Liability for Medical Clinics in New Jersey Who Prohibit Medical Cannabis Use on Site – Not So Fast

Under federal law, marijuana is a Schedule I controlled substance.[1]The Controlled Substances Act (CSA), placed marijuana in is most restrictive category, Schedule I. It further defined marijuana as a drug with a high potential for abuse, no currently accepted medical use for treatment, and lacking acceptable safety uses even under medical supervision. 21 U.S.C. Section 812(b)(1).

In 2010, New Jersey enacted the Compassionate Use Medical Marijuana Act which decriminalized the possession of a certain amount of marijuana for medical use by qualifying patients. N.J.S.A. 24:6I-6[2]. The purpose of the act was to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use cannabis to alleviate suffering from qualifying medical conditions, as well as their health care practitioners, designated caregivers, institutional caregivers, and those who are authorized to produce cannabis for medical purposes. In July 2019, New Jersey amended the act and expanded access to medical cannabis for all qualified patients.

The amendment raises certain concerns amongst some medical providers. Specifically, how does this expanded access co-exist with policies in place at drug treatment facilities that prohibit such use? Does the act protect a drug addiction center against threats of discrimination and non-compliance with the Compassionate Use Act? What factors should a center consider in dealing with this type of situation? Will there be a liability issue if the clinic does not allow marijuana use while the patient is at the center, even if the patient has a medical marijuana card? Can the center discharge the patient if they are not compliant with clinic policy? The short answer is that drug treatment centers would likely be protected against any such claims.

N.J.S.2C:35-18(g) states that for the purposes of medical care, a qualifying patient’s authorized use of medical cannabis in accordance with the provisions of P.L.2009, c.307 (C.24:6I-1 et al.) and P.L.2015, c.158 (C.18A:40-12.22 et al.), shall be considered equivalent to the authorized use of any other medication used at the direction of a health care practitioner, and shall not constitute the use of an illicit substance or otherwise disqualify a qualifying patient from needed medical care.

However, under N.J.S.2C:35-18(n)(1) no health care facility shall be penalized or denied any benefit under state law solely for permitting or prohibiting the handling, administration, usage, or storage of medical cannabis, provided that the facility’s policies related to medical cannabis are consistent with all other facility policies concerning medication handling, administration, usage, or storage. Subsection two states that no health care facility shall be penalized or denied any benefit under state law solely for prohibiting the smoking of medical cannabis on facility property in accordance with the facility’s smoke free policy.

The updated portions of the act also discussed authorized consumption areas and how such venues are authorized. See N.J.S.2C:24:6I-21. The section states that municipalities may authorize the operation of locally endorsed medical cannabis consumption areas by medical cannabis dispensaries and clinical registrants within its jurisdiction, at which areas the on-premises consumption of medical cannabis may occur. The law further notes that an applicant is prohibited from operating a cannabis consumption area without state and local approval.

Only a medical cannabis dispensary or clinical registrant holding a medical cannabis consumption area endorsement, subject to any regulations for medical cannabis consumption areas promulgated by the commission, may permit a person to bring medical cannabis into a medical cannabis consumption area.

Ultimately, the act provides the following guidelines:

1. No health care facility shall be penalized or denied any benefit under state law solely for prohibiting the handling, administration, usage, or storage of medical cannabis, provided that the facility’s policies related to medical cannabis are consistent with all other facility policies concerning medication handling, administration, usage, or storage
2. Patients are encourage to use medical cannabis in their homes[3]
3. Patients may only obtain medical cannabis from a New Jersey licensed Alternative Treatment Center
4. Only a properly licensed cannabis consumption area is permitted to allow on site usage outside a patient’s home[4]
5. Even if a qualified patient is at such a location, a facility can still remove such a patient if their conduct violates the locations guidelines[5]

By following the above regulations and guidelines, a drug treatment center and any other medical facility places itself in the best position to defend any allegations of discrimination or non-compliance with state laws.

[1] . See 21 U.S.C. Section 812(c), Schedule I(c)(10); 21 C.F.R. §1308.11, Schedule I(d)(23), (31).

[2] A “qualified patient” is “a resident of [New Jersey] who has been authorized for the medical use of cannabis by a health care practitioner.” N.J.S.A. 24:6I-3.

[3] https://www.nj.gov/health/medicalmarijuana/patients/guidelines/

[4] N.J.S.2C:24:6I-21

[5] N.J.S.2C:24:6I-21(j)(2)(4)