Testing and Regulations | 11.10.20
The clock is officially ticking, if New Mexico wants to legalize recreational-use cannabis. That’s because voters in Arizona approved a measure last week, legalizing the drug in another neighboring state. Lawmakers and Governor Michelle Lujan Grisham will no doubt make it a top priority for the 2021 session, but there are many questions still to be answered as the legislation is drafted. One of those questions as to do with testing and regulations. This week on Growing Forward, hosts Megan Kamerick and Andy Lyman dive into this issue as it relates to the state’s medical program. As with most things, it turns out New Mexico is different than other states in how they handle testing and regulation, in a lot of different ways. (Note: Interviews for Growing Forward were all conducted via Zoom as a part of our COVID-safe practices. Originally our plan was to do interviews in person, but in order to maintain social distancing and to keep everyone involved safe and healthy, we decided to use the technology available to us.)
Episode Music:
Blue Dot Sessions – “Greylock”
Blue Dot Sessions – ” Two in the Back”
Blue Dot Sessions – ” Distill”
Christian Bjoerklund – ” Hallon”
Poddington Bear – “Good Times”
Growing Forward Logo Created By:
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“Growing Forward” is a collaboration between New Mexico Political Report and New Mexico PBS, and is funded through a grant from The New Mexico Local News Fund.
FULL TRANSCRIPT
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Andy Lyman: I’m Andy Lyman, with New Mexico Political Report.
Megan Kamerick: And I’m Megan Kamerick with New Mexico PBS, and this is Growing Forward, a podcast about cannabis in New Mexico.
Andy Lyman: So far, we’ve looked at the history of the medical cannabis program and previous attempts at legalization in the state legislature.
Megan Kamerick: Today, we’re going back to the medical program and talking about testing standards and regulations that are already in place.
Dominick Zurlo: And, one of the things that we heard very clearly from many of the patients who are involved in the program is they want to ensure that their cannabis is as safe as possible.
Megan Kamerick: That’s Dr. Dominick Zurlo, the Director of the state’s Medical Cannabis Program, which is overseen by the state’s Department of Health.
Andy Lyman: Zurlo was actually involved with the program more than 10 years ago just after the medical program started.
Megan Kamerick: One thing that struck me as we talked to Zurlo and others about regulations is that there is just one department that oversees the entire program. I asked him if that’s how other medical cannabis programs across the country work.
Dominick Zurlo: It’s not necessarily the state health agency and sometimes it can be split up into different areas. So, for example, here in New Mexico, while we actually have that regulatory authority over medical cannabis, department of agriculture has the authority over hemp, along with environment. And so, things can get split up and it really depends on how the state government is organized and every state is very different. So, for example, most states don’t have a centralized, regulatory body for their departments of health. Oftentimes, while they may have some policies and overarching authority, many times those are actually done on a county by county basis. So, New Mexico is fairly unique in this way, that we have an overarching department of health that covers the entire state. In other states, they may have a setup where their Department of Health may be part of Health and Human Services. So, they may be combined. In other states, they’re separated. So, different states do this in different ways and oftentimes it just simply depends on what their overarching structure is for their own state government.
Andy Lyman: Last year I wrote about a dispensary in Albuquerque that was robbed at gunpoint. It wasn’t, by far, the first one to be robbed, but what I found was that the state doesn’t really mandate specific security measures.
Megan Kamerick: So, what is the state’s requirement for security plans in dispensaries?
Andy Lyman: that they have one.
Dominick Zurlo: They do have to have minimum security qualifications. They have to have a system. They do have to be able to test it. And so, you want to make sure that there’s alarms. All of those sorts of things. But, we really do leave it up to each individual location, because you can have different security needs, depending upon the location you’re in. And, we don’t want to turn around and try to restrict it too much, where someone can’t open a dispensary, for example, because they can’t meet too-specific regulations that they can still do things very securely, just not necessarily the way we might outline them in some of the regulations. And so, we don’t want to get too specific, otherwise, we have the potential to actually exclude locations and areas, and especially in rural areas, that otherwise might be able to have still-secure and safe locations if we got too specific. So, we did leave that open. Now, one of the things that we do is, when we do go out and do inspections, we do talk with them about security issues and make recommendations to them. And if something, for example, doesn’t look like it would be very secure, we do talk with them about “how could you make this a little more secure?” And have those conversations. And I’ll tell you, most of the time, those security suggestions, and or other solutions that have come up from them, often get implemented.
