On Thursday, October 21, 2021, the New York State Cannabis Control Board (CCB) of the Office of Cannabis Management (OCM) held its second public meeting. In its 30-minute meeting, the CCB covered a number of topics, including the approval of the minutes of the previous board meeting, engaging key stakeholders, medical cannabis regulations, and the executive director’s report.
CCB Chair Tremaine Wright, at the start of the meeting, addressed the issue of the gifting and unlicensed sale of cannabis in New York State. Wright stated that one of the primary goals of legalization is harm reduction and to provide safe products to consumers. Consumers purchasing cannabis from unlicensed sellers are purchasing unregulated and potentially unsafe products. She stated in no uncertain terms that there are no authorized legal cannabis sales allowed in New York State, other than from medical cannabis registered organizations (ROs). Further, there are no adult-use or recreational dispensaries in New York State, and the unlicensed sale and distribution of cannabis is illegal.
Addressing the gifting arrangement specifically, Wright stated that, while gifting of cannabis between adults 21 years old and older for no compensation is legal, this does not include when the gift is part of a commercial transaction or is advertised as part of a commercial transaction, saying, “this conduct is not legal and must stop.” Individuals continuing these practices face “severe financial consequences.”
Wright discussed additional staff hiring. The OCM has been interviewing and hiring “top talent,” according to Wright. The CCB approved the hiring of six senior staff members recommended by the executive director.
The CCB then addressed the proposed medical cannabis home cultivation regulations. Under the proposed regulations, certified patients who are 21 years old and older may cultivate cannabis for personal use. Patients will be limited to growing no more than three mature and three immature plants, and no more than 12 plants per household, irrespective of the number of patients or individuals living in the household.
Under the proposed regulations, designated caregivers caring for patients under 21 years old or whose physical or cognitive impairments prevent them from cultivating cannabis may cultivate on behalf of the patient. As with patients themselves, designated caregivers can cultivate no more than six cannabis plants on behalf of any patient. However, caregivers cultivating for multiple patients may cultivate one additional cannabis plant for each subsequent patient, up to four patients.
The proposed regulations impose a duty on patients and designated caregivers to take reasonable measures to ensure the cannabis plants and any cannabis cultivated from the plants are not readily accessible to anyone under 21 years old and must be out of reach and out of sight of youth.
Medical cannabis home cultivation may be done within a residence or outside. However, outdoor cultivation must adhere to the restrictions discussed previously, cannot be reasonably viewed by the public, and there must be proper security.
The medical cannabis home cultivation regulations apply only to registered medical cannabis patients, who will be authorized to purchase seeds and immature plants from ROs. The proposed regulations do not authorize adult-use consumers to cultivate cannabis. Further, medical cannabis patients are not able to sell or trade cannabis that they cultivate.
In regard to patient protections for home cultivation in leased residences, while landlords cannot discriminate against medical cannabis patients for the use of medical cannabis or participation in the medical cannabis program, landlords can include restrictions on the cultivation of cannabis in a lease.
The proposed regulations will be published in the New York State Register, where they will be subject to a 60-day public comment period. After the comment period ends, the OCM will adjust the regulations based on the comments received and publish final regulations. Once the final regulations are published, home cultivation for medical patients will be authorized. Until that time, home cultivation remains illegal.
The executive director then reported on the expungement of cannabis convictions. Expungement of cannabis convictions is automatic under the 2019 New York State cannabis decriminalization law. However, agencies have a two-year period in which to comply. Since 2019, there have been 198,000 sealing and expungement of records. Presently, there are 203,000 cannabis-related records being suppressed from criminal ground searches and that are in the process of being sealed and expunged.
Lastly, the executive director addressed municipal opt outs from retail sales of cannabis. Municipalities must pass laws opting out by December 31, 2021. All municipal opt outs are subject to a permissive public referendum that could overturn the opt out. Municipalities that opt out are only opting out of retail sales, not any other license type. However, all municipalities will have reasonable control over local zoning and time, place, and manner of cannabis-licensed businesses. Municipalities that opt out will be foregoing their share of local tax revenue generated from retail sales of cannabis.
Barclay Damon’s Cannabis Team will continue to closely monitor developments pertaining to the MRTA’s rules and regulations. If you have questions about the MRTA, please contact one of Barclay Damon’s cannabis attorneys.
If you have questions regarding the content of this alert, please contact Jason Klimek, Cannabis Team co-leader, at jklimek@barclaydamon.com, or another member of the firm’s Cannabis Team.