CONCORD — Despite confidence among New Hampshire's Democratic majority leaders that a marijuana legalization bill will successfully pass in both chambers, Republican Gov. Chris Sununu has stated on multiple occasions he will veto any legalization bill sent to him.
Therefore, if New Hampshire is to join the ranks of its adjacent neighbors, including Canada, by legalizing cannabis this year, it will likely have to be done with bi-partisan, veto-proof majorities.
“I think (legalization) will pass in New Hampshire inevitably, but before it passes we need be sure to have the rules and regulations put in place,” Democratic Speaker of the House Steve Shurtleff, of Penacook, said. “I think the votes are there for this to pass the House. I haven’t taken a vote count though. If we’re going to overcome a veto, it’s realistically going to require 50 to 60 Republican votes joining the Democratic majority.”
Proponents will be monitoring the legalization bill sponsored by Rep. Renny Cushing, D-Hampton, currently listed as LSR 28. The bill allows for the cultivation, manufacturing, processing and commercial sale of cannabis products to adults over the age of 21. Cushing said his bill is largely based on the recommendations outlined by the Commission to Study the Legalization, Regulation, and Taxation of Marijuana, which submitted its final recommendations to Sununu Nov. 1.
The report lays out the regulatory framework for a recreational marijuana industry in New Hampshire in the event of potential legalization, while also presenting unresolved negative issues involved with doing so, such as marijuana remaining illegal on the federal level, the industry being denied access to the banking system and the lack of a reliable roadside test for police officers to determine cannabis impairment.
“This bill tracks the recommendations outlined by the study commission’s report to meet New Hampshire’s needs as we transition away from the era of prohibition,” Cushing said. “This is the most comprehensive legislative proposal submitted to a state legislature, drawing on the best lessons learned from the other states that have gone forward with the legalization of cannabis. (The legislation) is a good place for the legislature to begin and work on crafting a final bill.”
Cushing’s bill would establish the creation of the Cannabis Control Commission, akin to the state Liquor Commission or Lottery Commission, with a full-time chair and two part-time commissioners assisted by staff members to regulate the adult-use marijuana market. The bill also creates an 11-member advisory board, composed of public health, cannabis business, law enforcement and consumer representatives and other experts to advise the commission and receive feedback from the public. The advisory board would sunset in 2025.
The Cannabis Control Commission, appointed by the governor, would be responsible for licensing retailers, cultivators, product manufacturers, transporters and independent labs, which would test the products’ THC (marijuana’s active chemical) levels.
Individuals would be allowed to possess up to one ounce of cannabis and up to five grams of THC concentrate in public. Individuals also would be allowed to cultivate up to six plants, with up to three being mature, and households would be allowed up to 12 plants. The bill makes consuming cannabis in public punishable with a $100 fine. Anyone previously convicted of possessing or growing an amount of cannabis, considered legal under the proposed legislation, would be eligible to have their conviction annulled.
The bill includes an opt-out provision for municipalities choosing to pass local ordinances banning any cannabis operations outright. Cannabis would be taxed at a rate of $30 per ounce on the wholesale level and producers would be required to pay a $1,000 state application fee and $500 local fee for their license. Producers would also be required to pay an annual licensing fee of up to $10,000.
“I’m hopeful the Governor will evolve on this issue. There is a generational shift in the legislature with more young people who generally approve reforming marijuana laws,” Cushing said. “New Hampshire residents can drive to Massachusetts and buy it legally in stores now and we’re losing that revenue.”
According to the state marijuana study commission’s final report, the expected annual state revenue from the sale and taxation of cannabis products would range anywhere from $15 million to $27 million on the low end of projections and $33 million to $58 million on the high end; less $12 million to $13 million in estimated regulatory costs.
According to Cushing’s bill, state revenue earned from the taxation and sale of cannabis products would be allocated as such: 23 percent to the state Department of Health and Human Services for voluntary substance abuse programs; 20 percent to municipalities who host retail marijuana stores in their community; 13 percent to municipalities with non-retail marijuana operations; another 6 percent to DHHS for public education for substance use, plus a $100,000 allocation for data gathering; 5 percent to law enforcement for drug recognition training; and the remaining 33 percent to the state’s general fund.
