Buffalo News: Key questions remain in New York’s road to legal marijuana

By Tom Precious, 12/25/18

ALBANY – New York officials are moving ahead with efforts to legalize recreational marijuana use, but they are running into a barrage of complicated issues that must be resolved if their end-of-March timetable to act is to be realized.

Among just a handful of lingering questions to be answered: how much will the state tax the sales and where does the money go; who gets to grow, distribute and sell the drug; will homegrown pot be legal; will it be available in a variety of forms, including things like candy bars; how many people will have their marijuana arrest and conviction records expunged and what will the state do to deter a rise in driving while impaired situations?

With Democrats who support marijuana legalization efforts now in control of the executive branch and both houses of the legislative branch, there is no doubt that some sort of major change in the drug law is coming in 2019.

The question is: How extensive will it be?

“It has to be done right. There are a lot of questions. There are a lot of pitfalls,” Gov. Andrew M. Cuomo said during a radio interview last week.

In a speech outlining his top priorities for the first 100 days of the 2019 session that starts next month, Cuomo put marijuana legalization on the list, saying it should be made legal “once and for all.” It’s a sharp turn from only a year or so ago when he talked against legalization of marijuana because it was a potentially dangerous “gateway drug.”

On Friday, during a brief stop in Buffalo, Cuomo offered up just some of the questions his administration is considering on the topic. “How old, how many stores, how much can (a retailer) sell to a person, what are the tax revenues?” he said.

The governor said the state is working with New Jersey, which is preparing to legalize marijuana use, and Massachusetts to ensure there is some uniformity in tax rates so that New Yorkers don’t simply drive across the borders to get cheaper – via lower-taxed – pot.

Behind the scenes in advance of Cuomo laying out his legalization plan more fully in his January state budget presentation, there is a flurry of studying, debating and lobbying underway by drug legalization advocates, health experts, law enforcement officials, local governments and the existing 10 firms registered by the state to provide medical marijuana products to certified patients.

Some involved in the discussions believe Cuomo will try to take a more measured approach, unlike when California legalized marijuana in what some in New York call the Wild West approach to legalization. It is a route he took when he ended his opposition to medical marijuana products and approved such use, but under what at the time was the nation’s strictest medical pot laws.

Local health officials’ concerns

Last week, the New York State Association of County Health Officials, which represents 58 local health departments in the state, raised what it called “serious concerns” about the push to legalize adult marijuana use.

The group urged that sales be banned to those under age 21, that the state spend money for research efforts to identify “unforeseen” effects by legalization of the drug, that marijuana be added to the Clean Indoor Air Act to ensure its use is banned in certain areas and that localities be given additional state money to help fund expanded sales enforcement and public health activities associated with legalizing the drug’s use.

“As public health officials, we must articulate our steadfast opposition to legalization of an adult-use regulated marijuana policy. From our viewpoint of community health and wellness, there are simply too many associated risks including unintentional exposures in children, increased motor vehicle accidents, future addiction to other substances and adverse cardiac and respiratory effects,” said Paul Pettit, president of the group and the public health director for the Genesee and Orleans county health departments.

One of the chief battles underway in discussions between the state and various outside stakeholders is what kind of production, distribution and retail system will be created. In the state’s medical marijuana program, there are 10 state-authorized “registered organizations” mandated to operate in what is known as a “vertical integration approach.” That means they handle all aspects of the system, from growing the plants to running the dispensing sites for qualified patients.

Some want no integration at all, modeled after how the state’s alcohol laws are structured so that there are different companies that produce, distribute and then sell to retailers.

A battle over who gets to grow, sell pot

The firms with those state medical marijuana licenses believe they are best positioned to quickly add recreational marijuana products to their portfolio when New York legalizes pot. If they are excluded, one executive said, the state could have to wait as long as two years before state-sanctioned marijuana products could hit the retail market.

