A Maine law requiring all owners of medical marijuana businesses to be residents of the state was recently struck down by the US Court of Appeals for the First Circuit, which ruled that the statute is a violation of the “Dormant Commerce Clause” of the United States Constitution, which prohibits states from passing legislation that restricts interstate trade. In its opinion (Northeast Patients Group et al. v. United Cannabis Patients and Caregivers of Maine, the Appellate Court upheld a lower court ruling that the residency requirement is an unconstitutional restriction on interstate trade.
Under the Maine’s medical marijuana program, all directors or officers of a licensed medical cannabis dispensary are required to be residents of the state. Interestingly, Maine had already dropped its residency requirement for its adult-use market following an earlier legal challenge that was also based on the Dormant Commerce Clause but it sought to keep it in place for its medical cannabis program.
This could be a problem for NY’s new adult use cannabis program, as of the requirements is that the potential licensees must have been arrested (or are related to someone who was arrested) for a marijuana related crime in New York and must also have been a New York resident at the time of the arrest. This could like be deemed a residency requirement and thus lead to challenges not only to any individual licenses grants but the entire CAURD program.
Equally or possibly even more problematic is the fact that this ruling could also open the door to legal challenges to a variety of other State laws banning the exporting or importing of cannabis from other states, as the same rationale invalidating the residency requirements could come, as disallowing cannabis exports and imports between states could be construed as similarly placing unreasonable restrictions on interstate commerce.
By C. Neil Gray
On August 15, 2022, the New York Cannabis Control Board (the Board) held a public meeting via real-time stream to consider a number of agenda items. Among the most notable of the topics taken up was the approval of conditional adult use cultivator licenses and conditional adult use processor licenses.
Chair Tremaine Wright opened the meeting by providing an update on the Seeding Opportunity Initiative (SOI) that was launched in Spring 2022. Through the SOI, the Board has granted 223 adult use conditional cultivator licenses, resulting in the first farms cultivating regulated adult use cannabis in New York State. Chair Wright also noted that the Board visited three of these farms in July and were encouraged by the progress and creativity demonstrated in such a short window of time. After some additional opening remarks, the Board moved on to “further steps to advance the Seeding Opportunity Initiative” to “continue to build out New York’s Adult Use Cannabis supply chain.” Continue reading “New York Cannabis Control Board Approves 19 Adult Use Conditional Cultivator and 15 Adult Use Conditional Processor Licenses; Retail Dispensary License Applications Open August 25”
On July 14, 2022 the New York Cannabis Control Board (the “Board”) met to consider a variety of topics. Most importantly, the Board approved the Conditional Adult-Use Retail Dispensary Regulations and the online application for a retail dispensary license.
The initial focus of the meeting was on the approval of proposed Conditional Adult-Use Retail Dispensary Regulations. (Generally referred to in the meeting as the “CAURD Regulations”.) The Senior Policy Director of the New York Office of Cannabis Management noted that the CAURD Regulations were designed to provide retail dispensary licenses to applicants who met two eligibility requirements. First, the applicant (or family member) must have had a cannabis related legal offense that occurred prior to the passage of the Marihuana Regulation and Taxation Act on March 31, 2021. Second, the applicant must have experience owning and operating a qualifying business. The Board unanimously approved the CAURD Regulations. The Senior Policy Director also provided a form of online application for a retail dispensary license. This sample form fleshes out the CAURD Regulations. The Board unanimously approved the sample form of application. The Board also ordered that a new application period for adult-use retail dispensaries licenses open and close on dates established by the Office of Cannabis Management. The Board did not indicate when the actual application would be made available for filing but notice of the application window must be posted on the Office of Cannabis Management’s website no less than 14 days before the application window opens and the application window must last at least 30 days. Continue reading “New York Cannabis Control Board Meeting, July 14, 2022”
By Kathleen M. Kline
New York State’s Office of Cannabis Management (“OCM”) held a board meeting on May 19, 2020. As always, the meeting was available for observation by the public through online streaming. Continue reading “New York’s Office of Cannabis Management Grants Cultivation Licenses and Encourages Enthusiasm for Dispensary Licenses”
New York State Department of Taxation and Finance has created a new webpage with information on the Adult-use cannabis products excise tax.
