Judge signs Writ of Mandamus to keep medical cannabis reciprocity program in accordance with the law

(Santa Fe) – Ultra Health, New Mexico’s #1 Cannabis Company, successfully filed a Writ of Mandamus against the New Mexico Department of Health (NMDOH) asking the court to rescind an NMDOH mandate that added additional requirements for reciprocal patients to participate in the New Mexico Medical Cannabis Program. 

Santa Fe District Court Judge Matthew Wilson prepared the Writ and signed it on October 13, 2020, invalidating the NMDOH mandate and Emergency Rule that attempted to disallow qualified reciprocal participants from accessing New Mexico’s Medical Cannabis Program.

“Neither the Legislature, by statute, nor the DOH, by rule, required that a reciprocal participant’s government-issued identification and medical cannabis proof of authorization be issued by the jurisdiction where the participant lives, or that the reciprocal participant must produce a medical cannabis card as the only acceptable proof of authorization in order to obtain reciprocal admission into the New Mexico medical cannabis program,” Judge Wilson wrote in the Writ.

Moreover, Judge Wilson found that the Emergency Rule that was filed by NMDOH on October 8, the day before the scheduled Writ hearing on October 9, is unenforceable. 

“By the term ‘imminent peril’ or ‘danger’ is meant a place where there is certain danger – not a place where there is just a mere possibility of injury occurring … The DOH’s justification for their emergency rule is inadequate,” Judge Wilson continued. “As a result, the DOH is in violation of the State Rules Act and the emergency rule is unenforceable.”  

The court has commanded NMDOH to: 

1. “Allow licensed cannabis producers to authorize and sell medical cannabis to reciprocal patients whose government-issued identification and proof of medical cannabis program authorizations are used by different jurisdictions or the same jurisdiction;
2. Allow licensed cannabis producers to authorize and sell medical cannabis to reciprocal patients who present a valid proof of authorization, including those reciprocal patients that present a California physicians authorization as their proof of authorization;
3. Reauthorize and re-enroll any reciprocal patient removed from the program when the reason for the reciprocal participant’s removal was because the reciprocal participant’s state-of-residency and state-of-authorization are not the same, or, in the case of California-authorized reciprocal participants, the reciprocal participant did not produce a California issued medical cannabis card as proof of authorization to participate in the California medical cannabis program.
4. Otherwise permit all licensed cannabis producers to authorize and sell medical cannabis to reciprocal patients that meet the definition of ‘reciprocal participant’ under the Medical Cannabis Act and the DOH Rule in existence prior to October 8, 2020.
5. Immediately refrain from further enforcement of the emergency rule of October 8, 2020, or the September 11, 2020, mandate.
6. Administer the medical cannabis reciprocity program in full compliance with NMSA 1978, § 26-2B-7(J).”

The invalidated mandate and Emergency Rule attempted to apply additional requirements for reciprocal participants to access medical cannabis care. Some reciprocal participants have been denied access to medical cannabis care after NMDOH deactivated their reciprocal patient status without notice or explanation. NMDOH will now need to re-enroll all reciprocal patients who were previously removed, per Judge Wilson’s order.

“Once again, the NMDOH has attempted to circumvent the Legislature to deny cannabis care to qualified individuals,” said Duke Rodriguez, CEO and President of Ultra Health®.“Thankfully, the court has recognized the merits of the legislative public policy that allows individuals participating in any other medical cannabis programs to access cannabis care in a seamless manner while in New Mexico, similar to any other prescription medication.”