SENATE HEALTH, HUMAN SERVICES AND SENIOR CITIZENS COMMITTEE

STATEMENT TO

SENATE, No. 119

with committee amendments

STATE OF NEW JERSEY

DATED: DECEMBER 15, 2008

      The Senate Health, Human Services and Senior Citizens Committee reports favorably and with amendments Senate Bill No. 119. 

      As amended by committee, this bill would establish the “New Jersey Compassionate Use Medical Marijuana Act.” 

      Medical research suggests that marijuana may alleviate pain or other symptoms associated with certain debilitating medical conditions.  Federal law, however, prohibits the use of marijuana.  Ninety-nine percent of marijuana-related arrests in the country are made under state law rather than under federal law.  Changing state law would therefore provide legal protection to the vast majority of seriously ill people who use marijuana medically.  Thirteen other states permit the use of marijuana for medical purposes, and with this bill, New Jersey would join the effort to protect patients using marijuana to alleviate suffering from arrest, prosecution, and other legal sanctions, as well as provide protection to their physicians, caregivers, alternative treatment centers authorized to produce marijuana for medical purposes, and persons who simply are in the vicinity of permitted medical use of marijuana.

PATIENT/CAREGIVER IDENTIFICATION CARD

      The bill provides that DHSS shall issue registry identification cards containing the patient's photograph to qualifying patients and their primary caregivers.  The bill defines “qualifying patient” or “patient” as a person who has been diagnosed by a physician with whom the patient has a bona fide physician-patient relationship as having a “debilitating medical condition.”  “Debilitating medical condition” is defined as: cancer, glaucoma, positive HIV/AIDS status, or the treatment of these conditions; a chronic or debilitating disease or medical condition or its treatment that produces cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, severe and persistent muscle spasms; and other medical conditions that may administratively be added by the department.  “Primary caregiver” or “caregiver” is defined as a person who is at least 18 years old, who has never been convicted of a felony drug offense, has agreed to assist with a qualifying patient's medical use of marijuana and has been designated as primary caregiver on the patient's registry identification card, or in other written notification to the department.  A primary caregiver may only have one qualified patient at any one time.  A patient's physician could not serve as a primary caregiver. 

      DHSS shall issue registry identification cards to qualifying patients who submit the following:

      - written certification that the person is a qualifying patient  (medical records or a statement signed by a physician with whom the patient has a bona fide physician-patient relationship, stating that in the physician's professional opinion, after completing a full assessment of the patient's medical history and current medical condition, the patient has a debilitating medical condition for which recognized drugs or treatments are or would not be effective and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient);

      - the required application or renewal fee, which may be based on a sliding scale as determined by the commissioner;

      - the patient's and caregiver's name, address and date of birth; and

      - the physician's name, address and telephone number.

      The bill requires that DHSS verify the information prior to issuing a registry identification card, and approve or deny an application or renewal within 15 days of receipt and issue a registry identification card within five days of approval.  DHSS may deny an application or renewal only if the applicant fails to provide the required information, or if it determines that the information was falsified.  Denial of an application is considered a final agency decision, subject to review by the Appellate Division of the Superior Court.

      DHSS shall issue a registry identification card to the primary caregiver named in a patient's approved application if the caregiver signs a statement agreeing to provide marijuana only to the patient who has named him as primary caregiver.  DHSS would be prohibited from issuing a registry identification card to any proposed caregiver with a felony drug offense conviction.

      Under the bill, it would be a disorderly persons offense, punishable by up to 180 days in jail and a $1,000 fine, for a person to fabricate or misrepresent a registry identification card to a law enforcement official.

      DHSS is to maintain a confidential list of the persons to whom it has issued registry identification cards.  Individual names and other identifying information on the list are to be confidential, and not subject to public access, but could be released to authorized DHSS employees as necessary to perform official department duties and to authorized employees of State or local law enforcement agencies when necessary to verify that a person who is engaged in the suspected or alleged medical use of marijuana is lawfully in possession of a registry identification card.

