ALBUQUERQUE – The New Mexico medical marijuana program, whose sole provider recently sold out of the drug, may need to be revised if patients can’t be guaranteed access to their medicine, critics say.
The state allows patients to grow their own supply of medical marijuana, but it prohibits caregivers from doing it for patients who may be too sick to do so. And that’s a flaw in New Mexico’s law, said Tamar Todd, staff attorney with the Washington D.C.-based Drug Policy Alliance.
Of the 504 approved medical marijuana patients in New Mexico, 109 have a license to produce their own plants, but the other 395 patients are reliant on one state-licensed nonprofit to provide their medicine, and that nonprofit—the Santa Fe Institute for Natural Medicine–is limited to growing 95 plants.
Moreover, as NMI reported last week, the nonprofit ran out of its product within weeks after finally announcing it had some ready for sale in August.
“It seems as of right now, there are a significant number of patients who aren’t growing their own and can’t obtain it from any legal source. The intent of the law isn’t for them to have to rely on the black market,” Todd said.
Caregiver prohibition contributes to the shortage
New Mexico’s law is the first to allow a state to provide for a production and distribution system of making marijuana available to qualifying patients. But rather than having the state itself get into the production business, the state Department of Health created a program that relies on small state-licensed nonprofits to produce marijuana.
Each of the other 12 states that recognize medical marijuana allow only for decentralized production by patients and caregivers, either individually or through cooperatives or collective groups, but otherwise take a hands-off approach to making sure patients can get their medicine.
Most states allow designated caregivers to grow medical marijuana for specific patients, but New Mexico doesn’t. That’s something the state may want to reconsider, Todd said.
“The patient may not have any knowledge of how to grow marijuana, or simply be too debilitated to do it,” she said. “If they had a caregiver [who could grow it], they wouldn’t be dependent on a nonprofit or the black market.”
If the current shortage continues, Todd says she hopes that New Mexico’s law will be revisited.
A change in the law could allow the state to produce and distribute the marijuana itself or allow caregivers to grow it for specific patients.
New Mexico has a unique approach, but is moving very slow
“What really makes New Mexico unique is that it’s the only state medical marijuana law that directs the state to develop a system for the distribution of medical marijuana to qualifying patients,” Todd said.
And Julie Roberts, Todd’s colleague at New Mexico’s Drug Policy Alliance, told the Independent it’s an innovative program that other states are watching closely.
When New Mexico finished developing the actual rules for it’s program, it didn’t go so far that the state itself got into the production business, although it conceivably could. Instead, the state Department of Health created a program that relies on small state-licensed nonprofits.
But so far, there’s only one.
New Mexico Department of Health spokesperson Chris Minnick said that since early 2009, the state has received 20 applications to start nonprofits and has approved only one. Currently, the department is “working through the process” of approving other nonprofits.
Minnick said he didn’t know when other nonprofit dispensaries might be up and running, but the hope was that it would be “soon.”
“We have to be very diligent and thoughtful. We’re the first state that’s done this,” he said. “We don’t want there to be excess supply, while making sure there’s enough to meet the needs.”
Minnick added that his agency doesn’t know that patients’ needs haven’t been met, and that it’s not “safe to say” that demand is greater than supply. His agency doesn’t know what the yield of the nonprofit’s first batch of marijuana in August was or how much was purchased.
The Santa Fe Institute for Natural Medicine, he said, could have run out because every patient got enough supply to last them through the next three months, which is the amount they are allowed under the law.
“So it’s difficult to say how much they were able to get,” Minnick said.
“One producer isn’t enough.”
The state’s response doesn’t cut it with Roberts.
“We applaud them for taking on this challenge,” she said. “But we still need to look at the facts on the ground. We have terminally ill patients all over the state and need to have a program that puts their needs at the center.”
“One producer isn’t enough. They need to assess the situation and see where they need another one. It’s time for them to take those next steps to make medical marijuana more accessible.”
The 95-plant rule that nonprofits are currently limited to may be due to a 100-plant federal trigger, Todd said. Federal law imposes a five-year mandatory minimum sentence on anyone arrested with 100 plants or more, and given that medical marijuana isn’t legal under federal law, the state may have limited the size of the nonprofits to reduce the legal risk.
The Santa Fe Institute for Natural Medicine did not responded to NMI’s requests for an interview.
By Marjorie Childress