October 2010: current events and musings about The Big Picture

Hello all.

Various personal and professional issues have separated me from my true love – you, my readers – but I am back for a brief and discreet rendezvous.

There is a vast stream of news and information regarding ‘drugs’ rushing through the media arteries. Most of it relates Proposition 19 in California, the “legalization.” There is also a steady stream of articles about the county-by-county litigation in Colorado regarding dispensaries.

There are also a few stories closer to home regarding cannabis.

New York
I am delighted to announce that I will be moderating a panel on legal issues on the second day of the exciting conference on the cannabis industry to be held on October 25 and October 26 here in New York City AKA The Capital of Everything (including capital). The speakers will be Justin Alpert, a New York- and New Jersey-licensed attorney who advises start-ups, and Brian Vicente, a cannabis industry lawyer from Sensible Colorado.

Rhode Island
As of June 12, 2010, there were 15 applicants for registry as “Compassion Centers,” the term which the Rhode Island medical marijuana statute,” uses to describe dispensaries.

On September 10, 2010, the Rhode Island Health Department rejected all 15 applicants for registry as Compassion Centers, citing alleged defects in all 15 applications.

Now, unlike the situation in New Jersey, this act by the state appears not to be fatal to the medical marijuana program since the statute allows for cultivation of cannabis by patients and designated caregivers.

On October 1, the Health Department subsquently put out a call for new applications using amended application forms.

Petition for declaratory ruling by the Rhode Island Department of Health
There is one particularly interesting development in this mix, which is a petition dated September 27 requesting a ruling by the Health Department as to whether there will be a violation of Rhode Island health regulations when a physician, nurse practitioner, or physician owns an interest in a Compassion Center.
The petition, in the form of a letter from David C. Hughes on behalf of Community Care Health and Wellness, Inc., suggests a regulation of the Rhode Island Board of Medical Licensure and Discipline and an opinion of the American Medical Association which such ownership might violate.

The petition suggests that such ownership would be equivalent to a violation of the antikickback statute since a physician’s advocacy of a particular drug or device should not be influenced by the physician’s own financial interest, i.e. ownership of an interest in a business whose revenue could increase as a result of advocacy. (Here, of course, the physician would not “prescribe” cannabis, since no one can prescribe cannabis until Congess moves it out of Schedule I or, when the lion lies down with the lamb, the DEA moves it out on its own accord.)

The petition asserts that there is “an urgent need” for such a declaration since, it alleges, six applicants for registry as Compassion Centers are associated (my paraphrase) with physicians and one physician assistant.

Without casting aspersions, I note that, according to the Providence Journal, the author of the petition, Community Care Health and Wellness, Inc., was one of the fifteen applicants for registry. From afar, the petition could be construed as a crass attempt to eliminate competition or it could be seen as a straightforward observation that a healthcare practitioner should not be allowed to obtain compensation from sale of a product when a practitioner is the sole gatekeeper to the legal acquisition of that product.

Of course, this whole paradigm goes to one of the fundamental questions on which I have dwelt in the past, which is the medical/non-medical dichotomy. Yes, it is standard that a health care practitioner not profit from his own prescription (in this case “recommendation”) practices – but why is a physician the gatekeeper to cannabis?

Anyway, Community Care Health and Wellness seems to have scored a hit since the Department of Health website says regarding the petition: “The Department does not expect to issue a ruling before the Compassion Center registration application period ends. Applicants are advised that the ruling may impact the eligibility of their applications. Applicants and others should check this web page for updated information about the Declaratory Ruling process.” (Emphasis added.)

New Jersey

New Jersey finally issued draft regulations for operation of its medical marijuana program. Advocates decry these regulations as intolerably restrictive. Some of them explicitly contravene the medical marijuana statute, like limiting the alternative treatment centers to four, even though the statute states that six is the minimum. Audacious.

Big picture

I am going to take one more moment. In it I will address what I consider the big picture consideration. Much of my extracurricular activity has gone into working on the event at the NYC Bar Association discussed in the previous post, and its subject matter dominates my current thinking, if not that of the last 17 years, since it revolves around the Controlled Substances Act.

The big picture is the concept of the “regulated market.” The basic concept, if I may try to summarize it, is that there are numerous potentially dangerous products in the marketplace, e.g. alcohol, tobacco, pharmaceuticals, firearms, explosives, automobiles, airplanes, even pornography. (Have you ever considered that any nut job can walk into a housewares store and buy a steak knife?) All of these products are “legal” under limited circumstances. The question at hand is whether substances subject to the Controlled Substances Act can be allowed into the consumer market under any circumstances – and, if so, what those circumstances should be.

The “medical marijuana” debate is really a subchapter of this question, which encompasses all psychoactive substances. I believe that this inquiry – what is the appropriate form of market regulation for each substance considered on its own terms after a completely new evaluation from the ground up – is the name of the game. Should cannabis be available in a smoke shop alongside tobacco? (Hmm, of course that presupposes that tobacco is not on its way to being banned.) Should it be allowed for onsite consumption, like a tavern, or only takeout, like a package store? Should it be allowed only pursuant to a physician’s prescription, which would be the result if it moves into Schedule II of the Controlled Substances Act?
How about MDMA? Should its use be allowed only under the supervision of a physician? How about under the supervision of a psychologist? How about heroin? Should it be available for onsight consumption – e.g. in a supervised injection facility under the supervision of social workers and peer counselors with a physician on staff?

I have always assumed that a real critical reassessment of drug control will require revising or retiring outright the three statutory criteria for scheduling Controlled Substances, appearing at 21 U.S.C. 812:
(A) potential for abuse
(B) currently accepted medical use in treatment in the United States
(C) safety for use of the drug or other substance (under medical supervision)
Under these criteria, cannabis, heroin, and LSD all appear in Schedule I.
I know I am not being original here, but perhaps the first step would be to eliminate (B), “medical use,” as a scheduling criteria.

Anyway, I nominate the regulated market inquiry, i.e. “what is the appropriate legal mechanism of regulating each particular substance” as the big picture question of which all other questions, even the speculation as to whether Proposition 19 will cause the tax revenues of California to increase, are derivatives.

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