Authored By:  William F. McDevitt, Esq.

On April 16, 2018, Pennsylvania Secretary of Health Rachel Levine accepted the report of the Medical Marijuana Advisory Board (Board) and will immediately implement all proposed changes to the Medical Marijuana Act (MMA), including the recognition of additional cannabis-treatable medial conditions (neurodegenerative diseases, dyskinetic and spastic movement disorders, opioid addiction treatment and terminal illness), waiver of yearly patient registration fees, allowing physicians to opt out of DOH’s public registry and allowing licensed dispensaries to sell cannabis in dry leaf and flower form.

This statement, made less than two weeks after the Board’s report, may surprise many people. The author, who just last week wrote that allowing the sale of dry leaf or flower cannabis would require legislative action, was surprised. Admittedly, we read the provisions of Section 303(b) of the MMA narrowly. That provision limits the dispensable forms of medical marijuana to pills, oils, topicals (gels, creams, ointments), vapors, tinctures and liquids. Section 303(c) of the MMA specifically prohibits the sale of “dry leaf or plant form” [u]nless otherwise provided by regulations adopted by the department under section 1202.” The Department of Health (DOH) can then adopt new regulations within 30 days after publishing proposed regulations for public comment and, if necessary, conducting hearings.

Secretary Levine does not require legislative approval to enact regulations that are consistent with the intent and purposes of the MMA. According to the DOH, regulations will be published in May, and flower and leaf cannabis will be available to patients this summer. Governor Tom Wolf issued a statement praising the DOH’s swift adoption of the Board’s recommendations.

The DOH’s action marks the second time in five weeks that a state administration has fast-tracked medical cannabis reforms. In March 2018, New Jersey accepted and implemented similar reforms as proposed in the Executive Order No. 6 Report commissioned by New Jersey Governor Phil Murphy.

Allowing leaf and flower cannabis to be distributed by licensed dispensaries will lower costs, simplify supply and increase access to treatment for many patients. But, the hasty adoption of wide ranging changes to the MMA may expose the DOH to legal challenges.

Secretary Levine’s proposed regulatory change seeks to increase access to all patients on the basis of cost, regardless of the diagnosis or condition of any individual patient. Arguably, the “unless otherwise provided in regulations” language of the MMA does not necessarily provide the DOH with the broad power to waive the prohibition on dry leaf or flower cannabis for all patients under any circumstances. Opponents to the sale of leaf and flower might argue that the language of the MMA allows limited waivers of a general prohibition and, as such, the limited waiver must have a limited purpose, as when leaf or flower are shown to be the only viable treatment for a medical condition.

It remains to be seen how this bold effort to insure that more Pennsylvania residents have access to cannabis treatment will be viewed and whether it will be legally challenged.

About the Author

William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached atwilliam.mcdevitt@wilsonelser.com.