New Mexico’s 2017 Cannabis Conundrum


The New Mexico state Legislature has convened for a 60-day session with Democrats back in control of both chambers. The nation’s only unsalaried Legislature gathered Tuesday in Santa Fe to consider a wide range of policy initiatives and address a state budget crisis brought on by a downturn in the energy sector. Filling a budget hole and finding enough money to maintain state government services next year are top priorities for the legislative session. Cannabis policy with be a getting a lot of discussion, with three different bills filed in each of the House and Senate chambers. New Mexico has taken the first steps needed towards legalizing, taxing and regulating cannabis.

Democrats won back majority control of the House of Representatives in November 2016 elections, and further consolidated their hold on the Senate. Republican Gov. Susana Martinez is vowing to oppose any tax increases as the lawmakers grapple with a budget shortfall and depleted state reserves. Cannabis policy that will be debated by lawmakers ranges from; Industrial hemp, Taxing Cannabis, 2 different Legalization bills, DUI penalties, and changes to the state’s 10 year old Medical Cannabis Program. There are currently 38 Democrats, and 32 Republicans in the House of Representatives. There are currently 26 Democrats, and 16 Republicans in the Senate. Here’s a look at each one of the pieces of legislation:

New Mexico House of Representatives Cannabis Legislation

A retired police officer, William “Bill” Rehm has two bills filed that are clearly aimed at bringing harm to the current medical cannabis program participants and the future of cannabis use.  Rep. Rehm filled HB-22, DUI For Certain Drugs & Interlocks, and a tax bill, HB-102 – Marijuana Tax Act.

HB-22, DUI For Certain Drugs & Interlock, is an arbitrary proposal with the use of metabolite concentration to determine DUI for cannabis (THC, dissolves in fat, whereas alcohol dissolves in water). The proposed law states a person would get a DUI, “for the active compound in marijuana, delta-9-tetrahydrocannabinol, five nanograms per milliliter of blood”.  For patients in the state’s medical cannabis program, they would potentially be in jeopardy of DUI even without medicating prior to driving due to residual levels of cannabis in a person’s system. When you drink, alcohol spreads through your saliva and breath. It evenly saturates your lungs and blood. Measuring the volume of alcohol in one part of your body can predictably tell you how much is in any other part of your body. Because THC is fat soluble, it moves readily from water environments, like blood, to fatty environments. Fatty tissues, like the brain, act like sponges for the THC.

Marilyn Huestis, who headed the chemistry and drug metabolism section at the National Institute on Drug Abuse, conducted a study finding that when a smoker’s blood THC level peaks at 13 nanograms per milliliter, that could be just as a dangerous as driving drunk. The marijuana advocacy group NORML emphasizes that driving high can be dangerous, and advises people to drive sober.

HB-102 – Marijuana Tax Act is another bill filed by Rep. Rehm that calls for a tax on all cannabis sold in the state with tax funds to go into the state’s medicaid program. The Marijuana Tax Act calls for “an excise tax at the rate of twenty-five dollars ($25.00) per ounce of marijuana distributed” that would be applied to the medical cannabis program. The sad irony here is that the bulk of the medical cannabis program participants are in the medicaid program, so they will be taxed to raise money for a program the are part of and depend on.

For the legalization of cannabis, Representatives Bill McCamley and Javier Martinez are sponsoring the Cannabis Revenue & Freedom Act as HB-89 in the House Chamber. The Cannabis Revenue and Freedom Act, in short will transition the current medical cannabis program into this law. This legislation would establish what is called a Cannabis Control Board that is administratively attached to the Regulation and Licensing Department. The duties of this Cannabis Control Board, that will be made up of 11 members, is to regulate and provide oversight of the medical cannabis program and the social use of marijuana established in the Cannabis Revenue and Freedom Act. The legislation does keep the Department of Health and Medical Cannabis Advisory Board in limited roles. The Cannabis Revenue and Freedom Act allows for the following :

  • the possession of usable marijuana by a person who is twenty-one years of age or older, if the total of usable marijuana does not exceed: two ounces at the person’s household; or one ounce outside the person’s household
  • the possession of up to seven grams of marijuana extract by a person who is twenty-one years of age or older
  • the production, processing, keeping or storing of homegrown marijuana at a household by one or more persons who are twenty-one years of age or older, if the total of homegrown marijuana at the household does not exceed at any given time: six marijuana plants per person; provided, however that no more than twelve marijuana plants may be present in one household; six immature marijuana plants; and eight ounces of usable marijuana;
  • regulate industrial hemp production and possession and regulate commerce in industrial hemp commodities and products in this state
  • plant count increase structured to: 1000 plants by July 1st 2017 then 2000 by July 1st 2018
  • local Gov’t Authority ( county / city municipality can decide on licenses for both )
  • Taxes: 15% with possible 5% more Municipality tax and another possible 5% county tax

New Mexico State Senate Cannabis Legislation Pending for 2017

State Sen. Cisco McSorley pre-filled the measure for the upcoming legislative session in 2017, Senate Bill 6, Industrial Research Rules, to provide for the establishment of the New Mexico industrial hemp research and development fund.  The legislation would have the state’s Department of Agriculture create and establish rules for hemp and New Mexico State University shall establish a “New Mexico industrial hemp research and development fund”.  Hemp proponents have continued to promote hemp for economic development, citing its potential for thousands of industrial applications, along with the state’s favorable climate for growing the hardy plant and its water-conservation benefits.

