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Lawsuit challenges medical pot limits

A cannabis plant grows in a room filled with artificial sunlight at High Desert Relief in Albuquerque in this recent file photo. A recently-filed lawsuit targets New Mexico’s purchase and possession limits for medical cannabis patients with a new legalization law set to take effect in June. (Eddie Moore/Journal)

Copyright © 2021 Albuquerque Journal

SANTA FE – An Albuquerque medical cannabis patient has filed a lawsuit against top New Mexico officials targeting their stance on pot purchase and possession limits for medical cannabis patients once a law legalizing recreational marijuana takes effect in June.

The 55-page petition was filed in Santa Fe-based 1st Judicial District Court by the law firm of Jacob Candelaria, who is also a Democratic state senator from Albuquerque.

It asks the judge assigned to the case to strike down a state-imposed purchase limit for medical cannabis patients and seeks the removal of a 1,750-plant limit for licensed cannabis producers that has been the subject of previous litigation.

In a recent letter, the heads of two state agencies – the Department of Health and the Regulation and Licensing Department – said any cannabis purchases by medical patients in excess of the current limit will be subject to taxation once recreational cannabis sales begin. The state’s gross receipts tax will not be levied on medical cannabis sales under the limit.

But Candelaria said that stance unlawfully discriminates against his client, Jason Barker of Albuquerque, and the nearly 116,000 others enrolled in the state’s medical cannabis program.

“Regulators are simply trying to maximize state tax revenue and impose an illegal tax on medical cannabis patients,” said Candelaria, who is also a medical cannabis card-holder.

Protections for medical marijuana patients played a role in the debate over the cannabis legalization bill that was approved during a two-day special session and subsequently signed into law by Gov. Michelle Lujan Grisham.

The governor called the special session in March after a previous version of the bill stalled during the final hours of this year’s 60-day legislative session.

Although commercial sales are not required to begin until April 2022, adults ages 21 and older will be allowed to possess up to 2 ounces of marijuana, 800 milligrams of edible cannabis or 16 grams of extract once the new law takes effect in June. Those will also be the limits on how much a customer could buy at one time.

However, there will be no restriction on how much cannabis people could keep at home, as long as it’s out of public view.

In contrast, New Mexico’s medical cannabis program has an effective purchase limit for patients of 230 grams – or about 8 ounces – every 90 days.

The lawsuit argues that pharmaceutical drugs and other types of prescription medication are exempt from taxation regardless of the quantity purchased.

“By claiming that medical cannabis is only tax-exempt up to a certain volume, (the agencies) violate equal protection principles in another way – by unfairly discriminating between particular medical treatments with respect to taxation,” the lawsuit says.

Meanwhile, the lawsuit is being supported by Ultra Health LLC, the state’s largest licensed medical cannabis producer, its CEO and President Duke Rodriguez said Tuesday.

He said he expects other producers will also offer backing in the case.

Both the Department of Health and the Regulation and Licensing Department declined to comment on the case, which is assigned to District Judge Maria Sanchez-Gagne.

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