DOH set to finalize rules on cannabis consumption areas, new testing standards

New Mexico is one step closer to establishing sanctioned, legal areas for medical cannabis patients to use their medicine. 

The Department of Health’s Medical Cannabis Program held a public hearing Thursday to hear comments from the public regarding department rule changes. Those changes include higher testing standards for cannabis producers and manufacturers, reciprocity for medical cannabis patients already enrolled in a medical program in another state and consumption areas. 

Most comments from the public were about the testing standards, but some medical cannabis patients said they would like to see more leniency on who can open a consumption area and where they can open it. 

Erica Rowland, a founding member of the Albuquerque-based cannabis producer Seven Clover, said the opportunity to open a consumption area should not be limited to those who already produced the cannabis. 

“Consumption areas should not be limited to [Licensed Non Profit Producers],” Rowland said. 

But because the state’s cannabis law is specifically written and leaves little room for interpretation, the Legislature would need to act to change consumption area requirements. After changes made during the 2019 legislative session, the Lynn and Erin Compassionate Use Act allows for consumption areas, but requires that they are owned and operated by a Licensed Non Profit Producer, effectively barring someone from starting a new business solely for cannabis consumption. 

The statute, not the proposed rule change, also requires that anyone consuming cannabis at a consumption area have a safe ride home. It’s still unclear who would be held liable for someone who leaves a consumption area and drives themselves. Medical Cannabis Program Director Dominick Zurlo said that is more of a legal question and out of the DOH’s purview. 

“One of the big issues of course is New Mexico is one of the states that has a huge issue with DUIs and we want to ensure people are able to get home safely,” Zurlo said.

Medical cannabis patient asks judge to allow cannabis on house arrest

An Albuquerque-based attorney, who also serves in the state Senate, wants a judge to weigh-in on whether those on house arrest should have access to medical cannabis. 

The attorney and state lawmaker Jacob Candelaria, on behalf of his client Joe Montaño, filed a writ of mandamus, or a request for a ruling, in state district court, asking a judge to order Bernalillo County to allow those in custody to use medical cannabis if they are part of the state’s program. 

In his court filing, Candelaria argued that Montaño has a right to “adequate and reasonable medical care” while in custody. Candelaria also argued that state law says, “Medical Cannabis shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not be considered to constitute the use of an illicit substance,” and therefore his client should be allowed access to his medical cannabis. 

According to New Mexico’s Lynn and Erin Compassionate Use Act, which was updated during last year’s legislative session, medical cannabis patients are protected—with some exceptions—from discrimination for using medical cannabis. When mentioning incarceration though, the law seems open to interpretation.    

“A person who is serving a period of probation or parole or who is in the custody or under the supervision of the state or a local government pending trial as part of a community supervision program shall not be penalized for conduct allowed under the Lynn and Erin Compassionate Use Act.” NM Stat § 26-2B-10

Sen. Jerry Ortiz y Pino, D-Albuquerque, sponsored the Senate bill that added sweeping changes to the state’s medical cannabis law. He previously told NM Political Report that the custody provision was aimed at those in pretrial services or those on probation or parole, and Gov. Michelle Lujan Grisham’s office agreed. 

Now Candelaria, who is also a medical cannabis patient, is challenging that thinking with the financial help of one of New Mexico’s more prominent medical cannabis producers, which is led by one of the state’s Medical Cannabis Program’s most vocal critics.

Protections for cannabis patients don’t extend to those on house arrest

Next month, the New Mexico Legislature is expected to consider legalizing recreational use cannabis. But many medical cannabis patients and patient advocates believe the state should solve problems with the state’s Medical Cannabis Program first. 

Many in the medical cannabis community have publicly expressed concerns about producer plant limits, social inequalities within the program and testing standards. But beyond those issues is the legal question of whether or not those who are incarcerated should be allowed to use medical cannabis with a medical professional’s recommendation. 

This year, New Mexico passed a sweeping bill that added protections for patients from getting fired or losing custody of their children to the state just for being a medical cannabis card holder. The new law also allows those in pretrial custody and those on probation or parole to use medical cannabis. Prior to the law passing, it was often left up to judges or probation and parole officers to make that decision.

