May 5, 2021

State agencies confirm medical cannabis purchase limits will not increase anytime soon

Two New Mexico state agencies confirmed on Wednesday in a letter that medical cannabis purchase limits will not increase, as it was previously suggested last month by a group of medical cannabis producers. 

Related: NM medical cannabis patients should not expect increased purchase limits any time soon

In an official response to the group of five medical cannabis producers, New Mexico Department of Health Secretary Tracie Collins and state Regulation and Licensing Department Superintendent Linda Trujillo wrote that until commercial cannabis sales begin next year medical cannabis patients’ purchases will be limited to roughly eight ounces of cannabis in a rolling 90-day period. The Medical Cannabis Program, which is currently overseen by DOH, limits purchases to 230 units in 90-days. The program defines a unit as one gram of dried, smokable cannabis or 0.2 grams of cannabis concentrates or derivatives. 

Even after commercial cannabis sales start, Collins and Trujillo wrote, medical cannabis purchases will be constrained, but patients could still opt to buy more cannabis through commercial sales. 

“Until such time as commercial cannabis activity is permitted by the Cannabis Control Division, qualified patients will remain limited to medical purchases made pursuant to the [Lynn and Erin Compassionate Use Act], i.e., purchases in quantities that are within the 90-day adequate supply purchase limit, as specified in Section 6(K) of the [Cannabis Regulation Act],” the two wrote. 

The section of the Cannabis Regulation Act the two department heads referred to states that medical cannabis producers “shall continue to operate under rules promulgated” by DOH until RLD issues new rules.

But Collins and Trujillo also said they soon plan to announce proposed rule changes for producers that could include production limits for both medical and recreational-use cannabis. 

“That rulemaking will include revisions to existing producer plant limits, although the content of the proposed rules has not yet been determined. 

Interpretation of the law

Collins and Trujillo wrote the letter in response to a letter from medical cannabis producers Ultra Health, G&G Genetics, Budding Hope, Kure and Sacred Garden, which was sent on April 14. 

The group of producers argued that on June 29, when the Cannabis Regulation Act goes into effect, medical cannabis patients should be allowed to purchase two ounces of dried cannabis, 16 grams of extract and 0.8 grams of edible cannabis at a time, as the new law states. 

With no limit on the number of purchases in a day, a patient could purchase double the amount that is allowed under the current law in a matter of eight trips to a dispensary. So, the producers reasoned, the state should consider an increase in production limits as soon as possible. But in an interview with Growing Forward, the collaborative podcast between NM Political Report and New Mexico PBS, Trujillo said patients should not expect to be able to buy more than their 90-day limit. In response to a follow-up inquiry from NM Political Report, representatives from both RLD and DOH confirmed that both agencies’ interpretation of the new law leaves production limits under DOH, even though the Cannabis Regulation Act states that all of DOH’s previous cannabis duties and authority will be transferred to RLD, “except for administration of the medical cannabis registry…”

Still, the Cannabis Regulation Act seems to have conflicting language in terms of “adequate supply for medical cannabis patients.” The law states that except patient registry, all authority will be removed from DOH. But in a separate section that amends the current medical cannabis law, the Cannabis Regulation Act defines adequate supply as “an amount of cannabis” that is determined by “the department.” In that same section the department is defined as the “Department of Health.” Further, the law also states that if “any administrative rules are inconsistent with the provisions of this act, such rules are null and void.”

Those inconsistencies are just part of why one of the producers plans to file a legal action against the state. 

Back to court

It’s probably an understatement to say that Duke Rodriguez, the president and CEO of medical cannabis producer Ultra Health, is familiar with suing the state over medical cannabis issues. Rodriguez and Ultra Health have filed a long list of actions against the state over the past several years. 

Perhaps the most notable case was a suit challenging the state’s previous 450 plant limit for producers. After months of litigation, the state last year increased the plant limit to 1,750. Ultra Health recently reopened that case and challenged that updated limit. One of the more recent outcomes of Ultra Health’s legal challenges is that those with an authorization to use medical cannabis from another state or tribal government can become a reciprocal patient in New Mexico, regardless of whether their identification card matches the recommendation. After reports that individuals from states with a restrictive or nonexistent medical cannabis program were obtaining authorization to use medical cannabis through more lenient states and meeting with healthcare providers online, the New Mexico DOH sought to tighten reciprocity rules. Ultra Health challenged the state’s rule change and a state district judge ultimately sided with Ultra Health. But given the Cannabis Regulation Act specifically limits reciprocity to those who are not residents of New Mexico and requires a government issued medical cannabis authorization, expanded reciprocity will be short lived. But Rodriguez said expanded reciprocity is anything but moot, even if by June 29 the restrictions will be back in place. 

“It absolutely is significant, and in the first 24 hours, we saw a tripling of patient volume throughout our dispensaries,” Rodriguez said. “This is not a small number of several hundred.”

It’s unclear whether the state plans to appeal the reciprocity decision. 

Rodriguez said Ultra Health is on track to file a petition in state district court over medical cannabis purchase limits in order to clarify the word of the law, but also because he said limiting medical cannabis patients to potentially less cannabis than someone who purchases it commercially goes against Article II of the New Mexico Constitution that, in part, states that no person shall “be denied equal protection of the laws.” 

“I was completely disappointed. Surprised, and unfortunately, saddened to see that we probably will have to pursue this through some formal adjudication,” Rodriguez said. “There is no question that this is such a huge legal and policy issue, that we cannot leave it unaddressed.”