A revised marijuana legalization bill in New Mexico passed its first committee hearing during a special session in New Mexico on Tuesday, along with separate legislation to automatically expunge past cannabis convictions.
If all goes smoothly, the legislature could send the reform proposals to Gov. Michelle Lujan Grisham (D) by the end of the week, with sales set to kick off next year. But that’s a big if—discussions over the details of the policy change have spiraled out of control in recent weeks, and it remains to be seen whether a revised proposal can win majority support in both chambers.
Four of the bills introduced for the special session involve cannabis in some way. The most significant, HB 2, which passed the House Taxation and Revenue committee on a 8–4 vote, would legalize the possession and sale of marijuana by adults 21 and older.
The House Judiciary Committee is scheduled to hear the legalization bill later Tuesday night, after the conclusion of an ongoing floor session. If passed by the panel, it would be taken up by the full House on Wednesday morning.
#HB2 – Legalizing adult-use cannabis in NM, PASSES the House Taxation and Revenue Committee in a 8-4 vote. This bill puts equity, social justice, and shared opportunity for all New Mexicans front and center, and goes to the House Judiciary Committee next. #nmleg #nmpol pic.twitter.com/stZt1uJr8v
— NM House Democrats (@NMHouseDems) March 30, 2021
The bill is largely similar to HB 12, legislation filed during the regular session that passed the House but stalled on the Senate floor. HB 2’s biggest difference from the previous proposal is that it strips out criminal justice provisions, such as those concerning expungements. Those policies have been packaged into different legislation for the special session, SB 2.
A cleaned-up version of that bill, meanwhile, passed the Senate Judiciary Committee on a 6–3 vote and heads next to the body’s floor.
A third bill introduced for the special session, SB 3, is an alternative legalization proposal backed by Republican Sen. Cliff Pirtle, while an appropriations bill, HB 1, includes funding to establish and oversee a legal cannabis industry in the state. Pirtle’s bill wasn’t taken up in committee on Tuesday.
None of the bills was published online until more than an hour after the special session officially began. Some lawmakers complained that with less than a day before the session began, they still had yet to see draft legislation.
An update—8:05pm and members of the Senate still have not been provided a copy of @GovMLG cannabis bill. We convene in 16 hours. https://t.co/thbVNMgyKQ
— jacobcandelaria (@SenCandelaria) March 30, 2021
Backers of HB 2, widely seen as the more likely of the two legalization proposals to succeed, have been scrambling to revise the bill ahead of the special session, incorporating feedback from colleagues as well as the governor’s office.
Here are some of the main provisions in the new legalization bill:
— Adults 21 and older could purchase and possess up to two ounces of cannabis, 16 grams of cannabis concentrates and 800 milligrams of infused edibles. All products would be tested by licensed laboratories for contamination and potency.
— Home cultivation of up to six mature cannabis plants would be allowed for personal use, provided the plants are out of public sight and secured from children. Marijuana grown at home could not be sold or bartered.
— Legal retail sales wouldn’t begin for another year or so. Final license rules would be due from the state by January 1, 2022, with licenses themselves issued no later than April 1. Existing medical marijuana businesses and newly licensed small businesses could begin sales first, joined a few months later by other new retailers.
— Advertising cannabis to people under 21 would be prohibited, with the use of cartoon characters or other imagery likely to appeal to children forbidden. Advertisements would also be barred from billboards or other public media within 300 feet of a school, daycare center or church. All products would need to carry a state-approved warning label.
— There is no limit on the number of business licensees that could be granted under the program, or the number of facilities a licensee could open, although regulators could stop issuing new licenses if an advisory committee determines that “market equilibrium is deficient.”
— Small cannabis microbusinesses, which could grow up to 200 plants, would be able to grow, process and sell cannabis products all under a single license. The bill’s backers have said the separate license type will allow wider access to the new industry for entrepreneurs without access to significant capital.
— As amended in the House Taxation and Revenue Committee, cannabis purchases will include a 12 percent excise tax on top of the state’s regular 8 percent sales tax. Beginning in 2025, the excise rate would climb by 1 percent each year until it reached 18 percent in 2030. Four percent of sales under that tax would go back to local governments, with the rest retained in the state’s general fund. Medical marijuana products, available only to patients and caretakers, would be exempt from the tax.
— In an effort to ensure medical patients can still access medicine after the adult-use market opens, the bill allows the state to force licensed cannabis producers to reserve up to 10 percent of their products for patients in the event of a shortage or grow more plants to be used in medical products.
