What if Illinois were more like Colorado?

       VS.             

 

Colorado had $117 million dollars in cannabis sales in the month of April.  In one month.  $117 million.

Illinois was a little less than that.  $2.57 million in medical cannabis sales in June 2016.

Of course the comparison is not fair – looking back to Colorado’s medical cannabis sales in 2013 (before recreational sales began in 2014), medical sales were still nearly $27 million per month.  Ten times that of Illinois, and Colorado has less than half the population.

As you probably already know, all of this is by design.

Illinois purposefully designed a new medical cannabis law that was heavily regulated, and limited to a small number of medical conditions (excluding chronic pain).  Colorado’s medical cannabis law developed over many years, and was designed to be liberal and inclusive.  The results are clear.

But what if Illinois had been more like Colorado or California?  What if physician recommendations were more like a suggestion than a strictly-enforced, physician license-risking requirement? What if we had added severe pain, or had unlimited business licenses to grow or sell, or if Illinois patients could grow their own cannabis at home?  As a former regulator, I am instinctively partial to strong regulations and government oversight – but this comes at a price.

For starters, we know Illinois would have hundreds of thousands of medical cannabis patients if the law had reflected California or Colorado.  In turn, there would have been more revenue and taxes, more patients with less pain and better health, more diversity in products and more of a free market.

But maybe the biggest difference would be less tangible, and more of a policy shift – I think it would change the way we think about cannabis – and it would have a profound impact on social justice and criminal justice.

If home cultivation were permitted, would cannabis be so stigmatizing?  No, of course not.

If medical cannabis were more easily accessible to those in daily pain, would we have such opioid addiction and drug incarceration problems?  No, of course not.

If Illinois had a medical cannabis program that reflected those last seen in Colorado and Washington, would we have more jobs, more local tax revenue, and a smaller black market for marijuana?  Yes, of course we would.

Luckily, Illinois is on the verge of fixing one of these problems: decriminalizing possession of small amounts of cannabis.  In the next few days SB 2228 is set to be enacted into law – if you want to let Governor Rauner know why cannabis decriminalization is a step in the right direction, you can contact him about SB2228 here.

IL Circuit Court Lowers the Boom: Tells IDPH to Add PTSD Within 30 Days

The Illinois Medical Cannabis Pilot Program (“MCPP”) received its second bombshell in two days.  Jabs v. IDPH, a case that the Illinois Cannabis Bar Association has been closely following, received a strong ruling in favor of petitioner Jabs and against the Illinois Department of Public Health (“IDPH”).

The director of the Illinois Department of Public Health has 30 days to add Post-Traumatic Stress Disorder to the list of medical conditions that are treatable with medical marijuana, a Cook County judge ruled today.

Cook County Associate Judge Neil H. Cohen found that IDPH Director Nirav Shah violated due process rights and used a standard not outlined in state law when he denied plaintiff Daniel Jabs’ petition to include PTSD on a list with 39 other conditions eligible for treatment with medical cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act.

“This is a victory today for all those who suffer from PTSD, and especially our military veterans,” said Michael K. Goldberg, a partner at Goldberg Law Group LLC who represented Jabs.

Jabs, an Army veteran who served in the Iraq War, submitted a petition to the IDPH in February 2015 seeking to add PTSD as a debilitating condition for which medical cannabis can treat patients under the act.

The case is one of 8 similar cases filed by petitioners whose medical condition was not added to MCPP.  The decision rested with the IDPH Director, despite a supportive vote by the Medical Cannabis Advisory Board recommending the additions.  The judge in the PTSD case (Cohen) has two other cases on this matter including chronic post-operative pain and osteoarthritis.  Other conditions that have pending cases include migraines, IBS, polycystic kidney disease, intractable pain and autism.

Not surprisingly, this is a big relief for Mr. Jabs.  What is very surprising, however, is the strong language used by Judge Cohen:

“The Director’s legal duty was to review the evidence, review the advisory board’s recommendations based thereon and render a final decision accepting or denying the proposal.  Instead, Director Shah engaged in a private investigation, hidden from public view and more importantly, hidden from the parties and arrived at his conclusion based thereon.  This process was constitutionally inappropriate.” June 28, 2016 Memorandum and Order, Jabs v. IDPH, 15 CH 16344.

The real question remaining is whether this will matter at all?

As you might recall, SB10 is a bill that sits on Governor Rauner’s desk for signature. SB10 does several things, including extending MCPP through mid-2020, and explicitly added PTSD. If the Governor signs the bill (as he indicated he would), PTSD will be added on its own without the lawsuit.

The lawsuit ruling raises a number of legal and practical questions.

