NM cannabis regulators temporarily increase production limits in an attempt to avoid shortages

With a little more than two months before recreational-use cannabis sales are expected to start, the New Mexico Cannabis Control Division issued an emergency rule change that doubles plant limits for cultivators. 

The emergency rule change, which went into effect last Thursday, increases the maximum amount of mature cannabis plants for producers from 10,000 to 20,000. 

In documents filed with the state’s Commission of Public Records, division director Kristen Thomson justified the emergency rule change. 

“The Division has considered demand estimates provided by applicants and licensees in the cannabis industry,” Thomson wrote. “Projected market demand shows that the demand for regulated cannabis will increase year-to-year as more cannabis consumers move from the illicit market to the regulated market. The supply of medical cannabis will become increasingly threatened without an adequate supply of plants.” 

Cannabis production limits have been an issue in New Mexico since nearly the inception of the state’s Medical Cannabis Program. One of the state’s more prominent cannabis producers, Ultra Health, has battled with the state in court for years over plant limits. In 2015 the New Mexico Department of Health, which oversees the Medical Cannabis Program, increased production limits from 150 to 450 mature plants, per producer.

NM judge rules patient cannabis purchase limits consistent with state law

A New Mexico state judge ruled on Thursday that medical cannabis patients cannot purchase the same amount as non-patients when recreational-use sales begin. 

Second Judicial District Court Judge Benjamin Chavez, in his written ruling, dismissed a claim from a medical cannabis patient that medical cannabis patients should be afforded the same purchase limits as what is laid out in the state’s Cannabis Regulation Act, which went into effect in June. 

“Petitioner has failed to establish that he, as well as qualified patients, qualified caregivers, and reciprocal patients, have a clear legal right to purchase an additional two-ounces of medical cannabis, tax free, at this time, under the Cannabis Regulation Act,” Chavez wrote. 

Prior to the Cannabis Regulation Act, the only way to legally possess cannabis in New Mexico was to be a medical cannabis patient. 

The state’s Medical Cannabis Program has long allowed patients to purchase up to 230 units in a rolling 90-day period. A “unit,” a term created by the program, is one gram of cannabis flower or a quarter of a gram of concentrate or extract. That means a medical cannabis patient could buy up to eight ounces of cannabis flower every three months. 

The Cannabis Regulation Act, however, allows adults who are at least 21 years old to purchase up to two ounces of cannabis flower in each purchase, with no limit on the number of purchases. The new law also limits personal possession to two ounces, but there is no limit on the amount of cannabis stored at a person’s home. Essentially, once recreational-use sales begin next year, a person could hypothetically make five trips to a cannabis retail business, purchasing the maximum amount each time and have purchased two more ounces than a patient is allowed in a 90-day period. 

Chavez, in his decision, cited a portion of the Cannabis Regulation Act which states that a person 21 years of age or older can buy “not more cannabis than authorized by the Cannabis Regulation Act or the Medical Cannabis Program.” Chavez also cited a portion of the law that states medical cannabis patient rules and regulations will remain under the purview of the Medical Cannabis Program until the newly formed Cannabis Control Division creates its own rules and regulations for medical cannabis patients. 

Last month, the Medical Cannabis Program held a public hearing and presented proposed rule changes that would increase medical cannabis purchase limits to 425 units or 15 ounces of cannabis flower.

NM Cannabis Control Division employees sue agency over assigned work location

As the New Mexico Regulation and Licensing Department prepares to issue licenses to cannabis businesses, court records show they are also facing a lawsuit by some of the employees tasked with daily operations. 

In July, about a month after the state’s Cannabis Regulation Act went into effect, four RLD employees filed a civil complaint against the department, alleging that the employees were forced to start working in Santa Fe instead of Albuquerque, where the lawsuit says they have worked for years. 

The four employees were among a larger group of staff that were moved from the Department of Health’s Medical Cannabis Program to the RLD’s Cannabis Control Division as part of the new law that legalized adult-use cannabis. 

According to state records, Matilde Colomo and Jude Vigil are both listed as compliance officers, Matthew Peralta is listed as an environmental science specialist and Martinik Gonzales is listed as an administrative operations manager. 

According to the complaint, the four employees are “being forced to transfer their daily work operation from Albuquerque to Santa Fe and are being forced to do so against their will.”

“All Plaintiffs have experienced mental distress and anguish over being forced to commute to Santa Fe against their wishes and against their job terms,” the complaint reads. 

A spokesperson for RLD said the Cannabis Control Division does not comment on pending litigation, but reiterated that both the department and the division are working towards setting up a cannabis industry.  

