When the state Legislature debated the New Mexico Cannabis Regulation Act, many lawmakers raised concerns about the health and safety of the public in a post-legalization world. Some expressed concerns about ingesting too much cannabis, while others raised concerns about intoxicated driving in a state that already battles with some of the worst rates of alcohol-related deaths in the nation.
In theory, state agencies can require education programs for those who work in the cannabis industry in order to help ensure the public’s safety. And the Cannabis Regulation Act lays out a framework for education standards within the state’s cannabis industry. But currently, there are no rules or regulations for cannabis servers working at consumption lounges that are designed for on-site cannabis consumption and one cannabis educator said she thinks the state is increasing the liability of some business owners.
The Cannabis Regulation Act includes benchmarks for what is referred to as a “cannabis server education program curriculum.” Some of those standards include subjects like how cannabis interacts with other substances like alcohol and illegal drugs, how to spot “problem cannabis product users” and the impact cannabis has on a person’s ability to drive safely. The law also requires that any cannabis server education program be approved by state regulators.
But according to the state’s Regulation and Licensing Department and its Cannabis Control Division, there are no specific standards in place beyond what’s in the statute, even though regulators have already begun accepting applications for cannabis consumption lounges and have licensed one company to sell cannabis for on-site consumption. Further, the Cannabis Regulation Act requires that the Cannabis Control Division “begin licensing cannabis training and education programs no later than January 1,
2022.”
Shanon Jaramillo, cofounder of SeedCrest, a cannabis education company, said she’s worried that licensing consumption areas without specific guidelines for employees will open business owners to more legal liability than necessary.
“The gap is, the law says that these establishments that they are approving have to have the cannabis server permit, and they are approving them without access to that, in essence, putting them in a position of higher risk and higher liability against the law,” Jaramillo said.
Jaramillo said without proper training, cannabis servers might relate incorrect information to customers, based only on personal experience. That, she said, may lead to smoking or ingesting too much cannabis or incorrect assumptions about how cannabis impairs driving.
“For me, it’s that lack of support for these people who are then translating that into our population, and that’s where we perpetuate the stigma,” she said.
Part of SeedCrest’s mission statement is to help break down the stigma of using cannabis, but Jaramillo said the company also trains potential employees to hopefully make them more appealing to employers. She said SeedCrest has a cannabis server curriculum ready to go, but is waiting for the Cannabis Control Division to open the application process for cannabis server permit education providers, or the entities who certify cannabis servers.
Jaramillo was a member of a cannabis legalization working group convened by Gov. Michelle Lujan Grisham in 2019 and has been in somewhat regular contact with regulators since then. But, Jaramillo said, since January of this year, her emails to the Cannabis Control Division about cannabis server education standards have gone unanswered.
“I’ve tried to just visit with them about it and just kind of speak with them about it,” Jaramillo said. “It just goes into the ether, and I don’t really get a response back.”
Bernice Geiger, a spokesperson for the Regulation and Licensing Department, told NM Political Report in an email that the department and the Cannabis Control Division are working towards establishing rules for cannabis server education this month, but that there still are some expectations of cannabis servers.
“Cannabis consumption areas are held to the same consumer protections as any cannabis establishment, including food handling permits for unpackaged product,” Geiger said. “This includes all employees of the establishment.”
So far the state has issued only one cannabis consumption area license. The application for that license requires the applicant to “attest that any person that directly offers, sells, or serves cannabis or cannabis products shall hold a cannabis server permit.” NM Political Report followed up with the regulation department about whether it was temporarily waiving that portion of the application. We will publish the department’s answer when we receive it.
For now, Jaramillo said she is moving forward with launching a server education program, regardless of whether her company is officially approved as a server permit education provider.
“We’re likely going to go ahead and launch our program in September of this year, just because that’s where our timeline falls,” Jaramillo said. “But we’re going to go ahead and launch it with or without the provider permit and provide it to these companies that are up against this liability because we believe that they just need the resource.”
Kenny Byrd, a client executive and vice president of insurance brokerage firm HUB Southwest, told NM Political Report that liability for businesses that allow on-site cannabis use will vary similar to that of a bar that serves alcohol.
“The main risk for consumption lounges is always going to be smoking and driving under the influence,” Byrd said. A real-world example would be somebody walks into a bar, drinks at the bar, then goes to a cannabis entity and goes to the consumption lounge. Now you’re drinking and smoking marijuana so that could be a big problem. And if they get in a car accident, a lawyer is going to sue everybody, so they’re going to sue the bar owner, they’re going to sue the cannabis place just because they were there.”
Byrd said businesses generally have insurance that would cover instances like his hypothetical example, but that it will likely take courts to decide where liability begins and ends.
“It’s all brand new,” Byrd said. “Some of this, I don’t even know the answers to. We can just prepare the best we can for some of the risks that we think can happen.”
Mark Fine of the Albuquerque-based Fine Law Firm, which specializes in personal injury and government liability, said that even though there are no specific standards for cannabis servers yet, the liability will still likely fall on the server and business owner.
“There’s always a reasonableness argument. And that’s the touchstone of any kind of negligence case,” Fine said. “I would not be that concerned about the defense by the owner that there were no standards because I’d say, “Well, it’s a reasonableness standard, and what you did wasn’t reasonable.”
Jaramillo said she thinks the focus on public safety might be getting pushed to the side as the state moves forward with adult-use cannabis sales.
“When we were working on legalization, I feel as though we made certain promises to the public, regarding reinvesting into the community, making sure that we had safety and public health issues under control, making sure that the industry had enough tools and making sure that the [Department of Public Safety] was educated,” Jaramillo said. “I understand that takes time, but I feel as though a lot of the focus has kind of gone away from some of those promises that we made, and we need to refocus on these things that are going to provide that.”
