Additional cannabis producer asks to intervene in lawsuit over plant count

A potential new party to a lawsuit filed against the New Mexico Department of Health could further complicate the issue of how much medical cannabis is enough for the state. 

Medical cannabis producer R. Greenleaf has asked a state judge to allow the company to intervene in a lawsuit filed by three other medical cannabis companies that argue the state’s mandated limit on cannabis plants should be raised to better meet demands. R. Greenleaf, through its lawyer, argued that the three producers calling for a higher plant limit are not representative of the rest of the medical cannabis industry. Earlier this year, R. Greenleaf submitted its own study to the DOH and argued that producers need less than 1,500 plants to adequately supply patients with cannabis. 

The lawsuit, filed by producers Ultra Health, Sacred Garden and G & G Genetics, argues that the most recent plant limit increase did not go far enough and that the DOH did not use reliable data to reach the current plant limit of 1,750. The lawsuit says the state did not account for things like additional qualifying conditions and a recent court ruling that allows non-residents of New Mexico to become medical cannabis patients. 

“The New Mexico Department of Health and Secretary [Kathyleen] Kunkel have promulgated an administrative rule that violates a valid, un-appealed order from the First Judicial District Court,” the initial lawsuit read. “The rule also contradicts the Lynn and Erin Compassionate Use Act and defeats the purpose and fulfillment of that statute.”  

The DOH has not filed a response yet, but the request by R. Greenleaf to intervene implies a disagreement amongst producers about whether New Mexico has, or is headed towards a shortage of medical cannabis.

Amid back and forth court filings, DOH not issuing medical cannabis cards to non-residents

The issue of whether non-residents of New Mexico can enroll in the state’s Medical Cannabis Program is still not settled. A flurry of three motions were filed in three days in a civil case over whether non-New Mexico residents are eligible for state medical cannabis cards. The New Mexico Department of Health filed a motion last week asking a state judge to reconsider his decision to compel the state to issue medical cannabis cards to anyone with a qualifying condition, regardless of where they live. On the same day, Gov. Michelle Lujan Grisham and DOH jointly filed a motion asking a judge to stay, or hold off on, his order for DOH to issue cards to non-residents. Then, on Monday, the three petitioners who originally argued they were due medical cannabis cards even though they live outside New Mexico filed a motion calling for the program’s director to be held in contempt of court. 

The court case started in July when two Texas residents and an Arizona resident who is the CEO and president of a New Mexico medical cannabis asked a judge to force the state to issue the three petitioners medical cards.

Businesses grow around NM medical cannabis producers

As New Mexico lawmakers try to come up with a legislative proposal to legalize recreational cannabis that might ease the apprehension of some of their colleagues, there is already a group of business owners already laying the groundwork for a post-legalization world. 

Sometimes they’re called ancillary cannabis companies, other times they’re called cannabis adjacent businesses. Regardless of what they’re called, there is a network of New Mexico businesses that provide services to medical cannabis producers. Some of those businesses, which range from real estate to technology companies, have come up with innovative ways to help the medical cannabis industry, prepare for legalized cannabis and even break out into the non-cannabis industry. 

Jeff Holland and Siv Watkins are the partners behind 11Biomics, a company which specializes in protecting cannabis plants from powdery mildew. Holland, who is from Albuquerque, said the business got its start with a business incubator in California’s Bay Area. Despite offers to keep the company on the west coast, the company opted to bring its technology back to New Mexico to help medical cannabis growers and hopefully stimulate the economy. 

“We really want New Mexico to be the leader in this area,” Holland said. 

That area, specifically, is soil treatment to combat harmful plant diseases instead of spraying plants with pesticides.

NM governor intervenes in court case over medical cannabis cards

New Mexico’s governor has officially become a party in a legal battle over whether medical cannabis cards should be issued to out-of-state residents. 

On Wednesday, a state district judge approved Gov. Michelle Lujan Grisham’s request to intervene in the case, which arose after a prominent medical cannabis producer challenged the state on wording in a state statute related to who can become a medical cannabis patient in New Mexico. 

