Crossing the Cannabis Line

People who are not residents of New Mexico and who don’t have medical cannabis cards in other states would no longer be allowed to buy the medicine here under a proposed law change heading to the governor’s desk and likely to be signed.

The House voted Monday night to approve  Senate Bill 139, which cleared the Senate over the weekend on a 32-8 vote.

Still smarting from a District Court loss over the issue that has resulted in the state issuing over 600 cards to out-of-state patients, the Health Department, lawmakers and Gov. Michelle Lujan Grisham are pushing for a language change in the statute that would halt the practice.

The House Health and Human Services Committee voted 6-1 Monday morning to recommend passage of the bill and it moved quickly to a floor vote later in the day.

Here's the key shift in the language: Qualified patients would be "residents of New Mexico" instead of the broader "person," which has caused all the trouble.

But since the Health Department secretary last week formally adopted the rules for reciprocity with all the states that have medical marijuana programs—including neighboring Arizona and Colorado—the real battle brewing has to do with Texans who want New Mexico's cannabis. Of the 613 total out-of-state patients to qualify for cards, 589 are from Texas, according to figures the department provided to SFR.

Health Secretary Kathyleen Kunkel told committee members that the department started issuing cards to out-of-state patients after the initial court ruling in August out of an "abundance of caution" while it continues through the appeal process. She contends changes to the law to get ready for reciprocity rules last year allowed for the confusion, but the department never intended to serve patients from states that don't allow medical cannabis consumption.

"No other state with a medical cannabis program is giving cards to other states," she said, adding later, "if we don't correct this mistake on what we meant to do…we're inviting federal intrusion into what is a very successful program."

State rules don't allow patients to take products purchased in New Mexico across state lines, and that's a major plank in informal federal policy that some argue protects state cannabis programs. Yet, program manager Dominick Zurlo said New Mexico's 24-hour hotline for law enforcement has received nine calls from police in Texas who want to talk about people under arrest for cannabis possession but who claim to have permission from New Mexico.

( Texas has an extremely limited medical cannabis program.New Mexico laws don't apply there.)

Asked by a committee member how many more Texans might be in the pipeline for medical cannabis cards now or how many more might apply, Kunkel replied in part, "there's a lot of people in Texas, and the number could grow significantly."

Rep. Deborah Armstrong, D-Albuquerque, the committee chair, told fellow lawmakers she supported the revision because, otherwise, "it opens it up to almost a national program, and we want to be very careful about that."

Cannabis advocates in the audience took issue with Kunkel's claim about an error in the last session.

Duke Rodriguez, who runs Ultra Health cannabis dispensaries, was one of the plaintiffs in the court case that resulted in policy change. He's an Arizona resident.

"This program is working the way it's intended to work," he told the committee, also arguing that Kunkel's notion of threat from the feds wasn't accurate by his reading. Rodriguez tells SFR later that she misinformed committee members in saying Texas has "no medical cannabis program," when it actually allows low-dose THC for epilepsy patients.

Jason Barker, a patient and advocate with Safe Access New Mexico, said lawmakers knew exactly what they were doing when they changed the rules. "This is no oversight," he said at the hearing. "Changing the law makes no sense."

Rep. Zachary Cook, R-Ruidoso, cast the lone vote in opposition. Fellow Republican Gail Armstrong, from Magdalena, also had concerns that the bill lacked a definition for "resident," but she was absent during the vote.

House Speaker Brian Egolf, a Santa Fe Democrat who represented Ultra Health in the court fight as its attorney, has recused himself from the matter. The session ends Thursday at noon. The governor has said she supports the rule change and sent her lead counsel, Matt Garcia, to Monday's hearing to remind lawmakers of that agenda.

More than 81,000 New Mexicans are enrolled in the program. That number includes about 9,300 from Santa Fe County.

The bill passed the House floor on a vote of  44-19.

Editor's Note: This story was update after initial publication Monday afternoon to reflect House passage on Monday night. It was updated again to reflect that Texas has an extremely limited medical cannabis program.

This story is part of the “Your New Mexico Government” Project (#YourNMgov), a collaboration between New Mexico PBS, KUNM Radio, and the Santa Fe Reporter. This endeavor is funded by the New Mexico Local Journalism Fund with public media support provided by the Thornburg Foundation.