— Local governments could not ban cannabis businesses entirely, as some other states have allowed. Municipalities could, however, use their local zoning authority to limit the number of retailers or their distance from schools, daycares or other cannabis businesses.
— Tribal governments could participate in the state’s legal cannabis industry under legal agreements contemplated under the bill.
— With certain social justice provisions expected to be repackaged into a separate bill, the legalization measure retains only some of HB 12’s original equity language, primarily focused on enacting procedures meant to encourage communities that have been disproportionately impacted by the war on drugs to participate in the new industry.
— The new industry would be overseen by a newly created Cannabis Control Division, part of the state Regulation and Licensing Department. Medical marijuana would also be regulated by that division, although the Department of Health would control the patient registry.
— By September of this year, the state would establish a cannabis regulatory advisory committee to advise the Cannabis Control Division. The committee would need to include various experts and stakeholders, such as the chief public defender, local law enforcement, a cannabis policy advocate, an organized labor representative, a medical cannabis patient, a tribal nation or pueblo, various scientists, an expert in cannabis regulation, an environmental expert, a water expert and a cannabis industry professional, among others.
HB 2 also includes new provisions backed by Sen. Pirtle, who introduced a competing legalization bill during the regular session that focused primarily on undercutting illicit sales. Pirtle circulated his own draft proposal for the special session late last week and formally introduced it on Tuesday.
As HB 2’s first committee hearing began, sponsor Rep. Javier Martínez (D) told the Taxation and Revenue panel, which he chairs, that the new legislation took “all the great suggestions from both sides of the aisle, from members of both chambers, incorporating many of those changes into the bill that is hear in front of you.”
“This bill takes another affirmative step—hopefully toward passage, but most importantly, a little bit closer to perfection,” he said. “This bill is not perfect—no legislation of this magnitude will ever be perfect—but it’s pretty darn close to it.”
An amendment adopted by the House Taxation and Revenue committee increased HB 2’s proposed tax rate on the cannabis sales.
“What it does is it steps up the excise tax,” said Rep. Christine Chandler (D), who brought the amendment. “This bill starts with a 12 percent excise tax and, each year [beginning in 2025], it increases by 1 percent until it gets to 18 percent beginning July 1, 2030.” The additional money would go to the state’s general fund, despite some Democrats suggesting it be routed to communities most affected by the drug war.
The panel approved the amendment on a 7–4 vote, as some Republicans warned that the increased taxes could fuel the state’s illicit market. Supporters pointed out that even with the adjustment, taxes in New Mexico would still be lower than in states such as Colorado, California and Washington State.
An amendment to #HB2 by @Christine4nm, adopted the House Tax & Rev would increase the excise tax for recreational cannabis sales by 1% annually, starting in 2025 & continuing for 6 years. By 2030 the excise tax would amount to 18% effectively doubling state revenue. #nmleg #nmpol
— NM House Democrats (@NMHouseDems) March 30, 2021
The expungements bill, SB 3, meanwhile, saw ten relatively minor amendments in the Judiciary Committee, most of which were technical changes to language that critics called unclear or unnecessary.
The measure would automatically erase past records of arrests or convictions for activity that would no longer be outlawed under legalization. People currently in custody for cannabis crimes would also be eligible for resentencing under the bill.
Among the more significant changes adopted in committee were a provision allowing people to petition for expungement anonymously, a change intended to avoid publicizing the charges being expunged. Another amendment adds human trafficking to a list of offenses that could allow state agencies to disqualify applicants for public employment or licensing.
While it’s not yet clear how long the special session will last, advocates and lawmakers said earlier this week that they’re hoping to adjourn by Thursday.
The new legalization legislation largely parallels a bill that advanced most of the way through the process during the regular session, although key social justice portions of that bill, HB 12, have been removed and have been instead packaged into another proposal for lawmakers to consider separately.
The social justice provisions—such as automatic expungement of certain low-level cannabis convictions—were stripped from the new legislation in an effort to win support for the overall reform among Republicans and more moderate Democrats, who had criticized HB 12 as convoluted and unwieldy.
But the move has also frustrated more progressive Democrats, who have insisted equity be built into the state’s legalization scheme from the start.
