Assembly to Pass the Marijuana Regulation and Taxation Act to Legalize Adult Use of Marijuana in New York State

Speaker Carl Heastie and Assembly Majority Leader Crystal D. Peoples-Stokes today announced that the Assembly will pass the Marijuana Regulation and Taxation Act (MRTA), which will legalize the adult use of marijuana in New York for individuals 21 years of age and older and establishes the Office of Cannabis Management (OCM) and the Cannabis Control Board to regulate the cannabis industry. The legislation would use revenue from adult-use marijuana to invest in education and communities that have been disproportionately targeted by state and federal drug laws. New York will join 14 states, two territories and the District of Columbia in legalizing the adult use of marijuana. This will create jobs across all aspects of the industry from agriculture to retail.

 “Passage of this bill will mean not just legalizing marijuana, b ut investing in education and our communities, and bring to an end decades of disproportionately targeting people of color under state and federal drug laws,” Speaker Heastie said. “The Assembly Majority knew it was important to do this the right way – in a way that would include those targeted and frequently excluded from the process. Now, this legal industry will create jobs across our state, including for those who have had their lives upended by years of unjust drug laws.”

“I am proud to have fought so long for this legislation and to finally see it pass,” Majority Leader Peoples-Stokes said. “We are providing marijuana justice by ensuring investment into the lives and communities of those who suffered for generations as a result of mass incarceration. The results will be transformative for people across New York State – it will create economic and research opportunities, jobs across a wide variety of sectors, and a safe and reliable product.”

The legislation will allow for the adult use of cannabis for those 21 years of age and older, and provide for the possession of three ounces of cannabis and 24 grams of concentrated cannabis. It removes cannabis from the list of controlled substances.

Job Creation

A report by Whitney Economics found that in 2020 alone – during a pandemic that caused millions of Americans to lose their jobs –the cannabis industry created 77,000 jobs. Across the country, there are about 321,000 jobs in the legal marijuana industry. Legalizing marijuana will create jobs across traditional industries, including agriculture, distribution, delivery, retail and more.

The legislation establishes adult-use license categories: cultivator, processor, distributor, retail medical cannabis registered organizations (RO) vertical, RO cultivator, microbusiness, on-site consumption, cooperative, delivery and nursery. Microbusinesses are authorized to have complete vertical integration, which includes producing, processing, distributing and retail. An adult-use cultivator would be able to obtain one processor, one distributor and one nursery license. ROswould be allowed to, after paying a one-time special fee, apply for a vertically integrated adult-use RO cultivator/processor/distributor/retail license, limited to no more than three co-located dispensaries.

The Cannabis Control Board, with the assistance of the chief equity officer and advisory board, will also be required to establish a social equity plan. The goal of this plan will be to issue 50 percent of licenses to social equity applicants, especially those impacted by the war on drugs, those who are low-income, those who have a marijuana-related conviction, as well as minority and women owned businesses (MWBEs), distressed farmers and service disabled veterans.

Restorative Justice

The MRTA will ease the burden of New Yorkers, particularly people of color who have been disproportionately impacted by drug laws. The legislation includes provisions that will allow individuals who are currently incarcerated or living with a criminal record for certain marijuana offenses to petition for dismissal or resentencing on the conviction. The legislation also builds on the 2019 decriminalization law by providing for the expungement of conviction records for individuals convicted of criminal possession of marijuana in the fourth degree, criminal possession of marijuana in the third degree, criminal sale of marijuana in the fifth degree, and criminal sale of marijuana in the fourth degree.

Much of the revenue from the legalization of adult-use marijuana will go to the Community Grants Reinvestment Fund, which will be administered by the OCM advisory board and allocated to community based nonprofits to reinvest in communities disproportionately impacted by state and federal drug laws, as well as providing substance use disorder services, mental health services, services to address adverse childhood experiences, and afterschool and child care services. It will also support education through the State Lottery Fund and the Drug Treatment and Public Education Fund, which would require the Department of Health (DOH) and Office of Addiction Services and Supports (OASAS) to establish substance use disorder treatment programs for youth and adults.

The legislation prohibits employers from taking adverse action against employees for the use of cannabis outside of work hours, off the employer’s premises and without the use of the employer’s equipment or other property. It also includes protections and procedures for adult-use cannabis as it relates to child protective investigations and reports, as well as custody and visitation rights in line with how alcohol is currently treated in law. It also includes protections for potential childcare employees and foster parents who are subject to background checks when cannabis related convictions, which are eligible for expungement under the criminal procedure law, are present on their background check. Finally, it removes the ability to file a petition for a person in need of supervision (PINS) based solely on certain levels of marijuana possession.

Medical Marijuana

With the passage of the MRTA, current medical marijuana programs would fall under the jurisdiction of the OCM. The legislation will allow practitioners to certify patients for additional conditions, and will also allow for flower medical products to be included in the program. The legislation would also eliminate the $50 fee for patients obtaining a medical cannabis identification card, and would require all medical marijuana information to be confidential. It also establishes worker protections for medical marijuana that mirror protections for injured workers under the workers’ compensation law.

The legislation explicitly authorizes home cultivation for certified patients that are age 21 or older, as well as designated caregivers, also 21 or older, that have a patient under age 21 or incapable of growing cannabis.

