An Open Letter Concerning the Establishment of Licensed Medical Marijuana Dispensaries in Maine 

March 24, 2010

Governor Baldacci, honorable Maine legislators, and fellow citizens:

In the coming days, our state legislators will consider legislation authorizing establishment of a system of medical marijuana dispensaries regulated by our Department of Health and Human Services (DHHS).   By the will of the majority of our citizens expressed in the passage of the Maine Marijuana Act, the Maine Marijuana Task Force has drafted LD 1811 to amend the Act and put final implementation systems in place. 

We write on behalf of a group of local healthcare providers and caregivers who supported the Maine Marijuana Act.  We are grateful to the majority of Maine voters for their support and we are excited to navigate the rational advancement of cannabis for therapeutic use.  In our view, creation of a dispensary system within the State will advance the cause of affordable healthcare and stimulate growth in the field of organic medicine and the local economy.  

In the midst of our optimism, we hold serious concerns about the present course of the regulatory process underway.   This open letter is intended to invite informed and vigorous public discussion in the hope that it will result in the best possible policy for the citizens of our state.  

It is with a heavy heart that we report our growing unease with a lack of transparency and inclusivity in the policy formation process.  We regretfully note our concern that parties from outside Maine’s community of licensed physicians and caregivers (we do not refer to the expert public servants providing anecdotal advice from New Mexico and elsewhere) seem to have gained privileged levels of access to our elected public servants.  

While we are steadfast in our support of creating a dispensary system, we recognize that a large number of citizens did not support the Maine Marijuana Act.  As responsible citizens with abiding professional interests in the healing arts, we hold that it is not in the interest of the community to proceed in a fashion that may not only create deeper divisions of opinion, but create fiscal and social liabilities that will fall upon the shoulders of all citizens within the state.  

We believe it is our responsibility as community leaders to work toward the safest and most prudent means of policy implementation.  Our end goal must be the successful and discrete treatment of patients in need without unnecessary aggravation of those who oppose such treatment—for any reason.  Our science is sound.  The entire community will be able to move on to more pressing matters of state once this change is digested and its salutary effects are seen.

With these priorities in mind, we feel it our duty as citizens to question both the wisdom and feasibility of two major components of the dispensary system as it is currently proposed: 

The initial limitation of licenses to eight dispensary organizations on the basis of regional monopoly.

The allowance of investment capital from foreign states in Maine dispensary organizations.

Problems with Allocating One Initial License per DHHS District

The DHHS has suggested that the number of dispensary licenses be limited to eight – one per DHHS district.  The rationale for this limitation seems to be that it would allow the State to oversee the dispensaries in a manner that will minimize costs and maximize control.  

As potential licensees, we see two problem areas with this approach and hope that the Governor, the Attorney General, and our legislators will see fit to address the following concerns before further amendments to the Maine Marijuana Act are put to vote in the Assembly: 

A)        Problems with the Total Number of Licenses Proposed 

Our associates include physicians and caregivers who already have experience serving the needs of existing patients.  Our experience warns us that upward trends in patient demand may quickly outpace the production capacity of eight dispensaries.   This will likely require the maintenance of hundreds of production and research plants that would put each dispensary at risk of felony prosecution under Federal Law.  

While we support the Medical Marijuana Act and appreciate the efforts of the government to lead the nation in the adoption of laws that make these medicines available to those in need, we are concerned that DHHS has made its policy recommendations from bureaucratic expedience rather than a strategic vision.  A truly integrated policy strategy must transparently address likely risks.  One of the greatest risks to this program is potential conflict with Federal regulations and policy.  

Other states such as California have allowed dispensary operators to take their chances with both Federal and local law enforcement authorities, and the States themselves have been reluctant to establish consistent positions in regard to these challenges to state sovereignty.  In a situation such as ours, where the government is responding to a mandate from its citizens, it is crucial to recognize that Maine citizens are going to invest their property and time in supplying the medicine demanded by their fellow citizens.  

Given these circumstances, we feel it would be imprudent for the legislature to accept the proposed limit of eight dispensary licenses without publicly studying: i) the benefits of a larger, more decentralized pool of licensees; and ii) how the State’s authorities will defend the rights of dispensary licensees that encounter challenges by Federal authorities based on volume of business, regardless of the ultimate number of licensees. 

B)      Questions on the Balance of Market Competition and State           Regulation

          The second problem we see with the present proposal to specifically limit the       number of dispensary licenses to one per each of eight geographic DHHS               districts is that it does not allow for healthy balance of market competition and      professionally-guided patient choice.  As the proposal presently stands,                Maine’s patients will suffer the worst of two worlds: fierce private economic       competition and regional, government-sanctioned monopolies. 

Dispensary Licensing without Participation of Local Healthcare Professionals.  

To the first point, close observation of our legislative process has shown that the gloves are off in the realm of market competition to be approved as licensees –even before the amendment and policies under consideration become the laws of our land.  Clearly the news of our community’s affairs has reached as far as California, and representatives of private organizations have already been granted privileged access to the time of our elected representatives and public servants to ‘advise’ on matters of public policy which have only received perfunctory attention in the forum of the hearing held on March 11, 2010.  

As ordinary citizens and medical professionals from the local community, we admit that we could not participate in the dispensary system if there was no revenue generated against the costs of cultivating these plants.  With that in mind, we also understand that many of Maine’s voters opposed the Maine Marijuana Act precisely because they feared that the new market created would attract mercenary players from outside the local professional community.  These parties may seek to influence our government to maximize patient demand and profit-generation.  

