Hard News by Russell Brown

29

More medical cannabis misadventure with the Ministry of Health (actually, probably with Crown Law)

American film director Mitch Stein recently arrived in New Zealand along with his wife for a three week holiday, including a visit with his stepson on Waiheke Island. Instead, he was held for 12 hours, interviewed and put on a fight back to San Francisco. He wasn't permitted to pass on gifts for his son or even say goodbye to his wife.

Stein, as he explains in this four-page statement, had brought, and declared, medical cannabis that had been prescribed for him in California. You might have though this was not a problem, given the precedent set by Rebecca Reider's case only last August. That case affirmed that the Misuse of Drugs Act, s8(2)(l)(iii) allows a person entering or leaving New Zealand to:

... possess a controlled drug required for treating the medical condition of the person or any other person in his or her care or control, if the quantity of drug is no greater than that required for treating the medical condition for 1 month, and the drug was ... lawfully supplied to the person overseas and supplied for the purpose of treating a medical condition.

But not any more, it appears. Stein had checked the law a month before he embarked on his holiday, but says he was told that "the law had just changed last month without my knowledge, now making my importation of medicinal cannabis a crime."

The otherwise useful John Campbell interview with Stein yesterday also mentioned the law having changed.

Let's be very clear about this: the law has not changed and any Customs officer who told Stein it had was either misinformed or deliberately misleading him. Indeed, the police officer who was summoned when the matter became a "drug intercept" told Stein it was clearly a misunderstanding: 

... and not criminal activity that warranted further investigation or charges being pressed. He offered to walk with us to Immigration to let them know personally that the police did not consider this a criminal matter, and indicated that we would likely be released soon.

So what exactly went on here? Again, the law has not changed. What has changed is a policy at the Ministry of Health, from which Customs takes its advice.

Officials at the ministry quietly announced on December 7 that no medical cannabis product produced or prescribed in the US could be considered to have been  "lawfully supplied" unless it was approved by the US federal government , even if it was prescribed in one of the majority of US states that allow medical cannabis prescriptions:

A number of US states permit the medical use of cannabis-based products. However, under Federal law cannabis-based products for medical use are not considered lawfully supplied, unless the product has US Food and Drug Administration approval.

To date, no drug product containing or derived from botanical cannabis (the cannabis plant) has been approved by the Food and Drug Administration.

It's a questionable reading of the law. Stein's medical cannabis was lawfully obtained in California, the state where he lives, the law does not refer to it being lawfully exported (which is where the federal government might come into the picture) – and the Ministry is refusing to release the legal advice behind it.

It's also incoherent. Is any product not approved by the US Food and Drug Administration to be considered illegal? This is already having an impact on patients seeking ministerial approval for products under Regulation 22 of the Misuse of Drugs Regulations. (Although the advocate I spoke to said the ministry cited not the FDA but the US Drug Enforcement Agency as the "competent authority" it now believed was required to provide an export licence.)

Sativex, which can be prescribed in New Zealand (indeed, the ministry actually urged the late Helen Kelly's doctor to seek approval for a prescription) is not FDA-approved, but is typically imported from the UK, so it's okay. But two other products which have been approved on application to the minister – Elixinol and Aceso Calm Spray – now cannot be applied for, because they are manufactured in the US. An application from a neurologist at Starship to prescribe a product made from the low-THC strain Haleigh's Hope for a child patient who has had two brain surgeries got most of the way through the system last month, only to be nixed by the policy change. 

The ministry's ongoing inability or unwillingness to defend its positions is a matter of concern. It really does appear that some officials have a hangup about medical cannabis and are finding ways to frustrate the law. If Peter Dunne wants the process to be respected and followed, then he needs to rein in those officials.

Perhaps they feel they have their reasons: but was it really worth what happened to Mitch Stein? He's missed out on visiting his stepson, he's thousands of dollars out of pocket – and he will now be obliged to declare at every foreign port he visits for the rest of his life that he was refused entry to New Zealand as a drug smuggler.

It seems an unfair and onerous result for a man who checked the law and freely declared what he had on arrival. Are those Ministry of Health officials happy with what they've done here? Did Customs and Immigration act reasonably in their treatment of Stein? Is this a good result for anyone?

If the ministry believes the law should change, then it should say so and pursue a change via Parliament, where we can all hear the arguments. This move to subvert the law via internal policy settings is odious.

Update: See this comment from Chris Fowlie, who says the "legal advice" is an email from the DEA. As he notes, the reasoning in the email is specious.

Update 2: I asked Peter Dunne about this on Twitter and he was emphatic that Customs acted on Crown Law advice in their treatment of Mr Stein. Crown Law may in turn be advised by the Ministry of Health, but if that's who guided Customs' response, questions need to be asked there.

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