Alibi V.24 No.4 • Jan 22-28, 2015 

Feature

Getting to Know Mary Jane

A primer on New Mexico’s medical cannabis landscape

The path toward legal medicinal marijuana use in New Mexico began in 1999 under the aegis of Libertarian-leaning Republican Gov. Gary Johnson. Johnson advocated for the legalization process before the new millennium dawned, but it took more than seven years—and a Democratic administration—for the state to make substantive headway on the issue. After a resounding thumbs-up vote in the State Senate (32-3) and a close call in the House of Representatives (36-31), Gov. Bill Richardson signed the Lynn and Erin Compassionate Use Act into law on April 2, 2007.

The Lynn and Erin Compassionate Use Act (N.M. Stat. Ann. § 30-31C-1) aimed to guarantee that doctors and medical cannabis patients could have access to the substance without running afoul of the law. But it also created a formidable and increasingly complex bureaucracy.

The intervening years have seen a national, cultural sea change on marijuana use for healthy and infirm citizens alike, even as the consequences and outcomes of legal medicinal cannabis use in the Land of Enchantment have sometimes been obscured by various political agendas. Misinformation generated by both advocates and contrarians has muddied public understanding of the issue, and politicians have attempted to make changes to the program at the executive and legislative levels of state government. Additionally, problems with producers and production have resulted in shortages, while enforcement conflicts have arisen from differences in state and federal law, and financial institutions such as banks and credit card companies have raised substantial concerns about the legality of dealing with cannabis-derived transactions.

The Lynn and Erin Compassionate Use Act aimed to guarantee that doctors and medical cannabis patients could have access to the substance without running afoul of the law. But it also created a formidable and increasingly complex bureaucracy.

In June 2014 the New Mexico Department of Health proposed revisions to the operation of the program; their proposals were criticized as draconian and prohibitive by constituents. The state wanted to alter the spirit of the law's titular “compassionate” nature, including enacting annual registration fee hikes for producers and mandatory criminal background checks for patients. Distressed by these drastic potential changes—and thus the looming possibility of all the stressful consequences such tough regulations would engender—patients, growers and health care professionals came together to make their grievances known to the state. Public comment was informed, passionate and copious.

Interestingly, the state listened. Six months after a heated meeting in Santa Fe, state health department authorities compromised, eliminating the harshest provisions from proposed changes to the program. Recent news reports have quoted officials in state government acknowledging the importance of vocal, sustained community input as they work to keep compassion and the resulting patient-centric focus prime tenets of both the spirit and letter of the law.

Medical cannabis supply and demand is problematic in New Mexico. Some of these problems are being addressed by the department in discussion with program participants, including chronic medical cannabis shortages, concerns about production standards and enhancing the delivery structure for a much-needed medicine with a growing patient/client base. The program's possession/quantity rules are guided by an assumption that potential oversupply to patients might result in medical cannabis appearing on the black market. To prevent this, application of the law takes a conservative approach, frustrating health care providers, growers, dispensaries and patients who advocate access over a prohibition mentality.

Additionally, problems with producers and production have resulted in shortages, while enforcement conflicts have arisen from differences in state and federal law, and financial institutions such as banks and credit card companies have raised substantial concerns about the legality of dealing with cannabis-derived transactions.

Supporters of ramping up production and possession limits point to the importance of maintaining the program’s compassionate framework as its client base and system naturally grows and requires consistent monitoring and adjustment. Willie Ford, founder of a thriving dispensary, summed up that feeling when statewide attention was drawn to the intricacies of medical marijuana policy earlier last year. “Patients' access should be [priority] number one,” said Ford. “The end goal of all this should be to get patients access to more medication.”

It seems unlikely that substantive changes to quantity limits or an increase in licensed production quotas will occur when the health department has its say later in the year. But medical marijuana issues are certainly on the 2015 legislative session agenda. Senator Cisco McSorley (D-Albuquerque) is preparing to introduce legislation to decriminalize marijuana use and possession via an amendment to the State Constitution; this political maneuver bypasses the staunchly “Just Say No” stance of the reigning state Republican party and its prime mover Gov. Susana Martinez.

Apart from state-borne regulatory issues, the medical marijuana industry in New Mexico faces some daunting financial issues. At the heart of these issues are memos generated by the US Department of Justice and US Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) on Feb. 14, 2014. The former memo, penned by Deputy Assistant Attorney General James Cole, reiterates the federal position that marijuana remains an illegal drug, but it also offers financial institutions the option of working with marijuana-based nonprofit businesses so long as said banks perform due diligence on these accounts, including reviewing the business’ application for state production or dispensary licensure, and filing abbreviated “suspicious activity reports” on these companies.

It is still entirely possible to lose your job if you are drug-tested and come up positive for marijuana.

Marijuana remains a Schedule I drug under federal law, so an initial report acknowledging that must be filed on creating accounts for these businesses. After that, three brief reports are required annually. Medical marijuana use is legal in 23 states, but it remains classed alongside drugs like LSD, heroin, MDMA, GHB and DMT. At the request of the Drug Enforcement Agency or DEA, the Food and Drug Administration is currently analyzing whether marijuana should be downgraded.

FinCEN clarified the banking issue in a 7-page document intended to encourage banks to work with legal/medicinal marijuana producers and sellers. Titled “[Bank Secrecy Act] Expectations Regarding Marijuana-Related Businesses,” the edict had a negative effect in New Mexico and elsewhere in the US. Southwestern credit unions have gone on record saying they don’t have the resources or inclination to handle such intensive financial reporting, resulting in the closure of commercial accounts for some of New Mexico’s producers and dispensaries. Other financial institutions have grown reluctant to take over accounts until federal regulations become clear to all. Most significantly, this situation has caused some patients to grow wary. Accustomed to paying with a credit or debit card, the reduction of the program to a cash-only affair is understandably disconcerting.

The conflict between state and federal law regulating marijuana production and use also presents an enforcement issue. Corporations and the criminal justice system struggle with the cultural reframing of marijuana’s role as medicine. It is still entirely possible to lose your job if you are drug-tested and come up positive for marijuana. You can still be arrested for using cannabis in public. And you can only possess a relatively small amount at any given time, an attempt to prevent diversion of medical cannabis to teenagers or, worse, potheads. Until the stigma of highly illicit, Schedule I drug use can be contextually separated from the ingestion of a plant for medicinal purposes, marijuana remains, for all intents and purposes, not entirely legal and definitely problematic. And that conflict won't be resolved until the federal government amends its drug law.