Bills to Watch in 2020 NH Legislative Session

While the text of bills slowly make their way out of the Office of Legislative Services for the 2020 legislative session in New Hampshire, there are at least a couple cannabis-related bills of interest to keep tabs on. 

The first bill is HB 1386, sponsored by Rep. Wendy Thomas (D – Hillsborough), which would prohibit employers from retaliating against an employee solely because the employee is a qualified patient of the New Hampshire therapeutic cannabis program and has a positive drug test for cannabis. The potential reach of this bill is unclear as it provides that “[e]mployment where no cannabis is allowed shall be excluded from this section.” This suggests that at least some undefined class of employers (Hospitals? Police departments? Schools?) can retaliate against employees who test positive for cannabis. The bill also clarifies that an employer is not required “to allow being impaired by cannabis products while at work.” Given Governor Sununu's veto of several cannabis-related bills last session, I do not anticipate this bill becoming law this session (at least in its current form).

The second bill to watch is HB 1150, sponsored by Rep. Renny Cushing (D – Rockingham), which would permit qualifying patients visiting from out-of-state to access New Hampshire’s therapeutic cannabis dispensaries. Anybody who has visited New Hampshire knows that the state prides itself on obtaining revenue from visiting out-of-staters whether by tolls, state-run liquor stores on the highway, or room and meals taxes. Nevertheless, the elimination of the current ban on such transactions may run into some practical obstacles, such as how to determine whether an out-of-state consumer is a “qualifying patient.” This determination will likely become even more difficult as our neighboring states move away from a medical cannabis market and toward a legalized recreational cannabis market.

State Audit Gives New Hampshire Therapeutic Cannabis Program a Failing Grade

The results of a June legislative performance audit show that, in 2018, the State of New Hampshire failed to issue identification cards within the statutory deadline of five days after approval on 98.4% of the applications for the Therapeutic Cannabis Program. On average, in 2018, identification cards were received within 14 days after approval of the application. The 2018 numbers are an improvement over 2017, when the State failed to provide any identification cards within five days of application approval. The average turnaround time in 2017 was more than 24 days after application approval.

The failure, since inception, to provide adequate staffing and funding for the Therapeutic Cannabis Program has led advocates to push for a home-grown option. The House and Senate passed HB 364 this spring, providing a home-grown option, but Governor Sununu vetoed the bill on August 2, 2019. The House will have an opportunity to override the veto on September 18, but the prospects for success are small.

No Recreational Cannabis in New Hampshire This Year, and No New “Alternative Treatment Center” Licenses

There will be no legalization of recreational cannabis in New Hampshire this year. That is the story of the legislative session as the House and Senate wind down their sessions this month. Nevertheless, there are still a number of cannabis-bills headed to the Governor’s desk.

The chances were unlikely that recreational cannabis would be legalized in New Hampshire this year, particularly after Governor Sununu vowed to veto such legislation. Nevertheless, the House passed HB 481, which legalized recreational cannabis in April. The Senate, however, recognizing the lack of votes to overcome the governor’s promised veto, voted to keep it in Committee over the summer.

The House Health Committee also decided to retain two bills (HB 366 and HB 461), which would have added qualifying medical conditions for therapeutic cannabis. It will take up the retained bills in the fall. 

Meanwhile, the Senate killed HB 174, which would have added a potential fifth alternative treatment center (ATC) license. There are currently four licenses (or certificates) to operate ATCs in New Hampshire. These four certificates correspond to four geographic areas set by the Department of Health and Human Services (DHHS). Each licensee may only operate within its prescribed geographic area. HB 174 would have allowed DHHS to begin taking applications for a fifth license for an ATC to be located in Hillsborough or Merrimack County. Currently, there is only a single ATC in Hillsborough County and no ATC in Merrimack and Rockingham Counties (the second and third largest counties by population). The defeat of this bill is a blow to potential future entrants to the New Hampshire market. 

Another potential blow (or opportunity) to potential future entrants to the New Hampshire market is SB 145, which changes the law with respect to the corporate form of ATCs. Under current law, an ATC must operate as a not-for-profit entity. SB 145 would amend the law to allow ATCs to be a “domestic business corporation organized under RSA 293-A” or a “domestic limited liability company organized under RSA 304-C.” The likely initial result of this change will be a sale or reorganization of the current ATCs. But it could open up the market to future acquisitions by for-profit entities.

Next: But, we may have more dispensaries and more (legal) cannabis growing in the state.