March 1, 2019

Despite court order, still no clarity on medical cannabis plant count

Today’s the day. The New Mexico Department of Health has run the clock on a court order to come up with a number, and a reason behind it, of how many medical cannabis plants can be grown in the state.

Last year, a state district court judge gave the state’s Department of Health about four months to determine a maximum number of plants medical cannabis producers can have at any given time. And the judge ordered the department to back their decision up with data. The department asked for a last-minute extension from the court, which the judge denied. Today was the deadline and now some producers are waiting to hear updates regarding how many cannabis plants they can have, even though DOH knew it needed to come up with an answer since last November. Opinions on what is considered the right number of plants vary amongst producers, but the judge’s ruling raises questions about how DOH and the Medical Cannabis Program tracks information that producers are required by law to provide to the state.

What ended with a judge ordering the state to come up with a data backed justification for plant limits, began with a lawsuit filed by a cannabis producer along with the mother of a cannabis patient.

Update: DOH Sec: Cannabis producers can grow up to 2,500 plants, temporarily This story continues as originally written below

New Mexico Top Organics—Ultra Health Inc. and Nicole Sena sued DOH, alleging a rule, promulgated by the Medical Cannabis Program, that limited producers to 450 plants means patients don’t have an adequate supply of medicine. In November 2018, then-District Judge David Thomson invalidated the rule, which he said was based on “arbitrary” numbers and outdated information. Thomson gave DOH and the Medical Cannabis Program until March 1, 2019 to come up with a new, data-driven plant limit. About 10 days before the court ordered deadline, the department asked for an extension until  November 2019, saying the transition to a new administration hindered its ability to meet the deadline. When Pro-Tem Judge Sarah Singleton took over the case, she denied DOH’s request for an extension.

A department spokesperson told NM Political Report earlier this week the department was “evaluating” its next steps. But on Tuesday, the program’s compliance manager sent an email to producers saying the department would send out an update “later this week.” The president of New Mexico Top Organics—Ultra Health Inc. believes DOH’s inaction effectively eliminated any limitation on cannabis plants grown by licensed producers.

“At midnight of the 28th, beginning March 1st at 12:01, there is no plant count,” Ultra Health’s president Duke Rodriguez said.

Rodriguez has advocated for less restrictions on how many plants producers should be able to grow. The idea of no limit on the number of cannabis plants being grown in the state concerns at least one other cannabis producer.

450 plant cap works for some providers

Former Bernalillo County Sheriff and former head of public safety for both New Mexico and Albuquerque Darren White now runs the Albuquerque-based cannabis production company PurLife. White said the elimination of plant limits provides an opportunity for medical cannabis to be sold unregulated, on the “black market.”

“There needs to be a plant count, it can’t be unlimited,” White said. “That is a recipe for disaster.”

But, White added, DOH should have been able to come up with a plant limit backed by empirical data in 120 days, and agreed the current limit of 450 is not based on the data DOH is supposed to keep track of.

“I don’t think it should be that hard to say, ‘This is how much the producers are currently yielding, and this is how many patients we currently have, and this is how much each patient on average is purchasing,’” White said.

White said his company can still keep up with demand under the current 450 cap on plants and sometimes even has extra medicine that ends up being sold wholesale to other companies around the state.

New Mexico producers have debated for years whether 450 plants per producer is enough to support the tens of thousands of medical cannabis patients in New Mexico. But in 2017, when NM Political Report looked into how much cannabis was being transferred between producers, DOH declined to provide those records, despite state law that requires producers to meticulously keep track and report every gram of cannabis.

The exact amount and frequency of wholesale transfers is unclear, but medical cannabis patients in rural areas say their local dispensaries often lack an adequate supply because a lot of the medicine is shipped to higher populated areas.

Access for rural customers

Ginger Grider lives in Portales and runs the New Mexico Medical Cannabis Patients Advocate Alliance. She holds a Personal Production License and grows her own supply of medical cannabis, but said she has heard from other patients that rural dispensaries are left with slim selections.  

“There is no where near the selection that is available in Albuquerque or Santa Fe,” Grider said of areas like Portales and Clovis.

Grider said she’s not concerned with the idea that excess cannabis may end up being sold on the streets. But she also isn’t convinced that an unlimited plant count for producers will help patients in rural areas.

“It’s not going to guarantee rural access because [producers] still have to come out of pocket to put up a brick and mortar store, and they don’t have the incentive at this point,” Grider said.

In her State of the State address in January, Gov. Michelle Lujan Grisham said she would instruct the DOH to add opiate use disorder to the list of qualifying conditions for medical cannabis. That would presumably expand the number of medical cannabis patients in New Mexico

Lujan Grisham’s spokesman Tripp Stelnicki told NM Political Report that the governor has been meeting with DOH “extensively” to come up with a plant count number that will satisfy the court order.

“This was happening before last Friday’s hearing and continued into this week,” Stelnicki said.

Still, Rodriguez derided DOH for not acting sooner, saying the department “played a game of chicken” by waiting for nearly the entire 120 period they had to come up with a new plant limit.