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Local Government- What is in the Law?

 

Overview

On June 30, 2021, New Mexico legalized adult-use cannabis (also known as marijuana, orrecreational marijuana) when the Cannabis Regulation Act (CRA) went into effect. The legislation creates a new Cannabis Control Division within the Regulation and Licensing Department to oversee and implement the law (collectively referred to as “CCD”). The CCD issues licenses and develops regulations outlining how and when commercial cannabis businesses can participate in the new industry. The CRA created one regulatory framework for commercial cultivation, manufacture, and sale of both medical and adult-use cannabis. The Medical Cannabis Program within the Department of Health continues to oversee the medical cannabis patient program.

The information below is a collection of key provisions from the Cannabis Regulation Act (CRA) which impact local governments and local officials.

Local Control and Preemption

Counties, cities, towns, and villages cannot opt-out of allowing commercial cannabis licenses from locating within their jurisdictions, nor can they opt out of medical or adult use cannabis. Possession and use of cannabis by adults 21 years of age or older is legal in New Mexico.

Municipalities, including counties, are preempted by the CRA from adopting any law, rule, ordinance, regulation, or prohibition pertaining to the operation or licensure of cannabis establishments, other than cannabis consumption areas. Consumption areas is the one license type municipalities may opt-out from allowing within their jurisdiction.

However, municipalities, including counties, are permitted to pass local laws and regulations governing

the time, place and manner of commercial cannabis establishments provided such laws and regulations do not prohibit the operation of a license, other than for consumption areas. For example, cities, towns, and villages may pass laws and regulations pertaining to local zoning and the location of licensees, hours of operations and adherence to local building codes. Municipalities may not issue or require local licenses for cannabis businesses.

Adult-Use Taxation

The CRA established an excise tax of 12 percent of sales until July 1, 2025 and then gradually rises to 18 percent beginning July 1, 2030. The rate is the same throughout the state. However, businesses must report by location so that localities can receive their share of the tax.

About 30 percent of taxes collected will be shared back to the municipality or county where it was collected.

Public Consumption (Smoking)

The legislation adds cannabis to the existing Dee Johnson Clean Indoor Air Act (CIAA), which establishes prohibitions on where cannabis can be smoked or vaporized. The smoking or vaporizing of cannabis is prohibited anywhere smoking tobacco is prohibited. Pursuant to the CIAA, municipalities are authorized to make laws that are more restrictive than the CIAA.

Nothing in the Cannabis Regulation Act shall be construed to allow a person to smoke cannabis products in a public place, except in a cannabis consumption area.

Home Production or Manufacture of Cannabis

A person 21 years of age and older can grow up to 12 cannabis plants in their home for personal use (6 mature plants and 6 immature plants).

      • Homegrown cannabis cannot be sold to anyone and is only intended for personal use.
      • The use of compressed gas solvents, such as propane or butane, to process or extract homegrown cannabis, is not allowed.
      • The manufacture of cannabis extract or products from homegrown cannabis using nonvolatile solvents, alcohol or carbon dioxide or no solvents is allowed.
      • Local municipalities may enforce regulations relating to home growing of cannabis. The CCD has no regulatory authority over growing in the home, however, criminal law still applies for personal growing of plants or manufacturing of products over the restrictions provided within the CRA.
Personal Possession

Adults over 21 can possess 2 ounces of cannabis, 16 grams of cannabis extract, and 800 milligrams of edible cannabis. The unauthorized sale of any amount of cannabis or cannabis product is illegal and subject to penalties.

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