Megan Kamerick: The Department of Health and the Medical Cannabis Program do in fact regulate things like how many plants producers can grow and what sort of pesticides and herbicides they should be testing for. Zurlo explains those regulations have ramped up during the COVID-19 pandemic.
Dominick Zurlo: The role for the program, with regard to their daily practice, is really about, we really have that license and regulation role. And so, each of those individual producers, dispensaries, and other organizations, they have to come up with their own internal policies and procedures. They do have to meet the standards of the regulation. And so, what we really do is, we do inspections. We go out and we look at the physical locations to be able to see what’s happening. We have conversations with the staff that are at all of the different locations to ensure that they’re really following, not only our regulations, but are they following their own internal policies and procedures? Now with, for example, with COVID-19, some of the things that have come up is, medical cannabis did get classified as an essential business, because we see it as a medication for patients. And so, patients, we wanted to ensure they had access. But, in order for the dispensaries to be able to continue doing that, they did have to follow the guidelines that have been issued by the CDC and the department of health, with regard to safety practices. So, wearing facemasks, keeping six-foot distances, disinfecting commonly-touched surfaces on a regular basis, and really having to follow through with that. And so, the program has really been ensuring and working with all of those different producers to help be able to provide those guidelines, ensure that they’re able to follow them, answer questions that they have with regard to it. But, when it comes down to the day-to-day operations, we also need the help from patients, to be able to let us know if somebody is not doing something that is correct, or is right or that they perceive, to let us know and say, “you know, I went into this location and this is what happened.” We do pass that information on, in an anonymous fashion, back to those locations. And just like in any other business, it could be as something as simple as there’s a new staff member or a new employee, something happened, just on one particular occasion, but we do look into it. And every complaint, we look into it, in order to try to see are things being done, right? Are there concerns and problems with the different locations? And if it comes to a situation where it’s a regulatory manner – which really means that, are they violating one of the regulations? Then, we will continue to proceed with talking with those producers and making sure that they’re correcting those issues. Most of the time, however, it ends up being something that’s a simple solution and that a simple conversation helps take care of it.
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Andy Lyman: Megan, you’ve used the term wild west a few times as we’ve looked into the specifics of regulation and testing. But, there are a number of patients and producers who don’t necessarily think more regulation is good.
Megan Kamerick: Remember Duke Rodriguez? He’s the President and CEO of Ultra Health, a medical cannabis producer in New Mexico.
Duke Rodriguez: Let’s back up on the history of testing. There are still surrounding states that don’t have mandatory testing requirements. I’m most familiar, for example, with Arizona. It might shock your listeners to understand, product is put on the shelf, much larger volume than New Mexico, with no testing at all. And keep in mind, before we talk about legal cannabis, imagine the amount of products that is sold every day, in the gray and black market, that is untested. Think about the products that are being grown by, what we call PPLs, personal production license. Folks who have a cannabis card, who are allowed to grow their own product that is created, grown, consumed, untested. So, I’m not saying testing is not necessary, but there is a history that testing never existed in the past. Now, should we test going forward? The answer is absolutely yes. The debate becomes what level of testing and what are the parameters for a pass and fail? I think, thankfully, we have some of the most restrictive testing guidelines anywhere in the country. Ours are more restrictive than Oregon’s. Ours are more restrictive than Colorado’s today.
Megan Kamerick: Rodriguez believes the current testing standards are not based on science, but on feelings.
Duke Rodriguez: Here’s a situation where you can overreact and have such high testing standards, you get a lot of product fails, that never gets in patients’ hands. But, we’re willing to deal with that. All we’ve said is whatever testing requirements you have, and we believe you should have them, they need to be based on science. Not a regulator saying, “I think. I feel. I want.” Actual science numbers. It’s great intention, but it also has to be done in a stepwise fashion and it doesn’t put a high cost onto the operators of labs themselves, to growers themselves and then they pass all that cost on the patient. We want safe, reliable medicine. We want it to be protected. We want it to be clean, but we also have to do it in a responsible way. That’s the only thing we say. Yes, we support testing. Yes, we love testing. Yes, it should be done on both the medical and the adult side.
Andy Lyman: Just a little aside about testing… earlier this year, the medical cannabis program and the department of health implemented new testing standards… Which didn’t make everyone happy. Rodriguez and several other producers took the state to court, arguing those new rules on testing standards are “arbitrary and capricious.”
Megan Kamerick: We just heard Rodriguez reference personal production licenses, or PPLs. That’s the license that patients can get in order to grow their own cannabis. While PPL holders are limited in how much they can grow or possess at a given time, they are not required to submit their cannabis for testing.
