HB 544-FN - AS INTRODUCED

2023 SESSION

23-0070

04/10

HOUSE BILL 544-FN

AN ACT legalizing cannabis for retail sale.

SPONSORS: Rep. Eaton, Ches. 9; Rep. Newell, Ches. 4; Rep. Kenney, Straf. 10; Rep. Seibert, Hills. 21; Rep. Filiault, Ches. 7

COMMITTEE: Commerce and Consumer Affairs

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ANALYSIS

This bill:

I.  Legalizes the retail sale, possession, and use of cannabis for persons 21 years of age and older.

II.  Authorizes the liquor commission to regulate and administer the cultivation, manufacture, testing, and retail sale of cannabis statewide, and makes an appropriation therefor.

III.  Authorizes alternative treatment centers registered to dispense therapeutic cannabis to register, as a separate entity, to manufacture, cultivate, or transport cannabis to the state for retail sale.

IV.  Authorizes a municipality to enact an ordinance prohibiting or limiting the number and type of cannabis establishments that may be permitted within the municipality and regulating the time, place, and manner of operation of a cannabis establishment permitted within the municipality.

V.  Establishes the cannabis control fund and requires funds to be distributed to municipalities and the general fund.

VI.  Makes an appropriation to the department of health and human services to create public media and social media campaigns to address some of the risks of cannabis use.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

23-0070

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Three

AN ACT legalizing cannabis for retail sale.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  Purpose and Findings.  The general court hereby finds that:

I.  The people of the state of New Hampshire find and declare that the use of cannabis by a person 21 years of age or older should be legal and subject to reasonable regulations.

II.  In the interest of the health and public safety of our citizenry, the people of the state of New Hampshire further find and declare that cannabis should be regulated in a manner similar to alcohol so that:

(a)  Individuals will be required to show proof of age before purchasing cannabis, and that the state shall protect the privacy of an individual's personally identifiable information in cannabis transactions.

(b)  Selling, distributing, or transferring cannabis to minors and other individuals under the age of 21 shall remain illegal.

(c)  Driving under the influence of cannabis or using cannabis while driving shall be illegal.

(d)  All retail cannabis stores shall be operated by the state of New Hampshire.

(e)  Cannabis sold in this state shall be tested, labeled, and subject to additional regulations to ensure that consumers are informed and protected.

(f)  The state of New Hampshire shall not collect any transfer tax from any cannabis cultivator or retail sales tax from any consumer.

2  New Subparagraph; Application of Receipts; Cannabis Control Fund.  Amend RSA 6:12, I(b) by inserting after subparagraph (387) the following new subparagraph:

(388)  Moneys deposited in the cannabis control fund established in RSA 318-F:15.

3  Alcoholic Beverages; Statement From Purchaser as to Age.  Amend RSA 179:8, I(d) to read as follows:

(d)  A valid passport [from] issued by the United States or by a country with whom the United States maintains diplomatic relations.

4  Model Drug Dealer Liability Act; Definition of Illegal Drug.  Amend RSA 318-C:4, I to read as follows:

I.  "Illegal drug" means any drug which is a schedule I-IV drug under RSA 318-B, the possession, use, manufacture, sale, or transportation of which is not otherwise authorized by law.

5  New Chapter; Regulation of Cannabis.  Amend RSA by inserting after chapter 318-E the following new chapter:

CHAPTER 318-F

REGULATION OF CANNABIS

318-F:1  Definitions.  In this chapter:

I.  “Alternative treatment center” means an entity as defined in RSA 126-X:1, I.

II.  "Cannabis" means all parts of the plant of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including cannabis concentrate.  "Cannabis" shall not include hemp, fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant that is incapable of germination, or the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product.

III.  "Cannabis accessories" or “cannabis paraphernalia” means any equipment, products, or materials of any kind that are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing cannabis, or for ingesting, inhaling, or otherwise introducing cannabis into the human body.

IV.  "Cannabis cultivation facility" or “cultivation facility” means an entity registered to cultivate, prepare, and package cannabis, and sell cannabis to retail cannabis stores, to cannabis product manufacturing facilities, and to other cannabis cultivation facilities, but not to consumers.  A cannabis cultivation facility shall not produce cannabis concentrates, tinctures, extracts, or other cannabis products.

V.  "Cannabis establishment" means a cannabis cultivation facility, a cannabis testing facility, a cannabis product manufacturing facility, a retail cannabis store, a cannabis transporter, or any other type of cannabis business authorized and registered by the commission.

VI.  "Cannabis product manufacturing facility" or “product manufacturing facility" means an entity registered to purchase cannabis, to manufacture, prepare, and package cannabis products, and sell cannabis and cannabis products to other cannabis product manufacturing facilities and to retail cannabis stores, but not to consumers.

VII.  "Cannabis products" means concentrated cannabis products and cannabis products that are comprised of cannabis and other ingredients and are intended for personal use such as, but not limited to, creams, ointments, or tinctures.  For the purpose of this paragraph, "cannabis products" shall include cannabis-infused food or drink products including but not limited to, cannabis-infused edibles such as candies, gummies, brownies, or cookies, or cannabis-infused alcoholic or non-alcoholic drinks or beverages of any kind.

VIII.  "Cannabis testing facility" or “testing facility” means an entity registered to test cannabis for potency and contaminants.  

IX.  “Cannabis transporter” means an entity registered to transport cannabis between cannabis establishments.

X.  "Consumer" means a person 21 years of age or older who purchases cannabis or cannabis products for personal use by a person 21 years of age or older, but not for resale.