Cannabis advisory board meeting unable to address qualifying conditions due to lack of quorum

A state panel met but was unable to make any actual recommendations for adding more qualifying conditions to the list of reasons approved patients can use medical cannabis. 

The New Mexico Medical Cannabis Advisory Board heard thoughts and recommendations from a handful of medical cannabis patients on Tuesday on how to improve the Medical Cannabis Program. The board will send Department of Health Secretary Kathyleen Kunkel their words of support for the dozens of patients and patient advocates who spoke about things like changing state statute to broaden who can use medical cannabis and social inequalities in who owns production companies. 

The advisory board was put in place through state law to hear from petitioners who want certain qualifying conditions added to the list of reasons patients can legally use medical cannabis. There are currently almost 30 qualifying conditions that range from chronic pain to post traumatic stress disorder. 

What began as a traditional advisory board meeting on Tuesday, evolved into a de facto listening session where patients and advocates aired their concerns about the program. All but one of the advisory board members attended the meeting by phone. But by the time the board got to the last three petitions, most of the board members left the call, resulting in a loss of quorum. 

The issues raised before the loss of quorum were general suggestions for the program and not conditions the board has authority to actually weigh-in on.

State job opportunities limited for medical cannabis patients

Earlier this year, New Mexico legislators and Gov. Michelle Lujan Grisham overhauled the state’s medical cannabis statute. Updates to the law ranged from relatively simple definition changes to more significant changes like allowing consumption areas for cannabis patients. 

But the parts of the law that are supposed to protect patients from losing their jobs solely for being a patient in the program may also be hindering the nearly 79,000 cannabis patients in New Mexico from getting a job with the state. That’s because the law also protects employers by giving them enough autonomy to fire or not hire a cannabis patient for safety concerns or if the employer could lose federal funding for hiring a cannabis user. 

Jason Barker is a medical cannabis patient advocate and a patient himself. He said he started looking at job descriptions after the state announced a three-day “rapid hire event”scheduled for next week and aimed at hiring hundreds of new employees. But, Barker said, many of the jobs he’s qualified for are considered safety sensitive, which would require a pre-employment drug test.

Brief public hearing focused on cannabis testing standards, additional meeting scheduled

Snowy and icy roads Friday morning made for a short, and yet to be completed, public comment period for medical cannabis rule changes. 

New Mexico’s Medical Cannabis Program (MCP), which is run by the state Department of Health, convened a meeting for public comments on a number of proposed changes, including patient reciprocity, consumption areas and testing standards. The program’s director, Dominick Zurlo, began the meeting by announcing a second meeting to give those who could not make it due to the weather a chance to add input. Friday’s meeting was only about an hour long and comments largely focused on testing standards and mostly came from producers. 

Ben Lewinger, executive director of the New Mexico Cannabis Chamber of Commerce, told the MCP that the proposed microbiological, heavy metal and pesticide testing and labeling standards were problematic. 

“We feel like labeling is a very important component, but the labeling restrictions are simply unrealistic for what needs to go on a vast amount of products that are sold as medicine,” Lewinger said. 

Lewinger added that the increased amount of product producers are required to pull for testing would not only harm producers, but would increase costs to patients. 

Jennifer Merryman, from Mountaintop Extracts, agreed with Lewinger about testing sample sizes and suggested the MCP have more frequent and thorough conversations with those in the medical cannabis industry before proposing rules. 

“Perhaps we could add a little bit of local, New Mexico common sense,” Merryman said. “We’re all willing to work with you.”

Zurlo later invited those in the crowd to reach out to him with their concerns. 

Merryman told NM Political Report the proposed rules would significantly cut into the supply of smaller production companies. 

“Normally we send one and a half grams, sometimes [testing labs] will ask for two grams but not anymore than that per batch testing,” Merryman said. “Now, they’re looking to have a 23 gram sample per batch test.”

She said that standard would hurt small operations who have smaller yields. 

“That’s taking away product from that dispensary who has to compensate the loss of that money on to the patient,” Merryman said. 

Other producers also spoke about their concerns about labeling and testing standards and their common message was that increased sample sizes would ultimately equal higher prices for patients. 

What was almost non-existent in the meeting were the topics of patient reciprocity, producer fee structures and consumption areas.

