February 5, 2021

NM lawmakers faced with a number of proposals to legalize cannabis

New Mexicans who are following the push by many lawmakers to legalize recreational-use cannabis now have plenty of reading material. 

Legislators have filed four legalization bills, two of which have identical language. All of the bills have the same general goal, but with different paths to get there and varying standards of what would and wouldn’t be allowed in a post-legalization New Mexico. Passage of any of the bills is still not a guarantee and given the history of previous cannabis legalization proposals and the legislative process in general, it is likely some pieces of the differing bills will be absorbed into one final bill.

What was once an issue with more of a binary argument, is now an issue with nuances and proponents with a variety of priorities as it gets closer to becoming reality. Just six years ago, a cannabis legalization bill sponsored by a Democrat was assigned to five committees and was never considered by its first panel. This year, lawmakers will likely shift their concerns to the best tax rate, whether the state should allow home grows and how to ensure the state’s medical cannabis program stays intact. 

Likely to be one of the more contentious issues, and possibly the first one to be tossed out, the ability to legally grow cannabis at home is one of a list of things that sets HB 12 apart from the other proposals. Sponsored by Rep. Javier Martínez, D-Albuquerque, and Rep. Andrea Romero, D-Santa Fe, HB 12 would allow people to grow up to six mature plants at home. The home grow allowance is also just one of the many provisions included in HB 12 that also aligns with the Drug Policy Alliance of New Mexico’s priorities for legalization. Martínez and Romero’s bill also seeks to automatically expunge previous drug convictions under previous laws. So far, HB 12 is the only bill filed that includes automatic expungements and a community investment program for communities “disproportionately affected by past federal and state drug policies.” 

Emily Kaltenbach, the state director of the Drug Policy Alliance, said Martínez and Romero’s bill comes closest to what her group would like to see in a legalization effort and that the two Senate proposals miss the mark when it comes to social and restorative justice.

“There are a lot of details that have been left out of the Senate versions that we will be advocating for inclusion, because a bill without social justice, and equity is a non-starter,” Kaltenbach said. 

Another House legalization bill is sponsored by Rep. Tara Lujan, D-Santa Fe and is endorsed by the New Mexico Cannabis Chamber of Commerce. An identically written bill is sponsored by Sen. Daniel Ivey-Soto, D-Albuquerque. In a statement through the Cannabis Chamber of Commerce, Lujan said she’s open to working with her colleagues to come up with one, agreeable bill.  

“We are absolutely open to, and expecting to, work with sponsors of other bills to collaborate on the final version that is sent to the governor’s desk,” Lujan said. “We know the hugely negative impact of the failed war on drugs on people of color and economically disadvantaged communities and feel that restorative justice programs deserve to be considered.”

Ivey-Soto previously told the Santa Fe Reporter that he was considering a different way to address previous convictions, although it does not appear in his bill. 

Lujan’s HB17 and Ivey-Soto’s SB 13 do not allow for people to grow cannabis plants on their property for personal use and both bills suggest a $500 fine for anyone caught growing three plants or less. Anyone caught growing more than three mature plants would face a fourth-degree felony charge, under their bills. 

Lujan and Ivey-Soto’s bills would also limit legal cannabis possession to two ounces. Martínez and Romero’s bill also has a two ounce limit, but does not include a limit on cannabis “stored in the person’s residence in a locked space” that is not visible to the public

Also in the Senate is a Republican backed cannabis legalization bill. 

Sen. Cliff Pirtle, R-Roswell, is sponsoring SB 288, which also includes limits on how much legally purchased cannabis a person can obtain and does not allow for home grows. Pirtle told NM Political Report the penalties and limitations in his bill are designed to move forward with legalization without feeding the black market. 

“We’re trying to ensure that we maintain the Lynn and Erin Compassionate Use Act, while also bringing in recreational cannabis in order to push out the illicit market,” Pirtle said. “So do we then just turn our eyes to those who continue to push cannabis within the illicit market?”

Plenty in common

While the three different types of cannabis legalization proposals differ in terms of specifics, they also share similarities. On the most basic level, all of the bills share the name “Cannabis Regulation Act.”

All of the bills currently filed would also, in one way or another, remove many responsibilities from the New Mexico Department of Health, which currently oversees the state’s Medical Cannabis Program. Each proposal creates its own version of a new cannabis commission or division that would oversee recreational-use cannabis, but also work with other existing entities like the state Environment Department and the Department of Agriculture. Those two departments also share responsibility in regulating hemp manufacturing. Hemp is another variety of cannabis that has .30 percent of tetrahydrocannabinol (THC), a psychoactive substance in the plant. 

All four bills include varying timelines for legalization, but they all propose that the process starts moving forward by this fall. Pirtle’s bill would require that specifics through rule promulgation be done by September of this year. Martínez and Romero’s bill wouldn’t require rules to be promulgated until next January, but their proposal would allow existing medical cannabis dispensaries to start selling recreational-use cannabis by October of this year. The two bills endorsed by the Cannabis Chamber of Commerce propose that transitional licenses to sell recreational-use cannabis start being issued by this July. 

All of the legislation largely pushes for a similar tax rate, although they differ in how that rate is broken down and how tax revenue is distributed. All of the proposals would create a new cannabis tax between 16 and 20 percent. Economists and tax experts all seem to agree that any tax higher than 20 percent drives consumers to the less-expensive black market and taxes lower than 16 percent would hinder state revenue. 

In 2019, a working group convened by Gov. Michelle Lujan Grisham to work towards legalization largely decided that the best plan for tax revenue was to earmark, or designate funds, to specific departments. Since then, views have shifted slightly and many advocates now argue earmarks should be kept to a minimum, if not scrapped altogether. 

Ivey-Soto previously told NM Political Report that he planned on avoiding earmarks, but his and Lujan’s bill include a “low-income medical patient assistance fund” to help patients who have trouble affording their medical cannabis. 

Pirtle’s bill also includes tax revenue earmarks, but for a proposed “road safety fund” that would be used for things like studying new ways to spot cannabis impairment by law enforcement and to pay for “drug recognition expert field certification training for law enforcement officers.”

Martínez and Romero’s bill also includes earmarks, but Martínez recently told NM Political Report that his views have changed on devoting funds to specific issues or departments. Martínez was a member of the governor’s legalization working group that proposed earmarking nearly all of the tax revenue from cannabis sales. His and Romero’s bill proposes setting aside a portion of the tax revenue for a low-income patient fund as well as a community reinvestment program that would eventually go to communities disproportionately and adversely impacted by previous drug laws. 

None of the proposals have a scheduled date to be heard in a committee, and likely will not until legislative analysts complete fiscal impact reports. It’s also likely that by the time the bills face committees the sponsors will have amendments at the ready.There is also still time for sponsors to essentially merge their bills together. Senate Majority Floor Leader Peter Wirth previously told Growing Forward, a podcast collaboration between NM Political Report and New Mexico PBS, that he plans to serve as a mediator on the Senate side in order to come up with a unified proposal to send to the governor.