Maine Medical Caregivers and Patients Testify Against Updates to Medical Rules, Slam "Opaque Drafting Process Driven by Regulatory Capture"

At a marathon five hour hearing on Wednesday before Maine's Office of Marijuana Policy (OMP) a series of local caregivers, medical patients and advocates testified in opposition to a sweeping set of proposed changes to the state's medical program, suggesting a number of those rules, if implemented, would shutter the doors of thousands of smaller operators and result in drastic price increases for the most vulnerable.

Written testimony on the new rules will be accepted until Sunday, February 13, 2022 at 11:59PM EST.

Maine's unique ecosystem for medical cannabis, which has created a thriving 3,000+ strong network of local mom and pop caregiver operations, is looked to as a national model for an authentic, community driven cannabis marketplace and that structure, say caregivers, would be directly undermined by the slate of proposed rule changes from OMP -- rule changes that were initially delayed following intervention from the Maine legislature, at the behest of advocates, in the summer of 2021.

"That is the biggest concern we have here; these regulations as presented would significantly increase the costs of doing business for legal operators in the state and, if those costs were passed on to patients, we could see those costs driving patients to the unregulated market...." said Paul T. McCarrier, a caregiver from Belfast Maine and a member of OMP's Medical Marijuana Working Group, during his testimony.

Pointing to a broken drafting process to create the new rules along with burdensome security requirements, overly complex track and trace requirements (Maine lawmakers have already prevented OMP from mandating the use of the third party service METRC for that purpose), reporting requirements that would violate patient privacy, a (potentially illegal) ban on caregivers forming certain types of business entities and a limit of only a single area per caregiver for cultivation, hundreds of speakers voiced similar opposition directly to OMP Executive Director Erik Gunderson and other agency staff members, while only a single voice testified in support of the proposed rules.

As Mark Barnett, the Executive Chair of the Maine Craft Cannabis Association, explained in his testimony in opposition to the proposed regulations;

"Last year's rules, which every participant told you would kill this program, failed with massive nonpartisan opposition (and some of the most incredible pieces of that are gone) but this proposal still seems to reflect what I view, and many in the community view, as an extra-statutory agenda. [An agenda that] is aimed, in my view, at reducing participation in the program and...limit[ing] access to Maine's amazing [medical] cannabis products."

In a moment of foreshadowing, Barnett was also cut-off by Director Gunderson as Barnett began to explain lawmakers on Maine's Veterans and Legal Affairs Committee would be holding a hearing next week to discuss a bill (LD. 1784) that would require a formal vote of the full Maine Legislature before any proposed changes from OMP related to the medical program can go into effect.

Gunderson smirked at Barnett when the topic was initially brought up, before shutting down the discussion, in a hint at the underlying political dynamics at play between the executive branch (where the OMP resides) and the legislative branch of Maine's government.

"I know some people think we have gone too far with certain aspects of this process, and that is part of the reason we hold public feedback sessions...", said the OMP Director at one point during the meeting.

Bill LD. 1784, scheduled for a public hearing on Feb 7 at 10:00 am, would prevent OMP from moving forward with changes to Maine's medical program absent the assent of both houses of the legislature.

A tormented rule-making history

Throughout 2020 and 2021 Maine cannabis regulators (working hand in hand with industry lobbyists) were locked in a heated battle with grassroots caregivers and their advocates over the future of the state's grassroots medical market.

Those rule changes, along with their current iteration, are being pushed by state regulators at the OMP and driven by large corporations seeking to operate in the newly legalized adult use market in Maine, advocates argue -- concerns that were only further heightened at a March 2021 hearing when a lawyer working for MSO Curaleaf was one of the only voices to testify in support of the original OMP-backed rule changes.

By making onerous rule changes for smaller medical caregivers (including burdensome security requirements, track and trace measures, and a local approval mandate specifically prohibited by state law) the OMP is poised to, according to some, shut down an estimated 80% of medical storefronts in the state. As a result, a newly emerging group of large adult-use retailers from out of state would be able to artificially increase their own profits and market share.

To make maters worse, say opponents of the rule changes, the initial round of OMP proposals that were first drafted in 2021 were created without substantive consultation with local stakeholders and thus gave the appearance of regulatory capture -- a form of government failure wherein a regulatory body begins to act in the interests of corporate stakeholders (in this case large adult-use retailers such as Curaleaf) rather than the public good.

