Members Of New Hampshire Marijuana Legalization Commission Spar On Details Ahead Of Looming Bill Deadline

November 11, 2023 · marijuanamoment.net

With less than a month left before a New Hampshire commission is due to put forward a plan for how to legalize adult-use marijuana sales through a system of state-controlled stores, members were visibly frustrated at a Thursday meeting with the group’s slow, meandering progress through a draft bill circulated last month by the group’s chair, Sen. Daryl Abbas (R).

Lawmakers on the panel grew combative with one another over issues such as penalties for public consumption of cannabis, dual licenses for existing medical marijuana businesses and the very handling of the commission meetings themselves. After more than two hours of sometimes testy debate, for instance, Sen. Rebecca Whitley (D) raised a point of order requesting members to “be more respectful of our process here and our other commission members”—a critique that led to a squabble with Abbas over who interrupted whom.

The 19-member Commission to Study With the Purpose of Proposing Legalization, State Controlled Sales of Cannabis and Cannabis Products has only two more meetings scheduled before its December 1 deadline to submit a proposed bill that the legislature is supposed to take up in the 2024 session. A number of key questions remain unanswered.

So far the commission has spent the past three of its seven meetings attempting to go line-by-line through Abbas’s reference bill, which he initially described as a loose starting point for the commission’s final product. The body currently has about 17 pages of the 37-page document left to review.

The group’s next meeting is set for November 16, and members have decided to begin an hour earlier than usual to make better headway. It’s expected to stretch from 9 a.m. into midafternoon.

The panel was initially formed this summer to consider state-run stores, a model supported by Gov. Chris Sununu (R). But in September, members turned to consideration of an alternative, franchise-style system, under which the state would regulate the industry and oversee its look and feel while private licensees would handle cultivation and day-to-day retail sales.

It’s not yet clear exactly how existing medical marijuana businesses, known as alternative treatment centers (ATCs), would be folded into the new franchise-based system, which proponents have likened to McDonald’s or Dunkin’ Donuts. Members of the commission have debated various approaches, including requiring ATCs to obtain separate licenses for adult-use sales or allowing all licensed retailers post-legalization to sell both medical and adult-use products.

That’s one of a number of measures the commission has left undecided for now, leaving it for a later meeting or for lawmakers to hammer out once the legislative session begins.

“Nothing’s final, by the way,” Abbas told colleagues at one point during the most recent meeting. “Remember, this is going to go through committees and multiple changes” once the proposal gets to the legislature.

Perhaps the most contentious topic taken up Thursday was how to penalize people caught smoking or vaping cannabis products in public. Some on the panel felt penalties should be strict even for the first offense, while others warned that criminalizing public use would be ineffective and likely cause further harm.

Abbas advocated a stiffer approach than the $500 civil violation included in his draft bill, calling for a misdemeanor penalty on second and subsequent offenses that could include jail time. “This is not something you’re going to violate accidentally,” he said.

Rep. Tim Cahill (R) also called for misdemeanor penalties, saying that public use of legal marijuana in Maine and Massachusetts were “crumbling their states.”

“We want to be be able to breathe in public. That’s, like, a God-given right,” he said. “I know some people don’t like that word, but it’s a God-given right.”

Other members of the panel tried to push back, arguing that criminal penalties don’t actually stop public consumption.

“I think we all agree that smoking in public is not a good thing,” said Frank Knaack, who represents the ACLU on the commission. “The research is quite clear that criminalizing conduct like this is not effective. And in fact, it puts hurdles in front of people.”

Abbas insisted there must be a point at which it makes sense to charge someone with a misdemeanor for smoking or vaping in public. “I’m just asking you how many times somebody could violate this provision—intentionally smoke or vape cannabis in a public place—before you’re comfortable with it,” he said. “How many times would someone have to be found responsible for a violation before you would be comfortable with it being a Class B misdemeanor?”

Knaack replied that Abbas’s question was missing the point. “My concern is that criminalizing this type of conduct is counterproductive to public safety,” he said.

Ultimately, the commission didn’t agree on consequences for public consumption. Abbas said the matter would likely be taken up by the legislature after the bill is formally introduced.

