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Gov. Patrick issued order banning doctors from prescribing, dispensing drug
Gov. Deval Patrick defended the state’s first-in-the-nation ban of the powerful new painkiller Zohydro after a federal judge suggested in court that his administration may have overreached.
“I wouldn’t have done it if I didn’t think I had a legal footing to do it,” Patrick said at an unrelated event at the Statehouse. “More to the point, I wouldn’t have done it if I didn’t think we had a real emergency, and we have a real emergency.”
Patrick issued an executive order banning local doctors from prescribing or dispensing Zohydro on March 27, amid concerns that the drug’s availability might exacerbate the state’s prescription drug abuse epidemic.
But Zogenix, the San Diego-based maker of the drug, filed a federal lawsuit on Monday arguing that the ban was unconstitutional because the U.S. Food and Drug Administration has already approved its use for treatment of severe and chronic pain.
U.S. District Court Judge Rya Zobel, considering the lawsuit Tuesday, suggested Zogenix’s arguments might have merit.
“I don’t have all the facts,” she said after hearing briefly from both sides. “At the moment, I think the governor is out of line on this. The Federal Drug Administration has examined this issue, has dealt with all the objections to it and is a federal entity.”
Zobel said she will hear more detailed arguments Monday, after which she expects to render a decision on Zogenix’s request for an immediate but temporary halt to the ban. The court would decide at a later date whether or not the ban should be permanently vacated.
Heather Gray, a legislative attorney with the National Alliance for Model State Drug Laws, says the Massachusetts ban is unique: it might be the first time a state has attempted to block distribution of a FDA-approved drug.
Vermont, which is also grappling with a prescription drug abuse epidemic, stopped short of an outright ban on Zohydro; Gov. Peter Shumlin’s administration opted instead to release stricter guidelines for issuing prescriptions.
Patrick on Tuesday suggested that if the drug became available in a tamper-resistant, non-crushable form, Massachusetts might consider lifting the ban and approving tighter restrictions instead. Zohydro is “an example of highly addictive narcotic painkillers and it’s one of the few that is not in an abuse-resistant form,” Patrick said. “Put it in an abuse-resistant form, and I and many others will make our peace with it.”
Zohydro is an extended-release capsule that contains up to five times the amount of narcotic hydrocodone previously available in pills. The company says the drug, which went to market in March, is an important painkilling option because it does not contain acetaminophen, which has the potential to cause liver damage if given in high doses over long periods of time.
But some health authorities say the drug can be easily crushed and then snorted or injected, creating an immediate and potentially lethal high. Zogenix officials say at least four prescriptions for Zohydro were issued in Massachusetts, but were never filled because of the ban.
20 companies to undergo more scrutiny
The Massachusetts Public Health Department said it will deeply scrutinize companies given provisional approval to run medical marijuana dispensaries.
The department notified companies approved for 20 provisional licenses that they will be subjected to extensive additional background checks on anyone “who will have any involvement” with the proposed dispensaries, including volunteers, consultants, advisory board members, staff members, and all corporate and individual investors.
Previously, the agency had said it would review only those who contributed 5 percent or more toward the operations, as well as the board of directors and members of the executive management team and corporation.
News of the background checks was contained in a letter dated March 14 and obtained by The Boston Globe.
“These follow-up background checks are only one part of the ongoing verification process,” the letters said. The agency refused additional comment.
The agency on Thursday sent similar letters to six companies that were not chosen for provisional licenses but were invited by the state to reapply in one of the counties that has not yet been earmarked for a dispensary.
Companies are being charged $550 per individual checked, according to the letters. That’s in addition to the $30,000 charged for the application fee.
The selection process has come under intense scrutiny and three rejected companies have filed lawsuits.
Most dispensaries were expected to be running by August, but it’s unclear if the additional background checks will delay any openings.
John Wark / AP
A long line of buyers trails from a store selling marijuana in Pueblo West, Colo., on Wednesday.
The high times in Colorado are coming with high costs for cannabis consumers.
