New Hampshire Senate President Wants Changes To Marijuana Legalization Bill Passed By House

A New Hampshire marijuana legalization bill already passed by the House of Representatives landed in a Senate committee on Thursday, where opponents of the current version—including Sen. Daryl Abbas (R) and Senate President Jeb Bradley (R)—unveiled amendments that would revise major portions of the proposal.

The panel also heard three other cannabis-related measures, including a proposal to double the amount that medical patients can possess as well as a plan to provide legal relief for people with past marijuana convictions.

Despite the eagerness of some on the Senate Judiciary Committee to make adjustments to the legalization bill, its sponsor, Rep. Erica Layon (R), warned the panel that senators shouldn’t assume that House lawmakers will sign off on any proposed changes, including plans to jail people for public consumption of marijuana.

“We need to be careful that we don’t take the House’s support for granted,” Layon warned senators, saying some changes could cause House members to sour on the bill.

“Given the fact that we need to agree between two bodies and also the person who signs the bill, there are a lot of constraints,” Layon said, describing the House-passed version as “a delicate tightrope walk that will get us to where we need to be with perhaps the smallest of changes.”

As approved by the House earlier this month, HB 1633 would allow 15 retail stores statewide and impose a 10 percent state charge on adult-use purchases. Medical marijuana would be exempt from the tax. Retailers would be regulated through a so-called “agency store” model, with significant restrictions on marketing and advertising.

Changes proposed at the hearing by Abbas—who led a state commission on legalization last year that failed at its charge of crafting legislation to legalize marijuana—would increase penalties for public consumption, making second and subsequent offenses unspecified misdemeanors. That would expose people jail time in addition to a criminal record, an outcome critics said undercut the very purpose of legalization.

Other adjustments in Abbas’s amendment, which was not posted on the legislature’s website at the time of the hearing, would shift the bill’s regulatory approach to a franchise system, under which the state’s Liquor Commission would oversee the look, feel and operations of the 15 stores.

Layon has previously opposed the franchise system, which was first pitched during last year’s study commission following the governor’s call for a system of state-run cannabis stores. She’s said it would expose the state to legal risk and financial liability as well as put the government in the unusual business of setting prices on marijuana.

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In addition to changes from Abbas, the panel also took suggestions from Bradley, the Senate president, who listed a number of revisions he wants to see to the bill after Abbas’s amendment.

“As everybody knows, I don’t support this bill,” Bradley began. But “if it’s going to pass, we need to make it the best possible version of legalization that we possibly can.”

The Senate president said provisions allowing noncommercial sharing should be removed. “I’m not sure why we’re allowing that. I hope you will delete that,” he told committee members.

He also called for an upper limit on allowable THC levels of marijuana products, which the bill currently does not have, and proposed reducing the number of adult-use stores that each medical marijuana company—known in New Hampshire as alternative treatment centers (ATCs)—could operate, from three down to one.

As for testing of cannabis products, Bradley pointed to a list of substances that are screened for on Canada’s legal market, recommending that the committee include similar provisions. “Either way,” he said, “it should be tested to make sure there is purity.”

Other changes proposed by Bradley would strike rules regarding employee samples of marijuana and modify the makeup of the Cannabis Control Commission, removing one of two industry representatives and installing a representative of the attorney general’s office.

“There are significant legal issues, as we all know, and there are public safety and health issues,” he said. “I think the attorney general, whoever that individual is, is the most important person for this commission.”

Sen. Becky Whitley (D), a member of the Senate panel who also sat on the state legalization commission last year, asked Bradley whether incorporating the list of changes would move him in “a more positive direction” on the bill.

“I’m not voting for it,” Bradley replied. “But those of us that oppose this—just as you’ve opposed a number of things—we all have an obligation to make this better. If it’s going to pass, I want to make it the best of a bad outcome that I possibly can.”

Of Abbas’s amendment, Whitley asked her colleague why it lacked language protecting job applicants from discrimination in hiring on the basis of legal cannabis use.

“I don’t think discrimination is the appropriate term to be used there,” Abbas said. “Cannabis use is not a protected class.”

The hearing continued an ongoing back and forth between competing factions of Republicans whose visions for the cannabis legislation are at odds. On one side is Layon and a mix of bipartisan allies in the House who back legalization, and on the other is Abbas and a handful of other GOP senators who say their chief goal is to limit the negative consequences of the policy change.

Also looming over the debate is Gov. Chris Sununu (R), who signaled earlier this month that he has no interest in signing the measure in the form passed by the House. The governor added, however, that he’s open to supporting the legalization bill if amendments are made in the Senate.