Additionally, the bill includes language to increase social equity in the medical marijuana industry, in registered organization ownership and operation, as well as expanding to underserved areas.

Home Grow

The MRTA allows individuals to cultivate a total of six cannabis plants, consisting of three mature and three immature plants at their residence, and allows for a total of 12 cannabis plants per residence. Individuals would be allowed to possess up to five pounds of cannabis at their residence, stored securely.

The Office of Cannabis Management

The MRTA will bring together the newly created adult-use cannabis program, the existing medical cannabis program and cannabinoid hemp program under the newly OCM. Together with a governing board and an advisory board, the office will establish regulations to carry out its licensing and regulatory functions.

The governing board will consist of five members, three appointed by the governor, and one appointment by each of house of the Legislature. It will also consist of a chair, being one of the governor’s three appointees, and an executive director to be appointed by the executive with senate confirmation, as well as a chief equity officer who will be appointed by a vote of the board. The board will have exclusive ability to issue licenses and permits, as well as regulate, control and enforce provisions related to medical cannabis, adult-use cannabis and cannabinoid hemp, and establish other programs such as public health and education. They will also be tasked with developing and implementing a social equity plan to ensure that individuals previously harmed by drug laws, MWBEs, distressed farmers and service-disabled veterans are able to participate in the legal cannabis industry.

Advisory board members will have statewide geographic representation that is balanced and diverse in its composition. Appointed members shall have an expertise in public and behavioral health, substance use disorder treatment, effective rehabilitative treatment for adults and juveniles, homelessness and housing, economic development, environmental conservation, job training and placement, criminal justice, and drug policy. Further, the advisory board will include residents from communities most impacted by cannabis prohibition, people with prior drug convictions, the formerly incarcerated, and representatives from the farming industry, cannabis industry, and organizations serving communities impacted by past federal and state drug policies.

The legislation also adds marijuana to the Clean Indoor Air Act, which prohibits smoking and vaping in almost all public and private indoor workspaces, including restaurants and bars.

Taxation

Tax revenue from states that have legalized adult-use cannabis has surpassed expectations. Colorado usually collects more than $20 million a month, and California collects more than $50 million a month. In fiscal year 2019, Washington State collected a total of $395.5 million in legal marijuana income and licensing fees.

The MRTA establishes the following taxes on adult-use marijuana:

• A tax on the sale from a wholesaler to a dispensary, based on the milligrams of THC in the product. The tax rate would be based on the type of product, as follows:
  • Edibles would be taxed at a rate of $0.03 per milligram of THC;
  • Concentrates would be taxed at $0.008 per of milligram of THC; and
  • Cannabis flower would be taxed at rate of $0.005 per milligram of THC;
• A 13 percent excise tax on cannabis with portions going to municipalities:
  • Taxes on the sale by a dispensary to the consumer at a rate of nine percent of the sales price will go to the Cannabis Revenue Fund; and
  • Taxes on the sale by a dispensary to the consumer at a rate of four percent of the sale price, which would be split between the county of sale (one percent) and the municipality of sale (three percent).

The legislation also establishes the New York State Cannabis Revenue Fund which will be used to fund OCM and cover the costs of state agencies to apply and adapt to the MRTA. After those administrative costs, 40 percent will go to the Community Grants Reinvestment Fund, 40 percent will support general education through the State Lottery Fund, and 20 percent will be allocated to the Drug Treatment and Public Education Fund.

Opt-Outs

Cities, towns and villages would be allowed to pass local legislation prohibiting certain retail establishments from opening within their borders, but the MRTA includes provisions for voters to overturn the opt-out. And while they can opt-out of retail licenses, they cannot opt-out of other types of licenses. These opt-outs would also not prohibit the adult use of cannabis. Cities, towns and villages may also reasonably regulate the time, place and manner of operation of retail establishments.

Studies

The DOH will select higher education research institutions to conduct a controlled research study evaluating methodologies and technologies designed to effectively and reliably detect cannabis-impaired driving. The focus will be on distinguishing between a present impairing effect on a person’s cognitive abilities and the presence of cannabis from habitual use. This report will be sent to the governor, Legislature and DOH by December 31, 2022, and used by DOH to issue regulations to approve and certify a test.

Penalties

Unlawful possession of cannabis would be defined as a person possessing, outside of one’s residence, more than three ounces of cannabis or 24 grams of concentrate, and punishable by a fine of up to $125. Possession by a person less than 21 years of age would be treated similarly to alcohol use− a $50 civil penalty payable to the OCM and such person would be provided with information on the dangers of the underage use of cannabis and information related to cannabis use disorder. The bill also establishes additional possession crimes, with penalties ranging from a class A misdemeanor to a class D felony.

Cannabis will be included in the Driving While Intoxicated (DWI) law, and driving while impaired by cannabis will be considered a misdemeanor. If the motorist under arrest refuses such a chemical test, that refusal – as under current law – can result in revocation of the driver’s license for one year. It establishes an unlawful sale crime when a person unlawfully sells cannabis or concentrated cannabis, punishable by a $250 fine, and establishes additional criminal sale crimes, with penalties ranging from a class A misdemeanor to a class C felony.