ALTERNATIVE TREATMENT CENTERS

      The bill provides that DHSS shall establish a registration program authorizing alternative treatment centers to produce and dispense marijuana for medical purposes.  A person who has been convicted of possession or sale of a controlled dangerous substance shall not be issued a permit to operate, or be an employee of, an alternative treatment center, unless such conviction was for a violation of federal law relating to possession or sale of marijuana for conduct that is legal under the bill.  All usable marijuana, seeds and seedlings associated with the production of marijuana for a registered qualifying patient would be the property of the patient and must be provided to the patient upon request.  An alternative treatment center may be reimbursed by a patient for reasonable costs associated with the production of marijuana for that patient.

      An alternative treatment center permit holder or his employee would not be subject to arrest or prosecution, or penalized in any manner for the acquisition, distribution, possession, cultivation, or transportation of marijuana or paraphernalia related to marijuana on behalf of a registered identification cardholder, provided the amount of marijuana possessed by the center, combined with the amount possessed by the registered patient and his primary caregiver, does not exceed six marijuana plants and one ounce of usable marijuana per patient

LEGAL PROTECTIONS

      The bill provides that a patient and his caregiver who possess a registry identification card and collectively possess no more than six marijuana plants and one ounce of usable marijuana would receive the following protections under this bill:

      -  The person would not be subject to arrest, prosecution, or penalty, or denied any right or privilege, including civil penalty or disciplinary action by a professional licensing board, for the medical use of marijuana.

      -  The person would be entitled to a rebuttable presumption of medical use of marijuana if the patient or his caregiver possesses a registry identification card and the permissible amount of marijuana. 

      -  The person could assert an affirmative defense of medical use of marijuana, unless the person was operating a motor vehicle, aircraft or motorboat while under the influence of marijuana, or smoking marijuana in a school bus or other form of public transportation, on any school grounds, in any correctional facility, or at any public park, public beach, public recreation center or youth center. 

      -  Possession of, or application for, a registry identification card shall not alone constitute probable cause to search a person or his property.

      -  If a patient has in his possession a registry identification card and the permissible amount of marijuana, N.J.S.A.26:2-82 (authorizing the destruction of marijuana determined to exist by the Department of Health and Senior Services) would not apply.

      The bill extends these protections to a qualified patient who is under 18 years of age if the patient and his legal guardian are advised by the patient's physician of the risks and benefits of using marijuana for medical purposes, and the legal guardian consents in writing to allow the medical use of marijuana, serve as the primary caregiver, and control the patient’s acquisition, dosage and frequency of use.   

      A physician who provides written certification for the medical use of marijuana to a qualifying patient would not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including a penalty or disciplinary action by the State Board of Medical Examiners.

      In addition, the bill would protect persons from arrest and prosecution for constructive possession, conspiracy, or any other offense if they were in the presence or vicinity of the medical use of marijuana as permitted by the bill.

REPORT TO GOVERNOR AND LEGISLATURE

      The bill requires the commissioner to report annually to the Governor and Legislature on the number of applications for registry identification cards, the number of patients and caregivers approved, the number of registry identification cards revoked, the nature of the debilitating medical conditions, and the number of physicians providing written certification for patients.  The report is to contain no identifying information of patients, caregivers, or physicians.

NO LIABILITY BY INSURERS, EMPLOYERS, OR STATE

      The bill states that nothing in it should be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace.  Finally, the bill provides that the State would not be held liable for any deleterious outcomes from the medical use of marijuana by any qualifying patient.

COMMITTEE AMENDMENTS

      The amendments:

      --update the legislative findings to add Michigan, New Mexico and Rhode Island to the list of states which have enacted medical marijuana laws, and to incorporate into the findings that the bill would also provide legal protections to those who are authorized to produce marijuana for medical purposes;

      -- define “medical marijuana alternative treatment center,” provide for DHSS establishment of a permit system for a center to supply marijuana, or related supplies and educational materials to registered patients or their registered primary caregivers, and provide that a center would receive the same legal protections that are provided under the bill to registered patients and their caregivers.

      As amended this bill is similar to Assembly No. 804 (Gusciora/Carroll/Voss), which is pending in the Assembly Health and Senior Services Committee.

      This bill was pre-filed for introduction in the 2008-2009 session pending technical review.  As reported, the bill includes the changes required by technical review, which has been performed.