Nonprofit producers, the backbone of the state's Medical Cannabis Program, say oversight by the New Mexico Department of Health is arbitrary and heavy-handed—and that new rules and regulations imposed in December have done little to alleviate chronic supply problems. Last week, those tensions came to a head with a lawsuit that accuses the DOH of arbitrarily failing to approve qualified producers in a timely fashion.

Paul Livingston, the attorney for the five plaintiffs who filed the case, says the decision to take legal action arose out of "increasing frustration" with several aspects of the program.

"The primary problem seems to be producing not only enough medical cannabis for the patients, but producing a sufficient quality of it at a sufficiently reasonable price," Livingston tells SFR. A key cause of that problem, Livingston says, lies in the DOH's method of certifying new producers to provide cannabis to the program's 3,453 active patients.

According to DOH Harm Reduction Program Manager Dominick Zurlo, who oversees the Medical Cannabis Program, only 25 of the 116 total producers who have applied have been licensed, although no producer applications have been denied.
Producers who applied as long as two years ago say the DOH's selection process has left them in limbo.

Zurlo says delays occur because applications often lack certain details—but when they're complete, DOH employees conduct site visits to inspect proposed production facilities. After the site visit, applications are sent to the health secretary's desk, where Zurlo says it's up to the secretary how many and which applicants to license.

Mark Springer, president of Medical Marijuana Inc., and one of the plaintiffs in the suit, first applied for a license to produce and sell medical cannabis in fall 2009. After some revisions, he says, DOH conducted a site visit in October 2010 at his Santa Fe facility. At the time, he says, Zurlo informed him that the site review and the application were complete and "absolutely acceptable."

But when former DOH Secretary Alfredo Vigil approved six producer licenses in November 2010 and another eight in December, Springer's wasn't among them.

"We were bypassed for arbitrary reasons, and I find that very disappointing," Springer says.

Randy Mazur, an experienced organic grower who applied to be a producer in 2008, says he's had to jump through "unnecessary hoops" to try to have his license approved. Mazur finally had a site visit in December, he says, but is still waiting for new Health Secretary Catherine Torres to make a decision.

According to Zurlo, producer applications are processed chronologically, but it's up to the secretary to "choose the best one."

"Secretary Vigil looked at the needs of patients first—supply quantities, geography, delivery system," Zurlo explains. A producer with a less secure delivery system, he says, might have lost out to one that had been in line for less time but offered a better mechanism for distributing medical cannabis to rural areas.

But Charles Kokesh, a Santa Fe-based venture capitalist who applied to become a producer because his son has post-traumatic stress disorder (PTSD), says even applications filed with particular patient needs in mind don't always work out.

"In addition to the [post-traumatic stress disorder] my son has, our family is Native American, and we had said in our app that we would focus on veterans and Native Americans," Kokesh tells SFR. "When I talked to [Zurlo] about that, he said, 'We need that.'"

According to the DOH's latest numbers, PTSD ranks first among the state's qualifying conditions, with 1,236 patients.

But Kokesh, like Springer and Mazur, didn't make the latest round of approvals. He, too, has joined the lawsuit against DOH.

In the meantime, patients across the state, particularly in rural areas, still can't get sufficient medical cannabis—even though DOH continues to approve patient applications. To Springer, there's a simple fix: more producers.
"They've never met the needs of the patients in this state," he says, "since the beginning."