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New Jersey’s Long-Awaited (and Controversial) Proposed Medicinal Marijuana Program Rules

Posted Oct 17 2010 6:51pm

According to the New Jersey Law Journal , Assemblyman Reed Gusciora (D-Mercer), one of the Act’s primary sponsors, called the regulations “a departure from the legislative intent” to authorize six ATCs two each in northern, central, and southern New Jersey all of which would both grow and dispense medical marijuana.  Senator Nicholas Scutari (D-Union), another primary sponsor, agrees, arguing that: “the regulations are a problem.  I’m not happy because they do not comport with the statute.  It’s insulting and agitating.”  The Law Journal reports that “Scutari and Gusciora say they will try to persuade [DHSS Commissioner Poonam] Alaigh to change the regulations to conform to the statute.  ‘You can’t change a statute through the regulatory process,’ says Scutari, adding that he will pursue changes through litigation if the rules are not amended to the Legislature’s satisfaction.”

A careful reading of the Act reveals that the provision addressing the function of ATCs is less than crystal clear, however:

“An alternative treatment center shall be authorized to acquire a reasonable initial and ongoing inventory, as determined by the department, of marijuana seeds or seedlings and paraphernalia, possess, cultivate, grow, harvest, process, display, manufacture, deliver, transfer, transport, distribute, supply, sell, or dispense marijuana, or related supplies to qualifying patients or their primary caregivers[.]”

The Department obviously reads this in the disjunctive, to mean that ATCs shall be authorized to do (at least) one of the things listed, but need not be authorized to do all of them.  This reading is supported by the “or” between “sell” and “dispense.”  On the other hand, reading the sentence in the disjunctive allows for absurd results that clearly would thwart the Legislature’s intent.   (For example, under this reading, the Department would be within its rights to authorize six ATCs to grow marijuana but none to dispense it.)

Leaving further statutory analysis to others, I will say that I do not think that the Department’s decision to separate growing and dispensing will necessarily thwart the Legislature’s directive that there be “a sufficient number of alternative treatment centers throughout the State, pursuant to need, including at least two each in the northern, central, and southern regions of the State,” particularly given that the regulations provide for both home delivery and the possibility of satellite ATC locations.  More likely to limit access is the expense to patients, both of participating in the program ($200 for the patient, unless they qualify for Medicaid or other assistance programs, and another $200 if the patient needs a caregiver to assist with their marijuana use) and of paying for medical marijuana, which of course is not covered by any insurance plan.  The proposed regulations provide that prospective ATCs will be judged based on a number of criteria, including “ability to meet overall health needs of qualified patients”; within that rubric, the selection committee should consider prospective ATCs’ plans to make medical marijuana affordable to those who need it.

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