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F I S C A L I M P A C T R E P O R T

SPONSOR Robinson

DATE TYPED 2-16-05

HB

SHORT TITLE Compassionate Use Medical Marijuana Act

SB 492

ANALYST Collard

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB 795

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AG)

Aging and Long-Term Services Department (ALTSD)

Human Services Department (HSD)

Department of Health (DOH)

Health Policy Commission (HPC)

New Mexico Corrections Department (NMCD)

SUMMARY

Synopsis of Bill

Senate Bill 492 authorizes beneficial use of marijuana in treatment of an “eligible medical condi-

tion,” defined as a chronic or debilitating disease that produces severe pain or sever muscle

spasms, or a condition designated by the department of health to be an eligible medical condi-

tion. The bill gives responsibility for developing procedures in a marijuana program to DOH. A

patient must be “certified” by the secretary of health for participation in such a program, the pa-

tient must have a certification by a physician that the patient has an eligible medical condition

and the patient must be a New Mexico resident.

The AG’s Office notes Section 7 adds requirements for additional certifications in writing for a

Senate Bill 492 -- Page 2

patient under the age of 18. Section 8 of the bill permits prosecution of a certified patient who is

driving while intoxicated by marijuana as well as prosecution for using marijuana in a school

bus, on school grounds, at a place of employment and in public parks and recreation areas. Sec-

tion 5 exempts the patient and licensed physician from arrest or prosecution under state law for

manufacturing, possessing, certifying the patient or administering marijuana within the program.

Finally, this legislation proposes a “topical use” drug delivery method that does not involve in-

gesting or inhaling marijuana but does include the application of marijuana by means of a topical

patch, lotion, gel, alcohol or bath.

Significant Issues

DOH indicates marijuana and marijuana components, administered through smoking or through

ingestion, have been demonstrated to have some efficacy in the treatment of certain medical

conditions including nausea associated with cancer chemotherapy and HIV medications, chronic

wasting syndrome associated with advanced HIV disease, glaucoma, and spasticity associated

with neuromuscular conditions including multiple sclerosis and spinal cord injury. There are

data that suggest that topical ophthalmic preparations of marijuana might be effective in the

treatment of elevated intraocular pressure in glaucoma.

It is possible that further medical research related to the medicinal use of marijuana might be

helpful in evaluating the safety and efficacy of medical marijuana. Such research is authorized

under the “Controlled Substances Therapeutic Research Act”. Repeal of the Therapeutic Re-

search Act could limit the ability to research the medical benefits of medical marijuana.

This bill would require DOH to register individuals as distributors of topical marijuana prepara-

tions for medicinal use by enrolled patients. This implies that the department would be responsi-

ble for evaluating the safety and efficacy of preparations distributed through the program. DOH

has no authority or capacity to evaluate or regulate medicinal preparations manufactured by indi-

viduals.

NMCD indicates this bill will increase the number of offenders who test positive for THC and

will increase the number of hearings over whether the THC in their system was prescribed by a

physician or ingested illicitly (or possibly both). Offenders who can get a prescription for a

marijuana topical ointment will feel they have the liberty to smoke marijuana with impunity.

Further, NMCD states, unless the medical benefits are significant and no other therapies are

helpful, this bill could create more problems than it would helpful. There is no prohibition for

possession in a correctional setting.

The AG’s Office indicates the issues presented by this bill mirror those presented by past similar

bills that have not been enacted. The vigor of federal prosecutions in the face of similar meas-

ures in other states, particularly California, has not abated. The question whether a state can tai-

lor a medical marijuana program sufficiently to prevent federal prosecution is presently pending

in the United States Supreme Court.

It is clear that any state statute that permits use of medical marijuana would authorize an act that

is illegal under the federal Controlled Substances Act (CSA). The United States Supreme Court

so ruled. United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). In that

case the Court noted that it was not deciding whether the CSA could apply to strictly intrastate

Senate Bill 492 -- Page 3

activity: “Nor are we passing today on a constitutional question, such as whether the Controlled

Substances Act exceeds Congress’ power under the Commerce Clause.” Oakland Cannabis

Buyers’ Cooperative, 532 U.S. at 1719 n.7.