Will IDPH appeal the ruling? We don’t yet know, but it is possible.  A decision of whether or not a state agency appeals a ruling like this includes many factors, and many decision-makers including IDPH, the Office of the Governor and the Office of the Attorney General.  These moments are much more complicated than you might imagine.  We’ll soon find out the answer.

Will Judge Cohen rule the same way on the other two cases in front of him? Based on the tenor of his ruling, I would expect he will rule in a similar way on the other two cases so long as the facts are similar.

What about the other conditions sitting in front of other judges?  TBD. They may rule in a similar way, but they do not have to.

What about other conditions denied by IDPH that no one has filed a lawsuit for?  This ruling would have no immediate effect on those conditions.

Is this limited only to military-related PTSD?  No, all forms of PTSD certified by an eligible physician would be included.

How big of a deal is this decision?  Let’s just say, outside of the cannabis context, I am hard-pressed to recall such a scathing ruling against a state agency administrative decision.

Assuming this decision is upheld, and Governor Rauner follows through by signing SB10, will this impact the future makeup of the Advisory Board and the process used by IDPH in reviewing those recommendations?  Bet on it.

What other craziness could impact MCPP this week? Who knows, but stay tuned. There is surely more news to come.

A New IL Med Cann Coordinator: What Does It Mean?

For starters, the Illinois Medical Cannabis Pilot Program (MCPP) is going to be just fine.  For those that missed it, yesterday we learned that coordinator Joe Wright had resigned from his position:

Wright, who resigned Friday, was paid $53,770 last year, according to a public database of state employee salaries. He will be replaced by Jack Campbell, the program’s bureau chief in the Department of Agriculture, Kelly said.

The change in leaders comes as Rauner considers signing a bill to extend the pilot program by 2½ years and adding post-traumatic stress disorder and terminal illness to the list of qualifying conditions. Democratic state Rep. Lou Lang announced last month that he, the Republican governor and the GOP’s House leader agreed to extend Illinois’ four-year pilot program until July 2020.

A transition in leadership of MCPP does not jeopardize patient access to medical cannabis, nor does it suggest any policy changes from the Rauner administration.

We don’t know why Wright resigned, but what matters is that Jack Campbell will do well in the role (presumably pulling double-duty in his prior role at Ag).

Campbell joined the Department of Ag after a 20 year career in law enforcement.

Some might have a gut-reaction against someone who spent much of his career enforcing drug laws, but he has spent the last year learning about MCPP and his recent actions should comfort those enrolled in the program.

At key junctures Campbell has been deliberate, transparent, and fair with the state’s cultivation centers.  In my humble opinion, Campbell will seamlessly maintain the program’s status quo, and I wouldn’t be surprised if some of the program’s persistent issues (delays in new rule making, responsiveness) improve over time.

You may be unaware of exactly what the MCPP coordinator does.  The coordinator’s role varies depending on the status of the program.  During my tenure I focused on rule-making, patient registrations, competitive license processes for dispensaries and cultivation centers, and outreach to educate the public about the program.  Wright oversaw physical site inspections, the first cannabis cultivation, and initial cannabis sales to patients.  Campbell’s new role will be to fine-tune aspects of the program that have proven to impede patient access or unnecessarily penalize the businesses, pushing through new administrative rules, managing the selection process for unclaimed dispensary licenses, and hopefully steering MCPP through the next stage of patient growth with the addition of PTSD and terminal illnesses, and extension of MCPP through 2020.

I liken the coordinator role to being the quarterback for the MCPP teams at Ag, IDFPR, IDPH, and ISP.  The coordinator does not conduct every inspection of a cultivation center, nor does he/she respond to every patient inquiry, but instead ensures broader goals and timelines are met, and is the final say on complex, unanticipated questions.  Illinois is one of the few states that brings together several state agencies to tackle the cannabis program, and it is important for all agencies to follow the same script and work together towards common goals.  The coordinator helps counterbalance the tendency of state agencies to work in silos; without a guiding presence agencies do not always play well together in the sandbox.  Campbell’s track record gives me confidence that he’ll achieve these tasks as the new coordinator.

My advice to the state’s medical cannabis patient and business community would be to focus on encouraging Governor Rauner to sign SB10.  The state’s new Pot Czar is going to be just fine.

A good day…

Today the Illinois Senate passed House Amendment 3 to Senate Bill 10 – sending to Illinois Governor Rauner a significant package of reforms and changes to the Illinois medical cannabis program – and believe it or not, he is going to sign the Bill.

We owe thanks to Representatives Lou Lang, Jim Durkin, and Governor Rauner.

