The issue of whether taxes on medical cannabis sales in New Mexico should have been deductible prior to this year is one step closer to being heard by the state’s supreme court.
The state Attorney General’s office filed a brief on Monday with the New Mexico Supreme Court on behalf of the New Mexico Taxation and Revenue Department that argued state lawmakers did not intend to allow gross receipts tax deductions on medical cannabis sales until this year.
The issue stems from a request by medical cannabis producer Sacred Garden to deduct gross receipts taxes from its sales. The department denied the claim on the basis that medical cannabis is not prescribed like other medication. In New Mexico gross receipts taxes are deductible from prescription drugs and medical cannabis is not prescribed by a doctor, but instead recommended. A New Mexico Court of Appeals panel ruled in favor of Sacred Garden last January, writing that in terms of medical cannabis, the difference between a recommendation and prescription is negligible. TRD took the case to the state supreme court where it has been pending since last year.
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.
New Mexico medical cannabis producers that intend to continue doing business after commercial cannabis sales begin next year will not be required to renew their license this summer, according to state officials.
The state’s Department of Health and the Regulation and Licensing Department said in a letter that current medical cannabis producers can forgo the relicensing process that normally takes place during the summer months and wait to submit a request for licensure through Regulation and Licensing.
The grace period for current producers is part of a transition of cannabis sales oversight. Since the inception of the state’s Medical Cannabis Program almost 15 years ago, the program has been run by DOH. But after June 29 nearly all aspects of cannabis sales, both recreational and medical use, will be overseen by RLD, with the exceptions of medical cannabis patient registry and medical cannabis patient purchase limits.
Medical Cannabis Program Director Dominick Zurlo said in a statement that the grace period is aimed at saving current producers time and energy.
“It makes the most sense to spare the Medical Cannabis Program’s licensed non-profit producers to not have to renew their non-profit renewal paperwork when in the weeks and months ahead, they have to prepare and submit their required administrative paperwork to be licensed to sell cannabis to the general public,” Zurlo said.
The newly established Cannabis Control Division, under RLD, is required by statute to set up an advisory board that will have a role in promulgating rules and regulations for cannabis sales no later than Sept. 1 of this year. The Cannabis Control Division must also promulgate those rules and regulations by Sept.
The head of the department tasked with regulating recreational-use cannabis in New Mexico said medical cannabis patients should not expect purchase limits to be expanded, despite a letter from a group of New Mexico medical cannabis producers suggesting otherwise.
Last week, during an interview for the collaborative podcast Growing Forward, New Mexico Regulation and Licensing Department Superintendent Linda Trujillo said until commercial cannabis sales begin next April, medical cannabis patients will still be limited to 230 units in a rolling 90-day period. The Medical Cannabis Program, overseen by the state’s Department of Health, defines a unit as one gram of smokable cannabis, or 0.2 grams of THC in extracts, derivatives or edible cannabis products. Representatives of both DOH and RLD confirmed that both agencies agree that medical cannabis purchase limits will continue to be determined by DOH. The Cannabis Regulation Act also seems to confirm that even after commercial cannabis sales start next year, medical cannabis purchase limits will be determined by the DOH.
Earlier this month a group of five medical cannabis producers sent a letter to RLD and DOH, essentially arguing for an increase in production limits. The Cannabis Regulation Act, which goes into effect on June 29, will limit recreational-use cannabis purchases to two ounces at a time, but will not limit the number of purchases that can be made.
The New Mexico Department of Health has officially revoked the license to grow and manufacture medical cannabis from a Santa Fe-based company that experienced an explosion last year, resulting in injuries.
In an official determination signed by DOH Secretary Tracie Collins on Monday, the department officially revoked the license for medical cannabis producer New Mexicann based on findings from a hearing officer earlier this year.
Collins’ final determination cited a number of violations as justification for revoking New Mexicann’s license to both grow medical cannabis and to manufacture derivatives and extracts. Those violations included failure to notify the state of what type of equipment was used for manufacturing, failing to use a “closed” extraction system and for “lifting an open extraction vessel containing an ethanol-based solution in the immediate vicinity of an active heater plate,” which ultimately caused the explosion, according to an investigation by the state.
At least one method for extracting certain parts of cannabis plants includes using volatile solvents such as butane or ethanol. There have been numerous reports of injuries across the nation involving dangerous extraction methods, both in officially licensed facilities and home operations. New Mexicann also experienced an explosion resulting in injuries in 2015, but it is unclear what, if any, repercussions New Mexicann faced the first time. The Cannabis Regulation Act, which legalizes recreational-use cannabis and goes into effect on June 29, makes home manufacturing using volatile solvents illegal.
New Mexicann’s license was one of 35 in the state and DOH has not opened the production or manufacturing licensing process for several years.
Amid a pending New Mexico Supreme Court case concerning medical cannabis taxes, one state cabinet official seems to have a different view on whether medical cannabis recommendations from medical professionals are the same as traditional prescriptions, at least when it comes to COVID-19 vaccine priority.
According to an email from January of this year, obtained by NM Political Report through a public records request, New Mexico Department of Health Secretary Tracie Collins believed that medical cannabis dispensary workers should be viewed similarly to pharmacists and that medical providers “prescribe medical cannabis” when it came to priority for COVID-19 vaccinations.
This view differs greatly from an argument the state’s Taxation and Revenue Department has put forward in an ongoing legal case regarding gross receipts taxes and whether they should be allowed to be deducted from medical cannabis sales.