Sen. Joseph Candelaria (D), who introduced his own legalization proposal during the regular session, said this week on Twitter that he wouldn’t support the new plan without revisions to reinsert certain criminal justice and labor-related portions of the bill, specifically a provision allowing past convictions to be pardoned.
Bill also lacks labor protections to guard the collective bargaining rights of workers in the cannabis industry; shocking when you have a dem gov and dem legislature.
— jacobcandelaria (@SenCandelaria) March 29, 2021
Speaking to the House Taxation and Revenue Committee, Martínez said despite decoupling the criminal justice provisions from the legalization bill, it’s crucial that both measures be passed together.
“We cannot legalize adult-use cannabis without ensuring that we do right by the folks who have made mistakes in the past and ensure their records are wiped clean,” he said. “It is my expectation that … if this bill passes, that the expungement bill will be right there with it.”
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According to a spokesperson for Gov. Michelle Lujan Grisham (D), the new bill incorporates a number of Pirtle’s ideas, such as a clause to expand training for law enforcement to detect drug use and impaired driving.
“The governor’s priority has been and remains a comprehensive body of law that enacts a well-regulated and safe legalized adult-use cannabis industry as well as one that addresses the attendant social justice concerns,” spokesperson Nora Meyers Sackett told the Santa Fe New Mexican.
The Fifty-Fifth Legislature of the State of New Mexico will convene for a special session at 12 p.m. today. #nmleg pic.twitter.com/AbpDt7DJWS
— NM Legislature (@NMLegislature) March 30, 2021
In the governor’s proclamation calling the special legislative session, Lujan Grisham said specifically that one of the purposes was to legalize cannabis and address social inequities “in a manner substantially similar to House Bill 12.”
Some lawmakers have expressed skepticism that can be done. “What I see happening during this special session is a complete and utter meltdown,” Candelaria told the New Mexican earlier this week.
Others, such as Sen. Joe Cervantes, a moderate Democrat who has called for numerous changes to the bill despite opposing adult-use legalization at all, remain unlikely to vote for the revised bill.
The point I’ve been making at the end of the regular session, and for 2 years. Legalizing marijuana this way will fundamentally change our State, and allow the already select few to make hundreds of millions of dollars wind up owning politicians and government.
— Sen. Joe Cervantes (@SenJoeCervantes) March 30, 2021
House Republicans, meanwhile, have blasted the bill’s backers and the governor’s office for not making the discussions about legalization more transparent.
“The past sixty days have been defined by the Governor and Democrats silencing the voice of the people, and the silence has become deafening following the crash and burn of their pot bill,” said House Republican Leader Jim Townsend said in a statement Monday. “If legalizing marijuana is truly about the people, you would think that New Mexicans from all walks of life would have the opportunity to contribute to the process, especially when it failed so miserable at the last minute due to too many cooks in the kitchen.”
Legislative leaders worked to hammer out a legalization deal throughout the state’s 60-day legislative session this year. Sponsors of at least five different original bills have tried to unify the conflicting proposals and incorporate feedback from colleagues.
Polling indicates New Mexico voters are ready for the policy change. A survey released in October found a strong majority of residents are in favor of legalization with social equity provisions in place, and about half support the decriminalization of drug possession more broadly.
Gov. Lujan Grisham, meanwhile, included cannabis legalization as part of her 2021 legislative agenda and has repeatedly talked about the need to legalize as a means to boost the economy, especially amid the coronavirus pandemic. She said during a State of the State address in January that “a crisis like the one we’ve experienced last year can be viewed as a loss or as an invitation to rethink the status quo—to be ambitious and creative and bold.”
Additional pressure to end cannabis prohibition this year is coming from neighboring Arizona, where sales officially launched in January after voters approved a legalization ballot initiative last year. To New Mexico’s north is Colorado, one of the first states to legalize for adult use.
Cannabis is also expected to be legalized across the southern border in Mexico, with lawmakers facing a Supreme Court mandate to end prohibition by the end of April.
Before last year’s failed effort, New Mexico’s House in 2019 approved a legalization bill that included provisions to put marijuana sales mostly in state-run stores, but that measure died in the Senate. Later that year, Lujan Grisham created a working group to study cannabis legalization and issue recommendations.
In May of last year, the governor signaled she was considering actively campaigning against lawmakers who blocked her legalization bill in 2020. She also said that she’s open to letting voters decide on the policy change via a ballot referendum if lawmakers can’t send a legalization bill to her desk.
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Photo courtesy of Mike Latimer
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