                                                               

Anyone interested in reading the specifics can go here, and press coverage here and here.  The short version:

  • Extends the program several years to mid-2020 (instead of expiring Dec. 31, 2017);
  • Adds PTSD and terminal illnesses (terminal illnesses will have an expedited Dept. of Public Health approval);
  • Changes patient registration to 3-years before renewal, and the horrid patient fingerprinting need only be done once;
  • Clarifies that a doctor only certify a patient has a qualifying medical condition (not necessarily condoning the therapeutic benefit);
  • Dissolves the existing Medical Cannabis Advisory Board of patients, doctors and other health professionals, to be reconstituted under Gov. Rauner; and
  • Fixes a conflict in the law that threatened the lawful gun ownership of medical cannabis patients, plus more.

This Bill does not have everything for advocates (it does not add chronic pain, it does not add home-grow, etc), but with all the positive things SB 10 does, perhaps the most critical is that it gives hope and positive momentum to the Illinois program.

There is one notable (albeit minor) downside.

Having been involved in the creation of the Medical Cannabis Advisory Board, the dissolution of this Board gave me a moment of pause – the leadership of Dr. Leslie Mendoza Temple, Dr. Eric Christoff, Dr. Allison Weathers, patients Jim Champion and Michael Fine, and all the others has been outstanding, and frankly exactly what I had hoped for when we initially designed this team of volunteers and medical experts to consider the ever-changing research behind medical cannabis.

I will need to look past the downside of losing these wonderful volunteers, and focus on the huge benefit to the medical cannabis program.

One of the heroes of the Pilot Program, Leader Lou Lang, said it best:

“I have followed the work of the [Advisory] Board and they have done a stellar job.  They have listened to a lot of testimony, they read a lot of documents.  Before I made my final agreement to move this bill in this way, I called each of them to tell them what was in this bill.  Each of them said to me, ‘we think this board does good work… but if what we have to do to lengthen and strengthen this program, and make it better for patients and licensees and doctors and everyone in the pipeline, is to agree to reconstitute this board, then count us in.'”

Amen.

Compliance – for the regulators and regulated.

“Compliance” is a term that is thrown around – often without a clear definition of what it means, and how it matters.

I initially worked with “compliance” matters in my first job as a healthcare consultant.  Compliance plans are ubiquitous in healthcare, largely developing after audit and anti-fraud initiatives of the federal government in the 1990’s.  Today – most industries have ongoing compliance activities, compliance officers, and compliance plans.  Compliance can simply be a catch-all position to reduce risk for a company, and often uses employees without specialized compliance experience.  I am particularly partial to “How to get a job in compliance with little or no experience.”  At least they’re being transparent about it.

But true compliance needs are growing.  The Wall Street Journal thinks a Compliance Officer is one of the hottest jobs in America.  I’ll take WSJ’s word for it, but the topic itself tends to be boring and fall on deaf ears.

The truth is, compliance matters and should be taken seriously – especially in the developing cannabis industry with the variety of security, laboratory testing, packaging, record keeping, product tracking, and other regulatory requirements.  Compliance services are an increasing trend in the industry – most recently leading two of the country’s better known cannabis-focused law firms to jointly create their own compliance software for businesses.

While we’re at it, compliance matters not only for those being regulated, but for the regulators themselves.

Think of it as akin to the issue of “who is policing the police?”

When we were developing the Illinois medical cannabis program, there were dozens of issues to address every day of the week.  We dealt with the crises, but we were left with precious little time to consider how the implementation was going.

How would we establish benchmarks for success of the Illinois medical cannabis program?  How would we improve and modify the program moving forward?  How would cannabis businesses be able to share valid suggestions without the government disregarding them as self-serving?  How could Illinois learn from best practices of other states, and fix unanticipated problems, in the face of constant political, fiscal, and bureaucratic pressures?

“Compliance,” you say?  Indeed.

Some common compliance elements include effective communication, clear policies and procedures, monitoring program success and failures, appropriately responding to unforeseen or negative incidents, and general good management principles.  Of course these aspects are beneficial to a private cannabis business.

I would go so far as to say these elements are even more critical, and less common for government regulators and programs enforcing cannabis laws.  Government regulators don’t often have the time or training to implement successful compliance tools – that’s what outside consultants and compliance experts are for (here’s lookin’ at you, Wall Street Journal!).

Some states are already diligently tracking compliance markers for their medical and adult-use cannabis programs. Washington and Colorado have produced annual reports measuring a variety of benchmarks for their programs. Arizona went a step further with their medical program and hired a compliance consultant to conduct a comprehensive review of strengths and weaknesses of their medical marijuana system:

“The [Beacon-ID consulting] report recommends a state inventory tracking system, expanding patient registry systems to include faster and better sharing between physicians, regulators and dispensaries, standardized rules for packaging including child-proofing and increased inspections including unannounced ones.”