Collins’ apparent view that medical cannabis recommendations are essentially the same as prescriptions came up in a series of emails between Gov. Michelle Lujan Grisham’s staff and Department of Health officials regarding where medical cannabis dispensary workers fall in terms of COVID-19 vaccination priority. The department’s deputy secretary Laura Parajon replied to the email chain with Collins’ take.
“Hi, sorry for yet another weighing in opinion. I consulted with Secretary Collins, and she also believes they are like pharmacists because providers do prescribe medical cannabis,” Parajon wrote. “I am adding her to the conversation.”
While the seemingly innocuous reply was in the context of vaccine priority, Collins’ reported opinion that medical professionals “prescribe” medical cannabis goes against the argument TRD has repeatedly put forth in a still pending legal case as a reason medical cannabis producers should not be allowed to deduct gross receipts taxes they paid to the state. DOH spokesman Jim Walton told NM Political Report that the context of the email conversation is important.
“The question Deputy Secretary Parajon and Secretary Collins was asked was whether people who worked in a medical cannabis dispensary are considered to be within COVID-19 vaccination phase 1A,” Walton said.
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.
Last October, the Santa Fe Fire Department responded to an explosion at a well-known medical cannabis manufacturing facility. Besides being an early medical cannabis producer and manufacturer, the company, New Mexicann, experienced a similar explosion in 2015. Both instances reportedly resulted in employee injuries, but the latest explosion also resulted in a criminal complaint against New Mexicann’s executive director and reportedly a revocation hearing with the New Mexico Department of Health.
But while the criminal proceedings against the company’s director are open to the public, Department of Health rules require that medical cannabis license revocation hearings be closed to the public.
According to the criminal complaint against New Mexicann’s director Carlos Gonzales, the explosion last October was caused by a cannabis extraction process that the company was not licensed for. There are a variety of cannabis extraction processes, but in many instances the process involves volatile and flammable solvents. According to court records, state fire investigators found what appeared to be ethanol alcohol near a hotplate that was set to 500 degrees.
While two efforts to legalize and regulate recreational-use cannabis are coming down to the wire, legislation aimed at limiting medical cannabis reciprocity appears to be on a fast track to the governor’s desk.
SB 340, sponsored by Sen. Jerry Ortiz y Pino, D-Albuquerque, passed the House Judiciary Committee unanimously on Wednesday.
Ortiz y Pino, joined by New Mexico Department of Health officials, argued that the integrity of the state’s Medical Cannabis Program is at risk unless the law is changed to limit who can qualify as a reciprocal medical cannabis patient.
“Our reciprocity arrangement has been taken advantage of by people who are using the internet to secure letters, not licenses, but letters from physicians in a third state,” Ortiz y Pino said. “California is the most likely, but it could be anywhere that they have loose medical cannabis programs.”
Aryan Showers with the Department of Health served as one of Ortiz y Pino’s expert witnesses and told the committee that medical cannabis reciprocity was intended to give medical cannabis patients enrolled in a “bonafide state program” the opportunity to buy, possess and consume medical cannabis in New Mexico. Instead, Showers said, there is currently a “loophole” that allows people to “circumvent the enrollment requirements” of New Mexico’s program.
“We didn’t foresee this loophole, but it’s causing the program significant strain,” Showers said. “And we’re actually just concerned about the potential impact this could have on those New Mexicans who truly depend on the program for their medicine.”
There was no debate among committee members and only two members made supportive comments about the bill.
Rep. Eliseo Alcon, D-Milan, jokingly asked Ortiz y Pino where to find a $30 medical cannabis card.
“I think there are places on the internet where you can get one very quickly,” Ortiz y Pino answered. “There’s only a five minute interview with a physician in California who has a very broad understanding of how medical cannabis can be used.”
This is the second consecutive year that Ortiz y Pino sponsored a bill to amend a law he helped pass in 2019 that made broad changes to the state’s medical cannabis statute.
The New Mexico Senate approved on Monday a bill that would more narrowly define medical cannabis reciprocity by a 28-10 vote.
Sponsored by Sen. Jerry Ortiz y Pino, D-Albuquerque, SB 340 would specify that reciprocal cannabis patients in New Mexico cannot be a local resident and that reciprocal patients must reside in the state where they are approved by a medical professional to use medical cannabis. Ortiz y Pino said since New Mexico began honoring reciprocity with other states that have legalized medical cannabis, a number of people from Texas started obtaining authorization to use medical cannabis in California and then using that authorization in New Mexico as reciprocal patients.
“This is a bill that is an effort at preventing some of the abuses that have begun creeping into our medical cannabis program in the state,” Ortiz y Pino said.
While most of the comments from Senators were in support of the bill, Sen. Jacob Candelaria, D-Albuquerque, who has also served as legal counsel for the medical cannabis producer Ultra Health, took issue with the proposal.
Candelaria, who has also been open about being a medical cannabis patient, shared his struggles with PTSD as a victim of rape when he was a child. Candelaria also said he took issue with comments from Senate Republicans inferring that many of the 108,000 patients in New Mexico are using the state’s medical cannabis program as de facto legalization.
“I encourage us to stop making assumptions about people’s motives,” Candelaria said.
Candelaria also unsuccessfully offered up an amendment to the bill that would have increased the amount of cannabis qualified patients can buy each day. Currently, Department of Health rules allow patients to purchase 230 units in a rolling 90-day period. The department defines a unit as one gram of flower or bud or 250 milligrams of concentrate.