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 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.
New Mexico’s Attorney General issued a warning to residents about the health risks of e-cigarettes and vaping. The announcement came after the federal Food and Drug Administration and Drug Enforcement Administration each announced investigations into the marketing and sale of e-cigarettes.
“I am warning all New Mexicans of the health and safety risks associated with the use of e-cigarettes of any kind,” said Attorney General Balderas. “My office will hold any bad actor civilly and criminally accountable that risks the lives of New Mexican children by falsely marketing these devices as safe.”
The New Mexico Department of Health said it had identified 14 vaping-related injury cases, each requiring hospitalization; 10 patients said they had vaped products with THC, the main psychoactive ingredient in cannabis, while one said they had only used nicotine, which a department spokesman said is similar to national numbers. Earlier this year, reports of mysterious illnesses and deaths linked to vaping prompted investigations and media coverage of the problem. The U.S. Centers for Disease Control and Prevention reported last week that there are a reported 805 lung injury cases in 46 states, including New Mexico, and one U.S. territory, along with 12 confirmed deaths in ten states.
Just before dawn, as the Albuquerque sky filled the house with thin, pale blue light, 16-year-old Aurra Gardner took the small handgun out from behind the bed in her mother’s bedroom. Kerianne Gardner, Aurra’s mother, sat in the living room, typing an email, listening idly as her other daughters tied their shoes and packed their lunches. She heard what sounded like a door slam and assumed it was Aurra’s cello case falling over. She walked down the hall and tried the door of the bedroom. It was locked.
A state district court judge on Monday ordered the state’s Medical Cannabis Program to start issuing medical cannabis cards to individuals who qualify, regardless of where they live.
The question of whether non-residents of New Mexico could become medical cannabis patients started when major changes to the state’s medical cannabis law went into effect. One minor word replacement drastically changed who could become a patient, argued Duke Rodriguez, president and CEO of medical cannabis producer Ultra Health. Before July 2019, the law stated that qualified patients must be a resident of New Mexico. Now, the law defines a qualified patient as a “person.” Rodriguez’s company bought both internet and radio ads promoting the change. But the Department of Health, which oversees the Medical Cannabis Program, along with the governor and at least one legislator, argued the intention of the law was never to open the program up to non-residents.
Now, barring a compelling argument from DOH, the state could be forced to expand eligibility to anyone from across the country.
The law is clear
In his ruling Monday morning, Santa Fe district Judge Bryan Biedscheid wrote that the law is clear.
Three people, who are not residents of New Mexico, are asking a state district judge to compel the New Mexico Department of Health to allow them to receive New Mexico medical cannabis cards.
The court filing is the latest in a back-and-forth between New Mexico medical cannabis producer Ultra Health and DOH. While Ultra Health is not one of the petitioners, the companies’ president and CEO Duke Rodriguez is one of the three seeking a New Mexico card.
Rodriguez, a resident of Arizona, and two Texas residents argue that state law allows them access to a New Mexico medical cannabis card and that DOH cannot deny access to the program based on non-residency alone.
“As of the date of this filing, the Department of Health’s Medical Cannabis Program has refused to issue registry identification cards to eligible qualified patients, and in so doing it has failed to perform a ministerial non-discretionary duty,” the court filing states. The issue goes back to a bill passed in the 2019 legislative session, and later signed by Gov. Michelle Lujan Grisham, which made sweeping changes to the state’s medical cannabis law. One change was in the definition of “qualified patient.” Prior to the changes this year, the law defined a qualified patient as a “resident of New Mexico.” Now, it simply defines a qualified patient as a “person.”
Both Sen. Jerry Ortiz y Pino, D-Albuquerque, the bill’s sponsor, and Lujan Grisham’s office told NM Political Report that the intention of the wording change was to allow for reciprocity with other states with medical cannabis programs. The new law also has a section outlining reciprocity and gives DOH until next year to come up with rules regarding that.
But the three petitioners argue that the law change would accommodate those in the state for long work assignments, college students or those who spend long periods of time in the state, but do not qualify as a resident. Rodriguez falls in that last category.
During a New Mexico Department of Health public hearing earlier this month that allowed public input into proposed rule changes to the state’s Medical Cannabis Program, a major player in the industry raised concerns with some patients.
Willie Ford, managing director of the medical cannabis consulting company Reynold Greenleaf and Associates, told DOH officials he wanted more state oversight of patients who grow their own cannabis.
“PPLs need more regulation, they need more oversight for public safety issues,” Ford said. “These are significant and serious issues that affect the general public and their safety.”
PPLs, or Personal Production Licenses, allow patients who qualify to grow up to four plants for their own use. He voice concern with a proposed rule change that would allow PPL holders to take their harvested cannabis to licensed manufacturers to produce extracts and concentrates. Four plants, Ford said, could equal about 20 pounds a year per PPL.
Ford’s comments, and the online rebuttals from PPL patients that came after, highlight an issue that DOH will likely be forced to address, especially before New Mexico legalizes cannabis for recreational use: whether PPL patients should be regulated similar to Licensed Non-Profit Producers who sell products through their dispensaries.
Josh McCurdy with the New Mexico Medical Cannabis Patients Advocate Alliance told NM Political Report that he didn’t appreciate the suggestion that PPL patients are doing anything other than growing their own medicine, often in places where dispensaries are far and few between.
“We need more competition,” McCurdy, who lives and grows his own cannabis in Ruidoso, said. “That’s the reason it’s $10 a gram in Albuquerque and it goes from $12 to $15 in rural areas.”
He estimated his homegrown cannabis costs about $5 to $6 a gram to grow.
McCurdy disagreed with Ford’s claim that four plants harvested around 4 to five times a year could yield about 20 pounds.
“I’ve been by a few hundred PPL grows in this state and 99 percent of them are struggling just to yield a couple of ounces every four months,” McCurdy said.
McCurdy dismissed a common sentiment he said he’s heard from producers—that home growers contribute to illegal cannabis sales.
“The producers have put it in a way, where they like to do some fear mongering and act like the PPLs are the illicit black market,” McCurdy said.
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.