“Governor Sununu has been crystal clear about the framework needed for a legalization bill to earn his support, focusing on harm reduction and keeping it out of kids’ hands,” his office said in a statement after the House vote. “The legislation passed today doesn’t get us there but the Governor looks forward to working with the Senate to see if we can get it done.”

In an email to Marijuana Moment ahead of Thursday’s hearing, Abbas said he felt the chief sticking point on the legalization bill was how to handle public consumption.

“The biggest issue that could hold this up is that many people want to permit public use or [make] public use a small fine that isn’t economically viable to enforce,” he wrote.

“I am not sure why this is an issue,” he added, “because if you talk to people outside of the political bubble, people overwhelming[ly] reject the idea of public use.”

Abbas did not respond to a follow-up email asking him to identify the “many people” who “want to permit public use.”

During discussion of the matter at the panel hearing, he brought up the subject multiple times.

“There’s no excuse to smoke cannabis in public,” he said. “I keep walking people how difficult it is to even get caught in the first place. Those who do violate the law, they’re willfully doing it. They’re going out of their way to do it. And to me that’s unacceptable.”

Whitley, for her part, said one of the reasons she supports legalization is “because I don’t think people should be arrested for this conduct anymore.”

Following testimony from the ACLU of New Hampshire Executive Director Devon Chaffee in support of the House-passed version of the bill, in which Chaffee said she opposed the increased penalty, Abbas questioned her on the issue.

“My understanding of why people believe we should legalize marijuana is because they do not believe that it is just that people should be going to jail for marijuana offenses,” Chaffee explained. “Having a joint in public seems like, in the scheme of things, not something that the people of New Hampshire believe somebody should go to jail for based on all of the polling that I have seen.”

Abbas was undeterred: “How many times would a person have to be proven to have violated this public use law before the potential of jail time—” he began to ask.

“I don’t think people should be going to jail for public smoking of marijuana, period,” Chaffee shot back.

During public comment on the bill, a number of speakers turned out to warn against legalization, claiming it would increase use among young people and lead to a spike in cannabis-related psychosis and schizophrenia. Others said it would decrease quality of life in the state, with one lawmaker going so far as to claim that the first thing arrivals at the Denver International Airport smell after legalization in Colorado is people smoking marijuana in the airport.

Also testifying were representatives of ATCs in the state, who said they were concerned the Senate committee amendments to the bill could put them out of business by allowing well funded, out-of-state companies to come in and take over the state market.

Abbas was skeptical of those claims. “You’re saying that it doesn’t really offer a clear path to the therapeutic industry,” he said, pointing to a provision on the bill that would give advantages to applicants for retail licenses who have experience in medical marijuana. “What more would it have to say to be clear that there’s a path?”

“I would point you to the last three words” of that provision, answered Matt Simon, director of public and government relations at medical marijuana provider GraniteLeaf Cannabis: “or another state.”

“Prior experience of a company operating in California or Oklahoma would have, if I’m reading this correctly, the same consideration of a company that’s been serving New Hampshire for seven years,” he said.

Abbas asked what Simon thought of the Constitution’s Commerce Clause and whether it prohibited out-of-state control of state-licensed cannabis businesses.

“I’m not an attorney, senator,” Simon said, “but I am very familiar with cannabis laws in other states, and we would be a tremendous outlier if we did not recognize in-state experience as inherently valuable.”

(Disclosure: Simon supports Marijuana Moment’s work through a monthly Patreon pledge.)

Abbas also wondered why medical marijuana shouldn’t be subject to a state tax, referred to as a franchise fee in his bill. He asked Simon whether, if ATCs were allowed entry into the retail market, the businesses could simply not pass down the 10 percent added cost to patients.

Simon said the costs would certainly be passed down to consumers. “If I’m understanding the question correctly, if we’re liable for 10 percent, or whatever it is,” he responded, “that will absolutely be passed on to consumers.”

The bigger policy goal, he said, should be preserving the state’s medical marijuana market. “Why would patients register if there’s no tax-free advantage,” he asked, “or if they have to drive by three adult-use stores to get to the nearest dispensary that sells medical?”

Neither the amendments from Abbas nor those proposed by Senate President Bradley were voted on at Thursday’s hearing. Committee members will have the weekend to review the legislation and are expected to take it up again next week.

The Senate panel also considered three other cannabis-related bills. Among them were HB 1350, which would double the amount of medical marijuana that patients can possess; HB 1539, which would create an automatic annulment and resentencing process around cannabis criminal violations; and HB 1295, which would make adjustments to criminal violations around the unlicensed sale of medical marijuana.

