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Comments on the Proposed Regulations for the
New Mexico Medical Cannabis Program
Bernard H. Ellis, Jr., MA, MPH
Consultant Epidemiologist
September 8, 2008
I am very pleased to be able to offer input into the development of New Mexico’s medical cannabis regulations. My interest in the success of your program dates from the time when I established the New Mexico Department of Health’s Substance Abuse Epidemiology Unit (in 1991 and 1992). Although I was already well aware of the many medically beneficial uses for cannabis from my tenure at the National Cancer Institute, I learned how important cannabis has been in the therapeutic arsenals of both New Mexican American Indian tribes and Hispanic villages for centuries, and how those communities had developed successful parameters for the proper use of this medicine. And then, in the late 1990s, as I tracked the improvements in reducing alcohol abuse in Gallup and McKinley County and used that information to help persuade your legislature to close drive-up windows for alcohol sales statewide, I had the opportunity to provide input into the development of your state’s proposed medical cannabis program, particularly that section that proposes to license and monitor large-scale producers in order to allow immediate access to medical cannabis for patients who are diagnosed with diseases and conditions that qualify them for program participation. I am very pleased that this program component has survived intact after six years in the legislative process.
In my opinion, New Mexico is in the best possible position to transform how we access and use medical cannabis in this country. Your cultural traditions and centuries of use of this medicine, your innovative legislative model and the strong and persistent support that your governors, past and present, have given this effort are unmatched in this country. With all of those positive supports, there is every reason why New Mexico should become the model for the implementation of medical cannabis programs nationwide. That is, if you are willing to remain true to your traditions and to your vision. There are many forces (e.g., the feds, the pharmaceutical industry, inertia, fear of the unknown) that can impede you in assuming this singular position, if you let them. To avoid this fate, you must accept that a program that best serves sick and dying people in New Mexico (indeed, the rest of the country) will not happen without serious effort and commitment, and will not occur if you design your program to meet the capricious acquiescence of the federal forces of prohibition. This is a singular moment in history, and it will demand everything that moments like this require – courage, intelligence, persistence. After all, sometimes when you want to be revolutionary, it falls upon you to start the revolution.
The discussion we are having today about the initial parameters of your medical cannabis program is very important for getting you started in the right direction. The past year has been used to begin informing patients and the medical community about the value of program participation. However, with fewer than 200 patients now enrolled in your program and no provisions yet in place to allow caregivers and larger-scale producers to grow, process and distribute cannabis; it is certainly time to move forward. This is particularly important because, contrary to the deliberations in your legislature about the small numbers of patients who would benefit from your program, the truth is that many thousands of New Mexicans are now eligible for program participation and thousands more suffer from other medical conditions for which cannabis use has proven beneficial.
A cursory review of the prevalence of persons with qualifying medical conditions in New Mexico is quite revealing. For 2007 (unless otherwise indicated), the estimated numbers of persons with qualifying conditions in New Mexico are as follows:
Cancer: 55,000-60,000 living with cancer; 8,000 new diagnoses each year.
Glaucoma: 13,185 (2002 estimate)
Epilepsy: 9,500 (1986-90 estimate)
HIV/AIDS: 3,500 (165 new diagnoses each year)
Multiple sclerosis: 3,000
Hospice admissions: 7,500
I have been unable to find good information on the prevalence of the specific spinal cord injury that qualifies patients. Even without that information, there are over 46,000 persons in New Mexico who now have medical conditions that qualify them for program participation. (I included only new cancer diagnoses in this total, which is likely an underestimate of the number of cancer patients who would benefit from cannabis use.)
With so many eligible patients, why have so few enrolled in the program? Very likely, it is because your program, as it is currently operating, provides patients with no more immediate access, and no better avenues, to obtain medicine than existed before your program was launched. That is not to say that fewer than 200 patients in these eligible populations have used cannabis or have benefited from its use. It is to say that, in the absence of a more timely and trustworthy mechanism for accessing medicine, many patients will continue to use cannabis under the radar, as they have done for decades.
