A state district court judge on Monday ordered the state’s Medical Cannabis Program to start issuing medical cannabis cards to individuals who qualify, regardless of where they live.
The question of whether non-residents of New Mexico could become medical cannabis patients started when major changes to the state’s medical cannabis law went into effect. One minor word replacement drastically changed who could become a patient, argued Duke Rodriguez, president and CEO of medical cannabis producer Ultra Health. Before July 2019, the law stated that qualified patients must be a resident of New Mexico. Now, the law defines a qualified patient as a “person.” Rodriguez’s company bought both internet and radio ads promoting the change. But the Department of Health, which oversees the Medical Cannabis Program, along with the governor and at least one legislator, argued the intention of the law was never to open the program up to non-residents.
Now, barring a compelling argument from DOH, the state could be forced to expand eligibility to anyone from across the country.
The law is clear
In his ruling Monday morning, Santa Fe district Judge Bryan Biedscheid wrote that the law is clear.
During a New Mexico Department of Health public hearing earlier this month that allowed public input into proposed rule changes to the state’s Medical Cannabis Program, a major player in the industry raised concerns with some patients.
Willie Ford, managing director of the medical cannabis consulting company Reynold Greenleaf and Associates, told DOH officials he wanted more state oversight of patients who grow their own cannabis.
“PPLs need more regulation, they need more oversight for public safety issues,” Ford said. “These are significant and serious issues that affect the general public and their safety.”
PPLs, or Personal Production Licenses, allow patients who qualify to grow up to four plants for their own use. He voice concern with a proposed rule change that would allow PPL holders to take their harvested cannabis to licensed manufacturers to produce extracts and concentrates. Four plants, Ford said, could equal about 20 pounds a year per PPL.
Ford’s comments, and the online rebuttals from PPL patients that came after, highlight an issue that DOH will likely be forced to address, especially before New Mexico legalizes cannabis for recreational use: whether PPL patients should be regulated similar to Licensed Non-Profit Producers who sell products through their dispensaries.
Josh McCurdy with the New Mexico Medical Cannabis Patients Advocate Alliance told NM Political Report that he didn’t appreciate the suggestion that PPL patients are doing anything other than growing their own medicine, often in places where dispensaries are far and few between.
“We need more competition,” McCurdy, who lives and grows his own cannabis in Ruidoso, said. “That’s the reason it’s $10 a gram in Albuquerque and it goes from $12 to $15 in rural areas.”
He estimated his homegrown cannabis costs about $5 to $6 a gram to grow.
McCurdy disagreed with Ford’s claim that four plants harvested around 4 to five times a year could yield about 20 pounds.
“I’ve been by a few hundred PPL grows in this state and 99 percent of them are struggling just to yield a couple of ounces every four months,” McCurdy said.
McCurdy dismissed a common sentiment he said he’s heard from producers—that home growers contribute to illegal cannabis sales.
“The producers have put it in a way, where they like to do some fear mongering and act like the PPLs are the illicit black market,” McCurdy said.
A recent expansion of qualifying conditions for medical cannabis through rule changes will likely result in a higher number of patients in New Mexico. But a law that goes into effect on Friday could also result in a new pool of patients—non-residents of New Mexico.
Some changes to the law include protections from discrimination for patients, reciprocity with other states’ medical cannabis programs and an extended life span of medical cannabis cards. But perhaps the most significant and, until now, overlooked change to the law is who qualifies for medical cannabis cards. As of Friday, the definition of a “qualified patient” will no longer include the term “resident of New Mexico.” That term was replaced with “person.”
Duke Rodriguez, the president and CEO of medical cannabis producer Ultra Health, noticed the change in language and launched a campaign targeted towards residents of Texas who live close to New Mexico.
New Mexico is set to see some sweeping changes to its medical cannabis law. Gov. Michelle Lujan Grisham signed Senate Bill 406 into law which is the first major statutorial change to the Lynn and Erin Compassionate Use Act since it was enacted in 2007. The Senate bill made broad changes to the program that range from allowing medical cannabis in schools to allowing licensed manufacturers to process home-grown medical cannabis. While some changes are straightforward, others will require the state Department of Health, which oversees the Medical Cannabis Program, to promulgate new rules. Here’s a breakdown of everything SB 406 does:
Medical cannabis in schools
By June 14, medical cannabis will be allowed on some public school campuses under certain circumstances.
