In The Weeds
April 11, 2011
Julia Dahl, The Crime Report
Late in the afternoon of January 11, 2010, the day the New Jersey legislature voted to legalize medical marijuana, Nancy Fedder was in her scooter on the Senate floor, stressing out.
Fedder, 63, lives in Hillsborough, NJ and was diagnosed with multiple sclerosis in 1993. She has been fighting to get safe access to marijuana―which she uses to relieve pain and stiffness in her feet and legs―for years. Today was D-Day, and she was nervous.
“We’d been told we had the votes,” recalls Fedder. “But nobody wanted to get too excited.”
Beside her sat half a dozen other people, several in wheelchairs. One of them was Mike Oliveri, then 26, a resident of Bergen County who suffers from muscular dystrophy and moved to Los Angeles in 2008 to safely access medical marijuana. His mother, Christiane, was busily helping the chair-bound advocates who had been waiting all day for the Assembly and Senate to get around to voting on the New Jersey Compassionate Use Medical Marijuana Act .
Tension grew. After going hours without their medicine, Fedder remembers that she and the others were far from comfortable. Fortunately, Oliveri had brought special marijuana-laced Jolly Ranchers from California. He handed them to his mom and she passed them out to the patients in pain, right there on the Senate floor.
“I never thought I’d support marijuana,” says Christiane Oliveri, 56, who launched a center in Bergen County in 2002 to keep local kids away from pot and alcohol.
“But I lost my son to the morphine and other drugs he was taking. When he found marijuana, the sparkle came back in his eyes. He could eat, he could practice guitar, and I realized that the judgments I had about marijuana were based on ignorance.”
With a little fruit-flavored medicine in their bloodstreams, the stress waned a bit, and when the vote went their way (48-14 in the Assembly, 25-13 in the Senate) the chair-bound patients and their supporters erupted in cheers.
That night, they celebrated New Jersey becoming the 14th state to legalize medical marijuana with a dinner at the nearby Marriot.
“We all figured that by the summer, we’d be able to buy good, clean medicinal marijuana at a good price,” says Fedder now.
“We were wrong.”
Patients Still Waiting
Fifteen months later, not a single New Jersey patient has legally received the medicine that the Compassionate Care Act rendered legal.
Supporters of the bill blame the change in the state’s political leadership. Outgoing Democratic Governor Jon Corzine signed the bill into law on his last day in office. But the following week, the administration of newly elected Republican Governor Chris Christie took over.
“If Christie had been governor when the law passed, he probably wouldn’t have signed it,” says Senator Nicholas Scutari, who sponsored the bill in the Senate.
Advocates and patients say the new administration underlined the point by proposing regulations that would make it as hard as possible for people to get medical marijuana legally.
“Christie took an already restrictive law and made it even more restrictive,” says Meagan Glaser, Policy Coordinator for Drug Policy Alliance New Jersey, a pro-medical marijuana advocacy group.
New Jersey’s medical marijuana law was already perhaps the strictest in the nation. Unlike the other states that have legalized the drug for medicinal purposes, New Jersey will not allow qualified patients to grow the plant at home, meaning that the only way they can access the drug is at a designated “Alternative Treatment Center (ATC).”
The law established that the state should open “at least” six ATCs for the population of more than eight million.In contrast, Washington, D.C., which is also currently implementing a medical marijuana program, is considering five dispensaries for its 600,000 residents.
The New Jersey law also sets a two-ounce monthly limit per patient on the drug, and severely limits the medical conditions that qualify a patient for participation in the program.
But the state found a way to toughen it still further.
Under the Act, the state’s Department of Health and Senior Services had until October 2010 to create regulations for the program. However, on June 10, Christie and the DHSS asked for a six to 12 month delay. The legislature balked, and the two branches compromised on a 90-day delay, setting a January 2011 deadline for the final regulations.
On November 15, the DHSS issued a draft of its proposed regulations, confirming advocates’ and patients’ worst fears.
First, the new regulations made clear that there would be only six ATCs, at least to begin with. They also capped the number of legal strains to three, although medical experts say there are dozens of strains of the plant that help alleviate everything from nerve pain to nausea.
“When you have a headache, you can choose Tylenol, Aleve, Advil, Exedrin, whichever works best for you,” explains Christiane Oliveri. “Limiting the one pain medication that works for so many conditions to just three choices? Come on!”
