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CNHI – Medical pot group sues state over expansion

By Joe Mahoney, 5/5

ALBANY — With more than 18,000 New Yorkers now certified to be treated with medical marijuana, the state is seeking to double the number of producers of the drug.

But the New York Medical Cannabis Association, a trade group representing the state’s five companies that run production facilities and the 20 dispensaries spread across the state, is waging a court battle to thwart the effort. It argues the Cuomo administration’s plan to bring on new producers will jeopardize their financial viability.

Amy Peckham, the chief operating officer of Etain, a company that produces medical cannabis at a Chestertown facility and operates four dispensaries, said in an affidavit filed with the lawsuit that the state Department of Health’s decision to increase the number of licensed suppliers from five to 10 was “shocking.”

Peckham said the move “will further cripple an already ailing market.”

She also contended there is no evidence to back the state agency’s contention that the New York program is facing “unmet patient demand” for the marijuana products, noting her company alone has enough cannabis on hand to supply the needs of the entire state for the next 18 months.

The state Health Department reported Friday that 3,356 new patients have been certified for medical marijuana since late March, when chronic pain was added to the list of eligible conditions. That brings the total number of New York patients with the certification to 18,348 as of Friday.

According to the Health Department, Otsego County has 31 people certified to get medical marijuana, while Delaware County has 28, Chenango County has 42 and Schoharie has 19.

The first of New York’s 20 medical marijuana dispensaries opened in January 2016 after the Health Department chose the five highest-scoring applicants from a ratings system devised by state bureaucrats. The new companies that would be added finished with ranks 6 through 10 in the ratings, state officials said.

Jill Montag, a Health Department spokeswoman, said: “From Day One, we made clear our commitment to the continued growth of this program so that the New Yorkers who qualify for this therapy have access to it.”

As for the association’s lawsuit, Montag added, “We will continue to fight any attempts to block patients from the relief they deserve.”

The legal wrangling at the Albany County courthouse comes as lawmakers at the nearby statehouse consider enhancing the 16-month-old medical marijuana program by adding additional illnesses — including Post Traumatic Stress Disorder — to the list of medical problems for which patients can get certified for cannabis products.

Gov. Andrew Cuomo weighed in on the legislation this week, confirming his administration is considering putting more illnesses on the eligibility list.

The governor had been opposed to medical marijuana as recently as 2013 and now presides over one of the most restrictive medical pot programs in the nation. Advocates for medical marijuana say the state rules limiting the types of marijuana that can be purchased to those in capsule or oil forms have hurt the program, contending sales would grow if patients could access more affordable forms — smokeable and edible.

One of the chief legislative architects of the state program, Assembly Health Committee Chairman Richard Gottfried, D-Manhattan, suggested in an interview that one of the best ways to address the gripes of the supply companies is for the state to make public the medical practitioners who are participating.

Several hours after CNHI inquired as to why the names of the practitioners were being kept confidential, the Health Department announced Friday afternoon it will now make a listing of those providers public, with the exception of those who want their identities kept confidential.

The listing of the health care providers and their contact information was posted on a state web page:

Gottfried said he expects more people will get certified once they can locate the doctors. The state agency said the practitioners registered in the program have grown to 995.

Gottfried said it was never the intention of the program to limit the number of suppliers to five.

“The real problem is we don’t have enough customers,” Gottfried said. “That’s not only a problem for the economic viability of producers but most importantly it’s a problem for the health of people who should be medical marijuana patients.”

The cannabis association says its member companies have already invested more than $50 million in their New York operations thus far.

Montag said the five additional organizations seeking to supply cannabis products are expected to get their state approvals by June 30.

Bringing them into the program, she said, “will help to increase patient access, increase geographic distribution for patients, make medical marijuana products more affordable for patients through the introduction of new competition, and increase the variety of medical marijuana products available to patients.”

Officials said another step to enhance the program came when the Health Department authorized physician assistants and nurse practitioners to join doctors in having the ability to certify patients for marijuana doses.

Joe Mahoney covers the New York Statehouse for CNHI’s newspapers and websites. Reach him at