“The CCD’s mission is to stand up and support a thriving medical cannabis program and adult-use cannabis industry in New Mexico,” RLD spokesperson Heather Brewer said. “The CCD staff is working hard to provide quality customer service and timely technical assistance to maximize the economic opportunities the cannabis industry will create for businesses, communities and our state.”

All four employees, according to the complaint, had already been working in Albuquerque under DOH, but were informed in June that the Albuquerque workspace was “inadequate to house the new Cannabis Control Division,” and that it was “determined” that the new division staff would need to be in one location. 

The suit claims that in moving staff from Albuquerque, RLD violated a State Personnel Office rule regarding intra-agency transfers. 

The rule in question states that employees are allowed to be transferred “without the employee’s consent to a position in the same classification within the same geographic location, which is 35 miles from the boundaries of the community in which the employee is employed or if the established requirements state that willingness to accept a change of geographic location is a condition of employment.”

Santa Fe is about 60 miles north of Albuquerque. 

According to the complaint, the four employees objected to the move and requested to work remotely from their respective homes, but were still “forced to report to the Santa Fe Office.”

The complaint asks a state district court judge to issue an injunction or temporary restraining order to halt the move until the issue can be resolved in court. RLD has until late next week to formally respond to the complaint.

NM judge calls for increased purchase limit for medical cannabis patients

As New Mexico’s Regulation and Licensing Department works toward finalizing rules for non-medical cannabis sales, some unfinished business remains when it comes to the state’s medical cannabis program. 

A state district judge last week ordered RLD, the New Mexico Department of Health and the governor’s office to either change their policy for medical cannabis patient purchase amounts or present a compelling argument for not doing so. 

“Respondents’ purchase limitations violate equal protection principles because they will subject New Mexicans with debilitating medical conditions who are dependent on medical cannabis to lower purchase limitations than persons who purchase cannabis from the recreational (and taxed) market,” read the writ of mandamus signed by Second Judicial District Judge Benjamin Chavez. “Respondents’ unlawful rules also attempt to impose an illegal tax on any medical cannabis purchases in violation of the Cannabis Regulation Act.”

The Cannabis Regulation Act, which went into effect on June 29 and is the framework for sales expected to start next spring, allows purchasers to buy up to two ounces of cannabis at a time. But the state’s Department of Health, which is RLD’s medical cannabis counterpart, has maintained that a DOH policy limiting medical cannabis purchases to roughly eight ounces in a 90-day period takes precedence over the new law. 

For years, New Mexico cannabis patients have been limited to 230 “units” in a rolling 90-day period. DOH rules define a unit as one gram of dried cannabis “flower” or 200 milligrams of cannabis extract or concentrate. Under the new law, however, non-medical cannabis purchases are limited to two ounces for each transaction.

New executive order to direct demographic information on the LGBTQ+ community

Gov. Michelle Lujan Grisham signed an executive order Monday, effective immediately, directing state agencies to collect voluntary data for informational purposes on the LGBTQ+ community. The state Department of Health will be the lead agency, Lujan Grisham’s press secretary Nora Meyers Sackett wrote to NM Political Report. But all state agencies will be providing the voluntary questions asking individuals during in-take processes about sexual orientation and gender identity. The order mirrors SB 316, the Gender and Orientation Data Collection bill which state Sen. Carrie Hamblen, D-Las Cruces, sponsored in the 2021 Legislature. That bill passed the Senate but died on the House floor before a vote.

NM Senate leadership clears senator of ethics violation allegation

A dust-up between an outspoken New Mexico state senator and a state cabinet secretary over ethics related to cannabis legislation has come to a resolution, at least temporarily. 

According to a letter from Senate leadership last month, sent to New Mexico Department of Health Secretary Tracie Collins, there will be no legislative investigation of Sen. Jacob Candelaria, D-Albuquerque, over his professional involvement with a prominent medical cannabis business.  

In the letter, sent on May 19, Senate President Pro Tem Mimi Stewart, D-Albuquerque, wrote that she, Senate Majority Leader Peter Wirth of Santa Fe and Senate Minority Leader Greg Baca of Belen determined there was no reason for the Interim Legislative Ethics Committee to investigate the issue further. 

“I convened a meeting with Senators Wirth and Baca to review and deliberate the allegations and other information contained in your complaint and in the State Ethics Commission’s dismissal and referral,” Stewart wrote. “After our extensive evaluation, we have determined that the complaint and information did not warrant further investigation by the Interim Legislative Ethics Committee, and therefore the complaint is dismissed.”

Four days after this year’s regular session and six days before a special session, Collins filed an ethics complaint with the newly formed State Ethics Commission, alleging that Candelaria  violated the state Governmental Conduct Act by voting on a bill that would have limited medical cannabis patient reciprocity. Candelaria, who is also an attorney, represented medical cannabis producer Ultra Health months prior, challenging DOH over the same issue. 

