Md.’s medical cannabis regulators struggle to escape ‘punching bag’ stage

This item is part of The Daily Record’s occasional series examining Maryland's medical cannabis program.

Full coverage: Md. medical cannabis industry hailed, but room for improvement seen | A unique business, Md. cannabis industry still trying to find its footing | Law enforcement seeks to differentiate legal cannabis from contraband | Maryland law still unclear on medical cannabis use by employees | Law firms form cannabis practice groups to assist new industry | Marketing cannabis via social media, texts and deals | Md.’s medical cannabis regulators struggle to escape ‘punching bag’ stage | Legislators to weigh bills to protect the rights of cannabis patients | Lawmakers skeptical that recreational pot will pass in session

The Maryland Medical Cannabis Commission found itself in a Catch-22 situation last December.

A year after the state made its first legal medical marijuana sales, lawmakers and community leaders in some areas of the state were up in arms over how the industry was advertising its services and wares. Road signs and billboards were just the start, and there was pressure on the commission to do something about it.

And in December 2018 they did just that, approving regulations that essentially barred the industry from nearly all forms of advertising. But it was a decision branded as draconian by the fledgling industry and opposed by the newspaper and advertising industries. It resulted in a lawmakers in Annapolis being forced to deal with the topic in legislation.

The issue was not atypical, as the all-volunteer regulatory commission has found itself struggling with a host of challenges – from figuring out how to alert the public regarding health concerns to awarding licenses to dealing with the use of pesticides on marijuana plants.

The state program allowing patients to access medical cannabis has been in effect since 2012, although a number of stutter steps and additional legislation delayed the first licenses from being awarded for five years. In the eyes of one veteran legislative leader, some of the commission’s stumbles could be laid at the feet of lawmakers.

State Sen. Robert “Bobby” Zirkin, D-Baltimore County and outgoing chairman of the Senate Judicial Proceedings Committee, said concerns about how the commission has handled issues such as advertising and edible products comes as the direct result of lawmakers failing to reach consensus seven years ago when the medical cannabis law was passed.

“There was a lot of disagreement in the General Assembly on a lot of the details,” said Zirkin. “As a result, a lot of those details were left out (of the final bill) and left up to the commission. Really the way this should work is that there is a law, and the law should give guidance to the commission.

But instead, the silence and lack of guidance left the commission to make decisions entirely on its own,  to Zirkin said.

“They’ve been the punching bag when they made decisions people didn’t like,” said Zirkin.

 Changing members

Now reaching the end of its second year in existence, Maryland’s medical cannabis industry is approaching nearly $250 billion in annual sales.

Will Tilburg, acting executive director of the commission, said that figure is expected to grow as the number of patients in the state is less than the 2-4 % of the population seen in more mature markets.

The commission is in its third iteration since being first being created in 2012 to shepherd what was envisioned to be a medical program that included the participation of doctors, hospitals and medical research programs. But fear of how the federal government might react to such a program involving a still-illegal drug scared many off.

Since then the law has been tweaked and the commission reconstituted two more times spanning two governors — a Democrat and a Republican.

The commission now consists of more medical professionals, including doctors and pharmacists, but fewer attorneys versed in public policy, legislation and regulation. Those tasks, according to some familiar with the inner workings of the commission, will likely fall to paid staffers who have increasingly become important to the panel.

Under a 2018 law, the governor appoints nine of the commission’s 13 members. He must appoint three others from a list submitted by the House speaker and Senate president. The state health secretary or a designee fills the final commission slot. Commissioners serve four-year terms.

“Things are different now,” said Zirkin. “I think they’ve got their feet under them, and Will Tilburg is a star.”

Public health

In the last year, the commission has come under criticism for concerns other than policy and the awarding of licenses.

Patient advocates say the commission is sometimes slow to alert the public to health concerns.

Last year, the commission quietly warned patients about marijuana from one Arnold grower that possibly was contaminated by pesticides not approved for use on marijuana plants.