More New Mexicans would qualify for medical marijuana, and the 70,000-plus patients already in the state’s medical cannabis program would have to deal with less paperwork under legislation approved by the state Legislature and sent to Gov. Michelle Lujan Grisham. On Friday, the House passed Senate Bill 406, sponsored by Sen. Jerry Ortiz y Pino, D-Albuquerque, which would add more qualifying conditions for medical marijuana use and would allow patients in the program to renew their medical cannabis registry identification cards every three years instead of every year as now required. The Senate passed the bill the previous week. Also last week, the House passed Senate Bill 404, sponsored by Sen. Bill O’Neill, D-Albuquerque. which also would make medical cannabis cards good for three years.
New Mexico, along with most of the U.S., is struggling to find a way to combat opioid abuse, overdoses and death, a problem often referred to as an epidemic or crisis. One possible solution, according to a recent study, is using cannabis to help fight the addictions to deadly addictive drugs like heroin or prescription drugs. New Mexico Secretary of Health Lynn Gallagher has already shot down the possibility of adding opioid use disorder or substance abuse disorder to the list of 21 qualifying conditions for medical cannabis numerous times. Internal documents show the New Mexico Department of Health, which oversees the medical cannabis program, will likely disapprove it for opioid use disorder again. The revelation that DOH officials have compiled more than a dozen studies that show cannabis not only doesn’t help addiction, but worsens it, has at least one producer in polite disagreement with the Martinez administration and two others openly frustrated.
New Mexico lawmakers injected a dose of political pressure Monday into an unwavering but so far unsuccessful effort to add opioid use disorder to the list of qualifying conditions for medical cannabis in New Mexico. State Sen. Jeff Steinborn and Rep. Joanne Ferrary, both Democrats from Las Cruces, held a news conference at the Roundhouse to bring attention to companion memorials they are sponsoring, calling on Department of Health Secretary Lynn Gallagher to allow people with opioid dependence to obtain medical marijuana to help them break the chains of their addiction. “It is past time that this secretary do this,” Steinborn said. “People are dying every day in the state of New Mexico from opioid abuse, and medical marijuana has proven to be a safer treatment for any underlying conditions and certainly, hopefully, to step people down from opioid addiction into something safer that won’t kill them.” Twice, the state Medical Cannabis Program’s advisory board has recommended medical marijuana be allowed as a treatment for opioid addiction.
The U.S. Department of Justice does not appear to be concerned with medical cannabis producers or patients, including those in New Mexico, despite a memo Thursday from U.S. Attorney General Jeff Session that signaled a federal crackdown on legal marijuana. Sessions’ memo officially rescinded guidance from the Justice Department under former President Barack Obama regarding cannabis. Instead, Sessions wrote, each U.S. Attorney has the discretion to determine which types of cannabis-related cases should be federally prosecuted. Acting U.S. Attorney for the District of New Mexico James Tierney did not respond to a request for comment. New Mexico law only allows for medical cannabis use, which was not specifically addressed in Session’s memo.
A prominent medical cannabis producer in New Mexico filed a federal lawsuit against officials with the state agency that oversees the New Mexico State Fair and owns the fairgrounds. In the complaint filed Wednesday, New Mexico Top Organics-Ultra Health accused top staffers with Expo New Mexico along with the chair of the state fair board of violating the First and Fourteenth Amendments of the U.S. Constitution for barring the medical cannabis company from bringing cannabis-related materials to an educational booth later this year. Chairman of the New Mexico State Fair Commission Larry Kennedy, Expo New Mexico General Manager Dan Mourning and Concessions Department Director Raina Bingham are named as defendants in the case. The state fair officials, according to the lawsuit, “implicitly chilled” Ultra Health’s “clearly established rights to freedom of speech and expression.” New Mexico Expo officials, though, said they have the authority to implement their own rules and regulations.
Keeping tabs on the amount of medical cannabis available throughout the state may seem straightforward, but a review of quarterly reports seem to show more cannabis available for sale than what was grown or produced. While the state’s Department of Health requires producers to accurately track every gram of cannabis—beginning with harvesting and ending with sales—reports from some producers appear to have glaring discrepancies. Through a review of quarterly reports, NM Political Report found that at least five medical cannabis producers who reported sales exceeding the amount of cannabis that they produced. Those five producers reported selling a combined 676,272 grams of cannabis between January and March, but should have only had a combined 475,028 grams available to sell during that period. This means more than 200,000 grams, or 44 pounds, of medical cannabis sold in New Mexico in three months with almost no accounting of where it came from.