On June 28, 2019, Governor Michelle Lujan Grisham announced the creation of a “Cannabis Legalization Working Group.” The task force consists of 19 members including the Democratic and Republican legislators who sponsored unsuccessful legislation this year to authorize and tax recreational marijuana sales at state run stores. The group also includes representative of a labor union, sheriff’s department, health care business, Native American tribes, medical cannabis businesses, a county government association, and commercial bank and hospital company.
The Working Group is in the process of holding public hearings, listening to the public and compiling recommendations for the governor that will be incorporated into proposed legislation to be introduced in the 2020 legislative session. Governor Lujan Grisham said after the Legislature adjourned on March 21, 2019 that she would add the issue of legalizing recreational marijuana use to the 2020 legislative agenda which will be a 30-day session.
Eleven states thus far have legalized recreational marijuana. Candidate for Governor Lujan Grisham said last year that she supports legalizing the recreational use of marijuana for adults but with a few caveats: it must be done in a way that addresses workplace intoxication and driving under the influence and it must be done in a way that keeps it away from children and meet other requirements of regulation, production, sale and distribution.
CONSULTANT REPORT TO WORKING GROUP
On August 15, 2019, the Cannabis Legalization Working Group met in Albuquerque and listened to a consultant who volunteered her services to the group and has studied marijuana demand for a private medical marijuana company. She made it clear the she was speaking to the group on her own behalf.
Consultant Kelly O’Donnell told the working group that if recreational marijuana is legalized in New Mexico, the state can expect out-of-state tourism and the reduced stigma and other factors to help fuel sales of recreational marijuana.
O’Donell reported that the demand for recreational marijuana and related cannabis products has far outpaced expectations in the State of Colorado since it was made legal. O’Donnel estimated the annual revenue for state and local governments could hit $120 million in five years, well beyond what legislative analysts estimated earlier this year. The market will also depend on the tax structure and the of regulatory decisions that will have to be implemented.
O’Donell told the group that New Mexico could expect more adults to use marijuana if it’s legal and as it becomes more socially acceptable. She made the claim by saying:
“It’s not the kids who are smoking more pot. It’s grown-ups, which is a good thing, generally speaking. [ With legal marijuana] There will be more people willing to use it.”
With New Mexico’s proximity to El Paso, Texas and Juárez, Mexico, tourism is no doubt a major factor. The laws in Mexico on marijuana use are conflicted.
Texas is not expected to legalize marijuana anytime soon. O’Donnell said that if legalization is approved, New Mexico policymakers should consider how to tap into the Texas market without violating interstate commerce laws and maintaining health and safety protections.
James Girard, a member of the task force and an economist for the state Taxation and Revenue Department, told the group the large number of people who live in Texas and Mexico near the New Mexico line will have a “multiplier effect” that should be considered if marijuana is legalized in the state. Normal use and sales could be doubled and even tripled with sales mad to those coming from Texas or Mexico.
PROTECTING MEDICAL MARIJUANA PROGRAM
Task force member Heath Grider, a Portales resident whose wife is a medical cannabis patient, said the demand for recreational marijuana would have to be dealt with effectively to ensure that patients aren’t left without medical marijuana. According to Grider, medical marijuana suppliers are finding it difficult to keep up with the market in rural New Mexico.
New Mexico Cabinet Health Secretary Kathy Kunkel did report to the task force that other states that legalized recreational marijuana have experienced drops in enrollment in their medical programs. Kunkel said she has heard complaints from medical marijuana patients who say they can’t get marijuana products such as lotions, gels and suppositories.
The task force chairman, City Councilor Pat Davis said the group is examining how to legalize marijuana without harming New Mexico’s long-standing medical cannabis program. The task force supposedly is exploring a variety of options for protecting the medical marijuana program.
There are at least 4 options being looked at by the task for to protect the medical marijuana industry and they are:
1. Establishing a licensing and fee system to provide an incentive for companies that produce marijuana for medical consumers.
2. State regulators could require that a certain amount of a company’s sales be dedicated to patients.
3. New Mexico could also encourage medical consumers to stay in the program by exempting their purchases from the taxes levied on recreational consumers.
4. The State could require providers to reserve certain products with high potency for medical patients only.
ARIZONA EFFORTS TO LEGALIZE RECREATIONAL MARIJUANA
One New Mexico bordering state that was not discussed was Arizona. Arizona voters may get a chance to decide in 2020 whether to legalize recreational marijuana. Legalization advocates in the state have said they’ve filed paperwork with the Arizona Secretary of State to put the question before voters in 2020. At least 237,645 signatures from registered voters need to be collected by July 2020 to qualify for the ballot. The 2020 initiative would allow adults 21 and older to have up to 1 ounce of marijuana and would also create more retail marijuana licenses. The Phoenix New Times reported.
In 2016 a legalization initiative was defeated in Arizona after getting only 49% of the vote. Arizona was the only loss in 2016 out of 8 states that had legalization initiatives on the ballot. In 2016, California, Maine, Massachusetts and Nevada all legalized recreational marijuana. Arkansas, Florida and North Dakota approved medical marijuana legalization.
2019 NEW MEXICO LEGISLATURE’S PAST ATTEMPTS TO LEGALIZE MARIJUANA RECREATIONAL USE
Attempts to legalize recreational marijuana use in New Mexico have been extremely difficult during the last 8 years, predominately because of strong opposition from the former Republican Governor “She Who Must Not Be Named” and the conservative Republican and Democrat legislators who should be named.
