Department of Health

NM Senate leadership clears senator of ethics violation allegation

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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.

Cannabis Regulation Act

Medical cannabis patient asks judge to rule on purchase limits

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A New Mexico medical cannabis patient is challenging state rules for medical cannabis purchase limits. 

Jason Barker, a medical cannabis patient and advocate, filed a request in Santa Fe’s First Judicial District Court earlier this month, asking a judge to compel the state’s Medical Cannabis Program and Cannabis Control Division to allow medical cannabis patients to purchase the same amount of cannabis as commercial cannabis customers will be allowed to purchase early next year. 

Barker’s lawyer, Jacob Candelaria, is also a New Mexico state senator and has represented medical cannabis patients and producers in the past. One of Candelaria’s clients in the past has been medical cannabis producer Ultra Health, which has a history of filing lawsuits against the state over medical cannabis rules and regulations. Ultra Health’s president and CEO Duke Rodriguez told NM Political Report that the company has offered financial support for Barker’s case. 

“It’s an important patients’ rights issue in which we fully agree with Mr. Barker and his attorney, so we would be shirking our responsibility not to offer support,” Rodriguez said. “I am fully expecting we will not be the only licensed producer offering support on the matter.”

Candelaria said he could not discuss the issue of payment for his services, but stressed that his client in the matter is Barker and not Ultra Health. 

In a statement Candelaria accused the state of being more concerned with tax revenue than with medical cannabis patients’ well-being. 

“State regulators are trying to unlawfully discriminate against my client, and deny all medical cannabis patients the rights afforded to them under the Cannabis Regulation Act,” Candelaria said. “The law is clear, all medical cannabis patients may purchase at least two-ounces of medical cannabis at any one time, tax free, beginning on June 29, 2021.

Cannabis Control Division

State agencies confirm medical cannabis purchase limits will not increase anytime soon

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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.

adult-use cannabis

NM medical cannabis patients should not expect increased purchase limits any time soon

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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.

Medical Cannabis Program

Medical cannabis producer loses license

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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.

gross receipts tax

Conflicting views on medical cannabis as a prescription

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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.

Cannabis Control Division

NM medical cannabis revocation hearings blocked from the public

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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.

Jacob Candelaria

Limitations on medical cannabis reciprocity heads to House floor

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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.

coronavirus

DOH: 773 new cases of COVID-19 over weekend and 21 deaths

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The New Mexico Department of Health reported 773 new cases of COVID-19 and 21 additional deaths related to the disease this weekend. DOH reported 349 new cases of COVID-19 on Sunday after reporting 424 cases on Saturday. The department reported 13 additional deaths on Sunday and 8 additional deaths on Saturday. The number of those hospitalized for COVID-19 reached 403 on Sunday, 7 more than reported on Friday. This could include those from other states who are hospitalized in New Mexico, but would not include New Mexicans who are hospitalized in other states.

First Judicial District Court

NM judge invalidates medical cannabis rules

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A New Mexico state district court judge ruled on Thursday that rules adopted by the state’s Medical Cannabis Program last year are effectively invalid. 

In his ruling, First Judicial District Court Judge Bryan Biedscheid repeatedly wrote that rule amendments promulgated by the Medical Cannabis Program last year lacked “substantial evidence” to support claims made by the program and the New Mexico Department of Health, which oversees the program. 

Biedscheid also wrote that the rule changes are invalid because the department and the program failed to consult with the state’s Medical Cannabis Advisory Board before making the changes. 

The suit was originally filed by a group of medical cannabis companies and one patient who is qualified to grow his own medical cannabis. The group did not initially seek to overturn the entire list of rule changes, but Biedscheid overturned the rule changes in their entirety. 

“The Court hopes that its additional findings and conclusions provide some guidance to the Department on remand and avoid additional remands due to lack of substantial evidence,” Biedscheid wrote. 

Some of the changes the group of petitioners sought to overturn included increased plant testing standards for things like heavy metals and pesticides as well as a requirement for cannabis producers to amend their license when physical changes are made to their facilities. 

The group of petitioners claimed some of the rules were “arbitrary and capricious” and that increased testing standards, without sound science to back them up, would ultimately increase prices and negatively impact cannabis patients. 

While Biedscheid ruled that the department did not follow the proper procedure, he did not comment on the merits or deficiencies of the rule changes. 

Prior to the rule changes last year, the Medical Cannabis Program and DOH already had testing standards in place, so Thursday’s ruling does not eliminate testing and labeling requirements completely. 

But, last year’s changes also included an allowance for a temporary supplemental plant increase for producers, under certain circumstances as well as rules for consumption areas. In 2019, the New Mexico Legislature passed a bill that allows for medical cannabis consumption areas, but left much of the specifics to department rules. So far, no medical cannabis producer in the state has opened a consumption area. Those rules were promulgated along with the increased testing standards and labeling requirements. 

It is unclear whether the department will appeal the court’s ruling or start the rulemaking process over again. 

A DOH spokesman said the department is “aware of the ruling” and is “evaluating options.”

The ruling came during the second week of the state’s legislative session, a busy time for state officials and at a time when many lawmakers are hoping to see recreational-use cannabis legalized.