Andy Lyman: Through conversations with patients, I’ve discovered that there are a variety of reasons people might want to grow their own cannabis. Some say it’s because they like to know what was used to grow the plant, but sometimes it’s simply because access is sparse.
Chad Lozano: No dispensaries want to come down here, because there’s not enough money. But there’s tons of money down here, it’s just, they don’t know anything about southern New Mexico. So, that’s where they get it wrong. They just don’t understand how it is to be a patient, they only understand how it is to be a money-mongering producer and that’s all it is.
Megan Kamerick: That’s Chad Lozano, a medical cannabis patient in Las Cruces. He tells us he primarily uses cannabis he has grown himself.
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Chad Lozano: And also, we’re one of the most rural states in the nation. Our population density in the whole state is 17. So, when you look at it in that aspect, you need to grow, because you’re not going to have enough dispensaries to provide for everybody in the state. And that’s a problem that we have right now.
Andy Lyman: In a previous episode we touched on the issue of how many plants cannabis producers are allowed to grow. It’s become sort of a back and forth between some producers and the state. That is… Does New Mexico have enough cannabis to serve patients under the current program? And, arguably more importantly, will we have enough to support the medical program if the state legalizes recreational use?
Ginger Grider: We would never encourage anyone for breaking the law. And the DOH, in essence, because of their refusal to address the access problem, which they say there isn’t one, but there absolutely is. Then, they are encouraging people basically through their inaction to commit federal offenses because they refuse to address the access problem.
Megan Kamerick: That’s Ginger Grider, with the New Mexico Medical Cannabis Patients’ Advocate Alliance.
Ginger Grider: We have a very, very long name, to try to make sure that everyone is included in it. And, it is the only state certified patient advocates association in New Mexico, at all, for medical cannabis patients. And, our goal is to protect patient rights, represent patients and help to work with all of the structures, be that the licensed producers or the legislature, on bringing patient awareness and advocacy forward.
Andy Lyman: And occasionally chiming in, is her husband heath.
Heath Grider: We have no official membership. We are just patients who get together and discuss needs in the community.
Andy Lyman: I met the Griders a few years ago through my reporting and they might be the best example of busting some of those stereotypes of cannabis users.
Megan Kamerick: They seem to come at this with sort of a free market approach.
Andy Lyman: They live in Portales, which is a pretty red part of the state. Heath is a registered republican and active in his county party. Ginger is a self-described libertarian.
Ginger Grider: Oh, absolutely. You know, both of our work, especially heath’s in advocacy and being involved in the republican party here in Roosevelt county, I mean, they set aside like a half a day up in, when they had their executive committee for the republican party of the state, and, the Chair from Roosevelt county presented arguments for medical cannabis and why the republicans should not be against it and why they should be compassionate towards users. And, because a lot of their base is actually using behind closed doors. And I mean, yes, absolutely anyone, because…
Heath Grider: Sort of like when you see somebody from church at the bar.
Ginger Grider: Yeah. (laughs)
Heath Grider: Very much like that.
Megan Kamerick: Ginger uses the term “decriminalization” for what she’d like to see for the future of cannabis, both nationally and here in New Mexico.
Andy Lyman: now, the Merriam Webster definition of “decriminalize” is “to remove or reduce the criminal classification.” This definition is generally what lawmakers mean when they’re talking about decriminalizing cannabis.
Megan Kamerick: And, just a reminder: the state recently, quote, decriminalized cannabis, meaning they lessened the penalties. But here’s what Ginger and Heath mean when they talk about decriminalization:
Ginger Grider: I’m not so much for legalization as I am decriminalization. We would absolutely like to see it treated like any other crop — tomatoes, corn, green beans. You know, I mean, there are so many things that are currently available. Just like if, it’s not against the law to grow tomatoes, it should not be against the law to grow cannabis. And so, that’s the difference. Decriminalization says just, “not against the law. Go forth and do your business and, you know, don’t hurt anybody.”
Megan Kamerick: Ginger says she didn’t always see things this way, though. It was her husband heath who helped reshape her views.
Ginger Grider: I was a good Christian woman and a mother and was absolutely, totally against it and said, “you know, no way. What if I had to take the kids to the hospital? What if this? What if that?” And he actually just went out one day and came back and said, “here,” and he brought me a little vaporizer and some cannabis and said, “just try it.”
