Can New Jersey Get Out of Its Own Way? Legalization Efforts Hit Another Snag

Locke Lord LLP

Back in November, New Jersey residents voted to approve a constitutional amendment legalizing the use of recreational cannabis for adults 21 and over. That amendment took effect January 1, 2021, which was supposed to mark a new era in New Jersey. But that did not happen. The issue is that all of the New Jersey laws outlawing marijuana possession, use, and sales remain in effect and will continue to do so until new legislation is passed. That is where Governor Phil Murphy and the New Jersey Legislature were supposed to step in and clear everything up. However, the legislation process has been mired in delays, disagreements, and a surprising lack of attention to detail.

After the amendment passed, the Murphy administration had prolonged negotiations on how to go about decriminalizing the use and possession of the drug and creating a regulatory framework for the cannabis industry. Eventually two bills cleared the Legislature – one regarding decriminalization and the other establishing legalization and the regulatory framework – but it was only after both bills were on Governor Murphy’s desk that his administration found inconsistencies in the two bills that established different penalties for underage possession. Under the legalization bill, those under 21 caught with less than 1 ounce of cannabis — the formal term for products sold through a legal marketplace — could be charged with a petty disorderly persons offense. But the decriminalization bill removed penalties for those under 21 caught possessing marijuana, a term that would only apply to illicit products. Democratic lawmakers, including Senator Teresa Ruiz who sponsored the decriminalization bill, have insisted the final bill language was intentional and that it would minimize law enforcement interactions over possession of small amounts of marijuana, particularly within minority communities. But Murphy said he won’t sign a bill that he views as effectively legalizing the drug for children. The two sides have been at an impasse ever since.

There was a glimmer of hope recently in the form of a “clean-up bill” sponsored by Senator Nicholas Scutari. This bill was to address the aforementioned inconsistencies, was believed to satisfy the Governor’s concerns, and had enough support to pass the legislature. However, that bill was pulled from the Senate Judiciary Committee’s agenda on Tuesday, a sign the two sides have not yet reached an agreement. The disagreement continues to center around how to treat possession offenses for those under the age of 21. The clean-up bill proposes $50 fines on anyone 18 to 21 years old, and a series of escalating written warnings — as well as parent notification and a referral to community groups for substance abuse education — for minors found with marijuana. The bill also calls for a $50 penalty for minors on their third or subsequent offense, but that provision is almost certainly going to be removed.

It has now been six weeks since Governor Murphy refused to sign the original pieces of legislation that made their way to his desk and New Jersey appears no closer to legalization. While this is clearly a question of when and not if, it is a concerning development for the industry nonetheless, and it serves as a stark reminder that getting cannabis legislation enacted will continue to be a difficult task for the foreseeable future. Something Governor Cuomo and lawmakers in New York should keep in mind as they eye legalization in 2021.

This is a developing story, and one that we hope has positive developments shortly.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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