In a motion to add Lujan Grisham as an intervening party, her lawyers argued that the governor’s office is better suited than the state Department of Health to address some issues in the case. 

Related: Cannabis legalization task force aims for compromise

“Public safety considerations such as the interstate transportation of marijuana, which is a violation of federal and state law, and diversion concerns are critical state policy matters,” the court filing read. 

Kenny Vigil, the director of the state’s Medical Cannabis Program, was originally named in court documents but Lujan Grisham’s office argued that Vigil cannot adequately represent the state. 

“[Vigil] lacks authority to address law enforcement concerns, approve regulatory action, or direct healthcare policy for our State,” the court filing read. “Thus, the significant public policy considerations interests at issue cannot be fully addressed by the current parties to this litigation and could be substantially affected or impaired.”

While at a task force convened by the governor to examine cannabis legalization, Department of Health Secretary Kathyleen Kunkel said the issue is too complex for her department alone. 

“It’s such an important matter,” Kunkel said. “What it could impact is significant. It’s beyond the Department of Health.” 

A lawyer with the department told NM Political Report he could not speak for the governor’s office, but did say Lujan Grisham’s office took an interest in the case because it dealt with “interstate issues.”

The court case goes back to an attempt by New Mexico medical cannabis producer Ultra Health to encourage those who qualify as a medical cannabis patient but do not live in New Mexico to apply for a medical card. The company’s reasoning was that a law change removed the term “resident of New Mexico” and replaced it with “person” in the definition of “qualified patient.” 

Almost immediately, the Department of Health dismissed the idea that legislators intended to open the state’s Medical Cannabis Program to residents from other states.

DOH puts non-resident’s medical cannabis applications on hold

The New Mexico Department of Health could face a legal challenge from one of its most prominent critics, who also runs a high profile medical cannabis dispensary. 

Duke Rodriguez, president and CEO of New Mexico medical cannabis company Ultra Health, told NM Political Report that DOH “effectively denied” his application to become a medical cannabis patient in New Mexico. 

Rodriguez added the qualifier “effectively” because DOH did not officially deny his application, but did ask for more information. His application is officially on hold until he provides more documentation. 

“We have checked the documents you sent us and two items are needed,” a letter from DOH read. The two items missing were a valid New Mexico photo ID and a New Mexico address on his patient information form. 

The “effective” denial is the latest in a back-and-forth between the department and Rodriguez regarding whether or not non-residents of New Mexico can become a medical cannabis patient in New Mexico. 

In June, days before a change to the state’s medical cannabis law went into effect, Ultra Health bought radio ad space in southeastern New Mexico notifying listeners that New Mexico changed its law to allow non-residents the chance to become a medical cannabis patient. A bill signed by Gov. Michelle Lujan Grisham in March, which made sweeping changes to the medical cannabis law, replaced the words “resident of New Mexico” with the word “person” in the definition of “qualified patient.” The bill’s sponsor, Sen. Gerald Ortiz y Pino, D-Albuquerque, said the change was tied to a section that outlined regulations on reciprocity for other states with medical cannabis programs. The law changes allow for medical cannabis patients from other states to use their respective cards to obtain medical cannabis in New Mexico.

DOH hears public input on medical cannabis changes

The New Mexico Department of Health on Friday heard public testimony from medical cannabis patients, patient advocates and cannabis producers about proposed changes to the Medical Cannabis Program. More than 30 people shared their thoughts about a new proposed plant limit, increased producer fees and extending the life of patients’ medical cannabis cards. 

While almost all of the speakers addressed the specific rule changes, many also brought up a barrage of other issues like oversight of those who hold a Personal Production License and grow their own cannabis, opening the licensure for more producers and more testing of cannabis for contaminants or pesticides.  

The divergence from issues published in the proposed rule change seemed to show that some in the medical cannabis community don’t feel like they are being heard by the Department of Health. 

Former Department of Health chief records officer Daniel Jacobs told NM Political Report that previous department leadership is partly to blame. Jacobs retired from DOH shortly after Gov. Michelle Lujan Grisham took office. He said throughout the eight years of Susana Martinez’s time as governor, the Medical Cannabis Program and DOH shut itself off from the public. 

