The Marijuana Regulation and Taxation Act (MRTA), which has legalized adult-use cannabis in New York State, has laid the foundations for a new fresh start for cannabis consumers in the state.
As well as expunging cannabis-related records, the legislation is developing an industry that aims to focus its foundations on social equity. But one of the opportunities that went under the radar with cannabis legalization in New York State is home growing for personal use.
Since the legislation was enacted on March 21, 2021, the state's cannabis regulators have been busy implementing the regulations to issue licenses for cultivators and processors. Additionally, they have been issuing licenses for those benefitting from the Conditional Adult-Use Retail Dispensary (CAURD) program, which grants licenses to individuals and nonprofits affected by the cannabis prohibition policies in the state prior to legalization. However, this process has not been without its challenges, as critics have pointed out a problematic rollout of legal recreational marijuana, citing excessive regulations and a complicated licensing process that have hindered legitimate efforts.
For cannabis home growing, the MRTA allows individuals 21 years of age and older to grow up to six cannabis plants in their homes. Out of these, three plants can be in the mature stage (meaning plants with cannabis flowering stage), and three can be in the immature stage (meaning plants not in the flowering stage). However, the maximum number of plants permitted per household is twelve, with six mature plants and six immature plants.
However, New Yorkers are still not allowed to grow plants as home cultivation of cannabis is only permitted after the Office of Cannabis Management (OCM), the cannabis regulator's agency, issues specific regulations, which will occur within 18 months of the first adult-use retail sale.
As the first cannabis dispensary opened on December 30, 2022, the OCM must issue final regulations governing home growing for personal use by June 30, 2024.
The decision to delay allowing homegrown marijuana was made to prevent an excessive proliferation of cannabis, which could potentially hinder the success of newly established legal retail stores.
Despite good intentions to promote the legal cannabis retail market, the provision to outlaw personal cultivation has become an obstacle.
While cannabis regulators were working on implementing the legislation by finalizing regulations for cultivators, processors, and retailers for the legal adult-use market, thousands of unlicensed businesses proliferated across the state, selling cannabis illegally.
This situation has created a grey area, with thousands of unlicensed operators stepping in to sell cannabis in NYS, a role intended to be filled by licensed dispensaries, particularly those belonging to the social equity program.
In New York City alone, there are at least 1,400 unlicensed stores selling marijuana products unlawfully. The state's cannabis regulators have issued 463 retail licenses as of July, but only 21 licensed dispensaries are currently operational in the state.
NYS's cannabis regulators initially attempted to crack down on unlicensed stores selling cannabis products by issuing warning letters. However, law enforcement operations have since intensified, seizing products, and shutting down these stores. This escalation occurred, particularly after NYS's Governor Kathy Hochul signed new legislation in May, increasing civil and tax penalties for the unlicensed and illicit sale of cannabis.
However, most of the unlicensed shops are still thriving at the expense of legal dispensaries, creating competition that threatens the legal market's success in the state.
Given the situation, it no longer makes sense for cannabis regulators to wait any longer before issuing regulations for home cultivation of cannabis for personal use. The provision to delay home cultivation for personal use to avoid impeding legal dispensaries has failed as unlicensed sellers have emerged across the state, becoming direct competitors to legal retailers.
For now, only individuals with medical cannabis prescriptions are permitted to grow cannabis at home legally. They received this authorization last September when the state approved regulations that allow medical marijuana patients—who were already able to purchase products from licensed medical dispensaries—to grow up to three mature plants and three immature plants at home. Furthermore, they can designate caregivers to grow the crops on their behalf.
But growing adult-use cannabis at home for personal use is still outlawed, and the current legislation concerning the penalty for doing so is confusing and unclear. No specific enforcement measures are outlined because regulators are still working on guidelines, which ultimately leaves prosecutors with wide discretion in pursuing potential charges.