While there was little discussion on the medical marijuana amount limits or unlicensed sale bill, the annulments bill drew testimony from both opponents and supporters. Law enforcement and a representative of the state Attorney General’s office, for their part, said the state already has a petition-based process, with which the proposed automatic procedure would be “inconsistent.”

Proponents of the bill, meanwhile, such as ACLU of New Hampshire’s Chaffee, noted that the new process is intended to be less “onerous” than what’s in place with the petition system.

“The entire point of this bill,” she said, “is to create a process that is far more manageable for people who are being affected by these sort of collateral consequences that they’re facing for crimes, quite frankly, that more than just about two thirds of Granite Staters do not believe should be a crime.”

As for HB 1633, the legalization bill, sponsor Layon has said she’s repeatedly reached out to the plan’s opponents in attempts to build consensus.

“The bill that passed the House reflects the Governor’s guidelines as I understood them, until his last minute embrace of a franchise model,” she told Marijuana Moment after the House vote earlier this month. “I made dozens of attempts to meet with the Governor and his staff to get into the policy details, but the best meeting I achieved was a walk-and-talk with him through the halls of the Capitol.”

Failure to reach agreement could threaten the legalization bill entirely despite what appears to be majority support for the policy change.

In a choice between the two competing models—Layon’s agency store model versus the governor-supported franchise approach—a House subcommittee earlier this month rejected a sweeping amendment that would have replaced Layon’s plan with the franchise model. That amendment was offered by subcommittee vice chair Rep. Dan McGuire (R) despite him telling the panel he didn’t entirely agree with the proposed changes.

“We are told from the governor and from our contacts in the Senate that this is what they want: the franchise model,” he said at the time. “We are also told they will not vote for the version the House passed, and we are told that they are either unwilling or incapable of making significant changes in the Senate.”

Sununu’s latest comments suggest he believes the Senate can in fact make those changes.

But Layon has now repeatedly warned that the adjustments backed by Senate Republicans like Abbas may not find support in the House.

“There is a real danger that the House may not accept what comes back from the Senate,” Layon said earlier this month, “so I look forward to talking with my colleagues to ensure that anything we receive can pass without a Committee of Conference.”

As Layon has workshopped the plan over the course of the legislative session, Abbas and others have warned that the bill will be dead on arrival in the Senate unless it includes the state-run franchise system and other restrictive provisions, such as a ban on lobbying.

But despite those warnings, House lawmakers decided to stick with Layon’s approach. Rep. Chuck Grassie (D) applauded his Republican colleage at an earlier House subcommittee hearing for what what he called “a Herculean effort…to get the governor and the Senate on board.”

“If the Senate has problems with passing a bill, I don’t see why we have to do their hard work here for them,” Grassie said at the time. “I think they need to debate this. They need to make up their mind on a bill, and they need to send something back to us if we want to see cannabis legalization in the state of New Hampshire.”

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Layon has previously told Marijuana Moment that she never expected her proposal to be the only bill introduced this session to legalize marijuana.

“I initially intended that this bill sort of be a counterpoint to what the special committee was going to deliver and what Sen. Abbas was going to introduce,” she said. “The fact that he didn’t introduce it and this is the only shot at legalization this year, I just really wanted to work hard in a good faith effort to get to something that I was comfortable with and that match the requirements of the governor as best I understood them.”

The governor said at a recent event, meanwhile, that he thinks legalization is “inevitable” in New Hampshire, adding that policymakers have “seen the mistakes other states have made so as not to walk down that path.”

“People just want the accessibility for adults, keeping it away from kids,” Sununu said. “If they can meet those rough stipulations, I would sign it, because I think that’s one of the safest systems you’re going to get.”

He added that as a legalization skeptic, he’s better positioned to consider a thoughtful bill.

“There’s no better person to help design a system that could be fraught with problems and risk specifically to kids than the guy that’s most scared of it,” he said.

Last year Sununu said he supported a system of state-run retail stores, but lawmakers on a state study commission last year instead pivoted to the idea of a franchise system, which the governor has said he’s willing to entertain. Officials at the Liquor Commission have said it would be far less costly for private franchisees to build out a system of retail stores than to ask the Liquor Commission to take on that task itself.

Lawmakers worked extensively on marijuana reform issues last 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. The legislature ultimately hit an impasse on the complex legislation.

Bicameral lawmakers also convened the state commission tasked with studying legalization and proposing a path forward last year, though the group ultimately failed to arrive at a consensus or propose final legislation.

The Senate defeated a more conventional House-passed legalization bill last year, HB 639, despite its bipartisan support.

Last May, the House defeated marijuana legalization language that was included in a Medicaid expansion bill. The Senate also 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 the 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.

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Photo courtesy of Carlos Gracia.