In September 2020, the Medical Cannabis Program, which is overseen by DOH, issued a directive that medical cannabis reciprocity only applied to patients with authorization from their respective home state to use medical cannabis. The department was attempting to close what it saw as a loophole in which Texas residents reportedly received recommendations from doctors in California and then crossed state lines to buy medical cannabis in New Mexico. By October 2020, Candelaria, on behalf of Ultra Health, successfully petitioned a state judge to overrule the department’s emergency rule change.

Most of state is at turquoise level as vaccinations still grow

Nearly every county in New Mexico, including the state’s most populous counties, are set to be in the turquoise tier, which has the least capacity restrictions. “It’s exciting what’s happening to the color of the state,” Human Services Department Secretary Dr. David Scrase said, referring to the restrictions by county. He said that the success was largely due to vaccinations, but also easing of other criteria. This signals an even wider expansion of the state’s reopening as vaccinations increase and as cases and hospitalizations remain at a plateau. The advancement to turquoise could happen by either hitting all three guidelines on categories (fewer than 10 cases per 100,000 per day, a test positivity rate of 7.5 percent or below and a vaccination rate at or above 40 percent) or by being at the green level (which requires two of the categories) for two consecutive periods.

Medical cannabis producers call for increased plant limits

Just days after New Mexico Gov. Michelle Lujan Grisham signed a recreational-use cannabis bill into law and less than 90 days before the law goes into effect, some in the existing medical cannabis industry want state officials to immediately increase the amount of cannabis they can grow. 

A group of five New Mexico medical cannabis producers sent a letter with their concerns about the rollout of recreational-use cannabis to the heads of the state’s Regulation and Licensing Department and the state’s Department of Health. The letter from the medical cannabis producers said that even after the law goes into effect, a lack of new promulgated rules could result in increased medical sales, which, the producers argued, could also mean a shortage of medical cannabis for existing patients. 

“Therefore, the undersigned producers request that DOH and RLD raise the plant limitation until the full commercial market can be phased in,” the letter reads. The group of producers calling for an increase in allowed plants include Ultra Health, which has long called for an increase in medical cannabis production limits or no limits at all, and Sacred Garden, which is currently involved in a legal battle with the state over gross receipts taxes on medical cannabis. The other three producers who signed onto the letter are G&G Genetics, Budding Hope and Kure. 

The Department of Health oversees the current Medical Cannabis Program. Regulation and Licensing will oversee all but the medical cannabis patient registry after the law goes into effect on June 29. 

In their letter, the producers reasoned that after June 29, existing Department of Health rules for purchase limits will be invalid.

NM cannabis producer sues state, claims retaliation

A prominent New Mexico medical cannabis producer filed a lawsuit Wednesday against the state Department of Health, alleging the department violated a previous court order and discriminated against the company regarding cannabis plant limits.  

Albuquerque-based attorney Jacob Candelaria, who is also a New Mexico state senator, filed the motion on behalf of Ultra Health, a medical cannabis company that has previously taken the state to court numerous times. In the motion, which effectively reopened a previous lawsuit against the state, Candelaria argued that the Department of Health, which oversees the state’s Medical Cannabis Program, failed to obey a court order that plant limits for medical cannabis producers be based on reliable data and that the department discriminated against Ultra Health specifically. 

The case that was reopened was originally filed in 2016 and argued that the state’s then-limit of 450 plants was not enough to provide an adequate supply of medical cannabis to the more than 26,000 medical cannabis patients at the time. In November 2018 a state district judge ordered the state’s Department of Health to come up with a data-based plant limit for medical cannabis producers by March 2019. 

With five days until the state’s deadline, then Secretary of Health Kathyleen Kunkel sent an email to Jane Wishner, a policy advisor for Gov. Michelle Lujan Grisham, about the department’s next steps in coming up with a data-driven limit on cannabis plants. The email chain began with the former director of the Medical Cannabis Program explaining that New Mexico seemed to be the only state with a medical cannabis program that used plant counts as a limit, opposed to facility size. Wishner, in reply, contemplated taking a look at the state’s medical cannabis law and coming up with a temporary plant limit for producers.

DOH: 1,684 new COVID-19 cases and 41 deaths

The state Department of Health reported 1,684 new cases of COVID-19 on Thursday and 41 additional deaths related to the disease. Bernalillo County had the most newly reported cases on Thursday, with 434. Four other counties had 100 or more new cases: San Juan County with 196; Sandoval County with 121; Doña Ana and Lea counties with 118. On Thursday, the department reported 803 individuals were hospitalized for COVID-19, an increase of 11 people since Wednesday. This could include those from other states who are hospitalized in New Mexico, but would not include New Mexicans who are hospitalized out of state.