Cannabis In New York State: Just The Facts

Farrell Fritz, P.C.
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On March 31, 2021, Governor Andrew Cuomo signed the Marihuana Regulation & Taxation Act (MRTA) legalizing adult-use cannabis in New York State. In doing so, New York became the 15th state in the United States to legalize cannabis use.

As  a result of the enactment of the MRTA, New York established the Office of Cannabis Management (OCM). The OCM will regulate and control the cultivation, processing, manufacture, distribution, transportation, and sale of cannabis in New York. This includes medical cannabis, adult-use or “retail” cannabis and cannabinoid hemp.

Below we’ve gathered key facts about New York State’s adult-use and medical cannabis programs. These facts, and more information on the cannabis program in New York, can be found at the websites listed at the end of this post.

ADULT-USE MARIJUANA PROGRAM

  • Only adults 21 years of age or older may possess and use recreational cannabis.
  • Adults over 21 can possess up to 3 ounces of cannabis and 24 grams of concentrated cannabis (like vaporization oil or an edible).
  • Cannabis can be purchased only at state licensed dispensaries.
  • Cannabis cannot be consumed when operating a motor vehicle and it remains illegal to operate a vehicle in New York while under the influence of cannabis. Impaired driving can result in a charge of Driving While Ability Impaired By Drugs (DWAI) under Vehicle And Traffic Law Section 1192(4). This section states: “No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.” The world “drug” includes cannabis.
  • The smoking of cannabis is prohibited anywhere smoking tobacco is prohibited. In addition, landlords, property owners and rental companies can ban the use of cannabis on their premises.
  • Employers can enforce policies that prohibit cannabis impairment on the job.
  • Adults over 21 cannot cross state or international borders in possession of cannabis. It is also illegal to possess and use cannabis on federal lands or property.
  • Growing cannabis at home for personal use is not permitted under the new law until the Cannabis Control Board adopts regulations outlining the rules. It is expected that New Yorkers 21 years and older will be able to grow up to six plants in their home for personal use (3 mature plants and 3 immature plants) and a maximum of twelve plants per household (6 mature plants and 6 immature plants), even if there are three or more adults over the age of 21 in the residence. Home cultivated cannabis cannot be sold to anyone and is only intended for personal use.
  • Local municipalities may enact and enforce regulations relating to home cultivation of cannabis, however no municipality may completely ban or prohibit home cultivation.
  • The MRTA establishes three taxes on adult-use cannabis. There is a tax imposed at the distributor tier based on the milligrams (mg) of total THC in the cannabis product. There are different rates of tax depending on the cannabis product form.
  • On the retail sale to the consumer, there are two taxes: 9% state excise tax and 4% local excise tax.
  • All cannabis taxes will be deposited in the New York state cannabis revenue fund to administer the program and implement the law. The remaining funding would be split three ways: 40% to Education; 40% to Community Grants Reinvestment Fund; and 20% to Drug Treatment and Public Education Fund.
  • The MRTA will automatically expunge records for people with previous convictions for activities that are no longer criminalized. Individuals who qualify for expungement are not required to take any further action to have their records expunged.

MEDICAL MARIJUANA PROGRAM

  • New York’s medical cannabis law – Compassionate Care Act – was signed into law on July 5, 2014.
  • Medical marijuana is available for patients that have been diagnosed with one or more of the following severe debilitating or life threatening conditions: cancer, HIV infection or AIDS, amyotrophic lateral sclerosis (ALS), Parkinson’s disease, multiple sclerosis, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, Huntington’s disease, post-traumatic stress disorder, chronic pain (as defined by 10 NYCRR §1004.2(a)(8)(xi)), pain that degrades health and functional capability as an alternative to opioid use or substance use disorder.
  • The severe debilitating or life-threatening condition must also be accompanied by one or more of the following associated or complicating conditions: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms, PTSD or opioid use disorder.
  • To obtain medical marijuana, patients must first be certified by a registered practitioner (which includes physicians, physician assistants, and nurse practitioners). A list of registered practitioners can be found at the New York State Department of Health (DOH) Public List of Consenting Medical Marijuana Program Practitioners.
  • Once certified, patients must register with the DOH. Patients may designate up to two caregivers during the registration process. After the patient’s registration is processed, the designated caregiver(s) must then also register with the DOH.
  • Pursuant to the Compassionate Care Act there is a $50 registration fee; the Department is currently waiving the $50 fee for all patients and their designated caregivers.
  • Once a patient or caregiver’s registration is approved, the DOH will issue a registry identification card which patients must bring to a registered organization’s dispensing facility in order to purchase approved medical marijuana products. A list of Registered Organization Locations can be found here.
  • Registered organizations must make available at least one brand that has an equal ratio of THC to CBD, and one brand with a low-THC-high-CBD ratio). Each Registered Organization will also offer other products that have varying ratios of THC to CBD.
  • Prices for medical marijuana products vary widely amongst the registered organizations. The Compassionate Care Act does not mandate a discounted Medical Marijuana pricing program, but allows Registered Organizations to provide discounted products. Some Registered Organizations may offer reduced prices for qualifying certified patients.
  • Like recreational marijuana, medical marijuana products may not be transported outside of New York State.
  • New York State does not accept certifications or registry ID cards from other states.
  • Patients may possess a 30-day supply of medical marijuana. They may refill their 30-day supply seven days before it runs out.
  • The excise tax on medical cannabis is a 7% tax on the gross receipts from medical cannabis sold or furnished by a registered organization to a certified patient or designated caregiver.
  • The tax is imposed on the registered organization, which must pay it to the Tax Department. The tax may not be added as a separate charge or line item on a sales slip, invoice, receipt or other statement or memorandum of the price given to the retail customer.

HELPFUL RESOURCES

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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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