Feature: New Mexico's Medical Marijuana Law Is Working, But There Is a Hang-Up Over Production and Distribution

After an exhausting seven-year struggle, New Mexico joined the ranks of the medical marijuana states last year. As of July 1, the New Mexico Medical Cannabis Program will be a year old, but while parts of the program are well underway -- patients are registering and obtaining ID cards -- the state law's innovative system of state-licensed production and distribution of medical marijuana is stalled in the regulatory process, with no end in sight anytime soon.

Under the New Mexico law, the Lynn and Erin Compassionate Use Act, patients suffering from a narrowly circumscribed set of illnesses -- cancer, glaucoma, multiple sclerosis, epilepsy, spinal cord damage with intractable plasticity, and HIV/AIDS -- can, with a doctor's recommendation and upon registration with the program, legally possess and use up to six ounces of marijuana, four mature plants, and three seedlings. The law also calls for a medical advisory board to determine whether other conditions should be added to the list.

Some 147 patients have registered with the state as of Wednesday, said Melissa Milam, head of the Medical Cannabis Program. "We're the little program that could," she said. "We just keep plugging along."

"The patients are really excited to get their ID cards and have some legal protections," agreed Reena Szczepanski, head for the Drug Policy Alliance New Mexico office, who has been intimately involved in the passage and implementation of the law. "The Department of Health and the Medical Cannabis Program are doing a great job of working with the patients, and it's been very thoughtfully implemented in terms of registration and the medical advisory board," she said.

But the law also provides for designated caregivers to be able to grow for patients and for a system of state licensing of production and distribution. Although the law called for the Department of Health to promulgate regulations for production and distribution by last October 1, that hasn't happened yet. As a result, the provisions for caregivers and licensed production and distribution have not gone into effect. That means patients must either grow their own medicine or procure it on the black market.

The Department of Health finally promulgated draft regulations in December and held a public hearing on them on January 14. Those draft rules provided for "five different kinds of licensed producers: a qualified patient, a caregiver, an association of persons, a private entity, or a state owned and/or operated facility."

Based on the input it got in the hearing process, the department has been crafting a revised draft of the regulations ever since. "We're still working on that rule," said Deb Busemeyer, spokesperson for the Department of Health. "We held a public hearing and received written and oral comments, and we made some revisions, and it looks like we'll probably hold another public hearing to let people comment on our revisions."

Busemeyer was vague on a timeline, offering only that she expects a hearing "some time this year" and resolutely declining to predict when the regulations on production and distribution would actually be implemented.

But he department is committed to crafting the production and distribution regulations, Busemeyer said. "The governor was really clear -- this is an important program, and he wants us to figure out how to implement the law. We've been working on hard on this, we believe in this program, we're not dropping it by any means, but we want a good strong law with the right kind of rules, so we're taking our time," she said.

Still, Busemeyer conceded that the delay was hard on patients. "They still have to get it the same way patients do in those other medical marijuana states," she said.

"The biggest source of dissatisfaction among patients is where do you get it?" said Szczepanski. "It's the same situation as in so many other medical marijuana states. That's why the legislature was keen on the state-licensed distribution system; the intention was that New Mexico would be different."

It may well turn out to be different, but the question is when. "I'm concerned that we don't have a date for when the rest of the regulations are coming out," said Szczepanski. "I don't have any reason to believe they won't implement it, but I'd like to know the time frame."

Although Szczepanski bemoaned delays in drafting the regulations, she said she is glad the department is holding another public hearing. "My understanding is that they are working on significant changes to the regs, and we are pleased to have a formal opportunity to have input," she said. "If there are drastic changes from the first draft, it's better to have another hearing."

While each of the five sorts of licensed producers and distributors envisioned in the first draft of the regulations has its advantages, there is a strong argument to be made for including a state-owned or -operated component, said Szczepanski. "We are a largely rural state and we have to be concerned about equality of access," she noted. "New Mexico has public health offices scattered around the state, and we have a Department of Agriculture at our state university that knows how to grow things. The possible downside to a single supplier is that if it's producing poor quality medicine or not delivering a range of products, what do you do?"

The best solution would be to have a mix of licensees as envisioned in the first draft regulations, Szczepanski agued. "Having a variety of options is important for patients. If you're in a small town with a public health office and only using for a short time, that might work for you. But if you live in Albuquerque and have a chronic condition with specific health needs, you might want other options. We have to do what's best for the patients," she said.

While Szczepanski chafed at the delays, she saw no sinister forces at work. "The feds pushed back against us when we were in the legislature, but I haven't heard any rumblings at all about any pressure from Washington," she said. "Our local opponents have also been very quiet. There's nothing for them to glom onto to; there have been no scandals or abuses or outrages. The program is working and the patients have their cards and are protected," she said.

But they still need help growing their medicine while the Department of Health ponders the regulations. The department could take interim steps to ease their plight, said Szczepanski. "If the department is going to wait much longer to produce the production and distribution regulations, they need to start certifying caregivers immediately," she said. "The department says it doesn't have the authority to do that until the regs are published, and we're not looking for hasty action, but the caregiver regulations could be done now. There are already applications pending."