflammatory bowel disease, including Crohn's disease;

(4) terminal illness, if the physician has determined a prognosis of less than 12 months of life; or

(5) any other medical condition or its treatment that is approved by the department by regulation,

and notwithstanding that only those illnesses listed in paragraph (1) above are required to be “resistant to conventional medical therapy” to qualify as a debilitating medical condition, the draft proposed rules would require physicians to certify that this is the case for all patients, regardless of their debilitating medical condition; and

Whereas, Section 3 of the act, which took effect on October 1, 2010, provides in the definition of “debilitating medical condition” that the department may add other medical conditions or treatments; however, the draft proposed rules unnecessarily delay consideration of adding other medical conditions or treatments and state that the Commissioner of Health and Senior Services shall take no action concerning the acceptance of petitions to approve other medical conditions before it has completed at least two annual reports to the Governor and Legislature; and

Whereas, Section 7 of the act directs the Department of Health and Senior Services to seek to ensure the availability of a sufficient number of alternative treatment centers throughout the State, including at least two each in the northern, central, and southern regions of the State, and further provides that an alternative treatment center shall be authorized to acquire reasonable initial and ongoing inventories of marijuana seeds or seedlings and paraphernalia, possess, cultivate, supply, sell, or dispense marijuana, or related supplies to qualifying patients or their primary caregivers; however, the draft proposed rules would create two functional categories of alternative treatment centers, “alternative treatment center—dispensaries,” which the rules prohibit from cultivating marijuana, and “alternative treatment center--plant cultivations,” which the rules prohibit from dispensing marijuana directly to patients. The effect of creating these two categories may be to unreasonably limit the supply of, and reduce qualifying patients’ access to, medicinal marijuana; and

Whereas, The draft proposed rules establish an arbitrary limit on the permissible levels of delta-9-tetrahydrocannabinol (THC) that medical marijuana may contain. No other state with a medical marijuana program has sought to do this, and such a limit is not consistent with the Legislature’s intent to provide relief to suffering patients in this State and will impose an unnecessary and undue burden on alternative treatment centers; and

Whereas, The above provisions proposed by the Department of Health and Senior Services are not consistent with the plain language of the “New Jersey Compassionate Use Medical Marijuana Act” and would undermine the Legislature’s intent to provide for a viable medical marijuana program that assures an adequate supply and delivery to suffering patients; now, therefore,

Be It Resolved by the General Assembly of the State of New Jersey (the Senate concurring):

1. The Legislature declares that the draft proposed rules to implement the “New Jersey Compassionate Use Medical Marijuana Act,” posted on the Internet website of the Department of Health and Senior Services on October 6, 2010, are not consistent with the intent of the Legislature as expressed in the language of “New Jersey Compassionate Use Medical Marijuana Act,” P.L.2009, c.307 (C.24:6I-1 et al.), as amended by P.L.2010, c.36.

2. The Clerk of the General Assembly and the Secretary of the Senate shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Commissioner of Health and Senior Services.

3. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Commissioner of Health and Senior Services shall have 30 days following transmittal of this resolution to amend or withdraw the proposed rules and regulations, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.

STATEMENT

This concurrent resolution embodies the finding of the Legislature that the draft proposed rules posted on October 6, 2010 on the Internet website of the Department of Health and Senior Services to implement the “New Jersey Compassionate Use Medical Marijuana Act,” P.L.2009, c.307 (C.24:6I-1 et al.), as amended by P.L.2010, c.36, are not consistent with the intent of the Legislature as expressed in the language of the act.

The draft proposed rules would require physicians to certify that each patient seeking to use medical marijuana under the program has not responded to conventional medical treatment, even though the statute requires that only seizure disorders, intractable muscle spasticity, and glaucoma be resistant to conventional medical therapy to qualify as a debilitating medical condition, while the Legislature clearly intended that the following conditions are eligible without any additional requirement:

· one of the following conditions, if severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome results from the condition or treatment thereof: positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or cancer;

· amyotrophic lateral sclerosis, multiple sclerosis, terminal cancer, muscular dystrophy, or inflammatory bowel disease, including Crohn's disease;

· terminal illness, if the physician has determined a prognosis of less than 12 months of life.

In addition, while the act provides that the department may add other medical conditions under the act which took effect on October 1, 2010, the draft proposed rules would unnecessarily delay consideration of adding other medical conditions and treatments until the department has completed at least two annual reports to the Governor and Legislature.

Further, the statute directs the Department of Health and Senior Services to seek to ensure the availability of a sufficient number of alternative treatment centers throughout the State, including at least two each in the northern, central, and southern regions of the State, and further provides that alternative treatment centers shall be authorized to acquire reasonable initial and ongoing inventories of marijuana seeds or seedlings and paraphernalia, possess, cultivate, supply, sell, or dispense marijuana, or related supplies to qualifying patients or their primary caregivers. The draft proposed rules, however, would prohibit an entity designated as an “alternative treatment center--dispensary” from cultivating marijuana, and an entity designated as an “alternative treatment center--plant cultivation” from dispensing directly to patients. These prohibitions, when combined with the department’s stated intent to initially authorize only two alternative treatment centers to cultivate medical marijuana, and only four to dispense it, will significantly limit patient access to alternative treatment centers that dispense marijuana. Such limited access was not intended by the Legislature when enacting the statute.

The draft proposed rules additionally undermine the Legislature’s intent to provide a viable medical marijuana program that will alleviate patient suffering because the draft proposed rules introduce an arbitrary maximum limit on the permissible levels of delta-9-tetrahydrocannabinol (THC) that medical marijuana may contain, a limit which no other state with a medical marijuana program has imposed. The department has indicated in a public hearing that all marijuana that exceeds the THC limit must be destroyed. These restrictions will not only unnecessarily burden alternative treatment centers, but they will undermine the Legislature’s intent to provide for a viable medical marijuana program that assures an adequate supply and delivery to suffering patients.

The resolution provides that the commissioner will have 30 days from the date of transmittal of this resolution to amend or withdraw the proposed rules and regulations, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.