Pennsylvania’s medical program in jeopardy

This story was originally published in the November 2017 issue of Marijuana Venture, on sale now. 

The Pennsylvania Legislature’s painstaking efforts and the hopes of thousands of suffering patients came into jeopardy recently as multiple lawsuits and state agency decisions threatened to halt the commonwealth’s fledgling medical marijuana program.

One attack on the medical marijuana program came when Keystone ReLeaf, a grower/processor applicant that failed to win a permit in the first round, filed a lawsuit against the state Department of Health seeking an injunction against the entire medical marijuana program and a rescindment of all permits already issued. ReLeaf alleges that the Department of Health’s process lacked “transparency” and was carried out in a “secretive” and “opaque” manner. The company argues that no applicant obtained a “fair” or “meaningful administrative review of a permit application denial.”

ReLeaf’s lawsuit did not go unchallenged. State Senator Daylin Leach, the original author and prime sponsor of the state’s medical marijuana legalization bill, published a heart-wrenching letter imploring ReLeaf’s attorney not to seek the remedy of staying the entire medical marijuana program. Senator Leach stated in his letter: “If the entire program is delayed, people will be forced to needlessly endure excruciating pain, agony, and, in some cases, death. As your client is surely aware, among the patients medical marijuana will help are small children with life-threatening seizure disorders, cancer patients who are too sick to continue their life-saving chemotherapy treatments, and veterans who, after serving our nation in combat now suffer from Post-Traumatic Stress Disorder, are committing suicide at an alarming and historically unprecedented rate.”

Senator Leach also points out the well-documented 25% reduction in opioid use in states that have legalized medical marijuana.

He says that ReLeaf should be free to file a complaint for financial damages, if the company feels it has suffered a loss due to being unjustly judged in its applications.

However, ReLeaf was not unjustly judged in its application; in fact, it was not judged at all.

ReLeaf submitted its application two days late, according to the Pennsylvania Office of Open Records in its decision to reject the initial lawsuit. Failing to submit an application on time was grounds for an automatic rejection.

Another attack on the Department of Health’s process came in September, when the Office of Open Records determined, in response to an appeal by the Reading Eagle newspaper, that the Department of Health failed to make a “good faith effort” in determining which portions of the applications could legally be redacted under the state’s right-to-know law.

Recognizing the right-to-know deadline challenges faced by the Department of Health, the Office of Open Records allowed seven days for the department to submit a timeframe on how long it would take to re-review all the applications’ redactions — an exercise that would include the review of more than 300,000 pages.

The Office of Open Records’ concern was that the Department of Health, which “bears the burden of proving the applicability of any cited exemptions” to the presumption that all records in the commonwealth’s possession are public, skirted its responsibility by allowing applicants to redact their own applications. Some applicants redacted almost the entirety of their applications with no legal justification cited.

Significantly, the Office of Open Records decision could order most, if not all, of the applications to be redacted. Applicants put hundreds of hours and tens of thousands of dollars into developing their applications and business plans. If the Department of Health is left to fight this on its own, proprietary and highly competitive information about business plans may be disclosed not only to the public, but to other competitors. Right-to-know disclosure rules provide an exemption for a “record that constitutes or reveals a trade secret or confidential proprietary information,” so some applicants may fare better as their redactions were made under, and cited to, laws that protect this type of information.

There are several additional right-to-know requests still pending, which has led some of the applicants, who are in jeopardy of their applications being disclosed, to fight instead of negotiate. Negotiation usually comes during some type of mediation, but with so many right-to-know requesters, there is the danger of continually giving away sections of the application until all sections are disclosed. One successful applicant opined that mediation was the equivalent of “death by a thousand cuts.”

Pennsylvania’s medical marijuana program is strong. Forged by the Legislature’s prudent analysis of all that came before it and galvanized by true advocates of the patients who need it as an alternative to harsh or ineffective pharmaceuticals, Pennsylvania’s medical marijuana program is likely to withstand the legal challenges currently foisted upon it — but at what cost?

 

Judith D. Cassel of Cannabis Law PA (cannabislawpa.com) provides legal guidance to cultivators, dispensaries, other related businesses, universities, health care organizations and practitioners navigating the regulatory landscape of medical marijuana. Utilizing her past experience as a corporate executive and small business owner, she works extensively in commercial legal matters involving application drafting, entity formation, financing, contract negotiations, sales and leasing transactions and litigation.