XI.  "Commission" means the liquor commission, division of cannabis enforcement and licensing.

XII.  "Department" means the department of health and human services.

XIII.  “Disqualifying offense” means a violation of a state or federal controlled substances law that was classified as a felony in the jurisdiction in which the person was convicted, but not including:

(a)  An offense for which the sentence, including any term of probation, incarceration, or supervised release was completed 5 or more years earlier; or

(b)  An offense prior to the effective date of this chapter that consisted of cultivation or possession of an amount of cannabis not exceeding the possession limit.

XIV.  “Immature cannabis plant” means a cannabis plant that has not flowered and that does not have buds that may be observed by unaided visual examination.

XV.  “Municipality" means a city, town, or an unincorporated place.

XVI.  “Possession limit” means:

(a)  Four ounces of cannabis in plant form.

(b)  Ten grams of concentrated cannabis, including hashish.

(c)  Cannabis products containing THC purchased from a retail cannabis store which shall be limited to therapeutic use only, for which the purchaser presents documentation permitting use of cannabis for therapeutic purposes pursuant to RSA 126-X, and which shall not contain more than 2 grams of THC.  

(d)  For a person 21 years of age or older, cannabis-infused food or drink products, including but not limited to, cannabis-infused edibles such as candies, gummies, brownies, or cookies, or cannabis-infused alcoholic or non-alcoholic drinks or beverages of any kind, which contain a total of no more than 300 milligrams of tetrahydrocannabinol.

This paragraph shall not apply to the possession limits set forth in RSA 126-X:2.

XVII.  "Public place" means any place to which the general public has access.

XVIII.  "Retail cannabis store" or “retail store” means a facility that purchases cannabis from a cannabis cultivation facility, or purchases cannabis and cannabis products from a cannabis product manufacturing facility, and sells, transfers, and delivers cannabis and cannabis products to consumers.

XIX.  "Resident" means a natural person who:

(a)  Is domiciled in New Hampshire; and

(b)  Has maintained a place of abode in New Hampshire for at least the past 2 years, unless the individual was homeless and residing in New Hampshire for at least 51 percent of the last 2 years.

318-F:2  Personal Use of Cannabis.  

I.  Except as otherwise provided in this chapter, the following acts, if undertaken by a person 21 years of age or older, shall not be illegal under New Hampshire law or the law of any political subdivision of the state or be a basis for seizure or forfeiture of assets under New Hampshire law:

(a)  Possessing, consuming, using, displaying, obtaining, purchasing, processing, producing, or transporting an amount of cannabis that does not exceed the possession limit, except that no adult other than one who is acting in his or her capacity as a staffer of a cannabis product manufacturer may perform extractions using solvents other than water, glycerin, propylene glycol, vegetable oil, food-grade ethanol, or carbon dioxide.

(b)  Transferring an amount of cannabis that does not exceed the possession limit to a person who is 21 years of age or older without remuneration.  For purposes of this section, a transfer is for remuneration if cannabis is given away contemporaneously with another transaction between the same parties, if a gift of cannabis is offered or advertised in conjunction with an offer for sale of goods or services, or if the gift of cannabis is contingent upon a separate transaction for goods or services.

(c)  Transferring cannabis, including cannabis products, to a cannabis testing facility.

(d)  Controlling property where the acts described under this section occur.

(e)  Assisting another person who is 21 years of age or older in any of the acts described under this section.

II.  No law enforcement officer employed by an agency that receives state or local government funds shall expend any state or local resources, including the officer’s time, to effect any arrest or seizure of cannabis, or conduct any investigation, on the sole basis of activity the officer believes to constitute a violation of federal law if the officer has reason to believe that such activity is in compliance with this chapter, nor shall any such officer expend any state or local resources, including the officer’s time, to provide any information or logistical support related to such activity to any federal law enforcement authority or prosecuting entity.

318-F:3  Personal Cultivation Prohibited.  No person shall cultivate cannabis plants unless authorized by law to do so.

318-F:4  Smoking or Vaporizing of Cannabis in Public Prohibited; Penalty.  No person shall smoke or vaporize cannabis in an area accessible to the public.  Any person who violates this section shall be guilty of a violation, may be fined not more than $500, and shall forfeit all cannabis and cannabis products.

318-F:5  Smoking or Vaporizing of Cannabis in a Moving Vehicle Prohibited; Penalty.

I.  No person shall consume, smoke, or vaporize cannabis or knowingly permit a passenger in their motor vehicle to consume, smoke, or vaporize cannabis while operating or attempting to operate a motor vehicle on a way, or while operating or attempting to operate an off highway recreational vehicle, snowmobile, boat, vessel, aircraft, or other motorized device used for transportation on a way.

II.  Any person who violates this section who is the operator of a motor vehicle on a way, or while operating or attempting to operate an off-highway recreational vehicle, snowmobile, boat, vessel, aircraft, or other motorized device used for transportation, shall be guilty of a violation, may be fined not more than $500, and shall have his or her driver's license suspended for up to 3 months for the first offense, and shall be guilty of a misdemeanor, and may be fined not more than $1,000 and have his or her driver's license suspended for up to 6 months, or both, for a second or subsequent offense.

III.  The license suspension as described in this section shall only apply a person who violates this section and who is the operator of the motor vehicle, recreational vehicle, snowmobile, boat, vessel, aircraft, or other motorized device used for transportation.

