SANTA FE — A Santa Fe District Court judge is set to decide if a state-imposed limit on the number of marijuana plants a medical cannabis producer can have at any given time is arbitrary after hearing arguments from both sides in a civil suit aimed at the New Mexico Department of Health.
New rules adopted by the DOH in 2015 set the limit on the total amount of plants a licensed provider can have at one time at 450. That increased from 150 after a 2013 DOH study found that patients had been turned away at the dispensary because their supplier was out of product, and several of them said they considered buying cannabis on the street instead.
Bernalillo County resident Nicole Sena and New Mexico Top Organics – Ultra Health Inc., which operates seven medical marijuana dispensaries across the state, filed a lawsuit last August against DOH and Secretary Lynn Gallagher and asked that a judge rule that the 450-plant limit is arbitrary and has no “factual, practical, scientific or economic data” to support it. The plaintiffs want the judge to declare that the plant limit should be eliminated or greatly increased so producers can provide an adequate supply of products.
A bench trial began Monday in Judge David Thomson’s court and concluded Thursday with testimony from DOH medical cannabis program director Kenny Vigil. Thomson wants written closing arguments 10 days after the trial’s transcript is completed, and a ruling will be issued within 60 days after that.
The suit says that Sena’s daughter, who was less than a year old when the suit was filed, has a rare form of epilepsy, and the only treatment that provides relief is Haleigh’s Hope, an oil that is high in CBD, the non-psychotropic ingredient in cannabis. The oil requires four time the amount of raw plant material of other specialized products, the suit says, and Sena and her daughter had to move to a “neighboring state” to have greater access to it, according to the suit.
DOH’s Vigil said in court Thursday that CBD products are readily available to patients and that “people would be knocking down our doors” if there was a shortage because patients typically take their concerns to the department.
But Ultra Health CEO Duke Rodriguez said in testimony Wednesday there is “absolutely a supply shortage in New Mexico.” He said consumption levels are high in the state and what’s on the dispensary shelf doesn’t meet the demand.