November 28, 2018
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Earlier this month, a district judge in New Mexico ruled that the state’s limit on the number of plants licensed medical marijuana cultivators can grow is both arbitrary and based on unreliable data. The decision is the result of a lawsuit brought by the state’s largest cultivator, Ultra Health, and a patient, Nicole Sena, which alleged the New Mexico Department of Health (DOH) was not ensuring there was an adequate supply of medical marijuana available to patients in the state.
Judge David Thomson’s decision was based partially on the determination that DOH was impeding the purpose of the state’s medical marijuana program. He gave the DOH four months to study the problem and define a new plant limit. As a result, the state’s 450-plant limit for licensed cultivators was invalidated because the judge ruled it does not comply with the rules of the state’s medical marijuana program.
New Mexico isn’t the only state encountering problems from outdated rules despite the fact that some of those rules might be only a year or two old. Does Judge Thomson’s ruling mean more frequent state updates to marijuana laws could become a requirement in the future? There certainly seems to be a need for it.
There are a number of factors contributing to the need for more frequent state marijuana law updates, but three factors rise to the top as the most significant: plant limits, license caps, and a growing number of patients. All three of these factors directly and critically impact the ability for patients to access medical marijuana as well as their choice of medical marijuana products to purchase.
In New Mexico, Judge David Thomson ruled that the state’s 450-plant limit for licensed cultivators was not only arbitrary and based on no reliable data but it was also irrationally related to the DOH’s regulatory authority. In his ruling, Judge Thomson specifically stated that the plant limit was an impediment to patient access.
This problem isn’t unique to New Mexico. Many states have a plant limits that licensed cultivators have to abide by. With a limited number of plants that are grown by a limited number of licensed cultivators (see #2 below), there will be a limited supply of a product, including marijuana. That’s just simple math.
Judge Thomson’s ruling explained that the DOH hadn’t reviewed its plant limit rule since 2014 although the number of medical marijuana patients in New Mexico has grown significantly with nearly 59,000 active patients at the end of the third quarter of 2018. A marijuana shortage is not surprising in this case.
Similar shortages are happening in Connecticut where the medical marijuana program launched four years ago. When the program launched in 2014, four cultivators received licenses. Despite the fact that patients and dispensaries in the state say there is a medical marijuana shortage, Connecticut’s Department of Consumer Protection (DCP) and the four growers believe there is no shortage and there is plenty of capacity to meet demand.
However, with just four licensed cultivators and nine licensed dispensaries in the state, an oligopoly has formed where cultivators can focus on growing the most profitable strains. As a result, patients are given less choice in the products they buy. Since the different strains treat different conditions, limiting choices to patients is a growing concern among patients and patient advocacy groups in the state.
Patients in Minnesota are also seeing medical marijuana shortages. Last year, one of the state’s two licensed medical marijuana cultivators didn’t supply its product due to a “distribution glitch.” Patients weren’t able to get their medical marijuana when they needed it, which drew attention to the problem of limiting the number of cultivation licenses. With one of only two growers unable to provide its product to the supply chain, many patients were left without access to the medical marijuana they needed.
The catalyst to the problems in New Mexico and Connecticut was a growing number of patients creating a rapid increase in demand for medical marijuana. In New Mexico, the number of registered patients has grown to nearly 59,000 since the program launched in 2014, and in Connecticut, the number of registered patients grew from 2,000 patients in 2014 to more than 25,000 patients in early 2018.
A growing number of patients is also causing problems in New Jersey. When the medical marijuana program expanded to cover more conditions earlier this year, the number of registered patients skyrocketed with more than 5,000 patients being added to the program within the first five months of the year. The New Jersey Health Commissioner stated that since the program expanded, the state has been adding about 100 new patients per day and was up to more than 20,000 patients by mid-May with growth expected to continue.
It’s a fact that states’ medical marijuana programs are growing rapidly, and laws that worked just 12 months ago, might need to be revisited. Now that a judge has ruled that a state must review and modify its program rules, will other judges follow? Will states voluntarily revisit their programs more frequently? Only time will tell.