“For the last nine years we’ve been under an administration of exclusion,” Jacobs said. “We [now] have a governor who is about inclusion and she’s going to move the state forward and the program forward to benefit everybody, not just a select few.” 

Jacobs said he was recruited to work in the department by then-cabinet secretary Lujan Grisham under then-Gov. Bill Richardson. 

Medical Cannabis Program Director Kenny Vigil said DOH and Medical Cannabis Program staff hear from patients about twice a year when the board meets to discuss adding qualifying conditions to the program. 

“One of the things we can certainly do better at is improving dialogue with patients,” Vigil said.

NM medical cannabis producer implores DOH to reverse stance on non-resident medical cards

A high-profile New Mexico medical cannabis producer still maintains a recent change in the wording of the state’s medical cannabis law means non-residents should be able to become patients. Brian Egolf, an attorney for medical cannabis producer Ultra Health, sent a six-page letter arguing that point to Medical Cannabis Program director Kenny Vigil on Wednesday. Egolf is also New Mexico’s Speaker of the House. In the letter, Egolf outlined five reasons why the state should allow non-residents to become patients in New Mexico’s medical cannabis program, including a straightforward reading of the law, the fact that other state programs include non-residents, that state law prohibits transporting cannabis across state lines and that the Department of Health cannot override state law. A DOH spokesman said the department received the letter late in the day on Wednesday and was still reviewing it at publication time.

State says NM’s medical cannabis cards only for residents

The New Mexico Department of Public Health has made it clear—only New Mexico residents  can enroll in the state’s Medical Cannabis Program. “Persons who are not residents of New Mexico cannot be enrolled in the NM Medical Cannabis Program,” the department said in a statement to NM Political Report Friday. The statement came after the CEO of a prominent medical cannabis producer said he believes a change in the law allows for out-of-state patients to enroll in New Mexico’s Medical Cannabis Program. Duke Rodriguez, president and CEO of Ultra Health, previously told NM Political Report he bought radio ads in the southeast part of New Mexico to inform those in west Texas they can now apply to become a medical cannabis patient. Cannabis is illegal in Texas for all uses, including medical.

Does NM cannabis law extend to non-residents?

A recent expansion of qualifying conditions for medical cannabis through rule changes will likely result in a higher number of patients in New Mexico. But a law that goes into effect on Friday could also result in a new pool of patients—non-residents of New Mexico.  

Some changes to the law include protections from discrimination for patients, reciprocity with other states’ medical cannabis programs and an extended life span of medical cannabis cards. But perhaps the most significant and, until now, overlooked change to the law is who qualifies for medical cannabis cards. As of Friday, the definition of a “qualified patient” will no longer include the term “resident of New Mexico.” That term was replaced with “person.”

Duke Rodriguez, the president and CEO of medical cannabis producer Ultra Health, noticed the change in language and launched a campaign targeted towards residents of Texas who live close to New Mexico.

NM adds opioid use disorder, other conditions to medical cannabis program

As expected, the head of New Mexico’s Department of Health approved opioid use disorder as a qualifying condition to use medical cannabis. In an announcement on Thursday, DOH Secretary Kathyleen Kunkel said she accepted a recommendation from the state’s Medical Cannabis Advisory Board to include opioid use disorder and five other conditions as reasons to grant a medical card for medical cannabis use. “Adding these conditions to the Medical Cannabis Program provides medical providers new tools for relieving symptoms that may otherwise be difficult, if not impossible in some cases, to relieve through conventional means,” Kunkel said in a statement. “Thousands of New Mexicans may find relief from their symptoms through medical cannabis that they can’t get anywhere else.”

Kunkel also approved Alzheimer’s disease, autism spectrum disorder and three degenerative neurological disorders—Friedreich’s ataxia, Lewy body disease, and spinal muscular atrophy. The approval of those six conditions is the latest change in the Medical Cannabis Program since the change in administrations.