Medical Cannabis Shortage in New Mexico Stokes Debate on Plant Count Limits
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Medical Cannabis Shortage in New Mexico Stokes Debate on Plant Count Limits

Following a 2018 judicial order, it remains unclear how the state will respond to declining supply.

February 20, 2019

New Mexico’s medical cannabis market finds itself at a critical moment, with patient counts rising and plant yield declining statewide. In November 2018, a state district judge issued a stern ruling that medical cannabis businesses should no longer be hampered by “arbitrary” limits on the number of plants they may grow, but, as of mid-February, no action has been taken to expand the dwindling supply of medical cannabis.

As a public statement—a warning—issued by licensed New Mexico medical cannabis business Ultra Health states, “The levels of available medicine as of December 31, 2018, have been cut in half compared to stock levels at the end of 2017, while patient enrollment has nearly doubled.” 

Nearly. Since December 2017, the number of registered patients in New Mexico has increased from 46,645 to 68,995 (as of January 2019). Indeed, at the same time, plant yield across the state has declined dramatically, from more than 4 million  “units” of cannabis (either one gram of flower or 200 milligrams of THC-infused product) to 2.9 million  units of cannabis. As of the most recent reporting from the New Mexico Department of Health, the state’s licensed medical marijuana businesses have little more than 1 million grams of flower in stock—down from 1.7 million units in stock in December 2017.

This leaves an average of 16 units of available, in-stock cannabis flower product per registered patient—less than 1 ounce of cannabis.

The team at Ultra Health contends that this brings the New Mexico medical cannabis supply “far below the statutory requirement of adequate supply.” According to the state administrative code, “adequate supply” means “uninterrupted availability of cannabis for a period of three months or 90 consecutive calendar days.”

According to a 2013 medical cannabis patient survey (the only survey of its kind, to date), respondents reported using an average of nine to 10 grams of cannabis per week. The actual amount purchased from licensed nonprofit producers ranged from seven to 12 grams of cannabis per week. The survey report, commissioned by the New Mexico Department of Health, reports that “each patient would need on average 523.64 grams of cannabis per year, or 18.7 ounces. With 9,760 patients [at the time of the report], to satisfy patient need, supply would need to be at approximately 5,110,726.4 grams per year.”

At the current patient count of 68,995, that average annual demand, all things being equal, would necessitate 36 million grams of cannabis produced per year.

With more patients registered in the program, it’s unclear why state-licensed producers are reporting lower yields. Duke Rodriguez, CEO and President of Ultra Health, is publicly expressing his concern and insisting on regulatory changes to open up the supply.

“The treacherously low levels of available medicine for the most vulnerable New Mexicans have triggered an acute access issue which will quickly evolve into a full public health crisis,” Rodriguez said in a public statement. “Routinely, patients turn to cannabis when they have no other option. If providers are prohibited from producing the medicine required to ensure the beneficial use of cannabis, the program is essentially forcing … people to alleviate the symptoms of their debilitating chronic conditions with black market marijuana that may otherwise deteriorate their conditions even further.”

New Mexico public records list 89 nonprofit medical cannabis producers, a number that includes multiple locations for certain companies (like Ultra Health’s 15 locations across the state). All told, the state has licensed 35 vertically integrated businesses. Legislators approved the state’s medical cannabis law in 2007, with then-Gov. Bill Richardson signing the bill. Since then, businesses and patients have decried limits placed on medical cannabis production in the state.

The ongoing debate led to a November 2018 judicial ruling, in which State District Judge David Thomson in Santa Fe issued a 60-page order to scrap a 450-plant limit on those nonprofit producers. (Ultra Health was a named plaintiff in the civil case that brought about this ruling.) The plant limit was instituted in 2014; previously, the limit had been 150. 

The Department of Health “is not fulfilling its obligations because its data collection is unreliable and because its evaluation of supply is baseless and unreliable,” Thomson wrote. “To [remedy] this, they must make sure its decision [on plant supply] is neither arbitrary or capricious. Further, they may not rely on their regulatory authority as a pretext for justifying limiting ‘adequate supply.’”

That order, however, was stayed for 120 days—until March 1, 2019—“to allow [the Department of Health] to conduct appropriate fact finding procedures to arrive at a plant count limitation that complies with the legislative mandate.”

The tension between the licensed market and the illicit market is a narrative that’s playing out in states across the U.S. now. In the middle, Thomson asserts, lies the regulatory agency of the New Mexico Department of Health. He offered a look toward the future, with patient demand showing no signs of slowing down: “There is also ‘pent-up’ demand from patients who are not enrolled in the program precisely because they do not have access to medicine, and this demand is essentially silent.”