March 17, 2021

Limitations on medical cannabis reciprocity heads to House floor

Andy Lyman

Sen. Jerry Ortiz y Pino, D-Albuquerque, on the Senate floor speaking about marijuana legalization in 2016.

While two efforts to legalize and regulate recreational-use cannabis are coming down to the wire, legislation aimed at limiting medical cannabis reciprocity appears to be on a fast track to the governor’s desk. 

SB 340, sponsored by Sen. Jerry Ortiz y Pino, D-Albuquerque, passed the House Judiciary Committee unanimously on Wednesday.  

Ortiz y Pino, joined by New Mexico Department of Health officials, argued that the integrity of the state’s Medical Cannabis Program is at risk unless the law is changed to limit who can qualify as a reciprocal medical cannabis patient. 

“Our reciprocity arrangement has been taken advantage of by people who are using the internet to secure letters, not licenses, but letters from physicians in a third state,” Ortiz y Pino said. “California is the most likely, but it could be anywhere that they have loose medical cannabis programs.”

Aryan Showers with the Department of Health served as one of Ortiz y Pino’s expert witnesses and told the committee that medical cannabis reciprocity was intended to give medical cannabis patients enrolled in a “bonafide state program” the opportunity to buy, possess and consume medical cannabis in New Mexico. Instead, Showers said, there is currently a “loophole” that allows people to “circumvent the enrollment requirements” of New Mexico’s program. 

“We didn’t foresee this loophole, but it’s causing the program significant strain,” Showers said. “And we’re actually just concerned about the potential impact this could have on those New Mexicans who truly depend on the program for their medicine.”

There was no debate among committee members and only two members made supportive comments about the bill. 

Rep. Eliseo Alcon, D-Milan, jokingly asked Ortiz y Pino where to find a $30 medical cannabis card. 

“I think there are places on the internet where you can get one very quickly,” Ortiz y Pino answered. “There’s only a five minute interview with a physician in California who has a very broad understanding of how medical cannabis can be used.”

This is the second consecutive year that Ortiz y Pino sponsored a bill to amend a law he helped pass in 2019 that made broad changes to the state’s medical cannabis statute. Last year the New Mexico Legislature changed the law back to its original language that specified only residents could enroll in the state’s Medical Cannabis Program. Both that change and SB 340 seem to be a direct result of actions by medical cannabis producer Ultra Health. In 2019 two Texas residents and Ultra Health’s president and CEO, who is a resident of Arizona, took the state to court after the Department of Health denied their medical cannabis patient applications on the grounds that the three were not residents of New Mexico. A state district judge ruled in favor of the three plaintiffs, but the department appealed the decision. Before a court of appeals panel heard the case, the Legislature—with the urging of Gov. Michelle Lujan Grisham and the department—passed a bill that ultimately reverted the law back to its original form. The concern, state officials said last year, was that out of state patients would be encouraged to break federal law and cross state lines with an illicit substance. 

This year’s push for SB 340 is similar, in that a large number of Texas residents reportedly obtained authorization to use medical cannabis over the phone or through a video consultation from medical professionals in California. The department and the Medical Cannabis Program issued an emergency rule change specifying that reciprocal patients cannot be a resident of New Mexico and reciprocal patients have to show proof they are a resident of the state where they are authorized to use medical cannabis. Again, Ultra Health successfully challenged the emergency rule change. The judge in that case ruled that while the department has the authority to issue such a rule, the emergency change violated state law. The state rescinded the emergency rule change, but has not replaced it with a permanent rule to further specify who can become a reciprocal patient. 

Most recently, Ultra Health filed another suit against the state alleging former Department of Health Secretary Kathyleen Kunkel discriminated against the cannabis producer when she wrote, “Right now I am trying to figure out [the] last possible date to hold a rule hearing (looks like July 5) in time to control the plant expansion of Ultra [Health],” in an email regarding the state’s plan to implement the state’s plant limit for producers.

During a Senate floor debate on the issue, Sen. Jacob Candelaria, D-Albuquerque, who also represented Ultra Health in the reciprocity court case, tearfully told members that he was raped as a child and as a result was diagnosed with PTSD. Candelaria is open about being a medical cannabis patient in New Mexico, but said he also signed up as a reciprocal patient. 

House Judiciary was the only committee assignment for HB 340 and it now heads to the House floor. The bill sped through two Senate committees, the Senate floor and now the House Judiciary in about 10 days, so it seems likely it will pass the House floor and head to the governor’s desk before Saturday at noon when the session ends.