CBD Crackdown

New Mexico Medical Cannabis Program threatens producers over out-of-state CBD, but its reach is unclear

As more products containing cannabis-derived CBD are for sale to local consumers, the state Health Department is trying to crack down.

On June 7, New Mexico's Medical Cannabis Program sent a warning letter to "producers and approved entities" who sell CBD products obtained from outside the state that they were violating federal law and subject to disciplinary action, civil and even criminal penalties under state law.

But the DOH tells SFR that the warning only applies to dispensaries licensed to produce cannabis under the state's cannabis program. In Santa Fe, at least six locations operated by state licensed medical producers offer people without a medical cannabis card the ability to purchase CBD products. There are also at least two hemp-focused stores that sell CBD for medicinal use but do not come under the purview of the DOH.

CBD is touted for its medicinal qualities while producing none of the psychoactive effects of THC, the cannabinoid that gets you high.

The letter from the DOH points to a line in the Lynn and Erin Compassionate Use Act, the law that laid the foundation for the medical cannabis program in 2007, which says any licensed producer who "obtains or transports cannabis outside New Mexico" is in violation of federal law and could be prosecuted under state law.

However, that same section also says any producer that sells or gives "cannabis to a person" who doesn't have a medical cannabis card could also be subject to prosecution.

Since all CBD products derive from the cannabis plant, the letter suggests that total compliance would mean dispensaries under its purview would need to close up their CBD sections for nonpatients.  It's also unclear whether it would also apply to the sale of hemp, too, which is formally the Cannabis Sativa plant but contains almost no THC. A state Supreme Court decision legalized the study and manufacture of hemp in April.

The DOH submitted the following statement:

"The DOH does not have jurisdiction over shops operated outside of the program. There are 35 [licensed nonprofit producers] in our program, and DOH has jurisdiction over each of their approved dispensaries and production facilities.

The Lynn and Erin Compassionate Use Act allows LNPPs to serve medical cannabis patients.  We have directed LNPPs not to sell CBD products to non-patients. Their licenses only authorize them to distribute cannabis and cannabis-derived products to enrolled patients and enrolled primary caregivers."

“We have not had any problems, we haven’t had anyone come into our store,” says Trisha Vrooman, an owner of CBD-focused store The Phyto Frontier (3022 Cielo Ct., 557-6100) which operates independently of the medical cannabis program. The store carries pet products, bath balms, tinctures, and many other products containing CBD it gets from states like Colorado, New York and California.

Vrooman says she was under the impression it was legal to sell CBD products derived from out of state to non-cardholders. Her store opened in February, part of a small bump in CBD-focused stores in the region in recent months. It's not under the DOH's regulation, but could technically be a violation of federal drug law.

The newest CBD-focused store, Sacred Wellness (1300 Luisa St., 216-9686), had a grand opening yesterday. It’s an extension of the Sacred Garden dispensary and is housed in the same suite. It’s the third dispensary to open a CBD-only store or section for non-cardholders; the first was Fruit of the Earth Organics (901 Early St., 310-7917) and Minerva Canna (1710 Cerrillos Road, 982-1090) has a CBD bar. 

Sacred Garden owner Zeke Shortes says he opened up CBD stores in Santa Fe, Albuquerque and Las Cruces because the DOH pressured him last year to sign a letter that said he wouldn't sell CBD products to people who don't have cards.

They’re taking the position that CBD is a Schedule 1 drug [under federal drug law],” Shortes says. “It’s not, it’s clearly not. You can ship it across state lines. It can be grown under the hemp rule.”

By opening up a separate CBD store, Shortes believes he's alleviating some of his risk. The stores, he says, are "out of purview completely of the DOH. So if law enforcement wanted to get weird, which they've done in Tennessee in the past couple of months shutting down vape stores selling CBD … there's still opportunity [to contest it]."

Because Shortes' dispensary is a licensed nonprofit producer regulated by the medical cannabis program, he received the DOH letter about CBD when the department sent it to LNPPs last week. But retailers who aren't part of the program appear to have been left out of the loop.

The Santa Fe Oxygen and Healing Bar (133 W San Francisco St., 986-5037) sells CBD salves and tinctures alongside many other non-cannabis products, and isn’t regulated by the DOH. Owner Noah Kass says he hadn’t received the letter, but says his CBD producers, which he did not want to name, advised the store of possible changes in enforcement. 

“We’re in contact with some of the bigger players in the city, and they’re the ones who have kind of been advising us to just keep doing what you’re doing until further notice,” Kass says. The store has decided not to order new CBD products for the time being.

“I guess I don’t understand the reaches of the law right now,” Kass adds.

This story has been updated with comment from the Department of Health. 

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