Cannabis, or Marijuana is a controlled substance which is illegal to possess, use, or distribute in New York State. Medical Marijuana, however, is legal in New York State although adult recreational use remains prohibitied. Under the federal Controlled Substances Act of 1970, marijuana was placed in Schedule I, which defines the substance as having a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.
Jacobowitz and Gubits attorneys are ready to help New York businesses entering the cannabis industry by providing legal direction in the areas of:
- Government Regulations and Compliance
- Licensing and Permitting
- New York State Licensing for Cultivation and Dispensaries (forthcoming based on legislation)
- Labor and Employment
- Real Estate
- Land Use and Zoning
- Industrial Hemp Licenses (including Grain and Fiber licenses and CBD oil licenses)
Many of our attorneys have received the necessary continuing educational training to provide you with the guidance necessary to follow the federal and state laws governing cannabis law.
Last week, Jacobowitz and Gubits, LLP assisted the parties to a contract for the growing, cultivation, and harvesting of industrial hemp here in Orange County.
One of the parties has an Industrial Hemp Research Partner Authorization issued by the New York State Department of Agriculture and Markets, authorizing them to possess, grow and cultivate industrial hemp. Other parties to the contract were the funder and those in possession of the real property.
To most observers, industrial hemp is indistinguishable from marijuana. It is defined as containing less than 0.3 percent of delta-9 tetrahydrocannabinol (THC), the primary psychoactive component in marijuana. Oil from hemp flowers is used in the production of many kinds of products, and oil from the seeds is an effective lubricant for machinery. The plant stalk is used to make rope and fabric, but is not considered to be commercially viable in the United States due to the availability of very inexpensive supplies from overseas. Oils from the flowers and seeds are far more valuable products.
J&G believes we are only seeing the beginning of what will likely become a very substantial industry here in the Hudson Valley.
Delving into the Weeds: Industrial Hemp Licenses – Grain and Fiber In, CBD on Hold (4/12/19)
If you’re looking to obtain a license to grow industrial hemp, your budding plans may get put on hold.
As of December 2018, New York State Department of Agriculture and Market’s Division of Plant Industry has temporarily paused acceptance of applications to grow and process industrial hemp for cannabiodiol (CBD) oil under its Industrial Hemp Agriculture Pilot Program . The State has vowed to reopen applications for CBD growing and processing licenses in a few months, but what is a potential industrial hemp farmer to do while the smoke clears?
The answer: apply for a license to grow industrial hemp for grain (seed) or fiber (straw) purposes. The State is still accepting applications for such licenses on a first-come, first-served basis. Our Office can help you make the most of the upcoming growing season by assisting with application submission and providing legal guidance throughout the licensing process. And, of course, once CBD oil applications comes back into play, we can help you delve through those regulatory weeds as well.
Will Adult-Use Marijuana in New York State take a hit? 3/28/19
We have promised to keep you informed about the legalization of the growing and selling of adult-use marijuana in New York. It had appeared at one time that the New York law would sail through the state legislature, one reason being that our neighboring states were perhaps sailing first.
How quickly things change.
In New Jersey, the effort has stalled, if not completely failed. According to the New York Times on March 27, 2019: “Some lawmakers were unsure about how to tax marijuana sales. Others feared legalization would flood the state’s congested streets and highways with impaired drivers. Some would not be deterred from believing that marijuana was a dangerous menace to public health.” The bill collapsed on March 25, 2019.
In Connecticut, legislation legalizing marijuana has been introduced. According to the Hartford Courant on January 18, 2019, “Previous recreational marijuana bills have failed, but lawmakers have an increased sense of urgency this year with bigger Democratic margins in the General Assembly, a new governor who is supportive and legal sales across the border in Massachusetts.” Legislation is working it’s way through the Legislature but only time will tell.
In New York, it is close to a combination of both. The governor supports the state-wide legislation strongly but, to be sure, nothing has passed. Yet consistent with municipal home rule law and precedent, the proposed law allows a county, or a city with a population of more than 100,000, to opt out of the Cannabis Regulation and Taxation Act – – in other words, not allow adult-use marijuana in their respective city or county. County or large city governments would have the opportunity to opt-out of the new law by passing a local law, ordinance or resolution by its governing body.
The opt-out provision has already drawn politicians into the fray. According to the Poughkeepsie Journal on March 15, 2019, both Rockland and Putnam counties are considering opting out. Orange county has yet to be heard on the issue. The Chairman of the Orange County Legislature said, in the Times Herald Record of February 8, 2019, that the revenue is enticing but he was still unsure. While further away geographically but significant nonetheless, according to the New York Law Journal of March 27, 2019, the executives of Nassau and Suffolk counties have expressed their opposition to legalization.