Attorney Paul Twomey was the state Bar Association’s representative on the marijuana study commission and supports legalization. He recommended legislators pass a constitutional amendment requiring the state meet its funding obligation with 5 percent of state liquor sales for the alcohol fund and protect the substance abuse allocations the proposed marijuana legislation outlines.
“It’s a legitimate concern,” Twomey said. “It absolutely happened with the alcohol fund and it’s one of the biggest problems we have right now because the people who need the help that money was supposed to pay for aren’t getting it.”
If Sununu hopes to keep recreational cannabis decriminalized, he will be relying on Republican allies in the legislature such as the study commission’s chairman, Stratham Rep. Patrick Abrami. Abrami stated at the beginning of the commission’s work it would not take a position on legalization. Since the report was submitted to Sununu, Abrami has come out in opposition to legalizing cannabis, believing it can be addictive in nature and is more potent than the marijuana previous generations used. He also said he believes the bill should be written with a local opt-in clause instead of an opt-out.
Abrami said he believes a legalization bill will pass in the House, but is less sure if it can be done with a veto-proof majority. He said it is hard to tell because legalization is not a partisan issue.
“With the overlying issue being the opioid crisis, I think legalizing cannabis normalizes it for kids and adolescents,” Abrami said. “THC levels are much higher than your grandfather’s marijuana, we’re talking from 15 percent now up to 30 percent, well under Canada’s legalization law. They consider anything above 30 percent to be a controlled substance. Then, there’s the concentrates with 94 percent (THC).”
Sununu, through a spokesperson, touted his credentials as being a pro-cannabis governor in signing legislation to decriminalize cannabis and expanding patients’ access to medicinal cannabis. His spokesman also denied a Boston Globe report that Sununu had “enlisted” the help of an anti-cannabis legalization lobbyist to help discourage its passage.
“Governor Sununu has been more progressive in marijuana reform than any other governor in New Hampshire history after signing a bill to decriminalize marijuana and expand its medical uses,” Sununu spokesman Benjamin Vihstadt said. “While the Governor is opposed to marijuana legalization, the State of New Hampshire has no arrangement with Kevin Sabet or (his organization) Smart Approaches and no tax dollars are being spent on his advocacy.”
Matt Simon, New England political director for the Marijuana Policy Project, said the larger test for legalization legislation will be how it makes its way through the Senate, which has historically been more hesitant.
“Legalization has overwhelming support from more liberal Democrats and libertarian Republicans in the House, but I don’t know if that same dynamic translates to the Senate, so it will require a broad coalition because there are a number of Democrats still opposed to it,” Simon said. “Governor Sununu has chosen to double down on the failed policy of prohibition, which has New Hampshire residents spending millions in the illicit drug market or driving over the border to Massachusetts.”
New Futures’ Executive Director Kate Frey also served on the state’s cannabis study commission and is opposed to Cushing’s legalization bill. She said her organization is opposed to commercialization of “big marijuana” since it is still a cash-based business. She said for the most part, only well-off individuals with the financial liquidity to cough up tens of thousands of dollars to pay state fees are the ones entering the industry. She said she is also concerned about adolescents’ ability to access cannabis if it were to be legalized.
“We can’t be sure the (revenue) estimates are realistic or not. If you look at other states with legal marijuana, some have experienced drastic price volatility and the state revenue will go down. Will there be enough diversion of funds to cover the unintended consequences? You can’t bank on it,” Frey said. “Colorado is just five years into this so we’re in a position to wait and see what successes and what failures other states have in addressing issues like impaired driving, training officers in drug recognition, so New Hampshire can be as prepared as possible before the policy changes.”
According to Cushing’s bill, with the exception of testing labs, applicants through 2023 must have at least one director, officer or partner who is a state resident of at least three years, and cannot own more than three establishments at any one time to reduce the concentration of ownership of cannabis businesses.
Cushing said opponents of legalization are failing to account for the thriving black market that already exists in the state and pointed to prohibition as failing when New Hampshire’s 18- to 25-year-olds outpaced the New England and national averages for drinking, binge drinking, tobacco use and marijuana use between 2013 and 2017, according to DHHS.
“It is intellectually dishonest to suggest there is not already a marijuana industry operating in the state and selling it to young people,” Cushing said. “This bill brings that industry out of the shadows so adults can buy products in a controlled market made with government oversight that are legal in other states.”