Megan Kamerick: Ginger began exhibiting multiple signs of autoimmune disorders back in 2002. Since then, she’s been diagnosed with rheumatoid arthritis, an adrenal insufficiency and another inflammatory disease. She says the vaporizer heath brought her made a world of difference.
Ginger Grider: And it was amazing. I mean, within an hour of using, my neck had relaxed and I didn’t have a headache. And it just kind of opened my eyes to how stupid I had been.
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Andy Lyman: Getting back to the issue of rules and regulation, Ginger and Heath think getting rid of the maximum number of plants both producers and patients can grow, might help with what they see as a shortage of cannabis, especially in rural patients.
Heath Grider: and not only that, we need to open up licensing. We need other options. Oklahoma has a very free market solution to medical cannabis. And they brought in three hundred million last year. They have almost three hundred thousand patients in two years. And New Mexico falls so far behind, because we protect our existing businesses. They will not allow anybody… every time there’s a task force and I’ve been on several of them, they will not address this issue. They address it from the point of protectionism, and I don’t feel like that’s good for New Mexico business.
Megan Kamerick (from interview): You brought up Oklahoma. You thought they had a good free market solution. What… can you tell me what that looks like and why we should consider it?
Heath Grider: They don’t do any protectionism. If you want to get a license to distribute, manufacture, grow, farm, transport, anything… you send the state twenty-five hundred dollars. They do your background check and issue the license. New Mexico issues no licensing to speak of. They exercise protectionism over the existing businesses, and it’s not… competition makes better pricing, it just does. It makes a better product and better access. It’s better all the way around. We’ve got Circle K’s. We’ve got Alsup’s. We’ve got Stripes. Now, if the state came in and said only Alsup’s and Stripes and Circle K can operate a convenience store in New Mexico, it would be silly.
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Andy Lyman: Let’s go back to Dominick Zurlo for a moment. He told us that, yes, the state is not issuing any more production licenses, or a license to grow cannabis. But, he says there are other opportunities.
Megan Kamerick (from interview): Is there a cap on how many licenses the state allows?
Dominick Zurlo: So, right now there, the state is not actually issuing additional licenses. There is not a cap, per se, but it is a process. Not quite an RFP, or a request for proposal process, but very similar. Where, when the licensure do get opened up, what happens is, the applicants apply. They have to complete their forms. They have to submit all the documents that are required, such as background checks for employees, their plans and procedures and policies of how they’re going to keep the patients safe when the patients come into a dispensary, for example, how they’re going to keep the medication safe when it’s being grown, manufactured, all of those types of things. They have to submit those and then they are reviewed. And then, out of that process, those that have the highest scores, essentially, or have the best proposals, are the ones that will end up getting licensed. But, part of that will also depend on the projections of how the program is growing, what the needs of the patients will be. So, at this point, right now, with the new plant counts, we are seeing enough of a supply and so, at this point, we haven’t opened those particular licenses. Now with that said, there are other areas of the industry, it’s not all just about the cultivation and production. There’s also manufacturing, where individual or where organizations and companies are turning around and taking the cannabis and creating the variety of products that patients need and want. And so, those manufacturing licenses are open. So, manufacturers can apply, or individuals who want to be manufacturers. The laboratory licensure is also open. So, organizations and labs that want to be doing the testing that we have coming up, can also apply for it. We also opened up the courier applications, which has been extremely important during the covid-19 situation because that really allows for there to be even less interaction between the patient and then, other people, because instead of having to go to a dispensary, they can actually have it delivered to their home. And we’ve always had couriers, but we also, with this current situation, said, “we need to increase that.” And so we have.
Megan Kamerick: Wait… so is there enough cannabis or not?
Andy Lyman: That seems to be the question of the century. Folks like the Griders and Duke Rodrigez of Ultra Health say that no, there is not enough cannabis to stock the shelves of dispensaries in rural parts of the state. But, there is another school of thought that some of these dispensaries have too many locations.
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Megan Kamerick: Growing Forward is a collaboration between New Mexico PBS and New Mexico Political Report, thanks to a grant from the New Mexico Local News Fund.
Andy Lyman: Our production team includes Producer and Editor Bryce Dix. Also, New Mexico PBS Executive Producer Kevin McDonald and New Mexico Political Report Editor Matthew Reichbach. Join us next week, when we examine issues surrounding tribal groups and legalization.
Megan Kamerick: Be sure to subscribe to “growing forward” wherever you get your podcasts. You can also get caught up on all of episodes so far, by heading to NMPBS dot org and searching for “growing forward.” Also, if you like what you’re hearing, leave us a review. It really helps us out.
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