Adult-use marijuana seems to take one step forward and two steps back. Stay tuned.
Listening Session 10/1/18
Jacobowitz & Gubits, attended Governor Cuomo’s regulated marijuana listening session for the Mid-Hudson region in Newburgh on 10/1/18. The New York State Senate and Assembly are expected to take up regulated marijuana legislation in the 2019 session. The Governor is holding 19 listening sessions throughout New York because “[c]ommunity input is critical as we work to draft balanced and comprehensive legislation on a regulated marijuana program in New York,” Gov. Andrew Cuomo said. The hope is that New York develops a model program when and if regulated marijuana is legalized. The Newburgh session had approximately 100 people in attendance. The crowd drew supporters and opponents of the legalization of regulated marijuana. Opponents cited the increase of marijuana related driving deaths and injuries in Colorado after marijuana was legalized. They also cited studies that purport that smoking marijuana at a young age could affect cognitive brain functions. Opponents included addiction counsellors, nurses, parents, and governmental health officials from Dutchess County, Rockland County, and other Hudson Valley locations. Supporters included sufferers of chronic pain, including multiple sclerosis, lupus, and PTSD. These people testified to the great pain relief they experienced from smoking marijuana and their ability to stop taking opioid-based pain medication. Other supporters included organic farmers lobbying against a few large farms winning all of the state’s regulated marijuana licenses and ultimately controlling the market. The organic farmers not only testified in support of small family farmers being able to grow regulated marijuana as a lucrative alternative to other farming, but also that the state’s regulated marijuana program should require that all marijuana be grown organically, which is not done in other states. If passed, the effects of regulated marijuana in New York remain to be seen.
Governor Cuomo Actions
In January 2018, Governor Cuomo called for an assessment of the possible impact of regulating marijuana in New York State. NYS agencies evaluated the health, public safety, and economic impact of legalizing marijuana. A summary of the report has been provided by Robert M. Lefland and you can view it here. This 74-page assessment concludes that the benefits of legalization outweigh potential risks. It suggests that NYS could raise nearly $700 million in tax revenue from this drug and that legalization won’t significantly increase rates of marijuana use by adults and teens. The report suggests that legalizing marijuana could both reduce opioid dependency while eliminating criminal penalties that disproportionately impact minorities. This report was released in July, 2018.
In August, Governor Cuomo took another step toward legalizing marijuana in New York State, announcing the formation of a 20-person work group to draft legislation allowing for recreational use by adults.
Marijuana in New York State
Staying current is important in all areas of law. The legal use of marijuana in New York State is undergoing intense scrutiny and much is changing. There is, however, one aspect which remains crystal clear, if not subject to change at almost any moment.
The recreational use of marijuana, as of this writing April 12, 2019, remains illegal.
Medical use, however, has changed. In July 2014, Governor Andrew M. Cuomo and the New York State Legislature enacted the Compassionate Care Act to provide a comprehensive, safe and effective medical marijuana program that meets the needs of New Yorkers. This bill comprehensively regulates the manufacture, sale and use of medical marijuana. It attempts to strike the right balance between potentially relieving the pain and suffering of those in desperate need of a treatment and protecting the public against risks to its health and safety. The balance is maintained by granting discretion to physicians to prescribe in accordance with regulatory requirements and medical norms, empowering the Department of Health to oversee the regimen of medical marijuana usage and leaving to the Governor, the final say in seeing that the public’s safety and health are protected by authorizing him to discontinue the program, in whole or in part, should risks to the public so warrant.
Department of Health
The Department of Health has stated that as of July 10, 2018, there are 62,256 certified patients and 1,735 registered practitioners participating in the program.
On December 8, 2017 The New York State Department of Health announced that it was filing regulations for adoption that will improve the state’s Medical Marijuana Program for patients, practitioners and registered organizations. These regulations, which went into effect on December 27, 2017, allow for the sale of additional medical marijuana products, an improved experience for patients and visitors at dispensing facilities and the ability for the Department to approve new courses that will allow prospective practitioners to complete their training in a shorter amount of time.
Under the new regulations, registered organizations (ROs) are allowed to manufacture and distribute additional products including topicals such as ointments, lotions and patches; solid and semi-solid products, including chewable and effervescent tablets and lozenges; and certain non-smokable forms of ground plant material. All products are subject to rigorous testing, and the Department reserves the right to exclude inappropriate products or those which pose a threat to public health.
Other recent enhancements to New York’s Medical Marijuana Program include authorizing five additional registered organizations to manufacture and dispense medical marijuana, adding post-traumatic stress disorder and chronic pain as qualifying conditions, empowering nurse practitioners and physician assistants to certify patients and permitting home delivery.