Maine state lawmakers apparently agreed with that anylasis -- In July of 2021 they passed a major piece of emergency legislation forcing OMP to restart the rule making process entirely.

The measure (LD 1242), entitled, "An Act To Ensure Appropriate Oversight of Maine's Medical Marijuana Program", went further and also explicitly prohibited OMP from making any changes to its medical cannabis rules without first obtaining input from "caregivers, registered caregivers and patients and physicians and certified nurse practitioners with significant knowledge and experience certifying patients under the laws governing the medical use of marijuana"

That process, however, did not play out as lawmakers or local caregivers intended according to some who testified on Wednesday.

Decrying a dearth of patient representatives on the working group OMP created in order to comply with that legislative mandate (only three of the 15 working group slots were set aside for patients) along with an over-representation of adult use operators, Derek Shirley, a patient, podcast host and board member of the Maine Cannabis Coalition told officials he was concerned;

"That [lack of patient representation] got me looking into the details as to who was actually involved in the medical working group and it came to my attention that not one, but five, of the caregivers represented have adult use ties...I looked further and saw two dispensaries represented on the working group with adult use ties."

"Multi-State Operators (MSO's) are a whole other universe and their only objective is to take over cannabis markets not only all over the country, but also the entire world," Shirley continued. "How will you protect local companies from a billionaire behemoth is the question you should be asking when you are rewriting these rules if you truly care about small businesses."

Catherine Lewis, a caregiver who serves as the Chair of the Medical Marijuana Caregivers of Maine Trade Association and who was a member of that statutorily mandated OMP working group on the new regulations, told state officials at Tuesday's hearing that the working group was not given a chance to see the final draft of the proposed regulations until after they were made public last month;

"I...want to be very clear; the work group did not come up with these rules at all. We did not see them until everyone else did and we did not discuss them. We talked [only] high level [about the proposed changes]...", Lewis stated in her public testimony.

"At this time, I'm still against this version of rules..." Lewis went on, "[and] I'm hopeful that we can start here and move forward."

A December 2021 statement from Maine Cannabis Coalition Chairperson Susan Meehan, addressing concerns with OMP's ongoing work group process related to the drafting of the newly proposed medical regulations

Because OMP was forced by state lawmakers to restart the process, advocates have long viewed the new draft with suspicion and feedback had already begun to surface before the new set of regulations were announced publicly.

Throughout the past six months, members of the OMP working group on the new rules (mandated by lawmakers in Maine to include local stakeholders) were publicly expressing concerns that the drafting process was, once again, drifting towards protecting the interests of large corporate adult use operators at the expense of patient access and caregiver sustainability;

"We are concerned that the ongoing OMP (OMP) Work Group meetings have drifted toward encouraging regulatory capture and have been steered toward discussion of mandatory testing, mandatory third-party track and trace in nearly every meeting", said Susan Meehan, Chairperson of the Maine Cannabis Coalition, at the time.

Earlier in the fall, multiple members of the OMP working group also expressed concern that the intent of lawmakers who had passed bill L.D.1242 (mandating all OMP proposed draft language be developed based on consultation with local stakeholders) was being diluted due to the influence of non-industry stakeholders.

During her testimony on Wednesday, Meehan echoed similar sentiments to Catherine Lewis regarding how OMP's own work group was not given any ability to review the final language of the proposed rule until after the document was made public;

"I...want to state that the work group did not write nor review these rules ahead of time. We got our first glimpse of these rules when the public did." Meehan also explained that "...the workgroup did also vote down track and trace and mandatory testing" (something which advocates contend OMP attempted, nevertheless, to include in the final rule).

I spoke in depth with both Susan Meehan and Mark Barnett about those concerns, and their in-depth thoughts on OMP's ongoing attempt to pass onerous regulations for the state's medical program, last month on Episode 2 of Cannabis Policy Watch.

An October 2021 statement from The Cannabis Council of Maine, indicating concerns with the drafting process related to new OMP medical rules

With another round of massive public resistance to their proposed rule changes, and with the VLA Committee considering yet another change to state law to prevent OMP from moving forward with changes to Maine's medical program, it will be interesting to see how state regulators approach revisions (if any) to these proposed rules.

Fundamentally, any changes to Maine's medical program have the potential to take life-saving medication away from the most vulnerable patients;

As Susan Meehan said at Wednesday's public hearing, "[t]he real stakeholders in this industry are the Cyndimae's...the patient's whose lives have been improved by Maine's medical marijuana program."