Newly formed commission to set guidelines as state heads toward a path of pot legalization

Anyone who has driven on New Hampshire interstates, and elsewhere, is familiar with the NH Liquor & Wine Outlets. Overseen by the state Liquor Commission, the stores serve more than 12 million customers a year.

The NHLC, a major state agency, works with thousands of on- and off-premises licensees, brokers, suppliers and other business partners in its role as regulator of the sale of alcohol in New Hampshire. By statute, all liquor sold in New Hampshire must be sold through a sales and distribution system operated by the NHLC.

New Hampshire is one of 17 so-called “control states” in the nation where the state government directly controls the distribution and regulation of alcoholic beverages. Could, and should, this model be applied to the sale of cannabis? By virtue of House Bill 611, enacted into law on Aug. 8, we soon may find out.

As signed by Gov. Chris Sununu, HB 611 enacts a commission to study state-controlled sales of cannabis. The mere establishment of the commission is significant; its enactment arguably provides a path to legalization of the sale of marijuana in New Hampshire. Currently, under a 2013 law, marijuana can only be legally purchased if it is used for medical purposes. The law allows individuals to access cannabis for medical purposes from regulated, licensed alternative treatment centers. The new statute, RSA 176:16-b, puts New Hampshire on a different path, — one in which, for the first time, a statutorily created commission will analyze the benefits, costs, demands and risks of establishing a state-controlled system of marijuana sales to the public.

Proactive approach

The newly formed commission’s task will not be easy. Among other challenges, it will have to reconcile the legal sale of cannabis with the limited amount a patient can acquire at any one time. Moreover, it is not clear how, if enacted, a state-controlled system would engage with third-party, out-of-state brokers and distributors. In addition, the commission will have to wrestle with where to “locate” the system — in the current NHLC or within a separate, standalone agency? These questions and more will no doubt be raised after the commission officially convenes, which must be no later than Sept. 20.

The commission’s charge is to “study the feasibility of establishing a state-controlled system to sell marijuana to adults 21 years and older,” but in doing so it must consider a number of issues, specifically, how to:

• Allow the state to control distribution and access

• Keep marijuana “away from kids and out of schools”

• Control the marketing and messaging of the sale of marijuana

• Prohibit so-called “marijuana miles,” meaning over-saturation of marijuana retail establishments in a geographic area

• Empower municipalities to choose to limit or prohibit marijuana retail establishments

• Reduce instances of multi-drug use

• Not impose an additional tax so as to remain competitive.

There is much to consider before the statutorily mandated date of the commission’s final report on Dec. 1, 2023.

In addition to five members each from the state House and Senate, the governor (or designee), and the Attorney General (or designee), the commission includes a “who’s who” of interested parties. The New Hampshire Chiefs of Police, the New Hampshire Bankers Association, the New Hampshire Cannabis Association, ACLU of New Hampshire, alternative treatment centers and Communities for Alcohol and Drug-Free Youth will each have one representative. The commission’s members also will include a medical professional as well as the chair of the NHLC. Not represented on the commission, but certain to offer some perspective during its meetings, are the New Hampshire Hospital Association, Bi-State Primary Care Association, and the New Hampshire Community Behavioral Health Association.

The enactment of the RSA 176:16-b commission marks a new, proactive legislative approach to the possibility of cannabis legalization for adults in New Hampshire. In its analysis, of course, the commission will not be able to operate in a vacuum and will have to acknowledge the pressures — both economic and societal — from adjoining states. We will be monitoring the work of the commission as it progresses.

Andrew B. Eills is an attorney with the Manchester-based law firm of Sheehan Phinney.