IV.  When determining whether a person violated an offense under the section, the issue of whether the operator of the motor vehicle is impaired shall not be an element of the offense.  A person who consumes, smokes, or vaporizes or permits another to consume, smoke, or vaporize cannabis in a motor vehicle, recreational vehicle, snowmobile, boat, vessel, aircraft, or other motorized device used for transportation he or she is operating shall be liable under this section without regard to fault.

V.  In this section, “way” shall have the same meaning as in RSA 265-A:44.

318-F:6  Cannabis Accessories Authorized.

I.  Except as provided by this section, it shall not be illegal under New Hampshire law or be a basis for seizure or forfeiture of assets under New Hampshire law for a person 21 years of age or older to manufacture, possess, or purchase cannabis accessories, or to distribute or sell cannabis accessories to a person who is 21 years of age or older.

II.  Except as provided by this section, a person who is 21 years of age or older, or a business entity, may manufacture, possess, obtain, and purchase cannabis paraphernalia, and may distribute, deliver, or sell cannabis paraphernalia to a person who is 21 years of age or older.

III.  No person or entity shall manufacture, distribute, or sell cannabis accessories that violate reasonable regulations enacted by the commission.  Any person or entity that violates this paragraph shall be guilty of a violation for a first offense and subject to a fine of up to $1,000 and forfeiture of the cannabis accessories.  A person shall be guilty of a class A misdemeanor for a second or subsequent offense and shall forfeit the cannabis accessories.

318-F:7  Regulation of Cannabis.  Not later than 8 months after the effective date of this chapter, the commission shall adopt rules, pursuant to RSA 541-A, relative to:

I.  The registration, licensure, and regulation of all other cannabis establishments.

II.  The manufacture and sale of cannabis accessories.

III.  The requirements for the transportation of cannabis between cannabis establishments, including documentation that shall accompany any cannabis being transported by cannabis cultivation facilities.

IV.  Procedures for the delivery of cannabis to consumers, including documentation that shall accompany any cannabis being transported to consumers.

V.  Procedures for hearings on civil fines and suspensions and revocations of licenses.

VI.  Reasonable security requirements for each type of cannabis establishment, which may be varied based on the size of the cannabis establishment.

VII.  Health and safety rules, including regarding the packaging and preparing of cannabis products, presence of contaminants, and restricting the use of pesticides that may be dangerous to cannabis consumers.

VIII.  Restrictions on the advertising, signage, marketing, and display of cannabis, including prohibiting the design of advertising, signage, and marketing that would target or appeal to minors.

IX.  Labeling requirements for cannabis products, including:

(a)  Mandating the disclosure of the THC content of each product.

(b)  Requirements for packaging to ensure it is not designed to appeal to minors.

(c)  Tracking of cannabis plants grown in this state from planting to processing.

X.  Requirements for the testing of all cannabis products for potency and contaminants.

XI.  Requirements for informational materials which shall be available at any retail cannabis store which shall include:

(a)  Information about the risks of cannabis use during pregnancy and while breastfeeding.  Such information shall include the posting of an informational poster regarding the risks of cannabis use during pregnancy and while breastfeeding in a conspicuous location.  This may be identical to that required under RSA 126-X:8, XVI(c)(7).

(b)  Information regarding safe storage and disposal of cannabis and paraphernalia to prevent accidental poisonings, including the contact information for the Northern New England Poison Control Center.  This may be identical to that required under RSA 126-X:8, XVI(c)(8).

(c)  Information about the risks of cannabis use in adolescence.  Such information shall include the posting of an informational poster on the risks of cannabis use in adolescence in a conspicuous location.  This may be identical to that required under RSA 126-X:8, XVI(c)(9).

318-F:8  Registration Procedures for Cannabis Establishments.

I.  Each application for a registration to operate a cannabis establishment shall be submitted to the commission.

II.  Each application shall include both the fee established by the commission and a $250 fee for the municipality to review the application.

III.  The liquor commission shall:

(a)  Accept and process applications beginning no later than May 1, 2023 for cannabis cultivation facilities, and beginning no later than August 1, 2023 for cannabis product manufacturing facilities, cannabis transporters, and cannabis testing facilities.

(b)  Immediately forward a copy of each application and the municipal fee to the municipality in which the applicant desires to operate the cannabis establishment.

(c)  Issue a registration to the applicant within 90 days after receipt of an application unless:

(1)  The commission finds the applicant is not in compliance with the requirements of this chapter or rules adopted under this chapter;

(2)  The commission is notified by the relevant municipality that the applicant is not in compliance with an ordinance adopted pursuant to this chapter and in effect at the time of application; or

(3)  More qualified applicants have applied than the number of registrations available in the municipality, and the applicant was not selected.

IV.  Each registration applies to a single parcel of real property.  Any additional address requires a separate application and registration.

V.  A renewal application may be submitted up to 90 days prior to the expiration of the cannabis establishment’s registration.  The renewal application shall be granted within 30 days of its submission unless the applicant has not paid the fee, the cannabis establishment’s registration is suspended or revoked, or the cannabis establishment has a pattern of violations of this law, the rules issued pursuant to it, or municipal regulations.

VI.  Notwithstanding RSA 126-X, an alternative treatment center registered to operate pursuant to RSA 126-X may file an application to obtain a separate registration to operate as a for profit cannabis cultivation facility, cannabis product manufacturing facility, or cannabis transporter, pursuant to this chapter.  Such applicant shall comply with the same application procedures set forth in this section and shall be subject to the provisions of this chapter.  If approved, the applicant may operate as an alternative treatment center pursuant to RSA 126-X, and as a cannabis cultivation facility, cannabis product manufacturing facility, or cannabis transporter, pursuant to this chapter, as a separate entity.   

