Attorney General
Department of Justice
33 Capitol Street
Concord, New Hampshire 03301-6397
Michael A. Delaney
Attorney General

May 10, 2011

Honorable Jeb Bradley
State House Room 302
107 North Main Street
Concord, NH 03301

Re: House Bill 442; relative to the use of marijuana for medicinal purposes

Dear Senator Bradley:

I am writing to voice my opposition to House Bill 442, relative to medical marijuana, including the floor amendment that is currently being considered by the Senate.

I am firmly opposed to House Bill 442 because it will authorize the establishment of state-sanctioned operations for the cultivation and distribution of marijuana—operations that constitute criminal violations under federal law. While the US Department of Justice has taken the position that it will not focus enforcement efforts on seriously ill individuals who use marijuana as part of a medically recommended treatment program consistent with applicable state laws, it has stated that it will enforce the laws against individuals and organizations that participate in the business of manufacturing and distributing marijuana, even if permissible under state law. Attached is a letter from John Kacavas, U.S. Attorney for the District of New Hampshire, confirming that position. By enacting this bill, the legislature would be giving individuals and state employees false assurance that they will be immune from criminal liability for their activities under the law.

Above and beyond the illegality of the proposed system under federal law, I have a number of other concerns. First, the bill does not prohibit alternative treatment centers from acquiring marijuana from any source, including illegal drug dealers within and without the state. It is simply bad policy to allow state-sanctioned services to be founded on the procurement of contraband. Another potential source of marijuana is out-of-state individuals and entities who are authorized to cultivate medical marijuana in their home state. By allowing that, this state would be encouraging interstate distribution of a controlled drug, which is a clear violation of the federal law.

The bill creates a concern for law enforcement. The bill provides for immunity from arrest for any qualified patient or caregiver who is in the possession of less than one-half ounce of marijuana. However, there is no requirement that marijuanadispensed by the treatment center be retained in its original packaging. Thus, law enforcement has no ability to determine if, in fact, that substance was lawfully obtained. Further, the bill appears to permit designated caregivers to service and unlimited number of patients. This will create confusion as to how much marijuana a caregiver will lawfully be allowed to possess at any one time. Also, it is unknown how much marijuana any alternative treatment center will be allowed to lawfully acquire, cultivate, possess and distribute since it is unknown how many individuals will be designated as registered qualifying patients.

Given the experiences of other states that have attempted to implement similar laws, it is clear that a well-established regulatory system is critical to maintaining control over marijuana dispensaries. Despite the bill’s clear statement that no state funds shall be used to implement or administer the chapter, the Department of Health and Human Services will, by necessity, be required to expend time and resources to develop that system before any alternative treatment centers are certified. The Department will have to promulgate rules, create a system for issuing the various identification cards, and review applications, among other things. My Office will be required to expend resources to provide legal counsel to the Department. Yet, there is no fiscal note attached to the bill. I have grave concerns about the adequacy of the regulatory system that will be created given the significant financials constraints the Department is experiencing.

Finally, the amendment calls for the Department of Health and Human Services to lower its standards for certification of an additional treatment center if, after two years, the registered alternative treatment centers in operation are not sufficient to ensure access of marijuana to registered qualifying patients. In that instance, the bill mandates the Department to issue a registration certificate to the applicant which “achieves the highest score,” regardless of whether the Department considers that score sufficient.

For all these reasons, I urge you to vote House Bill 442 inexpedient to legislate.

Sincerely,
/s/ Michael A. Delaney
Michael A. Delaney
Attorney General