If New York legalizes pot, what happens to its medical marijuana program?

A medical marijuana cultivator sorts through the male and female plants.
A medical marijuana cultivator sorts through the male and female plants.
David Dermer/AP/Shutterstock
A medical marijuana cultivator sorts through the male and female plants.

If New York legalizes pot, what happens to its medical marijuana program?

The two markets would likely coexist, but with inconsistencies.
October 14, 2018

On a rainy night in September, hundreds of people packed into the Kumble Theater at Long Island University Brooklyn to talk about pot. The event was one of 15 listening sessions Gov. Andrew Cuomo set up around the state for input to draft legislation that would legalize and regulate recreational marijuana. Each attendee had two minutes to speak, and many spoke passionately about the medical benefits of the drug. New Yorker Tom Hilgardner argued that the distinction between medical and recreational cannabis should no longer exist. “It’s really of no use,” he said. “All use, even self-medication – people think they’re using it recreationally. It’s probably the body telling you there’s a medical benefit.”

Shortly afterward, Michael Zaytsev, a cannabis entrepreneur and founder of the Meetup group High NY, offered a different take. “I won’t go too far into the medical program, or my criticism, but we need to regulate that separately from adult use, I believe,” he said.

The remarks sum up a key question regarding the future of New York’s existing medical marijuana program: What impact would a recreational market have on the current medical one?

One key factor is price. Dr. Kenneth Weinberg with Cannabis Doctors of New York, a group of doctors who certify patients and offer consultations, said he hopes that legalizing recreational marijuana will bring down the cost of medical marijuana – presumably by expanding the supply. Marijuana and medicines derived from it are not covered by any insurer, private or public, because the federal government still recognizes marijuana as a Schedule I drug, which means the government considers it extremely dangerous and without any medical purpose. So patients still need to pay for it out of pocket, even with a certified medical marijuana card. “One of the major roadblocks is that people can’t get the cannabis,” Weinberg said. “I have a number of patients who I will certify and then will call back and they’ll say … ‘I went in and it was so expensive, I couldn’t keep doing it.’”

But for many patients, recreational marijuana would not be a replacement. Weinberg said that many patients would still benefit from consultations with doctors who can recommend the best course of action for people, many of whom have exhausted other treatment options. Most of the patients he sees have no interest in the recreational products they could buy if New York legalizes recreational marijuana. “The majority of the people who come in specifically ask me – they want to make sure they don’t get high,” Weinberg said.

Then there are the potential inconsistencies that could arise. Other states have faced challenges in reconciling recreational marijuana with medical marijuana programs in recent years, and may serve as a cautionary tale. Over the summer, Vermont became the most recent state to legalize cannabis, and it did not make changes to its medical marijuana program, leading to confusion about the two conflicting sets of regulations. There were questions about how much cannabis one can legally carry, how many plants one can grow and how much can be harvested from homegrown plants. Different rules apply for those with medical cards and those who obtain the newly legalized substance for recreational purposes.

Under the New York state’s existing medical marijuana program, patients are not allowed to grow their own cannabis, but new regulations could still come into conflict with existing ones. Perhaps the most immediate issue would be the type of cannabis one can buy and use. Medical marijuana is limited to nonflowering cannabis – that is, it cannot be smoked. Patients must consume it through vaporization, oil, pills or other nonsmoking methods. Under legislation previously introduced in the state Legislature to legalize and tax cannabis, there would be no restrictions on the method of use. Plus, the governor has not drafted the legislation he plans to introduce.

Additionally, patients as young as 18 can now use medical marijuana if they are certified. Most proposals for recreational marijuana set the age floor at 21, the same as with alcohol. This raises the question about the legality of 18- to 20-year-olds who possess medical marijuana, and which law would apply – an issue that arose in Vermont.

Of course, the introduction of a recreational marijuana market alongside the medical marijuana program can go smoothly. Colorado established its medical marijuana program in 2000 and legalized recreational use in 2014. According to Michael Van Dyke, who oversees the marijuana programs at the Colorado Department of Public Health and Environment, the state did not make any changes to its medical marijuana program in 2014, largely because it was created through a constitutional amendment and changes could not be made easily. (New York’s medical marijuana program was created through state legislation.) Van Dyke said the new recreational market had little effect on the medical marijuana program, and the state did not see a significant drop in medical marijuana cardholders. Those certified with the program were able to continue buying their products, which are set at a lower tax ratethan recreational products.

Although New York is looking to other states for guidance, no one knows yet whether the medical program will be changed in any way if recreational marijuana becomes legal. Assemblyman Richard Gottfried, who sponsored the bill that created the state’s medical marijuana program in 2014, said that he has had conversations with the governor’s office about the issue, but that they have not come to any conclusions. “Several of us in the Legislature are in close consultation with the governor’s people,” said Gottfried, who chairs the Assembly Health Committee. “So how we do that, I don’t know yet. But I know there is a lot of concern and brainpower being focused on it.”

Gottfried said while there is still no clear picture about how the medical marijuana program may evolve, he hopes the state can make it less restrictive. Currently, patients only qualify for medical marijuana if they have one of about a dozen qualifying conditions. Gottfried has been advocating to expand the list of qualifying conditions independently from the recreational marijuana debate, but he hopesthose changes come about in tandem with legalizing recreational marijuana.

Although other states have navigated this issue, each state has its own rules and regulations that were introduced in different ways at different times. Legalization is happening piecemeal across the country rather than uniformly at a national level.

More broadly, regulating both medical and recreational marijuana poses a novel policy question. There is little precedent for a substance approved for medical use that may also be widely used recreationally in a legal setting, while still being a controlled substance at the federal level.

Yet Gottfried did draw an analogy to foods with positive health benefits that people consume on a daily basis. He said that the problem lies in that fact that marijuana is not actually viewed this way in general. “The things that we consume that are very healthy for us, like oranges and milk, you would never think of them being pharmaceutical,” Gottfried said. “But if you extract the vitamin C from it, or produce it artificially, then the (U.S. Food and Drug Administration) supervises the production it. The FDA doesn’t supervise the production of oranges.”

This suggests that the future of medical marijuana may lie in the extraction of individual compounds found within cannabis that have medical benefits, which can be regulated separately from the growth of the plant itself. However, that largely depends on the federal government’s categorization of cannabis as a Schedule I substance.

As it stands, the question of legalizing recreational marijuana in New York still largely relies on the outcome of the November election. Even as the governor holds his listening sessions and convenes policymakers and experts to craft legislation, legalizing recreational marijuana may largely depend on Democrats winning control of the state Senate. Without that, the questions about the future of the medical marijuana program in the new environment could become moot.

Rebecca C. Lewis
is an editorial assistant at City & State.
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