Six months after those complaints and three months after the warnings, the commission fined ForwardGro and ordered changes in management. Patients were advised to take any concerns about potential health effects to their doctors and told they could seek refunds for leftover products if they were unopened.

Similarly, some advocates complained that the commission was slow to adopt additional testing in the wake of a national vaping crisis that has left more than 3,000 people ill, including nearly five dozen in Maryland.

Tilburg said the commission is now looking at adopting some of those additional tests called for by patient advocates. The state will seek contractors to perform enhanced testing of vaping cartridges as well as possibly seeking out patients willing to turn over used vaping cartridges for testing.

“This is a public health crisis in America, and certainly we take it very seriously,” he said. “Patient safety is absolutely essential to our industry. Safety is key to our mission.”

Zirkin said some of the fault lies with other government levels.

“The biggest problem lies with the stupidity of the federal government,” he said. “We’re essentially building a pharmaceutical industry from scratch for one drug.”

A new challenge

The commission is now about to deal with yet another evolving facet of the medical cannabis industry. On Monday, a portion of the 13-member commission, took the first steps toward introducing edibles into the medical cannabis market by approving regulations for those products.

The rules, which could go into effect early next year, come after the legislature passed news laws governing the products.

“Edibles are the biggest concern,” said Bruce Anderson, executive director of the Maryland Poison Center.

“Edible products are not technically legal in this state, but we’re getting calls,” he said.

Currently, so-called “medibles” — edible medical cannabis products — including cookies, candy bars and gummy bears are not legally available for sale in Maryland. Before the 2019 session, the legislature had been silent on edibles.

“If the legislature wanted there to be edibles, then the legislature should say so,” said Zirkin.

The new law and the proposed regulations limit what can be sold and even mandate the appearance of the products.

If approved, those edibles would be required to be sold in plain packaging that is child-resistant. Products could not be made into shapes of animals or anything that would appeal to children or use flavors that would be attractive to children. Products would have to carry a universal symbol noting they are medical cannabis products.

The regulations also limit the strength of the products that can be sold and restrict the maximum doses in a package to 10.

Tilburg said the new regulations were pulled from best practices in 30 states where edibles are now legal.

“So when we talk about the decisions we have made related to packaging, labeling, dosing requirements, testing requirements, etc. … anything the commission does within this space has to be done with the safety of minors taking priority,” said Tilburg.

Inhaled products — primarily smoking or vaping — provide a quicker delivery method. Patients can get relief often in minutes but determining exact dosages can be tricky.

Edible products, meanwhile, can provide a more consistent dosage that takes longer to become effective but also lasts longer. The pleasing colors and appearances — sometimes mimicking candy products — trouble some who want to ensure children are not inadvertently consuming the products.

Tracey Lancaster Miller, executive vice president of the Rockville-based dispensary Peake Relief, said restricting the maximum dosage and amount that can be sold per package can be a cost burden on patients and also make it difficult for others who require higher doses in more concentrated forms.

“These regulations make sense in an adult-use market,” said Miller. “It’s not always an option for a patient to simply consume more doses because some patients are physically unable to consume more doses because of their medical condition.”

But Tilburg said the new proposals are also based on what he said some other states “wished they had done” in regards to edibles because of issues including calls to poison control centers.

In Colorado, considered a mature marijuana market, nearly 26 percent of all adult visits to one hospital emergency room were attributable in some way to cannabis use, according to a study published in April in the Annals of Internal Medicine.

Maryland and Colorado are frequently compared to one another because of their similar size populations.

Adverse reactions from the use of inhaled marijuana products made up two-thirds of the reported cannabis problems. Edibles, despite making up less than 1 percent of cannabis sales, were responsible for almost 11 percent of all cannabis-attributable emergency room visits between 2014 and 2016, according to the study.

“We’re gearing up for the edibles,” said Anderson of the poison control center. “We know they’re coming.”