318-F:9  Enactment of Municipal Ordinances.  

I.  A municipality may enact an ordinance prohibiting or limiting the number and type of cannabis establishments that may be permitted within the municipality and regulating the time, place, and manner of operation of a cannabis establishment, which is permitted within the municipality.

II.  A municipality may enact an ordinance specifying the entity within the municipality that shall be responsible for reviewing applications submitted for a registration to operate a cannabis establishment within the municipality.  The entity designated by the municipality shall be responsible for indicating whether the application is in compliance with municipal ordinances.

318-F:10  Residency Required.  

I.  Except as provided in this section, any person applying for a cannabis establishment registration shall have been a resident, or shall have at least one director, officer, partner, member, or manager who has been a New Hampshire resident, for at least 3 years immediately preceding the date of application.

II.  This section shall not apply to an applicant for a testing facility registration.

318-F:11  Background Checks Required.

I.  A cannabis establishment shall conduct a state and federal background check prior to making a final offer of employment to a prospective manager or operator.

II.  No cannabis establishment shall employ any person who has been convicted of a disqualifying offense as an officer, director, general partner, member, or manager.  No person convicted of a disqualifying offense shall work as an officer, director, general partner, member, or manager of a cannabis establishment or serve on the board of a cannabis establishment.

318-F:12  Restrictions on Location.  No cannabis establishment shall operate, nor shall a prospective cannabis establishment apply for a registration, if the establishment would be located within 1,000 feet of the property line of a pre-existing public or private elementary or secondary school.

318-F:13  Proof of Purchaser's Identity.

I.  For the purposes of this chapter, any person or entity making the sale of cannabis or cannabis accessories to any purchaser whose age is in question may accept any official documentation listed in RSA 179:8 as proof that the purchaser is 21 years of age or older.

II.  The establishment of all of the following facts by a retail cannabis store or an agent or employee of a retail cannabis store making a sale of cannabis or cannabis accessories to a person under the age of 21 shall constitute an affirmative defense to any prosecution for such sale:

(a)  That the person presented what an ordinary and prudent person would believe to be valid documentation of a type listed in RSA 179:8.

(b)  That the sale was made in good faith relying upon such documentation and appearance in the reasonable belief that the person was 21 years of age or older.

318-F:14  Professional License Holder Immunity.  

I.  A holder of a professional or occupational license shall not be subject to professional discipline for providing advice or services related to cannabis establishments or applications to operate cannabis establishments on the basis that cannabis is illegal under federal law.

II.  An applicant for a professional or occupational license shall not be denied a license based on previous employment related to cannabis establishments operating in accordance with state law.

318-F:15  Cannabis Control Fund Established; Disbursement of Funds.

I.(a)  There is established in the state treasury a nonlapsing fund to be known as the cannabis control fund.  The fund shall be kept distinct and separate from all other funds in the state treasury, and the moneys credited to the fund shall be held distinct and separate from all other funds over which the state treasurer has control.  Moneys in the fund shall be deposited with any financial institution as defined in RSA 383-A:2-201(a)(27-a), with a branch in the state.

(b)  Notwithstanding any provision of law to the contrary, a financial institution with a branch within this state may provide financial services, including receiving deposits, extending credit, conducting fund transfers, or other financial services, to the state and the commission with respect to moneys credited to the cannabis control fund, any other cannabis related funds over which the state or a municipality has control regardless of the manner or fund in which such funds are held, and with respect to the funds of any private entity authorized to conduct a cannabis-related business activity pursuant to this chapter.

II.  The commission shall credit all fees and civil penalties imposed under this chapter and all other related moneys received from public or private sources to the fund.

III.  Beginning July 1, 2024, and each biennium thereafter, the commission shall include the cost of administration of this chapter in the commission's efficiency expenditure request pursuant to RSA 9:4.  Appropriations for such costs shall be a charge against the fund.

IV.  Not later than June 30, 2027, the commission shall reimburse the general fund from the cannabis control fund for any initial or start-up funds appropriated to the commission for the administration and operation of this chapter.  Any remaining fund moneys shall be disbursed each fiscal year as follows:

(a)  Fifty percent of remaining funds shall be transferred in proportional shares to the cities and towns in the state.

(b)  Fifty percent of remaining funds shall be credited to the general fund.

6  The Liquor Commission; Liquor Investigator Training.  Amend RSA 176:9 to read as follows:

176:9  Liquor Investigator; Training.

I.  The commission may, subject to rules adopted by the director of personnel, employ and dismiss liquor investigators.  Liquor investigators shall, under the direction of the commission, investigate any or all matters arising under this title.  The commission may select and retain market consultants through a competitive bidding process approved by the governor and the executive council.  Any such contract with a third-party agent shall be for consulting services relating to marketing and regulation of cannabis for purposes of cultivation, manufacturing, testing, and retail sale.

II.  Any new liquor investigator employed by the commission under this section after August 13, 1985, shall, within 6 months of employment, satisfactorily complete a preparatory police training program as provided by RSA 106-L:6, unless he or she has already completed such a program.

III.  The commissioner, deputy commissioner, assistant, or liquor investigator may enter any place where liquor, beverages, tobacco products, e-cigarettes, or cannabis are sold [or], manufactured, or cultivated at any time, and may examine any license or permit issued or purported to have been issued under the terms of this title.  They shall make complaints for violations of this title.