Hemp hunters who waited for hours early Wednesday to be among the first to legally purchase marijuana from state retailers found sticker shock at cash registers.
“I think people were a little bit surprised at the price,” said Rachel Gillette, executive director of the Colorado chapter of NORML, a national nonprofit seeking to make marijuana use legal nationwide. “We are concerned about that.”
On the first day of legal weed sales, Gillette said she found retailers selling top-shelf marijuana to recreational users at prices close to $400 per ounce, not including taxes.
For comparison, medical marijuana users, who’ve been able to buy weed from Colorado dispensaries since 2010, are currently paying around $250 an ounce plus taxes, she said.
The state does not impose any pricing structure for pot purveyors, leaving the market open to supply and demand. One dispensary was selling high-quality marijuana on Wednesday at $70 for one-eighth of an ounce — a markup from $25 for the same amount the day before, according to The Associated Press.
But Gillette and other observers keeping careful tabs on the landmark law say they expect costs to eventually stabilize, although it won’t happen overnight.
Colorado residents, purchasing marijuana legally for the first time on Jan. 1, reveal how they plan to enjoy permissible pot smoking.
“It’s a new industry, a new market,” Gillette said. “I think things will work themselves out in a few years. We saw the same thing happen with the medical marijuana industry before prices came down.”
But Gillette said she’d still like to see the “high tax rates” associated with marijuana sales addressed by state lawmakers.
Colorado State Rep. Jonathan Singer, who sponsored the House bill on legal marijuana sales, said he doesn’t want to see the 10 percent special sales tax added to each transaction changed just yet. The state won’t know how much those taxes will provide to Colorado’s coffers for at least another month.
“If marijuana continues to funnel into the black market, I am happy to look at shocking the black market out of the legitimate industry by slashing taxes, but this is way too early in the game,” Singer said in an email to NBC News. “And judging by the thousands of marijuana consumers lined up around the block yesterday, Coloradans appear comfortable with taxes as they are.”
A Colorado State University report released last April forecasts retail prices settling at around $185 per ounce.
Colorado residents can buy no more than an ounce per transaction, while out-of-state tokers can purchase up to a quarter-ounce.
Phyllis Resnick, lead economist at Colorado State’s Colorado Futures Center, said she also expects prices to lower.
“My sense is that competition will eventually arise … and costs will fall below what the black market wants,” she said.
Medical marijuana users, meanwhile, shouldn’t be affected by a ramp up in prices or long lines, said Mason Tvert, spokesman for the Marijuana Policy Project, which advocates for medical marijuana bills.
Medical marijuana sales aren’t subject to the special sales tax and similar local taxes that drive up costs to the general public. In addition, there are dispensaries that are dedicated to medical marijuana sales only, so patients won’t have to wait hours for service.
On the recreational side, the anticipated opening of more pot stores would ease demand in the coming months.
While only about three-dozen retailers around Colorado opened to adults aged 21 and older on Wednesday, the state has actually approved 348 retail licenses. Many outlets have been slowed down because they also have to get permission from their local municipality.
Prices could also be affected on the supply side by the fact that Colorado allows people to grow at home (up to six plants per adult), and there currently is no cap on how much total marijuana can be produced statewide.
As for any demand driven by out-of-towners, Resnick believes the idea of a booming pot tourism industry won’t be a lasting one.
“How many people are going to fly to Colorado to ride around in a van and get pot, and then you’re limited to where you can smoke it?” she said. “Plus, it’s not like you can bring it home with you.”
Officials in neighboring states, however, aren’t so sure Colorado’s weed won’t be giving their residents contact highs.
The Albany County Sheriff’s Office in Wyoming said they have already seen an uptick in marijuana possession after medical marijuana became legalized in Colorado. They’re expecting a similar rise again.
Sheriff Dave O’Malley told NBC affiliate KUSA-TV that the incident reports reveal how people are unabashedly getting blitzed in his county — which borders Colorado.
It’s “almost like looking at a scene in a Cheech and Chong movie,” he said, “where they would pull over a car for speeding and the windows would all come down and the smoke would come billowing out of the cars.”