A New Mexico medical cannabis patient is challenging state rules for medical cannabis purchase limits. 

Jason Barker, a medical cannabis patient and advocate, filed a request in Santa Fe’s First Judicial District Court earlier this month, asking a judge to compel the state’s Medical Cannabis Program and Cannabis Control Division to allow medical cannabis patients to purchase the same amount of cannabis as commercial cannabis customers will be allowed to purchase early next year. 

Barker’s lawyer, Jacob Candelaria, is also a New Mexico state senator and has represented medical cannabis patients and producers in the past. One of Candelaria’s clients in the past has been medical cannabis producer Ultra Health, which has a history of filing lawsuits against the state over medical cannabis rules and regulations. Ultra Health’s president and CEO Duke Rodriguez told NM Political Report that the company has offered financial support for Barker’s case. 

“It’s an important patients’ rights issue in which we fully agree with Mr. Barker and his attorney, so we would be shirking our responsibility not to offer support,” Rodriguez said. “I am fully expecting we will not be the only licensed producer offering support on the matter.”

Candelaria said he could not discuss the issue of payment for his services, but stressed that his client in the matter is Barker and not Ultra Health. 

In a statement Candelaria accused the state of being more concerned with tax revenue than with medical cannabis patients’ well-being. 

“State regulators are trying to unlawfully discriminate against my client, and deny all medical cannabis patients the rights afforded to them under the Cannabis Regulation Act,” Candelaria said. “The law is clear, all medical cannabis patients may purchase at least two-ounces of medical cannabis at any one time, tax free, beginning on June 29, 2021. Regulators are simply trying to maximize state tax revenue and impose an illegal tax on medical cannabis patients.”

Barker’s mandamus request, or request for the court to intervene, challenges the state’s Department of Health’s current rules that medical cannabis patients can purchase up to 230 units of medical cannabis in a rolling 90 day period. The department, which oversees the Medical Cannabis Program, defines one unit as a gram of dried and smokable cannabis or 0.2 grams of cannabis extract or distillate. But the Cannabis Regulation Act, which was passed by the New Mexico Legislature, signed by Gov. Michelle Lujan Grisham and goes into effect on June 29, mandates that commercial sales be limited to two ounces of dried, smokable cannabis or 0.8 grams per transaction. That means a commercial cannabis customer could theoretically buy more than a medical cannabis patient in five transactions. The Cannabis Regulation Act does not limit the number of purchases or the time frame of those purchases. 

Earlier this month, Ultra Health and four other medical cannabis producers wrote a letter to RLD and DOH, asking for an increase in the number of cannabis plants producers can grow, arguing that cannabis patients would be allowed to buy up to two ounces at a time. In response, RLD and DOH issued a letter to the five medical cannabis producers informing them that since recreational-use sales won’t begin until early next year patients will still be limited to 230 units in a 90-day period. The letter added that after recreational-use sales begin, medical cannabis patients could purchase more than the current limit by purchasing recreational-use cannabis, which will be taxed, unlike medical cannabis.   

In the petition, Candelaria wrote that Barker requires a fairly large amount of cannabis because of a traumatic brain injury. Further, Candelaria wrote, requiring patients like Barker to pay an excise tax in order to get enough cannabis is a form of discrimination. 

“By claiming that medical cannabis is only tax exempt up to a certain volume, Respondent DOH and Respondent RLD violate equal protection principles in another way: by unfairly discriminating between particular medical treatments with respect to taxation. 

Barker’s request for court intervention also argues that the rule limiting medical cannabis purchases to eight ounces every 90 days is arbitrary and capricious since it was promulgated as part of the Lynn and Erin Compassionate Use Act and not part of the Cannabis Regulation Act. 

Barker is also asking the court to invalidate the current cannabis plant limit of 1,750 for producers, arguing that adequate supply, a term from DOH rules and regulations, is an outdated concept. 

“On June 29, 2021 the ‘adequate supply’ concept is nothing more than a remnant of past legal regimes—a vestigial organ, like the appendix, left in the body by evolution but without any discernible function. Something to be studied, but not regulated,” Candelaria wrote in Barker’s petition. 

Because Barker’s case is not a lawsuit against the state, but instead a request for the court to intervene, neither RLD or DOH were served with a summons or notification. And a judge will still have to make a decision whether to call the state and Barker in for a hearing or make a decision to intervene based on Barker’s petition.