Albuquerque Journal

NM cannabis regs should target black market

- Joel Jacobsen Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal. column.tips@gmail.com

As a recent package of stories in the Journal documented, the legalizati­on of recreation­al cannabis will be a hot topic in the upcoming legislativ­e session.

But much more is at stake than the yes/no question of legalizati­on versus the status quo. We’re talking business regulation.

The recreation­al cannabis industry has long been regulated by an elaborate, expensive alphabet soup of federal and state agencies with overlappin­g responsibi­lities. The stated regulatory goal — eradicatio­n — was never serious and never pursued more than half-heartedly. All the agencies involved were tasked with other, far more pressing duties, anyway.

What we’ve lacked is any regulatory body charged with responsibi­lity for ensuring consumer and worker safety while enforcing fair competitio­n among producers adhering to high standards of quality.

Creating such a regulatory body from scratch won’t be easy, but that’s the job awaiting our Legislatur­e. On the plus side, we can learn from the experience of other states and Canada, avoiding their mistakes and emulating their successes.

On the minus side, some voices in the debate seem to regard legalizati­on primarily as a means for raking in tax revenue. It’s hardly the first time greed and drugs have formed a partnershi­p. But it’s desperatel­y short-sighted.

Our legislator­s should instead be focused on building a viable, sustainabl­e legal industry that, as it matures, will pay taxes commensura­te to its revenue, like any other business.

To do that, the first order of business is to recognize the obvious difference between recreation­al cannabis and any other new industry that starry-eyed legislator­s might hope to lure to our state with subsidies: The cannabis industry doesn’t need support. It’s already here.

In New Mexico, anybody who really wants to buy a cannabis product can already do so without much difficulty. Regular users have their sources. Others know somebody who knows somebody. And the rest of us can take the scenic drive to Antonito, Colorado, just over the state line, a village of 781 souls and three dispensari­es.

Prohibitio­n hasn’t made cannabis unavailabl­e. But it has saved dealers a bundle on overhead. They don’t pay rent for retail space, they don’t pay gross receipts or payroll taxes, and they don’t buy workers compensati­on insurance.

Which means any new legal storefront dispensary will begin at a stark competitiv­e disadvanta­ge.

If legislator­s look at cannabis legalizati­on purely as an opportunit­y to maximize tax revenue, they might be tempted to impose excessive taxes. If they do, they’ll be guaranteei­ng the continued existence of the black market, just as high cigarette taxes in New York have long encouraged shady types to import and sell low-tax cigarettes from tobaccogro­wing states.

A black market means profits flow to organizati­ons that are, by legal definition, criminal. That’s something the government should be striving to prevent, not perpetuate. Misha Glenny’s highly entertaini­ng book “McMafia” gives example after colorful example of organized crime cleverly exploiting market distortion­s caused by prohibitio­n, over-taxation or over-regulation.

Prohibitio­n means that participan­ts in the black market have no access to the civil justice system. They can settle commercial disputes only by taking direct action.

Albuquerqu­e’s high crime rate imposes monetary costs on businesses directly, in losses and security measures, and indirectly, scaring off customers and investors and discouragi­ng expansion. It slows population growth, as young people bail and potential customers move to neighborin­g states instead.

A significan­t slice of that violence is dispute resolution. It will be a great triumph for civilizati­on when distribute­rs can just sue defaulting retailers instead.

New Mexico should learn from California and Canada, where legalizati­on has so far failed to displace the black market. California’s local option, which allows municipali­ties to ban dispensari­es, was a gift to unlicensed, unregulate­d and untaxed local dealers. Exorbitant license fees discourage establishe­d dealers from coming in from the cold.

If we could just forget all the old hippie associatio­ns and ancient resentment­s regarding the 1960s (which were nowhere near as great/terrible as our cultural myths insist), we would be able to see the value of bringing so much entreprene­urial energy into the commercial mainstream.

Who knows what further business successes might follow? Richard Branson’s empire began with a record shop, after all.

Oklahoma’s businessfr­iendly, hands-off approach may provide a useful guide here. Deep red Oklahoma now has more than 9,000 marijuana businesses, according to a November Politico article by Paul Demko. That’s a lot of jobs. That’s the market breaking free of artificial barriers.

Thinking of cannabis legalizati­on in terms of tax revenue is exactly backward. What we need is a thriving industry with low barriers to entry, vigorous competitio­n, sensible regulation, and unfettered access to the justice system. Once we have that, the tax revenue will follow.

 ?? ROBERTO E. ROSALES/JOURNAL ?? A Reynold Greenleaf & Associates cannabis operation in Albuquerqu­e.
ROBERTO E. ROSALES/JOURNAL A Reynold Greenleaf & Associates cannabis operation in Albuquerqu­e.
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