In addition to leaving some matters for another day, the commission also struck some notable sections from the draft bill. One would have prohibited local police from working with federal agencies to investigate or enforce federal cannabis law against state-compliant entities, a provision Abbas characterized as a “sanctuary policy” because of its similarity to laws sometimes used to limit cooperation with federal immigration law.

“My understanding is that if this language stays in there, this might fall apart,” he said, not elaborating. Members agreed to scrap the provision through a show of hands.

The committee also removed a section that would have established that the smell of marijuana alone does not constitute probable cause under state law to stop or search a person or vehicle. “I don’t think we need to do that in statute,” Abbas said, asserting that under state precedent, the smell of alcohol wasn’t sufficient for probable cause.

“If the scent of alcohol is not in itself probable cause to search, it’s the same thing with cannabis,” he said. “That’s basically cutting and pasting precedence. I don’t think we need to do that in statute, so we can strike that.”

Other matters that came up at Thursday’s discussion were the serving size of infused edibles—the group decided on 5 milligrams THC—and a possible per se limit to establish driving under the influence based on THC in a person’s blood. On the latter issue, members wanted to know more about how the amount of cannabis consumed translates to THC levels in blood.

“Let’s say it’s 5 nanograms per milliliter,” Abbas asked. “How much would I have to consume?”

“That’s the $64,000 question,” replied commission member John Bryfonski of the New Hampshire Association of Chiefs of Police. “I have no idea what that limit would be for you or anyone else in the room.”

Another issue discussed Thursday was whether the New Hampshire Liquor Commission would oversee all licensees or co-regulate the industry with the Department of Health and Human Services, which currently runs the state’s therapeutic cannabis program. Others suggested establishing some sort of advisory body with specialized expertise.

A no-go for Abbas in any legalization measure is home cultivation, he said. “That is an absolute dealbreaker with this bill. If it’s in here, we might as well just adjourn and call it a day,” he said.

While some members’ patience seemed to wear thin during the meeting, the most heated back-and-forth came during final half hour. Following various tangents, questions to guest speakers and members of the panel talking over one another, Sen. Rebecca Whitley (D) addressed Abbas.

“Can I just say, Mr. Chair, we need to regain control about how this commission is interacting with each other,” she told her Republican colleague.

“Are you raising a point of order?” Abbas replied.

“Yes, a point of order,” Whitley said. “We need to be more respectful of our process here and our other commission members, and not interrupting each other and letting each other finish and people that are raising their hand—”

Abbas cut her off. “You stated your point of order.”

“Yet again—” began Whitley.

“I get it,” said Abbas.

“No. Senator, again,” Whitley insisted. “We need to be more respectful of letting people finish their point and having people respond to that and not interrupting each other. So I would ask that the chair takes control of that. Again, please.”

At that point another member of the commission, Rep. John Hunt (R), leaned into his microphone. “I apologize,” he said loudly, as though Whitley’s criticism was directed at him.

As Abbas began to respond to Hunt, Whitley jumped in to clarify that her comments weren’t directed exclusively at him.

“You just interrupted me!” complained Abbas, knocking on the table. “We’re not going to interrupt anymore, and that includes me.”

“And me, as well,” Whitley added.

“You interrupted again,” Abbas shot back.

After a bit more discussion, the panel began to discuss its coming schedule before calling it a day. Whitley again seemed to criticize Abbas’s handling of the process.

“Besides scheduling, I don’t think going line by line is going to get us—we’re not going to have time to do that,” she said. “And so maybe the chair wants to consider a process that would be more efficient to get us to where we need to be.”

Abbas defended the commission’s progress, saying he felt members were “coming to somewhat of a consensus.”

“I think there’s a lot of actually open questions,” Whitley replied.

Over the course of the past several weeks, some of those who’ve been watching the commission’s progress have been disappointed.

Timothy Egan, chair of the board of advisors for the New Hampshire Cannabis Association (NHCANN), is one of them. The way things are shaping up, he said, “I don’t know that the commission bill will be something that people will want to vote for.”

“I’m concerned that the legislators who want to vote to legalize cannabis are going to look at this bill and go, ‘That’s not the right way to do it,’” Egan, a former member of the New Hampshire House, said. “And so while this commission means well, I’m not sure if they’re going to be able to get this bill passed.”