The regulations added a two-year waiting period for patients whose conditions were not included in the law to petition the state for inclusion, and limited the percent of THC, one the active ingredients in cannabis, in each strain to 10 percent. According to a DHSS spokesperson, the department came up with the 10 percent number by averaging the THC content in illegal marijuana confiscated by law enforcement, a decision that rankled patients and advocates alike.
“It’s ridiculous,” says Kris Hermes, spokesperson for Americans for Safe Access (ASA), a national medical marijuana advocacy group. “In an attempt to say, ‘we’re going to be really restrictive to prevent abuse,’ they’re limiting the effect of the medicine, which is not the point of the law.
Nancy Fedder agrees: “Ten percent THC is what we used to call ‘headache weed’ in the 1960s. It’s certainly not medicinal grade.”
But Devon Graf, DHSS’s Director of Legal and Regulatory Compliance, says the regulations represent forward movement on implementing and legitimizing the program.
“Limiting the THC to 10 percent is very reasonable,” says Graf. “It allows us to monitor and study the effects of the drug…We’re trying to legitimize the use [of marijuana] for patients that need it.”
Back to the Drawing Board
Soon after the regulations were announced, Sen. Scutari introduced a resolution invalidating them as being inconsistent with the intent of the law. The resolution passed on December 13, sending DHSS back to the drawing board.
“I don’t think the administration is actually trying to stall,” says Scutari, “I just think they won’t compromise so they’re making it very difficult to find medical marijuana in the state.”
The Crime Report contacted the administration for comment, but did not receive a returned call. Last September at a town hall meeting, Governor Christie explained the implementation delays by saying that because the law was passed under Corzine, his team needed to play catch-up: “Maybe the Corzine administration that had begun to plan and prepare for this would have been able to do it more quickly,” he said. “But we came in absolutely cold to the issue and I wanted to make sure we did it right.”
According to Assemblyman Thomas Gilbin, who co-sponsored the Compassionate Care bill in the Assembly, the delays are understandable given that “the new administration was a little reluctant about the program.”
“They’re probably making the regulations more stringent early on, but if it works maybe they’ll loosen it up a bit,” says Giblin, who serves on the medical advisory board of the Greenleaf Compassion Center, which recently received a license to operate an ATC. “You don’t want Monday morning quarterbacks saying you were too lenient – you don’t want to be like California.”
Figuring out the minutia of a medical marijuana law has been a contentious and ongoing problem in every single state that has legalized its use. Marijuana, medical or not, is still considered a schedule one narcotic by the federal government, no matter what the state law says, so patients and the people that cultivate and dispense the drug live with enormous uncertainty.
In early 2009, Attorney General Eric Holder announced that the federal government would not longer raid medical marijuana dispensaries (many of which are non-profit co-operatives) that are legal under state law. But the raids haven’t stopped. Just last month, federal agents raided 26 dispensaries in Montana, a state that legalized medical marijuana in 2004.
Even in California, a promised land for medical marijuana patients like Mike Oliveri, there are ongoing problems. Just last month the San Diego City Council approved a slew of new restrictions on dispensaries in the city, including zoning changes and a new permit application process.
“I think it's safe to say that no state has fully implemented their law,” says Hermes.
Nevada, for instance, allows people to possess an ounce of marijuana once they’ve registered with the state and received a prescription, but the law doesn’t address distribution, which, explains Hermes, “tells patients they can use it, but they have to obtain it through the illicit market.”
And last week the Detroit Free Press published an editorial calling on the state legislature to “bring clarity” to Michigan’s two-and-a-half year-old medical marijuana law. They wrote that the law “has overwhelmed the state bureaucrats charged with administering it, created loopholes for traffickers, left police and prosecutors too much discretion to harass authorized users, and spawned dozens of court cases that will effectively force judges to make policy as they go.”
Perhaps this is what Christie is hoping to avoid.
‘Cart Before the Horse’
In December 2010, Marianne Bays, a New Jersey business consultant who became active in the medical marijuana movement through a friend who is wheelchair-bound by multiple sclerosis, got together with several other business people and attorneys who were interested in getting into the medical marijuana industry. They formed a non-profit foundation called the Association of Safe Access Providers - New Jersey (ASAP).