In order to make your program the model program it is meant to be, it is critically important that your draft regulations be changed to meet the needs of your patients. I have provided detailed comments on the draft regulations to program staff, and I would be happy to share those comments with anyone who is interested. To summarize now, your regulations should be changed to allow the following:
1) Patients must be allowed to grow and possess enough cannabis to meet their needs. At a minimum, the number of plants that patients are allowed to grow should be increased to 12 flowering female plants and 24 non-flowering, vegetative plants. Likewise, patients must be allowed to possess enough useable medicine to allow them access to a maximum of one ounce of medicine per week. Thus, with a single outdoor crop, patients should be allowed to harvest up to a maximum of three pounds of medicine to meet their annual needs. (The actual amount would be 3.25 pounds, but rounding down to 3 pounds is more reasonable than requiring that patients survive on six ounces per year.)
2) The number of patients that a single caregiver is allowed to help should be increased to eight patients from the current four. That would allow caregivers to grow up to 96 flowering female plants and twice that number of non-flowering, vegetative plants.
3) Licensed producers should not be restricted in terms of the number of flowering and non-flowering plants they can grow. However, they should be able to justify their production levels to the NMDOH both in terms of meeting the immediate needs of new patients and the ongoing needs of continuing patients in their catchment area; and produce at a level which allows them to meet all requirements for quality and purity and allows them to manage all aspects of production, processing and distribution required to serve the program.
4) Caregivers and licensed producers must be allowed to recoup all costs associated with their production of medical cannabis, including labor costs. Unless this is done, there will remain a strong incentive to direct medicine to the illicit marketplace. However, by allowing caregivers and licensed producers to be reimbursed for all relevant costs, that temptation is greatly diminished.
5) Since growing cannabis is a very inexact science, both patients and caregivers must have a “no fault” mechanism for dealing with both excess plants and excess dried medicine. They should be able to do this either with the involvement of the NMDOH or its licensed producers.
6) The NMDOH should not assign the production of educational materials to licensed producers or caregivers. Instead, the NMDOH should produce a standard set of educational materials covering cannabis use and production, as well as standardized requirements for patient enrollment and disenrollment.
7) A distribution system should be established that facilitates immediate access to medicine for qualified patients, that maintains regular communication with both patients and their physicians for quality improvement and eligibility purposes, and that can be conducted in the most secure manner possible. The regulations do not now address this distribution system in any detail. Perhaps that will come later.
8) The NMDOH must develop policies and procedures, and increase program staffing, to insure that all aspects of a program that should become a national model for medical marijuana be addressed in the most professional and productive manner possible. These functions include patient and physician enrollment and monitoring; public and professional education; monitoring of grow operations by patients, caregivers and licensed producers; liaison with laboratories doing quality/purity testing; and other functions.
There are a number of other aspects of the proposed regulations that deserve attention and modification. For example, patients who live anywhere should be equally eligible to participate in the program, regardless of whether they live near a daycare center, school or church. Persons who have a previous criminal conviction should be allowed to participate in the program (as a patient, caregiver, or staff member of a licensed producer) once they have completed all requirements of their sentence and are no longer on probation or supervised release. Marijuana leaves should not be considered as useful medicine, because they are not. The functions of caregivers should be more clearly defined to determine whether they are to produce medicine only or also to serve as dispensaries to ration the medicine for patients. Licensed producers must be given the same protection from state criminal and civil penalties as offered to patients and caregivers. The administrative review committee should be expanded to include other professionals as well as patients, caregivers and representatives of licensed producers. The definition of the term “facilities” should be changed so that patients’ homes are not included in the definition. These are a few of the issues that I covered in my written edits of the proposed regulations, but there are others. Again, I am happy to provide those comments to anyone who is interested.
In summary, the NMDOH is in a position to change the public health policy landscape and to create the national model for medical marijuana programs. However, whatever you do will be greatly impacted by whether we maintain our current improper and immoral restrictions at the federal level against medical marijuana or whether we are soon to experience a change in federal medical marijuana policy that we can all believe in.
The positions of the two major Presidential candidates could not illustrate this situation any better. Senator John McCain has often spoken against medical marijuana, stating that “…there are much more effective ways of relieving pain and suffering than the use of marijuana. Therefore, I view it as something I do not support.” Senator Barack Obama, on the other hand, has said that “… using medical marijuana in the same way, with the same controls, as other drugs prescribed by doctors (is) entirely appropriate.” Rather than developing medical marijuana regulations that attempt to conform to the current federal policies (and failing in that effort at every turn), New Mexico should design its program regulations to prepare for a long-overdue, much-needed change in federal policy.
Sometimes if you want to be revolutionary, you must be the one to start the revolution.
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