7  New Paragraph; The Liquor Commission; Commission to Sell.  Amend RSA 176:11 by inserting after paragraph II the following new paragraph:

III.(a)  It shall be the duty of the commission to buy and have in its possession cannabis and cannabis products as defined in RSA 318-F:1 for sale in the manner provided in RSA 318-F, and to sell cannabis for therapeutic purposes as authorized under RSA 126-X.  Such cannabis shall be free from adulteration and misbranding within the meaning of the provisions of RSA 146.  All cannabis sold for therapeutic use shall conform to the standards and tests for such cannabis under New Hampshire law at the time of sale.  All purchases of cannabis shall be made by the commission directly and not through the department of administrative services.  The commission shall be subject to all the provisions of RSA 9.

(b)  In the event that the commission determines New Hampshire cannabis revenues are being diverted by actions taken by persons holding any type of cannabis license, the commission may take such marketing or merchandising action, or both, as it deems necessary, including sanctions against the competing entities.

8  New Paragraph; The Liquor Commission; Rulemaking.  Amend RSA 176:14 by inserting after paragraph IX the following new paragraph:

IX-a.  Cannabis licenses, including:

(a)  Separate licenses for cultivation, manufacturing, and testing of cannabis, and dual licenses as the commission may approve.  

(b)  Requirements and restrictions for each type of license.

(c)  Procedures and forms to apply for or renew a license.

(d)  Safekeeping of licenses.

(e)  Authorized expansion of a licensed facility and procedures for authorization.

(f)  Procedures to approve exceptions of license requirements, restrictions, and limitations.

(g)  Training and continuing education required or recommended for licensees.

IX-b.  Cannabis licensee operations, including:

(a)  Procedures for on-premises and off-premises licensees to purchase cannabis.

(b)  Credit and billing procedures, including fees for late payment.

(c)  Bailment requirements, including fees.

(d)  Restrictions on packaging, promotions, signage, and operating hours.

(e)  Relations between types of licensees.

(f)  Collection of additional fees required under RSA 178:6, VI, RSA 178:8, IV, and RSA 178:26.

9  Controlled Drug Act; Definitions.  Amend the introductory paragraph in RSA 318-B:1, X-a(k) to read as follows:

(k)  Objects used or intended for use or customarily intended for use in ingesting, inhaling, or otherwise introducing [marijuana,] cocaine[, hashish, or hashish oil] into the human body, such as:

10  Controlled Drug Act; Penalties.  Amend the introductory paragraph in RSA 318-B:26, I to read as follows:

I.  Any person who manufactures, sells, prescribes, administers, or transports or possesses with intent to sell, dispense, or compound any controlled drug, controlled drug analog or any preparation containing a controlled drug, except as authorized in this chapter or as otherwise authorized by law; or manufactures, sells, or transports or possesses with intent to sell, dispense, compound, package or repackage (1) any substance which he or she represents to be a controlled drug, or controlled drug analog, or (2) any preparation containing a substance which he or she represents to be a controlled drug, or controlled drug analog, shall be sentenced as follows, except as otherwise provided in this section:

11  Controlled Drug Act; Penalties.  Amend the introductory paragraph in RSA 318-B:26, II to read as follows:

II.  Any person who knowingly or purposely obtains, purchases, transports, or possesses actually or constructively, or has under his control, any controlled drug or controlled drug analog, or any preparation containing a controlled drug or controlled drug analog, except as authorized in this chapter or as otherwise authorized by law, shall be sentenced as follows, except as otherwise provided in this section:

12  Controlled Drug Act; Penalties.  Amend RSA 318-B:26, II(c)-(e) to read as follows:

(c)  In the case of more than 3/4 ounce of marijuana or more than 5 grams of hashish, including any adulterants or dilutants[,] is possessed by a person who is under 21 years of age, or, in the case of an amount exceeding the possession limit defined in RSA 318-F:1 possessed by a person who is 21 years of age or older, except if possessed by a person authorized pursuant to RSA 126-X, the person shall be guilty of a misdemeanor.  [In the case of marijuana-infused products possessed by persons under the age of 21 or marijuana-infused products as defined in RSA 318-B:2-e, other than a personal-use amount of a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b), that are possessed by a person 21 years of age or older, the person shall be guilty of a misdemeanor.]

(d)  In the case of 3/4 ounce or less of marijuana or 5 grams or less of hashish, including any adulterants or dilutants, that is possessed by a person who is under 21 years of age, the person shall be guilty of a violation pursuant to RSA 318-B:2-c.  [In the case of a person 21 years of age or older who possesses a personal-use amount of a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b), the person shall be guilty of a violation pursuant to RSA 318-B:2-c.]

(e)  In the case of a residual amount of a controlled [substance,] drug, other than marijuana [as defined in RSA 318-B:1, XXIX-a], a person shall be guilty of a misdemeanor if the person is not part of a service syringe program under RSA 318-B:43.

13  Controlled Drug Act; Penalties.  Amend RSA 318-B:26, III(a) to read as follows:

(a)  [Except as provided in RSA 318-B:2-c,] Controls any premises or vehicle where he or she knows a controlled drug or its analog, other than marijuana, is illegally kept or deposited;

14  Personal Possession of Marijuana.  Amend RSA 318-B:2-c to read as follows:

318-B:2-c  [Personal] Possession of Marijuana by a Person Under 21 Years of Age.

