When the New Mexico Legislature passed the Lynn & Erin Compassionate Use Act two years ago, laying the foundation for a state-administrated medical cannabis program, epidemiologist and pot grower Bernie Ellis
was ecstatic because it mirrored suggestions (.doc)
he'd made to Gov. Gary Johnson several years earlier.
Now, however, Ellis has concluded (.doc
) that the policy makers in the Department of Health are either uninformed or in passive opposition to the program.
Ellis has been growing medical cannabis for more than 20 years, even while serving as a health official with several government entities, including managing a substance abuse research program for the state of New Mexico.
"My personal history seems to be a contradiction in terms,"Ellis tells SFR in a phone interview from his farm in Tennessee. "On the one hand as a public health professional I am well aware that our country is awash in serious substance abuse. On the other hand, as a lifelong cannabis user and provider, I am aware for the most part cannabis provides many more benefits than it has detrimental effects, particularly in the health care arena."
In 2002, federal law enforcement raided Ellis' farm in Tennessee. He was sentenced to probation rather than prison time following a large outpouring of public support, Ellis says. The medical marijuana martyr contacted SFR to share his thoughts on New Mexico's system.
DM: What are you doing these days?
BE: These days I'm trying desperately to stay alive. Seven years after my own raid, my thriving public health epidemiology consulting business has gone by the wayside. Even though I received a sentence of probation--initially four years, later cut in half--any federal conviction pretty much eliminates the opportunity to work in my field. As hard as it is to look at any dance with federal wolves in a positive way, I think it did free me up to focus on two pretty important and I think intertwined issues. One is to work with a number of legislators here in Tennessee who are interested in a state medical marijuana program. The other thing I'm pleased to have been involved in is the battle to return to paper ballots here in Tennessee (as you folks decided to do in 2006). I believe if our politicians actually listened and acted on the will of the people, medical marijuana would be available in every state in the union and it would also be available on demand in pharmacies.
In your email you said you worked on this eight or nine years ago. Take me back.
Back in 2000-2001, I was invited to give testimony to the state legislature there in New Mexico about the legislation to close all drive-up windows for alcohol sales statewide...So, while I was there in Santa Fe, I had a chance to meet one of Gov. Gary Johnson's staffers to discuss the governor's interest in establishing a state medical marijuana program. At that time I said the biggest problem with these programs is the limitation that patients cannot begin growing legally until they're approved to be part of the program. Many patients need access to cannabis as soon as they're diagnosed with their qualifying condition, not six to eight months later when they can harvest a crop. Gov. Johnson's staffer asked me to write a position paper on that issue .
The upshot of the paper was to say that a state like New Mexico does need to fund and license and oversee large scale production facilities that would make cannabis available to patients as soon as they need it. Ironically, the day I was planning to send the proposal to Gov. Johnson was the day my farm was raided here in Tennessee. As the task force was ransacking my house, and all of the other nice things they do when they invite themselves onto your property, I actually had a copy of the proposal sitting by my computer. I gave a copy to the task force director and said, 'You're welcome to read this and take it with you.'
You've been watching how New Mexico has been developing its own medical marijuana program. What did you think when it first passed?
Oh, I was very excited, as were a number of medical marijuana activists around the country, because New Mexico became the first state to include within its legislation the provision to allow the licensing of large scale production facilities. That was a real cause for celebration for a lot of us and obviously I took some personal pride that the law included within it provisions that could be tied directly back to the position paper I had written years earlier.
The other thing I was very pleased about was Gov. Richardson's willingness to invest considerable political capital in essentially insisting that the law be passed, not allowing the legislature to once again let the law die. Again, when your law passed, there were thousands if not millions of people nationwide who celebrated along with New Mexicans.
You know, we're getting plenty of people who are moving here because of it.
Right. Well, they're moving under false pretenses, but they couldn't live in a more beautiful state than New Mexico.
Well, tell me about these false pretenses. What is your analysis of the program so far?
There are number of things that are frustrating to me and to many others. The first is how passive aggressive it appears from the outside your decision makers have been in developing the regulations. To take 15 months longer than the legislature required for them to issue regulations was certainly a point of frustration and then for them to issue regulations that are essentially wholly unworkable, impractical and not grounded in any experience with cannabis production is very frustrating.
