Friday, the Cuomo Administration sent a letter to Deputy Attorney General Cole following up on an earlier letter to U.S. Attorney General Holder sent on August 13, 2014. Both letters asked the Department of Justice (DOJ) to extend a narrow, time-limited exception to federal law to allow the importation of certain strains of medical marijuana from other states for use by children in New York with severe forms of epilepsy.
The letters follow the deaths of several children and a sustained campaign by advocates pressuring the Cuomo Administration to create an interim emergency access program for patients who may not survive the eighteen months or longer that the governor has said he needs to get the full medical marijuana program up and running. New York passed a medical marijuana bill that Governor Cuomo signed into law in July, but the Administration has said the program won't be up and running until at least January of 2016. To establish emergency access for patients in need, medical marijuana can either be produced within New York state, or, with appropriate federal clearances, acquired from a different jurisdiction. The Cuomo Administration's letters address one of those two options.
"We are glad to see that the governor has engaged DOJ about the need to establish an interim, emergency access program for those who cannot afford to wait for full implementation to occur. Now, we need the governor to move forward on other avenues that might also help get medicine to those who need it. The governor has a moral obligation to try absolutely everything in his power to prevent New Yorkers from needlessly suffering," said Kate Hintz from Westchester, parent of a child who has a severe seizure disorder.
The Administration is asking the Department of Justice to allow the state to identify one or more producers from a jurisdiction that allows for the legal production of a strain of medical marijuana that is high in cannabidiol (CBD), which has shown promise in reducing seizures in children with severe forms of epilepsy. Once a producer is identified, the state would import the medicine into New York and make it available to a small group of patients until New York's program is fully operational. Federal law prohibits the transport of marijuana across state lines, and, thus, the Cuomo Administration is seeking permission from the DOJ.
"In many ways, this issue points out the absurdity of our federal marijuana laws," said Christine Emerson of Rochester, a nurse practitioner and mother of a child with severe epilepsy. "I hope DOJ allows New York to import medicine from other jurisdictions, but the Cuomo Administration also must move quickly to get a producer up and running in New York."
Advocates noted that action on the federal level is a long shot, and that there are things that the governor has the authority to do himself to create an emergency access program right away. For instance, he could fast track one or more producers in New York to begin growing medicine as soon as possible. Some private companies have submitted proposals to the Administration saying that they could make medicine available to New Yorkers within 90 days. Advocates also noted that, if the governor believes the law doesn't allow for emergency access, he should call a special session of the legislature immediately to amend the bill, reinserting language that he removed during the final bill negotiations last June.
Missy Miller of Atlantic Beach said, "My son, Oliver, who has severe seizures from a brain stem injury, cannot wait much longer to get the medicine he needs. We asked Governor Cuomo to try a number of things to create an emergency access program after he removed language from the bill that would do just that. While reaching out to the DOJ is a meaningful first step, there are other additional steps he can and should take to get Oliver and other critically ill children the medicine they need ASAP. He needs to realize that every day that passes we lose more of Oliver to these seizures."
Additionally, were DOJ to grant the waiver, state legislative action will still likely be required. In June, during the final negotiations around New York's medical marijuana law, the governor explicitly removed a provision to allow for emergency access to medical marijuana. In its place, the final bill included a provision requiring that only those marijuana products produced in New York would be legal for patient use, and marijuana products from other states would be illegal. Thus, legislative action to fix the medical marijuana law may be needed should DOJ grant the waiver so that patients can legally use the marijuana under state law.
Over the last four years, numerous governors around the country have petitioned the Department of Justice on a range of issues related to the medical use of marijuana, including a request to reschedule marijuana and requests to protect workers in state medical marijuana programs from federal prosecution. Such inquiries led to the two memos from Deputy Attorney General Cole in 2012 and 2013, which clarified the stance of the Department of Justice on state medical marijuana programs. The letter by the Cuomo Administration appears to be the first public request seeking a federal waiver for medical marijuana to be acquired from another U.S. state.
The federal government, including the Obama Administration, has not done enough to fix federal marijuana policy, although it has been widely acknowledged that marijuana prohibition has hurt patients across the country and been a primary driver of the failed war on drugs. Advocates, who have asked the governor to take action around creating an emergency access program, have also reached out to Senators Gillibrand and Schumer asking them to do everything within their power to move the issue forward on behalf of critically ill New Yorkers.
"Many patients who face life-threatening or terminal illnesses need access to this medicine immediately. The eighteen month implementation timeline is not realistic for patients, like myself, who do not have the luxury of time," said Beverly McClain, a stage four metastatic cancer patient, "I've already passed the median survival time so I'm living on borrowed time now."
"Lives are literally hanging in the balance, so we appreciate the Cuomo Adminstration reaching out to the Department of Justice," said gabriel sayegh, Managing Director of Policy and Campaigns at the Drug Policy Alliance. "Federal action represents one of two pathways to provide emergency access to medical marijuana products for those patients who cannot wait another day for relief. The other path for emergency use is for the state to license a company to produce marijuana in New York on an interim basis until the full system comes online. Governor Cuomo should be moving forward on both options. To save lives, every option must be explored, and we cannot allow bureaucracy and politics to impede getting medicine into the hands of those who need it."