The group collectively wrote comments to DHSS, expressing their concerns over draft provisions that limited strain, advertising, inventory and signage.
On January 14, the department set a February 14 deadline for groups to apply to run one of the ATCs in the state. Applicants were instructed to pay a fee of $20,000, $18,000 of which would be returned if their application was denied.
But there were still no regulations. Asked to explain, the DHSS’s Graf told The Crime Report that the department simply wanted to keep the process moving while it worked on a second version of the draft regulations.
“I’d call that putting the cart before the horse,” says Hermes.
Attorney Anne Davis, Executive Director of NORML New Jersey, told The Crime Report she had several clients who were considering putting in bids to run an ATC, but because of the uncertainty, they decided against it: “How can you establish a business model when you have no idea how your business will be regulated?”
Bays felt the same way and on February 10, ASAP filed a request that the New Jersey appellate court issue an injunction against the department, halting the application process.
The court declined to issue an injunction, and Bays and colleagues went ahead with their own application. Twenty-one groups applied for ATC licenses. According to Graf, the applications were scored by a five-member panel made up of representatives from the DHSS, the Department of Agriculture and the Department of Community Affairs.
On March 21, the six winning applicants were announced, and more controversy broke out.
Advocates and patients, who already blamed the Christie administration for neutering their law, cried foul when it was reported that several of the winning ATCs had politically connected people on their boards, including David Knowlton, who was on the governor’s transition team; Democratic Assemblyman Thomas Giblin, the deputy majority leader who co-sponsored the medical marijuana bill in the Assembly; Kevin Barry, who Christie chose to chair the University of Medicine and Dentistry of New Jersey board of trustees; and Webster Todd, brother of former New Jersey Gov. Christine Todd Whitman, who is a former chairman of the National Transportation Safety Board.
“It’s a risky business,” says Goldstein, pointing to the recent federal raids on dispensaries in Montana. “We’ve never seen a former federal prosecutor or former head of the National Transportation Safety Board run a medical marijuana clinic.”
Graf dismisses concerns about favoritism in the application process: “We were very careful to keep out conflict and influence,” he says, pointing out that each of the five panelists signed a certification that they had no financial conflicts, and that they didn’t pay attention to the background of individual board members.
“The press is Googling everybody, we didn’t do that,” says Graf.
The Crime Report contacted three of the six organizations that are scheduled to run ATCs for interviews – two declined to speak, one did not return messages. Their reticence may be understandable given that their future is far from certain.
Within days of the license announcements, leaders in some of the townships where the groups planned to erect ATCs came out saying they hadn’t been consulted. Deputy Mayor Ryan Green told the Manalapan Patch on March 24 that although the Breakwater Alternative Treatment Center Corporation had received a license to operate in Manalapan from the state, the ATC “is not a done deal.”
The Waiting Game Continues
On February 22, DHSS published new draft regulations. Among the changes, according to Graf, was a prohibition on home delivery, and new language stipulating that before prescribing medical marijuana, doctors had to certify that the patient is resistant to all other possible remedies. The limits on number of strains and THC levels remained intact.
Again, Sen. Scutari submitted a resolution seeking to invalidate the regulations as inconsistent with intent of the law.
But these days, the state is buried in a budget morass, and Timothy J Prol, Sen. Scutari’s Director of Policy and Planning, says he isn’t optimistic the resolution will get a vote until late May at least.
Nancy Fedder finds this laughable: “What, they can’t multi-task? Please.”
Adding further complication, just days after the DHSS announced the six winning applicants for the ATC licenses, the department’s commissioner and deputy commissioner resigned. Commissioner Poonam Alaigh cited “an urgent family illness” as the reason for her departure. Deputy Commissioner Susan Walsh gave no public explanation.
So for now and the foreseeable future, people like Nancy Fedder have to continue to brave the black market.
And Mike Oliveri, whose mother has moved out to California to care for him as his condition deteriorates, must make his life 3,000 miles away from his family home for the sole reason that in New Jersey, he can’t legally get the only medicine that controls his pain without the side effects of heavy drugs.
“I was on morphine patches―which is heroin―when I lived in New Jersey, and it was killing me,” says Mike. “I won’t come back to New Jersey because I can’t.”