All state cannabis regulators should ensure a rational review of the successes and failings of their respective programs – especially those like Illinois where the program automatically sunsets January 1, 2018 without legislative renewal or expansion. We can all benefit from taking into account extensive data about the business, health, security, and quality of the state’s cannabis industry. The various state agencies must incorporate the tenets of compliance for us all to effectively evaluate next steps – we can’t just wing it and make emotional decisions about the future of these programs. A compliance plan is just one way for the regulators to track the successes and failures, and I hope such preparation and self-analysis paves the way for the continuation and expansion of the Illinois medical cannabis program.

Illinois Marijuana Decriminalization – a path forward for medical cannabis? (4/20 Edition)

Happy 4/20 (to those who celebrate – do so responsibly!)…

Just a short note that yesterday the Illinois Senate passed a marijuana decriminalization bill and it heads to the Illinois House of Representatives.  The Tribune has the story:

“The idea is that people caught with small amounts of marijuana would be fined instead of receiving jail time. The first-term Republican governor contended the old version would have let people carry too much marijuana and set fines too low.

The new edition drops the number of grams allowed from 15 to 10 and raises the range of fines from $55 to $125 to between $100 and $200.”

As noted by the Marijuana Policy Project, this bill closely mirrors a similar bill that passed the House and Senate last year:

“Illinois spends way too much money imposing costly criminal penalties on people who are found in possession of a personal amount of marijuana,” said Chris Lindsey, a senior legislative analyst for the Marijuana Policy Project. “Serious penalties should be reserved for people who commit serious crimes, not used to punish marijuana consumers. Nobody should face a lifelong criminal record simply for possessing a substance that is less harmful than alcohol.”Photograph of Senator Heather A. Steans (D)

Congratulations to the terrific Sen. Heather Steans and the rest of the co-sponsors of SB2228.

The bill passed 40-14 with both Democrats and Republicans supporting the measure.  Expect this bill to also fly through the Illinois House, ushered by the outstanding Rep. Kelly Cassidy, and even signed into law by Governor Bruce Rauner.

So this is my question – could this bipartisan effort be replicated for the extension and expansion of the Illinois Medical Cannabis Program?

Medical Cannabis Advisory Boards

On January 29, 2016, the Illinois Department of Public Health (“IDPH”) announced that Director Nirav Shah had once again rejected adding debilitating medical conditions to the Illinois Medical Cannabis Pilot Program Act (“MCPP”).

Though highly disappointing, this came as no surprise to those of us closely monitoring the words of Illinois Governor Rauner.  See hereHereHere.  And even his January 2015 comments here.

“I’m concerned about the process,” Rauner said today during a signing ceremony in Springfield.  “I don’t think it’s been run well.’

No offense taken.

The new Rauner Administration has been a mixed bag with regards to the medical cannabis program (on the bright side, cannabis businesses received their licenses, were allowed to initiate cultivation, and the program was allowed to start patient sales in November 2015 without any government obfuscation or inexplicable delays).

Yet the Illinois Department of Public Health, guided by the principles of Governor Rauner, has twice rejected the recommendations of the Medical Cannabis Advisory Board (“Advisory Board”) to expand the program.  The truly outstanding and overly qualified Advisory Board, comprised of doctors and patients, nearly unanimously urged IDPH to add new medical cannabis conditions such as PTSD and chronic pain.

advisory-board

The recommendations were rejected.  No explanation was given.  There is no reason to expect a different result in the future – you know that old saying about doing the same thing over and over again but expecting a different result…

While many of us are upset and disappointed about the news, I want to focus on the legal side of the ledger.

The Advisory Board is one of the better aspects of the MCPP – designed for the law to evolve over time.  [Full disclosure: I am also a former general counsel for IDPH, and was involved in the creation and appointment of the Advisory Board.]  As more medical cannabis research provides stronger justification for how it benefits PTSD, for example, IDPH has the authority to add the conditions through administrative rules (specifically through the Administrative Procedure Act and the Joint Committee on Administrative Rules).

Seems a bit boring, but wait… What if the Advisory Board recommends adding a condition to the MCPP and the IDPH says “no” to the recommendation?  Of course, that is exactly the situation we find ourselves in.

Not surprisingly, those who applied to add their medical condition are heartbroken, and some have even sued IDPH:

“An Illinois veteran is asking a judge to reverse a state decision against adding post-traumatic stress disorder to the list of diseases eligible for medical marijuana treatment.