This cannabis excise tax will apply to both:
- Distributors of adult-use cannabis products on sales of retailers, and
- Adult-use retailers on sales to retail customers.
If you plan to sell adult use cannabis you must register with the Department of Taxation (which is in the process of developing an online registration process and other guidance. More information is available on the NYS Department of Taxation website (https://www.tax.ny.gov/bus/auc/)
As we noted is our blog post earlier this week, New York recently adopted legislation to allow licensed hemp farmers to grow and process cannabis for the adult use market with the aim to have product available once retail sales are permitted.
While the New York Office of Cannabis Management has yet to release the form of application (and any implementing regulations), that doesn’t mean that potential applicants should sit idly by and wait. In reviewing the legislation, its clear that there is plenty of work that can be done now. Continue reading “New York Conditional Cultivation License – Advanced Preparation (What You Can Do Now To Be Ready)”
New York Gov. Kathy Hochul signed new legislation on Tuesday that will allow hemp farmers in the state to apply for a conditional license to grow cannabis.
With this legislation, New York is creating a new Conditional Adult-use Cannabis Cultivator license, allowing hemp farmers to grow cannabis in the 2022 growing season to “position New York’s farmers to be the first to grow cannabis and jumpstart the safe, equitable and inclusive new industry we are building”. Conditionally licensed cannabis farmers must hit certain requirements under this law. Continue reading “NY Gov. Hochul signs conditional cannabis cultivation bill to speed-up recreational cultivation”
By Michael Schwamm
More than 520 cities, towns and villages (1/3 of all municipalities in New York state) have opted out of allowing cannabis retailers and consumption lounges in their municipalities as of the December 31 deadline, according to new data released by the OCM. Of that number, 75 municipalities opted out of consumption lounges, but will still allow cannabis retailers. On the other hand, three towns are banning retailers, but will allow consumption lounges. Continue reading “New York State Cannabis Update”
By Katelynn Gray
As we previously reported earlier this year, Governor Cuomo signed the Marijuana Regulation and Taxation Act (“MRTA”), which legalized adult-use and possession of cannabis, effective March 31, 2021. The MRTA amended Section 201-D of the New York Labor Law (“NYLL”) making it illegal for employers to discriminate against someone for their use of cannabis outside the workplace, outside of work hours and while not using their employer’s equipment or property.
This spurred some obvious questions from employers- Can we take action against an employee for using cannabis while working? Can an employee use cannabis while on breaks? What about employee use of cannabis if they are not at work on premises but are on call? The New York Department of Labor has now published FAQs addressing these, and other, common employer questions.
Continue reading “New York DOL Publishes Guidance on Recreational Use of Cannabis Related to the Workplace”
Tremaine Wright delivered her first public speech since being appointed Chair of the New York State Cannabis Control Board at the CWCBExpo (Cannabis World Congress & Business Exposition) at the Javits Center on November 4. Wright leads the five-member board charged with approving a regulatory framework for New York’s cannabis industry and will oversee licensing of cannabis businesses. In her remarks before 400 people at the business-to-business cannabis industry trade show, Wright reiterated that New York will support social equity licenses for people from communities historically affected by the War on Drugs. “We’re about to create the most equitable cannabis program in the country,” she said. Wright also said that New York will prevent social equity licenses from being sold to large companies by requiring that they be sold to other social equity licensees. However, the regulations are currently being written and there are few details about how the state will help social equity applicants raise capital to start cannabis businesses. Wright also said that all license applicants will be required to share their ESG (Environmental, Social, and Corporate Governance) frameworks to operate in the state. The Board has a goal of issuing licenses within 18 months. Members of New York’s Office of Cannabis Management were also in attendance at the Expo.