Medical Marijuana in Tennessee:

Looking Beyond

Legalization to Regulation

Does the law allow physicians to prescribe medical marijuana?• Technically, no, physicians may not prescribe medical marijuana

because this would violate the Controlled Substances Act.• Physicians may, however, recommend or certify patients for

medical marijuana.• Conant v. Walters (9th Circuit): First Amendment protects patient-

physician communications regarding use of medical marijuana.•Most state statutes also protect physicians from disciplinary

actions related to recommending patients for medical marijuana.

Regulation of Medical Marijuana: “The Goldilocks

Principle”• Little to no regulation i.e. Wild West Scenario (California?)• Over regulated (New York?)• Just Right Tennessee?

“Bona Fide Physician-Patient Relationship”• While every state has this requirement, the specific criteria for

satisfying this standard varies by state. (Thorough review of patient medical history, making follow-up appointments, reviewing other medications for contraindications etc.)• In every state but California, this requires a physical examination.• California does not require a physical examination so California

physicians may utilize telemedicine technology.• Other states expressly forbid the use of telemedicine technology by

physicians issuing medical marijuana recommendations.

Qualifying Conditions• In New Jersey: Amyotrophic lateral sclerosis, Multiple sclerosis, terminal

cancer, Muscular dystrophy, Inflammatory bowel disease (Crohn’s Disease), and terminal illness, if the physician has determined a prognosis of less than 12 months of life.• In California, conditions include HIV/Aids, glaucoma, epilepsy, and others,

or “any other chronic or persistent medical symptom that either substantially limits a person’s ability to conduct one or more of major life activities as defined in the Americans with Disabilities Act of 1990, or if not alleviated, may cause serious harm to the person’s safety, physical, or mental health.”• How do Lawmakers and Regulators make these decisions? Good

Question.

Quantity Limits and Methods of Administration

• Some states allow home grown plants – ranges from twelve (12) mature plants in Arizona to six (6) plants in Colorado.• Purchased from a dispensary – In Colorado, the limit is 2 ounces

within 30 days (although physicians may override this limit) but in Oregon, the limit is 24 ounces.• New York does not allow patients to smoke marijuana so patients can

only vaporize or inhale marijuana liquids and oils or take pills.

Continuing Medical Education (CME) Requirements

• In two states, New York and New Jersey, physicians must complete a CME course on medical marijuana prior to issuing any recommendations.• In New York, the state health agency has not publicly released a list of

physicians who have completed the course and are thus approved to issue recommendations, so there are growing concerns about whether this has inhibited patient access to medical marijuana.• On the other hand, numerous surveys indicate that physicians are

eager for CME courses that address safety and efficacy concerns, and dosage and administration information.

Medical Marijuana Patient Registries

• In some states, like Colorado, registration is mandatory and this provides regulators and lawmakers with access to information that may be used to inform future regulations and laws.• A 2013 audit of Colorado’s database raised several red flags for regulators and

prompted heightened regulation of physicians– physicians are now flagged for review if suspicious activity on database. (i.e. large numbers of patients under 21; routinely certifying patients above the 2 ounce limit; large numbers of patients that call into question BFPPR).

• In California, patient registration is optional, which means that regulators cannot flag any suspicious activity by certain physicians.• “High volume pot docs” difficult to identify and investigate.

ConclusionThe perfect regulatory scheme? It’s

complicated.