I.  In this section[: ], [(a)] "marijuana" includes the leaves, stems, flowers, and seeds of all species of the plant genus cannabis, but shall not include the resin extracted from any part of such plant and every compound, manufacture, salt, derivative, mixture, or preparation from such resin including hashish, and further, shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.

[(b)  "Personal-use amount of a regulated marijuana-infused product" means one or more products that is comprised of marijuana, marijuana extracts, or resins and other ingredients and is intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures, which was obtained from a state where marijuana sales to adults are legal and regulated under state law, and which is in its original, child-resistant, labeled packaging when it is being stored, and which contains a total of no more than 300 milligrams of tetrahydrocannabinol.]

II.  Except as provided in RSA 126-X, any person under 21 years of age who knowingly possesses 3/4 of an ounce or less of marijuana, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph V.

III.  Except as provided in RSA 126-X, any person under 21 years of age who knowingly possesses 5 grams or less of hashish, including adulterants or dilutants, shall be guilty of a violation, and subject to the penalties provided in paragraph V.

IV.  [Except as provided in RSA 126-X, any person 21 years of age or older possessing a personal-use amount of a regulated marijuana-infused product shall be guilty of a violation, and subject to the penalties provided in paragraph V.  Persons 18 years of age or older and under 21 years of age who knowingly possess marijuana-infused products shall be guilty of a misdemeanor.

V.](a)  Except as provided in this paragraph, any person 18 years of age or older who is convicted of violating paragraph II or III[, or any person 21 years of age or older who is convicted of violating paragraph IV] shall be subject to a fine of $100 for a first or second offense under this paragraph, or a fine of up to $300 for any subsequent offense within any 3-year period; however, any person convicted based upon a complaint which alleged that the person had 3 or more prior convictions for violations of paragraph II[,] or III[ or IV], or under reasonably equivalent offenses in an out-of-state jurisdiction since the effective date of this paragraph, within a 3-year period preceding the fourth offense shall be guilty of a class B misdemeanor.  The offender shall forfeit the marijuana[, regulated marijuana-infused products,] or hashish to the state.  A court shall waive the fine for a single conviction within a 3-year period upon proof that person has completed a substance abuse assessment by a licensed drug and alcohol counselor within 60 days of the conviction.  A person who intends to seek an assessment in lieu of the fine shall notify the court, which shall schedule the matter for review after 180 days.  Should proof of completion of an assessment be filed by or before that time, the court shall vacate the fine without a hearing unless requested by a party.

(b)  Any person under 18 years of age who is convicted of violating paragraph II or III shall forfeit the marijuana or hashish and shall be subject to a delinquency petition under RSA 169-B:6.

[VI.] V.(a)  Except as provided in this section, no person shall be subject to arrest for a violation of paragraph II[,] or III[, or IV] and shall be released provided the law enforcement officer does not have lawful grounds for arrest for a different offense.

(b)  Nothing in this chapter shall be construed to prohibit a law enforcement agency from investigating or charging a person for a violation of RSA 265-A.

(c)  Nothing in this chapter shall be construed as forbidding any police officer from taking into custody any minor who is found violating paragraph II[,] or III[, or IV].

(d)  Any person under 21 years of age who is in possession of an identification card, license, or other form of identification issued by the state or any state, country, city, or town, or any college or university, who fails to produce the same upon request of a police officer or who refuses to truthfully provide his or her name, address, and date of birth to a police officer who has informed the person that he or she has been found to be in possession of what appears to the officer to be 3/4 of an ounce or less of marijuana[, a personal-use amount of a regulated marijuana-infused product,] or 5 grams or less of hashish, may be arrested for a violation of paragraph II[,] or III[, or IV].

[VII.] VI.  All fines imposed pursuant to this section shall be deposited into the alcohol abuse prevention and treatment fund established in RSA 176-A:1 and utilized for evidence-informed substance abuse prevention programs.

[VIII.] VII.(a)  No record that includes personally identifiable information resulting from a violation of this section shall be made accessible to the public, federal agencies, or agencies from other states or countries.

(b)  Every state, county, or local law enforcement agency that collects and reports data for the Federal Bureau of Investigation Uniform Crime Reporting Program shall collect data on the number of violations of paragraph II[,] or III[, or IV].  The data collected pursuant to this paragraph shall be available to the public.  A law enforcement agency may update the data annually and may make this data available on the agency's public Internet website.

15  Alcohol or Drug Impairment; Possession of Drugs.  Amend RSA 265-A:43 to read as follows:

265-A:43  Possession of Drugs.  Any person who drives on any way a vehicle while knowingly having in his or her possession or in any part of the vehicle a controlled drug or controlled drug analog in violation of the provisions of RSA 318-B shall be guilty of a misdemeanor, and his or her license shall be revoked or his or her right to drive denied for a period of 60 days and at the discretion of the court for a period not to exceed 2 years.  This section shall not apply to the possession of marijuana or hashish as provided in RSA 318-B:2-c[, or a personal-use amount of a regulated marijuana-infused product as defined in RSA 318-B:2-c, I(b)].

16  Appropriation; Liquor Commission.  The sum of $4,600,000 for the fiscal year ending June 30, 2024 is hereby appropriated to the liquor commission for the cost of administration of RSA 318-F.  The governor is authorized to draw a warrant for said sum from any money in the treasury not otherwise appropriated.