During the 2019 New Mexico Legislature which ended March 15, 2019, that changed with the election of Governor Mitchell Lujan Grisham. The most progress was made when one bill actually made it through the New Mexico House of Representatives. The Governor’s “Cannabis Legalization Working Group” said it would be looking at the failed legislation as a starting point and may even modify it for the 2020 session. For that reason, following is a reminder of the legislation:
HOUSE BILL 356
On March 7, 2019 the state House passed House Bill 356 (HB 356) with a two-vote majority of 36 to 34. HB 356 was the first recreational marijuana proposal ever passed by one of New Mexico’s legislative chambers. HB 356 was legislation that was the result of bipartisan efforts and talks involving House Democrats and Senate Republicans. Every Republican Representative in the House voted against HB 356 joining 10 Democrats in opposition to it. All previous efforts of marijuana legalization have failed in the Senate because of skepticism from conservative Democrats in the Senate.
HB 356 bill included a provision for state run and regulated stores. The compromise bill required people to keep receipts showing they purchased their marijuana legally, and they could carry only 1 ounce of cannabis and couldn’t grow it on their own. House Bill 356 was a broad marijuana legalization proposal and dedicated some of the tax revenue from cannabis sales to research into cannabis impairment, purchasing roadside testing equipment for law enforcement and to train police officers as drug recognition experts when drivers are stopped. The bill made it clear that employers could still maintain drug-free workplace policies.
The bipartisan HB 356 stalled in the Senate and never made it to the full Senate for passage. The legislation failed when the session was adjourned on March 21, 2019.
SENATE BILL 577
Senate Bill 577 was the New Mexico Senate’s version of legislation that would legalize the recreational use of marijuana. It included state run stores. The 3 Republican Senator sponsors Cliff Pirtle, Mark Moors and Craig Brandt argue that legalization is inevitable and that state-run stores would help limit exposure to children and allow New Mexico regulators to respond to problems. State run stores appealed to many because it would have given the state strong regulatory controls and make it easier to keep cannabis products away from children.
Under the Senate proposed legislation, New Mexico itself would get into the cannabis business by operating a network of retail stores to sell marijuana to adults 21 and older. A state “Cannabis Control Commission” would have been created to operate cannabis shops by summer 2020. The marijuana would have been sold on consignment, meaning the state would not own the cannabis.
Under the Senate Bill, recreational marijuana would have been grown by private businesses under a complex regulatory system and sold only at state-run stores, with limited exceptions. It would have given the state tremendous control over where and how the products would have been sold and who could have gotten their product to customers. According to the Drug Policy Alliance, the system proposed for state run recreational cannabis stores would have been the first of its kind for recreational marijuana in the United States. Senate Bill 577 never made it through the State Senate and the legislation failed when the session was adjourned on March 21, 2019.
CHANGES MADE TO NEW MEXICO’S MEDICAL CANNABIS LAW
There are over 70,000 people enrolled statewide in New Mexico’s medical cannabis program. During the 2019 New Mexico Legislative session, the legislature enacted changes to the medical cannabis laws giving more workplace protections to those enrolled in the program. In April, 2019, Governor Lujan Grisham signed into law the changes made by the legislature to the program and the changes took effect on July 1, 2019.
Two of the major changes involve work place protections for those enrolled in the program and are:
1. The law now provides that it is unlawful in most circumstances for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program. It is not clear whether this change in the law will affect employers with policies that require drug testing of applicants before they are hired, with a positive test precluding their hiring regardless of whether they have a medical marijuana card.
2. The second major change to the law specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence of the drug and take action against employees who violate the policy. Concern has been raised in the business community that anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic.
New Mexico State Senator Jerry Ortiz y Pino, the sponsor of the legislation, said in an Albuquerque Journal interview the changes are not intended to render drug-free workplace policies untenable, but acknowledged lawmakers may have to revisit the issue in the future to further fine-tune language in the law.
Three other major changes to New Mexico’s medical cannabis law included:
1. Allowing medical marijuana in schools, under certain circumstances.
2. Extending the length of an approved patient identification card from one year to three years.
3. Mandating that a licensed medical marijuana user cannot be denied an organ transplant on the basis of their participation in the program.
NEW MEXICO REDUCES CRIMINAL PENALTIES
During the 2019 New Mexico legislative session, lawmakers enacted legislation that reduces criminal penalties for possession of small amounts of marijuana. In April 2019, Governor Lujan Grisham signed into law Senate Bill 323 that makes first-time possession of up to a half ounce a petty misdemeanor offense, punishable by a $50 fine. It also decriminalizes possession of drug paraphernalia, making New Mexico the first state to do so in the country. The reduced criminal penalties go into effect on July 1, 2019.
COMMENTARY AND ANALYSIS
The work of Cannabis Legalization Working Group appears to be progressing well with every effort being made to reach a consensus on what to submit to the Governor. The recommendations and any suggested legislation is the necessary groundwork for a legalization bill to make it to the Governor’s desk in 2020. With The 2020 legislative session that starts in mid January and time is getting short. Time is still needed for interim legislative committees to review any of the proposals and perhaps even find sponsors.
One option that will likely be considered is placing the issue on the ballot for voters to decide, which has been done in other states like Arizona and Colorado. However, if a strong consensus can be achieved and if a recreational legalization program can be supported by large majorities in both the House and Senate, they should proceed and vote to legalize the recreational use of marijuana.
Legalize, regulate, tax like alcohol and cigarettes.