House committee approves ‘red-flag’ bill

Despite the freezing cold, Stefani Lord wore a T-shirt that read “Pro-Gun Women” as she waited in line to speak against passage of gun-control legislation known as a “red flag” bill. 

“Rural people feel differently from those who live in urban cities,” said Lord, who lives in a rural part of Bernalillo County. “We feel disenfranchised … like Santa Fe is not listening.” Opponents of Senate Bill 5, perhaps the most controversial piece of legislation in this year’s session, made what may have been their last stand Tuesday during a House Consumer and Public Affairs Committee hearing. Though the outcome was not unexpected — the Democratic-controlled committee moved it to the House floor by a 3-2 vote along party lines — the frustration felt by the bill’s detractors remained as palpable as it was last week, when it passed the Senate by a narrow 22-20 vote. 

If the House approves Senate Bill 5 — which is likely, since Democrats who favor the bill outnumber Republicans by a ratio of almost 2 to 1 — it will then go to the desk of Gov. Michelle Lujan Grisham, who has been pushing for the bill over the past year. 

Many people came to the Capitol to speak about the bill, but their mood, and perhaps words, were more about lifestyle than mere votes.

Medical cannabis qualified patient clarification bill breezes through committee

The Senate Public Affairs Committee voted in favor of a bill that would specify that only New Mexico residents can enroll in the state’s Medical Cannabis Program. 

All but one member voted to approve Sen. Jerry Ortiz y Pino’s SB 139, which Ortiz y Pino said is an attempt to “clarify” that a qualified medical cannabis patient must be a resident of New Mexico. 

Up until last year, the statutory definition of a qualified patient included the words “resident of New Mexico.” Ortiz y Pino told the committee that one of his bills last year struck those words and replaced them with “person.” He also told the panel that his intention was to establish a path towards reciprocity with other medical cannabis states.  

“Not being a lawyer, I don’t understand how that wasn’t clear,” he said. Ortiz y Pino’s bill last year, which Gov. Michelle Lujan Grisham signed into law, had a separate definition for reciprocal patients. Department of Health Secretary Kathyleen Kunkel helped to present the bill and answer questions. She told the committee that one of her bigger concerns, other than having enough medical cannabis for New Mexico patients, is that residents of Texas are getting New Mexico cannabis patient cards and taking cannabis across state lines, which is against federal law. 

“We have now essentially given license to non residents to transport a controlled substance across our state borders,” Kunkel told the committee. 

Kunkel said there are currently more than 600 patients enrolled in New Mexico’s Medical Cannabis Program who are residents of other states and one person from Mexico with a pending application. For context, there are about a dozen counties in the state with fewer patients.

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.

Contraception access a problem for those in need

Rural, communities of color and low-income New Mexicans in some areas of the state face greater barriers when deciding if, how and when to become parents. According to Power to Decide, a Washington D.C. based reproductive rights organization, 134,850 women between the ages of 13 and 44 live in a contraceptive desert in New Mexico.  The nonprofit defines a contraceptive desert as a place where women lack reasonable access in their counties to a health center that offers the full range of contraceptive methods. Rachel Fey, director of public policy for Power to Decide, told NM Political Report this is important because women usually change contraceptive methods during their reproductive years. “People have the response, ‘What’s the problem? Go buy condoms. It’s no big deal.’ But it doesn’t work for everyone.

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.

Additional cannabis producer asks to intervene in lawsuit over plant count

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.