The Navajo Tribe signed a resolution to grow industrial hemp on tribal lands, another step undermining federal prohibition in effect. According to a report published in Forbes, the Navajo will work with CannaNative to develop industrial hemp farming. The organization assists tribes in developing hemp and cannabis-based economies on Native American lands throughout the United States. The Navajo Tribal lands cover parts of New Mexico, Utah and Arizona. The farm where they plan to begin industrial hemp production is in New Mexico. Legalization of industrial hemp in New Mexico would help facilitate tribal plans. They can proceed with or without state legalization, but eliminating a layer of state laws would certainly make the path toward developing a hemp economy smoother. With most state legislatures having taken action to promote industrial hemp as an agricultural commodity in recent years, it’s time for New Mexico to join those ranks.

Senate Bill 8, Medical Marijuana Changes, is another piece of legislation filed by McSorley. Senate Bill 8 will make changes to the current medical cannabis law, the Lynn and Erin Compassionate Use Act, passed in 2007 and was lead in the state legislature by Senator Cisco McSorley. McSorley told NM Political Report he wants to add opioid addiction to the list of medical conditions that qualify patients to buy medical cannabis. The New Mexico Department of Health is also considering adding this as a qualifying condition.  He also said he wants to allow all veterans to use cannabis medicinally if they wish to enter the program.

The Medical Marijuana Changes bill would nearly double the amount of cannabis a patient can possess, changing limits from the current eight ounces every 90 days to five ounces every 30 days. Producers in the state’s medical program would see their plant limits increased as well, more than doubling from the current 450 plant limit to a 1,000 plant limit. It is disappointing to see home cultivation limits, would not be changed. But this legislation is still evolving with patient’s advocating for more changes to it for strengthen the medical cannabis program further. If SB 8 becomes law, patients who suffer from chronic conditions would only have to renew their ID cards every three years in the medical cannabis program.  This is another area of this measure patients in the state would like to see be applied to the over 20 different qualifying health conditions in the program.  Finally, the bill prevents the Department of Health from imposing THC caps. “The department shall not limit the amount of THC concentration in a cannabis-derived product that a qualified patient or a primary caregiver possesses,” the bill states.

New Mexico Sen. Jerry Ortiz y Pino, has proposed a constitutional amendment for 2017, due to opposition by Gov. Susana Martinez. If a majority of members of both legislative houses in New Mexico vote in favor of the proposed amendment, the proposal will automatically be placed on a statewide election ballot, bypassing the Governor’s desk and any veto. Ortiz y Pino noted that all states that have legalized cannabis for adult use, have done so through a general election vote.

Last year’s concise two page, Senate Joint Resolution 5, sponsored by Sen. Gerald Ortiz y Pino asked voters to amend the state’s constitution to allow possession and personal use of cannabis by people 21 years or older. It would also have regulated production and sale of cannabis, and allowed collection of a tax on the sale of the drug for, “taxation or other regulation of marijuana and hemp to be used to fund the state’s medicaid program or drug and alcohol rehabilitation programs”. And, it would have legalized industrial production of the cannabis plant for hemp products. The official measure for 2017 is not out yet and is not expected to be much different from last years measure.

Recognition of nonresident medical cards is one overlooked area by New Mexico’s lawmakers that could also provide some of the financial benefits that state desire with legalization. And the increase in these kind of laws make it easier for patients to travel and be tourists knowing they can safely access cannabis. This also helps reduce the hard choice some patients face in considering to travel with cannabis or risk not having medicine at all. Six states currently allow for recognition of nonresident medical cards. The states with reciprocity are: Arizona, Maine, Michigan, New Hampshire, Nevada, and Rhode Island.

As New Mexico works to define a model for cannabis legalization that protects and improves the state’s medical cannabis program and puts patients first, lawmakers have a lot of history to contend with. New Mexico’s medical cannabis history started in 1978 (After public hearings the legislature enacted H.B. 329, the nation’s first law recognizing the medical value of cannabis). In an Albuquerque Journal poll conducted in October 2016, 61 percent of likely voters said they would support a measure to legalize recreational cannabis for adults age 21 and older.

“New Mexico won’t see people coming across the border like we see with Colorado,” said Richard Anklam, Executive Director of the New Mexico Tax Research Institute. “The sooner we do it (legalization), the more likely we would have an initial positive effect.”

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