“I’m hopeful that we don’t err by kind of running full-tilt into a California-style adult use regulated system where there are regulatory challenges in keeping all the cats herded,” said Jeremy Unruh, director of regulatory and external affairs at PharmaCannis, one of the 10 medical marijuana companies operating in New York. The firm grows marijuana plants at a facility in Orange County and dispenses the drug to patients in four locations, including Amherst.

Unruh said the state should let the existing medical marijuana organizations be among the suppliers to help get the program up and running faster and with regulatory controls already in place to safeguard such things as the product that ends up in the consumer’s hands.

“If we don’t want a gap between now and whenever the first new adult licensed retailer opens up then you have to use the existing infrastructure,” he said of the present marijuana growing facilities.

“I fear that folks who don’t really take the time to understand this industry will be the ones who end up setting the policy,” he added.

But some advocates worry that small businesses wanting to get into the marijuana growth and sales sector could be shut out by the already-operating firms doing medical marijuana now. One lawmaker who has pushed for marijuana legalization for years said minority communities have been hit disproportionately hard by law enforcement efforts targeting marijuana arrests, and that there should be special consideration for minority businesses that want to get involved in a New York marijuana economy.

“I think there’s a lot of concern about not wanting to have the existing registered organizations push everybody out of the market. And that’s a valid concern. I don’t have anything against the registered organizations, but we want to try to create a market that is open to all qualified players,” said Assemblyman Richard Gottfried, a Manhattan Democrat and chairman of the Assembly health committee.

He said those 10 registered organizations will likely have some role, but the state doesn’t want them to use their existing position “to monopolize” an adult recreational pot market.

Kassandra Frederique, state director of the Drug Policy Alliance, a leading marijuana legalization advocacy group, urged Cuomo and lawmakers to legalize pot “in a way that ensures equity and diversity while reinvesting in the communities hit hardest by marijuana criminalization.”

The group is among those pushing for, among other things, financial reparations – paid for out of marijuana use tax receipts – in the form of state community investments for those areas that it says have been affected by the “ongoing, damaging collateral consequences of marijuana criminalization.’’

Many unanswered questions

Will New York go like some states, such as Massachusetts and Vermont, that permit residents to grow pot at home? How, then, will it safeguard against people growing not for personal use but more to sell on an untaxed, black market? Gottfried, who holds considerable sway over Assembly positions on health-related topics, believes homegrown pot should be permitted under certain conditions. But the lawmaker, who is in regular contact with Cuomo’s marijuana advisers, said he doesn’t know the governor’s thinking on that issue.

Additionally, will whatever emerges in Albany next year permit localities to have the final say on whether a pot farm or pot store opens in their communities? Will it be OK if a town in Erie County doesn’t want to give a permit for a marijuana retail store?

Those questions are, as yet, unanswered and will become a major debating point as the governor and lawmakers hope to resolve the marijuana legalization matter as part of the 2019 state budget talks due to wrap up by the end of next March. Cuomo will be unveiling his 2019 budget plan sometime in January; that plan is expected to flush out his marijuana proposal.

A key point to address is traffic safety. The topic is an emerging one in states that have legalized marijuana, and the national Governors Highway Safety Administration in October reported that in two states – Colorado and Washington – the number of fatal crashes involving marijuana use by drivers increased after recreational pot use was made legal.

Gottfried, the state lawmaker, said Cuomo’s office is looking at a variety of ways to address the matter.

“Long before breathalyzers were invented, police were able to prosecute people for drunk driving. Even though there is not a convenient way to test for marijuana doesn’t mean police today aren’t able to arrest and get convictions for driving while impaired” under marijuana, he said.

As always, a money fight is expected to be fierce. Will pot tax revenues simply go to the state’s overall general budget fund, or will all or a portion be dedicated to any range of areas advocates are already pressing to become pot tax beneficiaries? In New York City, some are pressing that all of the pot revenues be dedicated to repair the city’s crumbling subway system. That won’t work with lawmakers from, say, Long Island or upstate, however.

About the only question that is already answered: Will New York legalize recreational marijuana and sharply alter part of its criminal justice system in doing so?

“There is a very broad consensus for doing that,” Gottfried said.