Published August 27. 2013 6:00AM Updated August 28. 2013 6:22PM
Hartford — The General Assembly’s Regulations Review Committee approved regulations Tuesday covering who produces, dispenses and purchases medical marijuana.
Shouts and cheers rose from the audience as Sen. Andres Ayala, D-Bridgeport, announced that the regulations had been approved after a voice vote.
Tracey Gamer-Fanning of West Hartford, who suffers from brain cancer and turned 43 Tuesday, said this was the best birthday present ever.
“I am not a criminal. I have a card that says I am allowed to use medical marijuana and I have wanted people to understand what this meant,” Gamer-Fanning said. She said she is a mom and had a career and never thought she would get brain cancer at age 36.
She said taking medical marijuana stops her from having tremors, seizures and unbearable amounts of pain, sadness and fear. It means she doesn’t have to take medications such as oxycodone and morphine, which she said caused her to throw up and kept her in bed away from her family.
Legislators on the committee discussed the latest version of the state Department of Consumer Protection’s regulations, which were more than 70 pages long, for about three hours. The regulations spell out the criteria for marijuana producers, dispensary facilities, physicians, caregivers and patients. The regulations as passed include pages of corrections requested earlier this month by the Legislative Commissioners’ Office, which provides legal counsel to the General Assembly.
David Kimmel, president and founder of Vintage Foods Limited in Ledyard, said he has discussed applying for a license from the Department of Consumer Protection. He would not say where in Connecticut he might build the production facility because of concerns about diversion or theft. Kimmel has had a career in the food and beverage industry and said he designs health and wellness products.
A licensed production facility would have the responsibility of operating an indoor facility to grow the marijuana, as well as package, label and deliver the product to a dispensary facility. Kimmel said he looked into the medical marijuana industry five years ago in California and Colorado but decided that if he was going to be a player in this industry, he wanted to be “squeaky clean.”
Legislators and officials at the meeting discussed how medical marijuana is less regulated in Western states and said Connecticut is following the East Coast model, which provides many more controls.
“I don’t want to get anywhere near the recreational piece, regardless of my personal feelings,” Kimmel said. “It is not about that. So when I came back home, I said this is virgin territory, this has not been tainted by the recreational piece.”
In order to attract serious businesses to apply, the regulations require a producer to put $2 million into an escrow account, letter of credit or surety bond made payable to the state if the commissioner of Consumer Protection deems necessary.
The consumer protection department will issue at least three but no more than 10 producer licenses. Factors in the selection will include the location — including proximity to any place used for worship, a school or a charitable institution — and whether the site is considered detrimental to public interest.
The regulations also detail how the state will manage dispensaries or medical marijuana stores that will operate like pharmacies. Applicants for dispensary facilities will have to provide a detailed description of any other services the dispensary will be operating at the facility, how it will maintain adequate control against theft, details of any felony conviction or criminal conviction related to controlled substances and permission for the department to conduct a background check.
Dispensary facilities will not be able to obtain marijuana from outside of the state. The dispensary may cultivate, deliver or sell only marijuana purchased from a Connecticut producer and may sell it only to a qualifying patient or primary caregiver.
Illnesses that a qualifying patient might suffer from include cancer, glaucoma, positive HIV or AIDS status, Parkinson’s disease and multiple sclerosis, among others.
Several legislators brought up concerns about the state law and regulations coming into conflict with federal law, which has not legalized medical marijuana.
A June memorandum from the state attorney general notes that under the Controlled Substances Act, the cultivation, distribution and possession of marijuana is a federal crime and that the U.S. Supreme Court, in Gonzales v. Raich in 2005, held that Congress by way of the Commerce Clause of the Constitution may prohibit local cultivation, sale and use of marijuana.
But the memorandum also notes that the Supreme Court has not yet addressed whether federal law pre-empts state laws that permit the cultivation, distribution and possession of marijuana for medical use.
State Sen. Len Fasano, R-North Haven, said state employees will be at risk of a federal lawsuit along with the commissioner, who would be signing off on licenses for producers and permits for dispensary facilities.
He said the state is basically waving a “cape in front of a bull” and saying, “Come and get us.”
Lawyers from the attorney general’s office said Tuesday there is no guarantee that state employees or legislators would not be sued, and that arguments can be made for and against the constitutionality of state medical marijuana laws.
Robert W. Clark, a lawyer in the attorney general’s office, said the 10th Amendment to the Constitution provides some protection in its provision that powers not given to the federal government and not prohibited to the states go to the states or people.
Courts in some states have ruled that laws authorizing large-scale cultivation and distribution of marijuana would create an obstacle for federal law enforcement efforts while other state courts have ruled that a law establishing a highly regulated scheme would not create a significant obstacle, the memorandum says.
Consumer Protection Commissioner William M. Rubenstein said people should be comforted by the amount of regulation. The production and sale of medical marijuana is self-funded through a fee structure, the product fulfills its duty to patients and the regulations prevent abuse, he said. There are strict controls on advertising and how people become qualified patients.