NM leaves med. cannabis security specifics up to producers

On a Sunday afternoon over Labor Day weekend, a masked man, armed with a gun, burst through the doors of an Albuquerque medical cannabis dispensary. About two minutes later, he walked back out the door, with an estimated $5,000 worth of cannabis products. In that time, the man hopped over a glass display case and corralled employees and at least one patient into one spot while he emptied a large jar of cannabis—and seconds later cannabis concentrates from the display case—into a bag. After he left, the man got into a car waiting in the back and sped off. All of it was caught on security cameras.  

In body camera footage from the Albuquerque Police Department, one of the employees can be heard recounting what the man said. 

“He asked if we had families and he was like, ‘Then you understand why I have to do this,’” the employee said.

Cannabis producer says state is pricing out smaller producers, limiting access to medicine

Dueling press releases over medical cannabis fees show the continuing, contentious relationship between a medical cannabis producer and the New Mexico Department of Health. The producer, Ultra Health, has long argued, often in court, that state mandated plant limits for producers should be higher. 

In a press release issued last week, Ultra Health argued that even with the latest plant increase to 1,750, the state’s fee structure discourages producers from growing the maximum amount of plants. Making it harder for producers to grow the maximum amount of plants, Ultra Health argued, will impact patients.  

“Under the new fee schedule, it will be impossible for all producers to meet the 1,750 maximum and cultivate an adequate supply of medicine for patients,” the Ultra Health release read. 

The DOH recently changed fees for producers to a graduated structure. The cost per plant significantly increases for producers after 1,000. According to Ultra Health’s data, only 12 of the 34 licensed producers paid $180,000 for the maximum 1,750 plants.

Dept. of Health proposes rules for medical cannabis consumption areas, patient reciprocity

The New Mexico Department of Health has proposed a list of rule changes for the state’s Medical Cannabis Program, which would add guidelines for designated “consumption areas” and reciprocity for medical cannabis patients enrolled in medical cannabis programs in other states. 

After major changes to the state’s medical cannabis law made during the 2019 legislative session, the law now states that a consumption area is, “an area within a licensed premises approved by the department where cannabis may be consumed that complies with rule as established by the department.” 

The department’s proposed changes would require consumption areas to be “located on the premises of licensed non-profit producers” and medical cannabis patients who use cannabis in said areas to have a designated driver or use “other lawful means of transportation” when leaving. 

If the rule is finalized by the DOH Secretary Kathyleen Kunkel, medical cannabis producers who want to open a consumption area would be required to submit safety and security plans to the department for approval. Only existing producers would be able to apply to open consumption areas.  

The department has also proposed a rule that would outline reciprocity for medical cannabis patients from outside New Mexico. Not to be confused with a change in law that allows non-residents of New Mexico to enroll in the state’s Medical Cannabis Program, reciprocity would allow patients already enrolled in another state’s medical cannabis program to buy and consume cannabis in New Mexico without having to enroll in the program. A reciprocal patient would only need to provide identification and a medical cannabis card from their home state to purchase up to about 8 ounces of dried cannabis flower or corresponding extracts in a rolling three month period, which is consistent with what New Mexico cannabis patients can buy. Dispensaries would be required to enter reciprocal patient information in a DOH-run patient tracking system. 

Other changes include a new fee structure and new testing standards for medical cannabis producers.

Mixed responses to suggestions from marijuana legalization work group

A group convened by the governor and tasked with crafting a framework for cannabis legalization released their full recommendations on Wednesday. 

Many of the recommendations from the Marijuana Legalization Work group are either consistent with or similar to legislation introduced in the 2019 legislative session. Those include protecting the medical cannabis program and its patients, giving law enforcement tools to test for cannabis use and giving New Mexicans—even those with criminal drug charges from the past—opportunities to get involved in the cannabis industry. 

Rep. Javier Martinez, D-Albuquerque, sponsored a cannabis legalization bill earlier this year and told NM Political Report that he will sponsor another version next year based on the work group’s recommendations. Martinez’s bill was eventually combined with a competing Senate bill that proposed state-run cannabis stores. Neither of those bills made it to the governor’s desk and there’s no guarantee another proposal will get any farther in the legislative process unchanged, Martinez said.   

“There’s 112 very unique voices in the legislature, so I’m sure as we go through that process improvements will be made,” he said. “We’ll see what we end up with, but two things I think are the foundation of this framework.