Can you give me an example of why it's unworkable?
If patients move to New Mexico believing that there's going to be an immediate source for cannabis, they're going to be sorely disappointed. Patients who attempt to grow for themselves will find that the limitations on the size of the vegetative plants, the number of flowering plants, the amount of dried material they can possess, all of those requirements will essentially result in most of your patients being in violation of the regulations and thus subject to arrest.
If you were a patient trying to grow for yourself and you decided to grow outdoors and there's no requirement against that, and New Mexico's climate is one of the most ideal places in the country to grow cannabis outdoors, you're going to end up with one harvest each year. So, you've got to produce enough cannabis with that one harvest to last you for the entire year. In my experience, having provided to patients now for about 20 years, there are a large number of patients with chronic conditions who use on average about an ounce of cannabis a week. If your typical New Mexico patient is the same sort of user, they're legally allowed to possess only six weeks of medicine and anything that they possess above that six ounce limit is in violation of regulations and places them subject to arrest.
I've talked about this with some of New Mexico's caregivers, none of whom are following the law because they all agree with me that you cannot both follow the New Mexico's regulations and produce either sufficient cannabis or cannabis of sufficient quality to be useful. We tried to calculate what it would take to follow the law and yet also have enough cannabis to meet your needs and its going to take devoting two or three rooms in your house and being essentially in a constant state of trying to get enough medicine out of bonsai-sized plants to make the whole process worth it.
Frankly, people with a cancer diagnosis have more important things to do with their time than become obsessed with cannabis production, devote most of their house to cannabis production and become experts in cannabis production at the same time they're going through chemotherapy.
Why do you think the New Mexico Department of Health came up with those regulations and limits?
There are only two explanations to me for why the regulations were written that way. One is that they were written by people who have absolutely no experience with growing cannabis or two, they were written by people who have no interest in your program succeeding. If you place these illogical restrictions on plant count, plant size and amount of dry medicine a patient can possess, you essentially set up an unworkable situation from the beginning.
My recommendation had been that patients should be allowed to possess up to 12 [full-size] flowering plants and up to 24 [full-size] vegetative plants and that they be allowed to possess essentially a year's supply of medicine....Anything less than that and they're either going to have to hide what they produce from the state or they're going to have to go back to the illicit market to supplement the small amount they are able to grow legally for themselves.
The Department of Health says that each approved nonprofit producer can serve anywhere between 40 and 90 patients, while sticking to the 95-plant limit. As a grower, what do you make of that estimate?
If I were an approved dispensary out there allowed to grow 95 plants, even busting my hump, I might be able to serve six people total, not 85 or whatever these absurd numbers are...Those six people would be very happy, but I couldn't produce cannabis for those six, handling all of the cost associated with security and the other costs of producing and save them anything or charge them any price below what they're going to end up having to pay on the streets anyway.
When I say six patients, I'm saying six who have a chronic condition that they're living with and I'm estimating about an ounce a week per patient. If I was only serving people who were newly diagnosed cancer patients who were planning only to use cannabis during their chemotherapy, then I could serve many more [patients] than that.
You estimate that 46,000 New Mexicans are eligible for the medical marijuana program under the law. How did you come up with the number?
That's one place where my epidemiological experience played a role. I called the New Mexico cancer registry, I called the HIV/AIDS coordinators, the multiple sclerosis society, any organization in the state or state agency that actually is responsible for either accurate counting or estimating the incidences and prevalence of those qualifying conditions. That figure was based strictly on the first set of qualifying conditions...so even that 46,000 number I came up with is a very conservative estimate.
The official number of enrolled patients is 361. Why is there such a disparity between that and your estimate? We're talking several zeroes here.
When I came out there last September to testify at the hearings on the regulations, I stood up and said I imagine of the 46,000 people with qualifying conditions 5,000 to 10,000 of those are currently using cannabis. They just don't see any value in applying to be part of your program. If it's not going to make it any easier for them to get cannabis and they're going to end up violating the regulations anyway and either have to hide pot from the state or go back to the streets to buy it, why bother to go through the process of being approved?