Under the Commerce Clause, Congress can only regulate activity that has an impact on interstate

commerce. The bill under consideration does not address the source of marijuana to be used as

authorized in the proposed medical marijuana program, thus there does not appear to be any at-

tempt to narrow the impact of the Act to solely intrastate impact. For this reason, the bill could

not support an argument that the CSA does not apply since the bill permits an impact on inter-

state commerce, rendering activities permitted under this bill as a matter of state law illegal un-

der federal law.

The view that a medical marijuana program carefully tailored to only have an impact intrastate

within New Mexico, and no impact on interstate commerce, relies on such cases as United States

v. Lopez, 514 U.S. 549 (1995), where the Supreme Court struck down the Gun-Free School Zone

Act of 1990 because it exceeded the Commerce Clause authority of Congress since having a gun

in a school zone does not have an impact on interstate commerce, and United States v. Morrison,

120 S.Ct. 1740 (2000), where the Court struck down the Violence Against Women Act of 1994

as exceeding the scope of the Commerce Clause, because the direct and “aggregate” impact on

interstate commerce of violence against women was too remote—such regulation is left to the

states.

A general claim that the CSA’s ban on marijuana use was unconstitutional as beyond the Com-

merce Clause failed in Kuromiya v. United States, 37 F.Supp.2d 717, 723 (E.D.Pa. 2000). In

Pearson v. McCaffrey, 139 F.Supp.2d 113, 121-23 (D.C.C. 2001), the court rejected the claim by

physicians that the CSA violated the Commerce Clause by restricting their right to prescribe a

useful medicine.

The argument that the CSA exceeds the scope of the Commerce Clause succeeded in the Ninth

Circuit in a case the United States Supreme Court now has under consideration. In Raich v.

Ashcroft, 352 F.3d 1222 (9

th

Cir. 2003), the Ninth Circuit reversed denial of a preliminary in-

junction, ruling that the plaintiffs’ conduct, lawful under state law pursuant to the California

Compassionate Use Act, had no impact on interstate commerce and thus could not be prosecuted

by federal authorities. This case was argued in the United States Supreme Court on November

29, 2004, and a decision from the Court is expected by June 2005. The ground upon which the

Ninth Circuit enjoined federal prosecution of the California medical marijuana participants was

that they “use only soil, water, nutrients, growing equipment, supplies and lumber originating

from or manufactured within California” and thus participate in a narrow class of activities, “the

intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes

as recommended by a patient’s physician pursuant to valid California state law.” Raich, 325

F.3d at 1225, 1228.

If the United States Supreme Court upholds the Ninth Circuit in Raich, it would be safe to say

that a bill that restricted medical marijuana to strictly intrastate New Mexico activities would

protect physicians and patients from federal prosecution. However, the federal government to

date, applying the CSA as interpreted by many courts prior to the Ninth Circuit’s decision in

Raich, has vigorously pursued prosecution of physicians, patients, growers and others involved

in state-permitted use of marijuana for medical purposes in not only California, but the other

states that have similar programs in Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon

Senate Bill 492 -- Page 4

and Washington. Unless the Supreme Court affirms in Raich, the same result is likely if the pro-

posed medical marijuana program in SB 492 becomes law in New Mexico.

At this point, one would be guessing at the outcome to predict how the Supreme Court will rule

in Raich. The Court overrules the Ninth circuit more frequently than any other federal circuit, so

caution is advised before reliance is placed on the Ninth Circuit’s ruling in Raich. The provi-

sions of SB 492 are sufficiently similar to the California law (Cal. Health & Safety Code Section

11362.5), that the outcome in Raich is a fair indicator of how the proposed New Mexico program

would be treated if the people involved strictly limited their activities to New Mexico only. If

the Supreme Court affirms in Raich, a medical marijuana program that tracks California’s pro-

gram would also prevent federal prosecution of persons acting under such a program. Unless

and until that occurs, it seems very likely that persons acting under a program adopted pursuant

to SB 492 would be subject to federal prosecution in an area that the federal government has

demonstrated ample vigor to prosecute.

An example of the federal government’s vigor in this regard is found in United States v. Rosen-

thal, 266 F.Supp.2d 1068 (N.D. Cal. 2003), where the defendant grew marijuana strictly and

openly for use in Oakland’s medical marijuana program pursuant to state law. The federal gov-

ernment prosecuted, convicted and sentenced Mr. Rosenthal for violation of the CSA. Given the

uncertain state of the law, the lawfulness of the statute proposed in SB 492 depends on the out-

come of Raich. Until the United States Supreme Court renders a decision in that case, making

medical marijuana lawful under state law gambles with the personal liberty of those, such as Mr.

