New Regulation Provides Path for Parents of Minors with Serious Medical Conditions to Obtain Medical Marijuana from Out of State

July 1, 2016

Contributing Authors:  Erica L. Laughlin and Lydia A. Gorba

NOTHING IN THIS DOCUMENT IS INTENDED OR SHALL BE CONSTRUED AS ADVICE TO PARTICIPATE IN, OR COUNSEL WITH RESPECT TO, CRIMINAL OR FRAUDULENT ACTIVITIES.  POSSESSION, DISTRIBUTION AND SALE OF MARIJUANA IS A SERIOUS CRIME UNDER FEDERAL LAW, AND NOTHING HEREIN SHALL BE CONSTRUED AS ADVICE TO VIOLATE THAT LAW.

Pennsylvania’s medical marijuana program, known as Act 16, took effect on May 17, 2016. The implementation of the program, however, is expected to take between 18 and 24 months. In order to offer more timely relief to those, particularly children, in need of medical marijuana, the Pennsylvania Department of Health has been working to issue temporary regulations.

On June 24, 2016, the Department issued a temporary regulation that will allow the parents, guardians, or other caregivers of children with serious medical conditions, as defined by the Act, to obtain medical marijuana from another state, territory of the United States, or any other country to be administered to the minor without violating Pennsylvania Law.  In order to obtain out of state medical marijuana, an applicant must apply to the Department for a Safe Harbor Letter, providing specific information as detailed in the regulation, including documentation concerning the applicant’s relationship to the minor and a criminal background check.

The applicant must further complete two forms, the Minor Safe Harbor Physician Form (to be filled out in part by the applicant and in part by a physician), and the Applicant Form. The Physician Form can be found on the Department’s website at

http://www.health.pa.gov/My%20Health/Diseases%20and%20Conditions/M-P/MedicalMarijuana/Documents/Safe%20Harbor%20Letter%20Dr%20Form%20Final.pdf. The Applicant Form is currently being drafted, and according to the Department of Health is expected to be released sometime in early July.

The Applicant Form will include a list of required certifications and waivers noting an applicant’s understanding that marijuana remains illegal under Federal Law, and carries the potential for violations under state law under certain circumstances.

A potential applicant may be wary of the amount of personal information he or she must provide to comply with this regulation. The good news is that information obtained by the Department regarding a minor and applicant under this chapter is confidential and not subject to public disclosure, including disclosure under Pennsylvania’s Right-to-Know Law.

SMGG intends to stay at the forefront of legal developments in this area. For questions, please contact Erica L. Laughlin or David L. Pollack of Strassburger McKenna Gutnick & Gefsky at elaughlin@smgglaw.com; dpollack@smgglaw.com or (412) 281-5423.