17  Appropriation; Department of Health and Human Services.  The sum of $150,000 for the fiscal year ending June 30, 2024 is hereby appropriated to the department of health and human services to create public media and social media campaigns which would be launched prior to the availability of cannabis for purchase from a cannabis retail store to address growing false perceptions of harmlessness and the impact of cannabis use for youth, safe storage of cannabis and use around children, increased motor vehicle accident risks, increased risk of psychosis, and potential risks of use during pregnancy.

18   Repeal.  RSA 318-B:1, X-a(g), relative to separation gins and sifters used or intended for use with cannabis, is repealed.

19  Effective Date.  This act shall take effect upon its passage.

LBA

23-0070

1/9/23

HB 544-FN- FISCAL NOTE

AS INTRODUCED

AN ACT legalizing cannabis for retail sale.

FISCAL IMPACT:      [ X ] State              [ X ] County               [ X ] Local              [    ] None

METHODOLOGY:

This bill legalizes the retail sale, possession and use of cannabis for persons 21 years of age and older and authorizes the Liquor Commission to regulate and administer the cultivation, manufacture, testing, and retail sale of cannabis statewide.

The Liquor Commission provided the following information and assumptions concerning the fiscal impact of this bill:

Time line

Regarding the time line, the bill requires the Liquor Commission to adopt rules and regulations not later than 8 months after the effective date and accept and process applications beginning no later than May 1, 2023 for cannabis cultivation facilities, and no later than August 1, 2023 for cannabis product manufacturing facilities, cannabis transporters, and cannabis testing facilities. The Commission believes this time line is too short considering the scope of the bill and the anticipated challenges in bringing a new program of this type to the public.  Regarding the time line, the Commission expects the first year will be needed to:

• Promulgate the necessary administrative rules and seek approval from the Joint Legislative Committee on Administrative Rules.
• Development of requests for proposals (RFPs) evaluating the need for point-of-sale system (POS) upgrades and integration with the Commission’s existing POS system.
• Hire a consultant with cannabis expertise and assign staff to projects needed to achieve the initial implementation of the program.
• Prepare for licensure and retail operations, including RFP development.
• The Commission will need legislative authority to pay senior staffers working on both liquor and cannabis matters increased wages until such time as the program is well established and all necessary new staff have been hired for program administration.  A 10% stipend would be established for existing staff engaged in the development and all administrative aspects of the program.
• The Commission believes the first retail store could be operational in FY 2025 if the necessary funding is available to open a 12,000 sq. ft. store.  The Commission has developed a marque reputation among consumers and, to not alienate or confuse consumers, the Liquor Commission is proposing to open separate retail locations for the sale of cannabis.  This approach would involve purchasing or leasing locations; equipping locations with the necessary furniture and equipment and the enforcement of the requirements laid out in the bill.
• Based upon the timing, tasks and requirements of the bill, the Commission suggests the State is not likely to realize revenue until the FY 2026-27 biennium.  The Commission is concerned that not enough product will be available for retail sale.  

The bill appropriates the sum of $4,600,000 from the general fund for the fiscal year ending June 30, 2024, to the Liquor Commission for the administration of RSA 318-F.  As the appropriation contained in the bill does not contain any nonlapsing language, any unspent/unencumbered  portions of the appropriations would lapse June 30, 2024.  There are no appropriations beyond FY 2024.  The Commission provided the follow information on the fiscal impact of the bill:

Revenue:

Whereas the sale of cannabis is not currently lawful in the State of New Hampshire the Commission has no historical data upon which to build projected revenue figures. The Commission would need to look at other states that have legalized the sale and use of cannabis but none of these states utilize a model where the State is the retailer of cannabis.  At this time the Liquor Commission is unable to predict what additional revenues would be generated from the bill or the length of time needed to achieve any fiscal milestones.

New Cannabis Store Operations and Marketing:

• The Commission assumes 9 positions marketing, merchandising and warehouse staff  would be added at headquarters.
• Cannabis stores would be branded separately from liquor and wine outlets with separate marketing and promotion strategies.
• Considering the appropriation of $4.6 million the Commission does not anticipate the opening of a retail store until FY 2025 after receiving the necessary funding to do so.
• The Commission would operate retail cannabis operations 7 days a week and from 9 am to 9 pm.
• For the first store, the Commission assumes 35 new full-time positions would be needed consisting of managers, assistant managers and store clerks to staff and take care of all operational needs.  
• The Commission would enter into a contract with a person described as a market consultant with expertise to advise the Commission on product selection, training of cannabis store personnel and would purchase the cannabis on behalf of the Commission for resale and distribution to state-owned stores. The duties and responsibilities of this consultant would be subject to contractual terms and conditions established in a published RFP and subject to approval by Governor and the Executive Council.
• Cannabis staff would undergo the necessary training and be able to answer questions and the Commission would look to the consultant to train or obtain training for cannabis personnel.
• The Commission would either build or lease space for cannabis stores in communities in which ordinances allow for cannabis store operations.

Administration and Finance:

• The Commission would require 9 additional administrative and finance personnel within the division of administration and finance to discretely and separately track all transactions, purchases, and legal and fiscal matters associated with the program.
• The Commission will purchase or develop a dedicated financial and point of sale system.  The cannabis program should be a discrete function of the Commission with appropriate dedicated personnel and apparatuses needed for the program.
• Additional personnel would need to be hired to perform the newly assigned duties and responsibilities.