Rosenthal, who follow state law in a medical marijuana program that is authorized by state law

but subjects them to criminal prosecution by the federal government.

FISCAL IMPLICATIONS

There is no appropriation attached to this bill and DOH indicates without funds for staff, space,

materials and support services the program would be difficult to administer.

ADMINISTRATIVE IMPLICATIONS

AOC notes this bill can potentially reduce the caseload in the judiciary due to the legitimate use

of marijuana for medicinal reasons. However, AOC indicates there will be a minimal adminis-

trative cost for statewide update, distribution, and documentation of statutory changes. Any ad-

ditional fiscal impact on the judiciary would be proportional to the enforcement of this law and

commenced prosecutions. New laws, amendments to existing laws, and new hearings have the

potential to increase caseloads in the courts, thus requiring additional resources to handle the in-

crease. AOC does not specify these needs.

NMCD states this places a substantial and onerous burden on the staff of correctional institutions

to determine which visitors who may test positive with an ion scan are legally able to possess

marijuana. Additionally, preventing the introduction of marijuana for inmates into the institution

by visitors who may legally have it in their possession may strain the resources of prisons. Fi-

nally, the restriction on the release of medical information may make it difficult for non-medical

personnel at the institution to identify those who may legally possess marijuana.

Senate Bill 492 -- Page 5

RELATIONSHIP

Senate Bill 492 relates to Senate Bill 795 which is also a compassionate use bill.

TECHNICAL ISSUES

AOC suggests defining the term “manufacture” as used within the act.

HPC indicates the issues are specific to this legislation:

.

The act does not include an appropriation to DOH to staff, develop and implement the Medi-

cal Use of Marijuana Program that the bill establishes.

.

In order to fully offer physicians or other providers prescribing marijuana for therapeutic use

the protections offered under the act, it may be necessary to review and consider amendment

of certain sections of and the New Mexico Board of Pharmacy regulations (16 NMAC Chap-

ter 19) and other regulations.

.

The definition of “practitioner” is limited to physicians. Other practitioners licensed to pre-

scribe controlled substances who may be treating patients with the defined “debilitating

medical conditions” may therefore be prohibited from prescribing marijuana as a legal and

viable treatment for their patients under the act.

OTHER SUBSTANTIVE ISSUES

ALTSD notes the use of marijuana is reported to assist in the treatment of cancer patients, to al-

leviate the pain associated with certain ailments and medical conditions, and to stimulate the ap-

petite in patients in need of enhanced nutritional intake.

HSD notes the major concern with this bill is reconciling with the federal government, which has

not been accommodating in its position with respect to marijuana as a Schedule I drug. Addi-

tionally, since this would not be dispensed by pharmacies it is unlikely to become a Medicaid

funded benefit.

DOH indicates the relief of physical pain and suffering must be a goal of compassionate medical

care. Intractable pain and suffering can plague people with terminal cancer, AIDS and neuro-

muscular diseases, including muscular sclerosis and spinal cord injury. Often, prescription

medications adequately relieve these symptoms. However, in many cases, there is no relief from

suffering, relief is incomplete or the side effects of the prescription medications are intolerable.

It has been the experience of many patients with these conditions that smoking small amounts of

marijuana will provide relief from these symptoms when prescription medications do not. This

is often the case even when smoking marijuana is compared to taking Marinol, a prescription

oral preparation of one component of marijuana, tetrahydrocannabinol (THC).

Because smoked cannabis can provide welcome relief from pain and suffering among people

with serious or terminal medical conditions, the therapeutic uses of the drug should be clearly

distinguished from the illegal recreational uses of the drug. For example, we distinguish the ap-

propriate medical uses of Morphine and Valium (for pain and anxiety relief) from their illegal

recreational uses. In medical practice, it would not be considered acceptable to deny cancer pa-

tients access to opioid analgesics such as morphine simply because morphine has a potential for

abuse as a recreational drug.

