Is gifting cannabis legal?

We sat down with Michael Roche for another edition of NYSCC Cannabis Laws with Michael Roche.

This week, Michael talked about gifting cannabis, and whether or not it is legal in New York State. A breakdown is offered below.  

Medical cannabis has only been legal since 2014, less than ten years. With the legalization of recreational cannabis earlier this year, we wanted to know more about the framework of the laws to come and understand the current market of cannabis in NYS.

I recently had the opportunity to sit down and speak with NYS cannabis lawyer Michael Roche, who was kind enough to share his professional opinion on cannabis laws. Mr. Roche has worked at Harter Secrest and Emery for eight years. He spent seven years working in food and beverage, specifically the alcohol beverage industry. Mr. Roche says, "it's a perfect fit." He believes the parallels are obvious, and the framework seems to have its foundation from the alcohol industry currently in place.

Mr. Roche was the perfect professional to answer our questions about cannabis law in NYS. He was able to share some pertinent information over a month ago regarding the gifting of cannabis with the City Newspaper.

Roche explained it like this, "you go into a local butcher, and you buy a steak and get a free eighth, that's not even subject to sales tax. There would be no tax, and New York state is not going to allow that to happen" (Fanelli and Andreatta)

With all the recent pop-ups and places gifting cannabis, it seems like his message went unheard. So, we wanted to know from Roche what is legal and what isn't for both consumers and businesses in NYS. Roche says, "the law is very clearly tailored towards the sale of cannabis. And particularly sale by licensed businesses." You must possess a license to sell or retail cannabis in any way in NYS. The product has not been tracked, tested, or taxed, and it is not currently legal because NYS hasn't even established the process for applying for a license to sell or distribute cannabis.

As individual consumers, Roche gives an example, "you have friends over to your house. You can serve them a bottle of wine or something. You could light up a joint if you wanted to. I don't think there's going to be any issues with that."

It seems safe to say we can consume with friends. The Marijuana Regulation and Taxation Act (MRTA) states a person 21 years or older may possess up to three ounces of cannabis.

Roche clarifies, "you're not just sharing it among individuals once you start sharing it at a retail level. The Office of Cannabis Management... is going to say, NO, you really should be licensed in order to do that." On October 21, 2021, at the second Cannabis Control Board public meeting, The Chair, Tremaine Wright, seconded Roche by calling out this grey area of gifting, "this conduct is not legal and must stop. Individuals who do not cease run the risk of severe financial penalties." Wright added, "the state will work with its local partners to enforce the law" (Cannabis Control Board).

The best advice Roche can offer to businesses trying to get a piece of the pie is "getting ready now and being in a position to submit your applications as soon as they're released is the best thing you can do." Think hard about what part of the industry you want to venture into; there are many options. The three main sectors are retail, farming, or packaging, and distribution. But start putting the pieces together now. Roche adds, "because again, we just don't know what it's going to look like. It might be the Wild West, or it might be very rigid and structured. It's better to be first than last." At NYSCC, we want our community to be knowledgeable on cannabis laws and hold themselves accountable. Be proactive and think about safe business practices.