NM moves ahead gingerly with med marijuana law
By Tim Korte / The Associated Press
Posted: 02/09/2009 03:02:51 PM MST



ALBUQUERQUE — Eighteen months after New Mexico enacted a first-of-it-kind medical marijuana law, the state is moving gingerly ahead, mindful that the closely watched program could go up in smoke because it conflicts with federal law.

New Mexico's statute, which took effect in July 2007, differs from 12 other states that have approved medical marijuana legislation in one major way — state health officials will oversee a production and distribution system.

To borrow the street metaphor, the state needs a dealer.

Of course, that puts New Mexico's health department sideways with federal drug laws that make it illegal for anyone to possess, grow or distribute marijuana. It's also illegal under federal law to solicit someone for those purposes.

The new administration of President Barack Obama isn't likely to change anything — not immediately anyway.

"This is a matter of the law and the law hasn't changed," said Rafael Lemaitre, spokesman for the National Office for Drug Control Policy. "It's still illegal to grow, possess and distribute marijuana."

He said he couldn't discuss specifics of the New Mexico plan.

Bruce Mirken of Marijuana Policy Project, a Washington-based advocacy group, said New Mexico is being closely monitored because it is apparent that state officials have put a lot of thought into the program.

"Theoretically, what New Mexico is trying to do makes a great deal of sense," he said. "We'll see how it plays out. But it certainly

makes sense for patients to have someplace they can go that is reliable and safe to get their medicine."
Greg Fouratt, the U.S. attorney in New Mexico, described the conflict as "a difficult situation" but said the law is unambiguous.

"The state can't legalize something and then prevent federal authorities from prosecuting the same thing, if they choose to do so," he said.

And what if the new Obama administration decides to change federal law?

"I can't imagine that would be a priority, but we'll do what we're told," Fouratt said.

Since the statute took effect, 207 patients have been licensed, able to possess up to 6 ounces of marijuana. Officials are only now beginning to implement the production and distribution side of the program.

State Health Department spokeswoman Deborah Busemeyer said New Mexico has moved carefully, especially in developing tight requirements for any business that hopes to grow or distribute marijuana on behalf of the state.

So far, health officials have received just one application. Identities of participants — patients, producers and distributors — are protected by the state's confidentiality rules.

However, Busemeyer said all applicants are rigorously screened and, because of safety concerns for patients and producers, there is a long list of regulations. For example, only nonprofit businesses can grow the drug.

"It is important to have people who, as a business, have expertise with herbs or medicine to ensure they are able to grow medical cannabis in a way that ensures both quantity and quality," Busemeyer said.

While licensed patients, growers and distributors are protected against state prosecution under the law, she said all applicants are warned there is no protection against potential federal action.

Asked about the federal conflict, Busemeyer said state health officials are merely following marching orders they were given by New Mexico lawmakers.

"We tried to create a program that does what it intended to do," she said.

Patients can be licensed in New Mexico if a doctor certifies they are chronically suffering from cancer, glaucoma, multiple sclerosis, epilepsy, AIDS and certain spinal cord injuries. Hospice patients are also eligible.

After a recent petition hearing in Albuquerque, an advisory committee recommended adding eight more conditions for the list, including Lou Gehrig's disease, fibromyalgia and post-traumatic stress disorder.

The federal issue has been evident during development of the law.

In August 2007, one month after the statute took effect, New Mexico Attorney General Gary King warned that the Health Department and its employees could face federal prosecution for implementing the act.

Gov. Bill Richardson told the agency to move ahead with the program but the state later pulled back from direct involvement in production and distribution, choosing to have the non-profits perform that work instead.

"A lot of states have been uneasy about trying to organize distribution of medical marijuana because of a fear of the feds," Mirken said. "If the feds would get out of the way, it would be much easier."

Rather than flouting legal differences with federal law, Busemeyer said state health officials are emphasizing the strict controls they're building into the system, along with what they believe are significant benefits to patients.

"We wish federal law was as progressive as our law, which recognizes there are people with debilitating conditions," she said. "They can't get relief anyplace else but medical cannabis."

Fouratt called it "an unenviable position" to prosecute any patient who carries a doctor's prescription to treat an illness.

"But that's a judgment made by Congress," he said. "Until Congress changes the law, it is the responsibility of the executive branch to enforce it. Now, what a jury would do? That's something that is down the road."

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State Health Department program: http://www.nmhealth.org/marijuana.html

Office of National Drug Policy Control: http://www.whitehousedrugpolicy.gov/

Marijuana Policy Project: http://www.mpp.org/



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