Our citizens should be concerned when interests from outside our local economy take the trouble to become self-appointed policy advisors to the government of Maine.  The early journeys of a reverse-gold-rush have already occurred.  

The purpose of the Maine Marijuana Act was to expand the therapeutic options of medical patients in a manner that was professionally measured and beneficial to the local community.  By that logic alone, there should be no space here for private lobbying or speculative investment by any party, no matter what their origins.  The plan to create a limited number of licenses has already created fierce (if quiet) economic competition for licenses that jeopardizes the spirit and legitimacy of the system before it passes into law.  

Geographic Dispensary Monopolies

As stated above, we believe the licensing structure currently proposed by the DHHS and Medical Marijuana Task Force may create a systemic double bind that does not serve patients, healthcare professionals seeking access to scarce dispensary licenses, or Maine’s citizens at large.  The second component of the problem is that limiting the number of dispensary licenses to one per DHHS district creates geographic monopolies which would prevent patients from exercising market choices that should be at the heart of appropriate, limited competition between qualified professional healthcare and medicine providers.  

While we understand the rationale of regulatory cost efficiency, such efficiencies should not come at the cost of all market competition between dispensaries.  In this area, the DHHS proposal seems to have lost perspective on the composition of a healthily diverse professional medical community, where patients have a choice of sources for quality care and exercise that choice based on myriad personal criteria.

The second problem with DHHS district-based monopolies is potential Federal intervention.  When we take account of this risk, it makes little sense to allow only one dispensary in each district.  Logic tells us that the lower the number of licensees in any given geographic region, the more pressure there will be on each licensee to maximize production and thus invite Federal investigation.  

Out-of-State Investment in Maine Dispensaries

We see two major problems with the present proposal allowing out-of-state investment in Maine dispensaries:

It is not appropriate for potential dispensary licensees from outside Maine to have privileged input in our legislative planning or make investment into our medical dispensary system. 

The presence of any out-of-state investment in Maine dispensary organizations creates interstate commerce relationships that invite regulation by Federal authorities. 

A)        Concerns for Fair and Appropriate Access to the Current Regulatory Process 

The apparent fact that potential dispensary licensees from inside and outside Maine have already obtained access to State officials and provided policy guidance resulting in the DHHS proposal is cause for concern.  We must remember that a large number of citizens voted against the Maine Marijuana Act.  We who supported the law have a deep interest in seeing it implemented in the best possible way.  It is our goal that both advocates and opponents of the change will have a chance to benefit from the system’s success and neither will pay the costs of its failure.

Setting aside absolute ideological objections to the medical dispensation of marijuana, we must recognize that many opponents of the Maine Marijuana Act were concerned with preserving the character and security of our communities.  Some of our neighbors did not believe it was the right time to move to the forefront of national trends in this area because it would invite negative national attention and unintended consequences to local communities.  

As professional clinicians, scientists, and caregivers who support medical marijuana dispensation, we agree with our neighbors that it is best to harbor a healthy skepticism toward private interests who seek to speculate through investment in the dispensary system.  We feel our concerns are even more important when it comes to parties from outside the state offering advice on the structure of our dispensary system in service of their financial speculations.  

Maine voters have mandated that our government should take steps to create a dispensary system that addresses the needs of our patients.  Fulfillment of this mandate cannot be accomplished by attempting to cut-and-paste the policy of a different state into Maine’s codes.  On the contrary, the best information we have from states such as California is that their attempts to establish systems to serve patient needs have failed so far.  Dispensaries and patients in California are still subject to inconsistent prosecution by both local and Federal officials.  

We know that citizens of Maine have been successfully husbanding the land and sustaining community since before there was a union of American states.  We ask that our civil servants and elected officials seek policy guidance and investment activity from within our borders when tending to an intrinsically local initiative.

B)        Any System Allowing Ownership and/or Control of Licensed Dispensaries from Outside Maine Creates Interstate Commerce Activity.  

As we have stated, we are local healthcare providers and caregivers.  We are not lawyers or constitutional scholars, but it seems clear given the history of medical marijuana systems that the greatest risks to the state and all parties involved stem from the potential for Federal intervention in a state’s internal affairs.  We believe that the Maine Marijuana Act requires our state law enforcement officials to provide due consideration to these risks and articulate the state’s strategic position relative to them. 

We are concerned that interstate communications activity concerning management of dispensary organizations and/or related electronic or postal financial transactions will open our local system to the jurisdiction of federal authorities.  Because of this, we object to any system that would allow ownership or control of dispensary organizations from outside Maine.  The Maine Marijuana Act mandates the availability of medical marijuana to Maine’s patients.  We feel that any aspect of a proposed system that jeopardizes that continued local availability is contrary to the spirit and intent of the Act. 

We appreciate your time and attention to our concerns.  We look forward to any opportunity to contribute to informed and productive discussions concerning this important public program.  Please do hesitate to call on us if we may be of assistance. 

Respectfully,

Dr. Dustin Sulak D.O.

Chris Kenoyer (Maine Patients Coalition .org)

Pamela Gerry RN (Portland Patients Group)

Igor Rakuz (Portland Patients Group) 

Oliver Outerbridge (Portland Patients Group)

Charles Wynott (Americans For Safe Access -Maine) 

Brendon McGann (Americans For Safe Access -Maine)

Jack Fuller (Executive Director Maine Medical Marijuana)

The names on this list represents only a small portion of its supporters. For more information please contact Brendon McGann at 914.826.7200