Senate Bill 492 -- Page 6

The therapeutic effects of cannabis in a medical context have been recognized. These effects in-

clude the control of intractable nausea and vomiting associated with cancer chemotherapy,

stimulation of appetite in people suffering from the AIDS wasting syndrome, and the control of

severe painful muscle spasms in people living with certain neuromuscular conditions, including

spinal cord injury and multiple sclerosis.

In 1997, the White House Office of National Drug Control Policy (ONDCP) commissioned the

Institute of Medicine of the National Academy of Sciences to review the scientific evidence re-

garding the medical use of marijuana. Their findings were published in 1999: “Marijuana and

Medicine: Assessing the Science Base.” The following are quotes from the executive summary

of that report:

“The accumulated data indicate a potential therapeutic value for cannabinoid drugs, particularly

for symptoms such as pain relief, control of nausea and vomiting, and appetite stimulation....

people vary in their responses to medications, and there will likely always be a subpopulation of

patients who do not respond well to other medication. The combination of cannabinoid drug ef-

fects (anxiety reduction, appetite stimulation, nausea reduction, and pain relief) suggests that

cannabinoids would be moderately well suited for particular conditions, such as chemotherapy-

induced nausea and vomiting and AIDS wasting.”

DOH cautions there are adverse effects associated with the medical use of cannabis, as is true of

most effective prescription medications. However, real and potential adverse effects of medical

cannabis must be weighed against the therapeutic benefits that could be realized for patients with

serious or terminal illnesses.

Smoking marijuana may impair the ability to drive motor vehicles or operate machinery. (It is

unknown whether topical marijuana would have the same effect). This is true also for other

medications used to treat pain and anxiety, including opioid analgesics (such as Morphine) and

benzodiazepines (such as Valium). It will be important that the physician recommending the use

of medical cannabis review these concerns thoroughly with patients. This bill explicitly states

that the enrolled patient would not be protected from liability for damages or criminal prosecu-

tion arising out of the operation of a vehicle while under the influence of cannabis.

The medical use of cannabis is analogous to the therapeutic use of other powerful medicines (in-

cluding Morphine and Valium) in the relief of pain and suffering. As is the case with those pow-

erful prescription medications, a clear distinction should be drawn between the proper medical

therapeutic use of cannabis and its illegal recreational use. As is the case with any medication,

the benefits of medical cannabis must be weighed against its potential adverse effects in thor-

ough discussions between a patient and their physician.

HPC states among 1,706 adults polled in AARP's random telephone survey in November 2004,

72 percent of respondents agreed "adults should be allowed to legally use marijuana for medical

purposes if a physician recommends it." Those in the northeast (79 percent) and west (82 per-

cent) were more receptive to the idea than in the midwest (67 percent) and southwest (65 per-

cent). In southern states, 70 percent agreed with the statement.

HPC indicates the National Institutes of Health issued a report reviewing the scientific data con-

cerning the potential therapeutic uses for marijuana and the need for, and feasibility of, addi-

tional research. The findings included that marijuana has potential therapeutic value for analgesia

Senate Bill 492 -- Page 7

and neurological and movement disorders

It is difficult to compare marijuana with products that have received regulatory approval under

more rigorous experimental conditions than those previously conducted on marijuana. More and

better clinical trials and studies would be needed.

However, HPC cautions, when smoked, marijuana produces over 2,000 chemicals, including hy-

drogen cyanide, ammonia, carbon monoxide, acetaldehyde, acetone, phenol, cresol, naphtalene,

and other well-known carcinogens, many in higher concentrations than found in tobacco smoke.

Smoking marijuana causes cancer of the lungs, mouth, lip and tongue.

The National Institute of Allergy and Infectious Disease reported that the many carcinogens in

marijuana smoke would be a health hazard for patients with compromised immune systems.

The quality control of marijuana is difficult to standardize and regulate.

ALTERNATIVES

DOH research indicates, in the skin, delta (9)-tetrahydrocannabinol (THC), an active component

of marijuana, excites sensory nerve endings that are also excited by capsaicins (the active com-

ponent of chile peppers) and mustard oils (Mustard oils and cannabinoids excite sensory nerve

fibres through the TRP channel). Topical capsaicin preparations, licensed for use as medicinals,

are already commercially available and could be legal alternatives to topical marijuana prepara-

tions.

KBC/lg