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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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“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.