“It’s taking a long time, and I don’t think that they’re taking it so seriously,” Egan added. “If they were, they’d be meeting more frequently, having multiple hearings a week. I just think they’re letting the boat go slowly so they don’t have to make changes that they’re not interested in.”

Throughout the process, it’s been apparent than many on the commission are approaching legalization hesitantly or even begrudgingly. Egan pointed out that members have seemed more eager to hear from groups warning about the public health dangers of legalization than regulators or industry members with expertise about how other adult-use cannabis systems function.

Under the statute that created the commission, NHCANN is supposed to be consulted in the review process, Egan said. But despite repeated outreach efforts, no one has welcomed his comments or seriously considered the group’s alternative proposed legislation, he said.

“When you make legislation, the best way to do it is to build consensus, hearing all the voices and getting them all at the table,” he argued. “I don’t think there’s true consensus coming out of this commission bill.”

Before the commission began Thursday’s debate, it heard comments from Ari Pollack, a lawyer representing the New Hampshire Coalition for Responsible Cannabis Regulation, who described his client as “comprised of a large beer and beverage distributors now serving most of New Hampshire.”

“They have modern, state-of-the-art warehousing, professional drivers, trucking fleet insurance, the ability to track inventory, tax products, make deliveries. They know what they’re doing,” Pollack said.

He recommended the commission consider adding an additional license category for distributors, which would be able to transport marijuana products between cultivators and retailers. Cultivators could still transport their own products, he said, but alcohol distributors could offer another method that would be operated by businesses familiar with compliance issues around controlled substances.

Joseph Mollica, chair of the New Hampshire Liquor Commission said he thought the suggestion was “a great idea” and thanked Pollack. None of the members objected to adding the new language to the bill.

Egan pointed to the exchange as an example of commission members falling back on what they know rather than trying to learn.

“It allows him to go, ‘Great! Here’s a vendor that we understand,’” Egan said of Mollica, whose department would lead regulation of legal marijuana. “But those vendors are unknown and are not going to be well versed in the transportation of marijuana. They put beer in a truck and they move it. This is like produce.”

At its next meeting, in addition to continuing its review of Abbas’s draft bill, the commission is slated to hear from a representative from the New Hampshire State Treasury.

Under the legislation that created the study group, commissioners were tasked with studying the feasibility of a state-run cannabis model and specifically drafting legislation that:

  1.  Allows the state to control distribution and access
  2. Keeps marijuana away from kids and out of schools
  3. Controls the marketing and messaging of the sale of marijuana
  4. Prohibits “marijuana miles” or the over-saturation of marijuana retail establishments
  5. Empowers municipalities to choose to limit or prohibit marijuana retail establishments
  6. Reduces instances of multi-drug use
  7. Does not impose an additional tax so as to remain competitive

Hunt, a commissioner who chaired the House Commerce and Consumer Affairs Committee this year, worked extensively on marijuana reform issues during the session and attempted to reach a compromise to enact legalization through a multi-tiered system that would include state-controlled shops, dual licensing for existing medical cannabis dispensaries and businesses privately licensed to individuals by state agencies.

Hunt’s House panel, however, reached an impasse on the complex legislation, which was being considered following Sununu’s surprise announcement that he backed state-run legalization. Meanwhile the Senate defeated a more conventional legalization bill, HB 639, despite its bipartisan support.

The underlying commission legislation that the governor signed into law with the legalization study provisions would also remove an existing requirement that pain patients try opioid-based treatments first before receiving a medical cannabis recommendation for their condition.

It also includes provisions to clarify that the state’s hemp law is not intended to authorize the sale of hemp-derived intoxicating products, such as delta-8 THC.

In May, the House separately defeated a different marijuana legalization amendment that was being proposed as part of a Medicaid expansion bill.

Also, the Senate moved to table another piece of legislation that month that would have allowed patients and designated caregivers to cultivate up to three mature plants, three immature plants and 12 seedlings for personal therapeutic use.

After the Senate rejected reform bills in 2022, the House included legalization language as an amendment to separate criminal justice-related legislation—but that was also struck down in the opposite chamber. (Full Story)

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