A New Mexico medical cannabis provider has filed a suit in state district court that seeks to invalidate regulations recently adopted by the state Department of Health. The new rules governing aspects of the department’s Medical Cannabis Program such as lab testing, facilities standards, and product labeling went into effect earlier this month.
In a filing for the lawsuit, attorneys for medical cannabis producer Ultra Health wrote that the rules are “arbitrary and capricious” and would place a significant burden on providers and medical cannabis patients, and are not based on sound science.
“Producers, who already pay well over $100,000 per year for their license and are precluded by federal law from taking any income tax deductions, will have to pay for the increased testing burden and will pass along the costs to patients,” reads the petition, a copy of which was obtained by The NM Political Report.
“While Petitioner Ultra Health agrees that some testing is necessary to protect the safety of cannabis patients, DOH’s rules do not draw the necessary connection between the arbitrarily chosen testing parameters and specific measurements of patient safety,” the petition continues.
Attorneys for the plaintiff also called into question the DOH practice of relying on regulations enacted in other states as the basis for the new rules, rather than drafting regulations specific to New Mexico’s environment and other conditions.
“All of the biological and environmental differences between New Mexico and other regions guarantee that cannabis grown in New Mexico will have a very different potential for various kinds of contaminants than cannabis grown in Colorado or Oregon, but DOH never considered these basic environmental factors that make New Mexico unique,” the lawyers wrote.
Laboratory Requirements Questioned
A provision of the regulations that requires analytic testing to be performed by laboratories approved by the state was also challenged by Ultra Health’s lawyers, arguing that the two currently approved labs would not be able to handle the increase in testing brought about by the new rules, jeopardizing the program.
“Indeed, New Mexico has only two cannabis testing laboratories, and if one of them cannot meet DOH’s requirements, testing would slow to a crawl and a program that serves 92,000 medically fragile New Mexicans would be severely disabled,” the petition reads. “If both laboratories cannot meet DOH’s requirements, the Medical Cannabis Program would cease to function.”
Ultra Health also objected to rules requiring cannabis facilities to be compliant with zoning laws, noting that businesses that rent their locations have little control over the matter. The suit also alleges that a rule that would require a license amendment for any modifications made to a facility would constitute an undue burden and as written would apply to activities including “changing a lightbulb, installing an air conditioner, or adding an additional greenhouse.”
“It is arbitrary and capricious to require licensees to constantly submit applications for amended licenses whenever they change a lightbulb,” the petition reads.
The suit from Ultra Health included other objections to the new rules, including redundant labeling requirements and prohibitions on hemp. A spokesman for the health department declined to say if or when the agency would respond to the suit’s call for the new regulations to be thrown out.
“The Department of Health does not comment on pending litigation,” DOH spokesman David Morgan said.
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