New Mexico’s New Legalization Bill Is Shockingly Good. Too Bad It Won’t Pass.

Published on February 1, 2018 · Last updated July 28, 2020
Sunset in downtown Santa Fe, New Mexico

A group of five New Mexico lawmakers have introduced an ambitious plan to legalize cannabis for adults 21 and older. If approved, the bill would put the state on pace to begin regulated sales in early 2020.

At a hefty 130 pages, the bill is remarkably comprehensive, with provisions for retail sales, on-site social consumption, homegrow, cannabis delivery, and even a program to subsidize cannabis for medical patients.

But don’t get your hopes up just yet—even the bill’s supporters acknowledge it’s unlikely to pass this year.

“We spend millions of dollars criminalizing people who use marijuana without seeing benefits to public health or safety. We need to legalize marijuana in New Mexico and stop the harm that disproportionately affects those who are living in poverty and those who are Black, Native and Hispanic/Latino,” state Rep. Javier Martínez, who introduced the bill, said in a statement.

“We don’t expect the bill to pass this year, but introducing it is important.”

“The punishment doesn’t fit the offense,” he added, “and New Mexicans agree we should remove penalties and instead tax and regulate marijuana.”

Joining Martínez in introducing the measure, House Bill 312, were Reps. Bill McCamley, Antonio “Moe” Maestas, Deborah A. Armstrong, and Angelica Rubio. All are Democrats.

Legalization advocates say that while the bill’s passage is unlikely—the legislative session ends on Feb. 15—its introduction paves the way for a more meaningful conversation in the Capitol.

“We don’t expect the bill to pass this year, but introducing it is important,” Emily Kaltenbach, New Mexico state director for the Drug Policy Alliance, said in a statement. “We also hope to discuss the merits and challenges of marijuana legalization with legislators during the interim session as well as with their constituents. Feedback from these conversations will make for the best, most carefully thought out policy proposal for 2019.”

If the draft bill is only a starting point, it’s a surprisingly robust one. It contains provisions that have yet to be seen in other states’ cannabis programs, such as priority licensing for applicants who capture solar energy or use recycled water. Other unique provisions include the establishment a medical cannabis subsidy program, which would distribute a portion of cannabis tax revenue to qualified cannabis patients in order to offset the cost of medicine.

The bill would establish a Division of Cannabis Control, which would regulate, administer, and collect fees from the industry. It would oversee both adult-use and medical cannabis, with the exception of the state’s medical registry, which would continue to be handled by the state Department of Health.

Other than that, the state-legal program envisioned by the bill would look much like those in most other adult-use states. Cannabis businesses would be licensed, regulated, and taxed by a newly created Division of Cannabis Control, which would need to set rules and regulations for the new industry.

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Under the bill, adults 21 and older could legally possess up to two ounces of cannabis or 16 grams of cannabis extracts. Both storefront sales and the gifting of cannabis among adults would be allowed. For those interested in growing at home, cultivation of up to six mature plants and six immature plants would be permitted.

The bill would also allow for a retailer to have a “cannabis consumption area” where patrons could enjoy their purchases in a social setting. For those less inclined to consume next to strangers, the legislation allows for “cannabis couriers” who could deliver products directly to customers.

All cannabis products would need to have a “representative sample” screened by a state-licensed laboratory, which would test for major cannabinoids—THC, CBD, CBG, and CBN—as well as terpenes, residual solvents or chemicals, foreign materials, and microbiological contaminants like mold and certain other pathogens.

Extraction using volatile chemicals, such as butane or ethanol, would require a state license.

A list of major cannabinoids in cannabis and their effects

Advertising would be severely restricted, both in form and content. None would be allowed on broadcast TV, cable, or radio, nor could advertisements appear on public transit, on publicly owned property, or within 200 feet of a school, playground, childcare center, park, or library. Unsolicited internet pop-ups? Those are banned, too.

Local municipalities could set limits on industry, although any move to ban retailers in a locality of more than 5,000 people would have to be put to a public vote.

The bill also includes certain protections from discipline or discrimination related to legal cannabis activity. Schools, for example, could not refuse to enroll someone over legal conduct, nor could a professional licensing entity penalize a member for legal cannabis consumption.

While the measure would penalize minors for activity involving cannabis, rarely would offenders face criminal charges. People under 21 found in possession of small amounts of cannabis, for example, would face civil penalties, such as fines, mandatory drug education, and community service.

Those who already have cannabis convictions on their records would also see relief, at least if they were convicted of a crime the bill would make legal. Corrections facilities would be required to notify courts if a convicted person’s case should be reopened, at which point the charges could be recalled or dismissed. Those who’ve already completed their sentences could file an application in court to have their convictions dismissed and sealed.

And while people with criminal convictions could face an uphill battle securing a state cannabis license, the bill specifically notes that past convictions involving controlled substances are “not considered substantially related to the qualifications” for a license and “shall not be the sole ground on which an application is denied.” In other words, someone who was a small-time cannabis seller in college 10 years ago wouldn’t be shut out of the legal market.

For those worried about a looming crackdown by the Jeff Sessions-led Justice Department, the bill includes a provision barring state and local law enforcement from cooperating with federal enforcement of the Controlled Substances Act in cases where the conduct is state-legal.

As for taxes, the bill doesn’t set a specific rate. Instead, it dictates that a tax rate be set based on a number of policy goals, such as undercutting the illicit market, preventing the adult-use market from undercutting the legal medical market, preventing cannabis use disorder, and avoiding use by people under 21. That’s a lot to ask of a single tax rate, but, like much of the bill’s language, it at least indicates an awareness by the bill’s authors of the difficult balancing act involved in appropriately regulating cannabis.

The legislation’s long odds mean it’s unlikely New Mexico will become the next legal adult-use state. But the bill’s sophistication could bode well for the road ahead.

The full text of HB 312 is available on the New Mexico Legislature’s website.

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Ben Adlin
Ben Adlin
Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin
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