Enforcement, Licensing and Regulation:

• New Enforcement personnel will be necessary to prepare for the licensure and oversight responsibilities of cannabis enforcement.
• The Division would add 11 new positions: eight sworn personnel, two examiners, and one licensing specialist.
• In addition to the management oversight of the cannabis outlets, the Division would involve the new enforcement personnel in monitoring of cannabis outlet operations and licensure to ensure the continuing public integrity of the operations.

Based on the assumptions above, the Commission has provided the following estimate of the fiscal impact for the first two years of the Program:

In FY 2025 expenses reflected above are the costs to build one new store and do not include  ongoing operating costs for the store or the cost of inventory to stock the store.

The Department of Safety indicates this bill would have an indeterminable impact on the expenditures of the Division of State Police.  The Department states the fiscal impact to law enforcement throughout the State would be a need for increased manpower and training due to the increased use of marijuana by adults and no way to differentiate between legal cannabis and the possession and use of unregulated cannabis.  The Department indicates the bill would likely result in an increase in impaired drivers, toxicology testing and an increase in crimes such as robbery, burglary and theft.  

The Department of Health and Human Services indicates the bill makes a general fund appropriation $150,000 in FY 2024 to the Department to create a public and social media campaign for recreational use in New Hampshire.  The information would provide education on impact for youth, safe storage of cannabis, risks of use of cannabis around children, increased incidents of motor vehicle accidents, risks of use during pregnancy, and increased risks of mental health conditions including psychosis.  The Department estimates the appropriation of $150,000 may not be sufficient to cover the cost of a comprehensive public and social media campaign.

The Department assumes the bill may impact the Department’s Therapeutic Cannabis Program and the state’s licensed Alternative Treatment Centers (ATCs).  Nearly every state that has legalized adult-use cannabis has been able to maintain the viability of its medical/therapeutic cannabis program.  Typically with adult-use legalization, a medical cannabis program will experience a decrease in patient registration as a certain number of patients choose to access the non-State Registry-based market.  This bill does not include any taxes on adult-use sales, which will encourage therapeutic patients to purchase from the lowest cost option and further drive patients away from the therapeutic cannabis ATCs, threatening their viability.  The Department states the bill requires the sale of cannabis for therapeutic purposes and allows direct sales of certain cannabis products to therapeutic patients, which are not available to non-therapeutic patients, creating direct competition with the state’s licensed ATCs.  The Department assumes the bill creates a duplication of regulatory effort by requiring the state stores to sell cannabis for therapeutic purposes.  Any cannabis sold for therapeutic use at the state stores shall comply with existing state standards and testing requirements, which would be the standards established in RSA 126-X and He-C 400 relative to the Department’s Therapeutic Cannabis Program.  This sets up a dual regulatory structure and different, perhaps conflicting, standards for cultivation, production, testing, packaging, labeling, and dispensing. Removing the provisions that require state stores to sell cannabis for therapeutic use would eliminate this issue.

The New Hampshire Municipal Association indicates this bill would increase local expenditures and local revenue by indeterminable amounts.  Based on review of limited research available relative to changes in policing related to cannabis legalization in any forms by other states, the  Association identified the potential fiscal impacts listed below.

• Greater access to cannabis may increase youth access and driving while under the influence incidents, leading to a shift in law enforcement focus and a need for additional training in detection, such as Drug Recognition Expert (DRE) training.  These shifts may increase law enforcement costs, particularly in the field of specialized training for detection of impairment by cannabis.
• There may be reduced law enforcement costs associated with drug detection and prosecution for simple possession cases, freeing up funds for other uses.
• Border states where cannabis is illegal, and which border states where some amount of cannabis is legal, have experienced additional incidents related to driving while under the influence, particularly in counties near the border.  As New Hampshire is bordered on all sides by legalized states it is likely that some additional enforcement costs are already being borne by municipal police departments.
• Most research funded by National Institute of Justice grants shows that legalization has minimal, if any, effects on violent crime.
• Generally, research in states that have legalized cannabis has shown more patients presenting in the emergency department with physical or psychological symptoms resultant from using marijuana or commercial cannabis products.  While no research appears to exist relative to the number of patients arriving via ambulance, it stands to reason that some portion of patients do utilize ambulance services to arrive at emergency departments.  Additionally, there may be some number of users who call for emergency medical assistance that are not transported for treatment at the emergency department. Based on the information available, municipalities should expect some increase in costs associated with EMS, if limited legalization increases the incidence of individuals utilizing cannabis.

Regarding revenue, the Municipal Association it is unclear how much revenue can realistically be expected above and beyond those offsetting operating expenses as that will depend on a variety of business decisions made by the Liquor Commission, and, while there will likely be a positive revenue stream, it is unclear whether that will offset any municipal expenses associated with this legislation.

This bill provides, that any remaining funds in the cannabis control funds after reimbursing the general fund for any initial or start-up funds appropriated to the commission for administration and operation shall be allocated 50% in proportional shares to cities and towns, and 50% to the general fund.

This bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems.  There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the entities impacted have provided the potential costs associated with these penalties below.

Many offenses are prosecuted by local and county prosecutors.  When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department may be able to absorb the cost within its existing budget.  However, if the Department needs to prosecute significantly more cases or handle more appeals, then costs will increase by an indeterminable amount.  

It is assumed that any fiscal impact would occur after FY 2023.

AGENCIES CONTACTED:

Judicial Branch, Departments of Corrections, Health and Human Services, Justice and Safety, Judicial Council, Liquor Commission, New Hampshire Association of Counties and New Hampshire Municipal Association