“In the case of PTSD, the advisory board voted unanimously to recommend that it be added to the list after hearing testimony about the existing medical evidence.

“Potential patients ‘are disappointed in the governor for going against the recommendations of his own medical cannabis advisory board,’ [Attorney Michael] Goldberg said.  ‘The governor’s office has reversed the board’s recommendations without giving any reason, and they are seeking relief from the judicial branch.”

Can IDPH continue to refuse adding any conditions in the face of repeated Advisory Board decisions to the contrary?  Does IDPH need to give a reason for the denial?  If so, would any reason be legally sufficient?  What role, if any, does the Office of the Governor have?

Much of this will be addressed in court, so I’ll let those questions linger.  But we have some other states to take cues from.

Arizona’s medical marijuana law is one of the models for our program in Illinois, and also includes a Medical Advisory Committee to consider adding new conditions.  Arizona’s Advisory Committee recommended against adding conditions like PTSD in 2012 and again in 2014.  Based on these recommendations, their Director of the Department of Health Services denied the addition of PTSD citing “a lack of scientific evidence.”  When challenged in administrative review, the Department was ordered to reconsider and the Director ultimately acquiesced to adding PTSD as an eligible condition under their program.

“At the hearing, there was substantial evidence showing that PTSD sufferers receive a palliative benefit from marijuana use.

“The preponderance of the evidence shows that marijuana use provides a palliative benefit to those suffering from PTSD.”

Minnesota’s medical cannabis program closely mirrors Illinois program in many ways, including an advisory panel to consider new conditions.  Despite the panel recommending against intractable pain, the Minnesota Commissioner of Health decided to add the condition.

As disheartening as the gutting of the Advisory Board in Illinois may be, the Board still offers a unique and high-profile opportunity to present the litany of latest research supporting the medicinal benefits of cannabis.  The Advisory Board may not succeed at adding medical conditions any time soon, but it continues to be valuable and we all benefit from the Board’s thoughtful and passionate members.

If there is any takeaway from this, we should acknowledge that reasonable government officials and medical professionals can disagree on substantive decisions like adding eligible conditions to a medical cannabis program.  But when we are considering treatments for our country’s heroes returning from battle and suffering from PTSD, or solutions for millions of Americans battling chronic pain with addictive opioids freely prescribed by their doctors, we should not stand in the way of medicine that can improve their lives.

What’s in a Name?

What’s in a name?  Hello, world.  I spent a fair amount of time thinking about creating this blog.  What will the focus be?  Who’s the audience?  How formal do I need or want to be?  The name was an easy decision – welcome to the Pot Czar Blog.

 

When I ran the Illinois Medical Cannabis program, not a day went by without hearing a pot joke.  Indeed, many in the Governor’s Office only referred to me as the “pot czar.”  I successfully kept this moniker out of the press until the end of my tenure, but I privately enjoyed the name as a badge of honor (despite my pleas, my wife would not join the chorus).  In hindsight, I am very proud to have been a part of getting medicine to patients suffering from a range of ailments – even if that comes with a tongue-in-cheek title I will someday have to explain to my son (“Dad, why does everyone ask me if you can get them a pot brownie?”).

 

With the blog name settled, I reflected on the importance of a name in this industry.  Cannabis or marijuana?  Resin or Shatter?  Patient or criminal?  The distinctions obviously matter and have driven this spectacular shift in society’s capacity to rethink the benefits and relative risks of this medicinal plant.

 

I was first approached in the Fall of 2012 about medical cannabis in Illinois.  I was working in the Office of the Illinois Governor as an attorney focused on healthcare and environmental issues.  At that time it was increasingly likely that a medical cannabis law could be passed in the Spring 2013 Illinois General Assembly.  A few of us were tasked with negotiating the final bill with legislative sponsors and others.  It is safe to say that I had no idea at the time how the cannabis industry was going to take over my career.

 

The world has changed a great deal in the last 4 years with regards to cannabis.  Here in Illinois, medical cannabis is available to a small percentage of the population – the law and rules keep many from participating.  There are a number of barriers that should be removed for patients – and I will continue advocating to tear down those walls.  Dozens of dispensaries and cultivation centers are operational here, and several entrepreneurial cannabis-related startups and investors are sprouting in Chicago.  There are advocacy organizations, regular media stories, dedicated Facebook pages, and ongoing political discourse about the industry.  We are even on the verge of significant criminal justice reform.

 

I will keep this blog focused on the cannabis industry, warts and all.  There are many things to discuss – patient access, business innovations, legal implications, criminal justice issues and more – and I look forward to hearing your feedback.  Who knows what will happen next in the world of cannabis, but the Pot Czar Blog will chronicle it all.