We usually hold our distance from medical hashish/marijuana.  We’re not a kind of blogs.  But when authorized holdings of curiosity to us occurs to contain hashish, we are going to remark.  Thus, we carry you Schmidt v. Schmidt, Kirifides & Rassias, PC, ___ A.3d ___, 2023 WL 7502499 (Pa. Commw. Nov. 14, 2023), holding that the price of authorized, physician-prescribed medical marijuana is official medical expense reimbursable via the Pennsylvania Employee’s Compensation system, however such merchandise’ full lack of FDA approval.

The claimant had switched to a kind of prescription medical marijuana (cannabinoid (“CBD”) oil) and away from the opioid medication he had beforehand been taking for a work-related harm.  Id. at *1-2.  Nevertheless, the employer “refused to reimburse Claimant’s out-of-pocket CBD oil bills on the idea that CBD oil is just not a pharmaceutical drug.”  Id. at *2.  The executive legislation decide discovered that this therapy with medical marijuana was medically applicable, and the truth that it was accessible over-the-counter didn’t exclude it from protection.  Id. at *3-4.

Nevertheless, the board that oversees Pennsylvania’s staff’ compensation program reversed, holding that FDA warning letters regarding this product precluded reimbursement:

Based mostly on the acknowledged place and up to date actions of the FDA, an insurer or employer can’t be required to pay for hashish or cannabis-derived merchandise . . . .  Due to this fact, Employer’s failure to reimburse Claimant . . . is just not a violation of the Act. . . .  Discovering a violation right here is concomitant to driving an employer to violate federal legislation.

Schmidt, 2023 WL 7502499, at *5 (quotation and citation marks omitted).

On additional enchantment, the Pennsylvania Commonwealth Courtroom (an intermediate appellate courtroom with jurisdiction over, inter alia, administrative appeals) reversed.  That the remedy was bought OTC didn’t matter.  Somewhat,  the “Claimant want solely present that CBD oil is a drugs or provide.”  Id. at *12 (quotation omitted).  These phrases weren’t restricted to prescription-only merchandise:

[T]he time period “medical provides” is outlined as “[a]ny merchandise that’s important for treating sickness or harm.”  Right here, [claimant’s physician] prescribed CBD oil to Claimant to deal with his ache.  The CBD oil has benefitted Claimant’s well-being by decreasing his ache, eliminating his want to extend the usage of extremely addictive opioid medicines, and forestalling costly and dangerous surgical procedure. Accordingly, CBD oil suits throughout the definitions of “medicines” and “provides.”

Schmidt, 2023 WL 7502499, at *14 (citations and footnote omitted).  Additional, decision of points like OTC standing was throughout the scope of impartial “utilization evaluate” (“UR”)  − a statutory “treatment” that the employer had failed to hunt.  Id. at *15.  Lastly, given the Employee’s Compensation Act’s “humanitarian goals,” if the act was to be construed to bar reimbursement of OTC merchandise, that might require legislative motion.  Id. at *20.

FDA non-approval of medical marijuana likewise made no distinction.  “FDA approval of a therapy is just not a requirement below the Act.”  Id. at *21  “[W]hether a therapy is FDA permitted for a selected goal must be raised throughout the framework of the  UR course of.”  Id. at *15.  Having legalized medical marijuana, Pennsylvania was below no obligation to observe FDA limitations on what was medically reimbursable.  “[T]hat some corporations advertising CBD merchandise might violate federal legislation . . . doesn’t make Claimant’s use or Employer’s reimbursement for CBD oil unlawful.”  Id. at *17.  Nor did marijuana’s continued illegality below federal legislation make employer reimbursement someway “unlawful.”  All of the employer was required to do was pay cash for medical therapy discovered “cheap and essential” below Pennsylvania’s staff’ compensation scheme:

Because the employer is just not prescribing marijuana, however fairly reimbursing the claimant for his lawful use thereof, the employer is just not in violation of federal legislation. . . .  As a result of the employer wouldn’t be in violation of federal legislation by reimbursing the claimant for his lawful medical marijuana use, and the [administrative judge] concluded that the medical marijuana use was causally associated to the work harm, the employer is required to reimburse the claimant for his out-of-pocket prices below the [Workers’ Compensation] Act.

Schmidt, 2023 WL 7502499, at *18 (citations and citation marks omitted).  FDA non-approval didn’t matter the place a hashish product “is lawfully offered over-the-counter in Pennsylvania and all around the United States.”  Id. (quotation and citation marks omitted).

We’ve acknowledged quite a few occasions that state legislation, not FDA regulatory standing, governs the legality of off-label use.  Schmidt is attention-grabbing to us as a result of it goes one step past – medical marijuana, together with CBD oil, has no FDA approval for any use.  With nicely over half the states having legalized medical use of hashish, persevering with federal inaction on this challenge dangers the FDA being left behind.