Last year, New York State legalizing marijuana was considered an almost-sure thing.
In December 2018, Assemblymember Richard Gottfried, the veteran Manhattan Democrat who sponsored both the state’s 1977 pot-decriminalization law and its 2014 medical-cannabis measure, said that the debate on legalization was no longer “about whether to allow adult use, but how to structure the industry.”
But that debate was what tripped up legalization legislation last year, with two separate bills — the Marijuana Regulation and Taxation Act, sponsored by Assembly Majority Leader Crystal Peoples-Stokes and state Sen. Liz Krueger (D-Manhattan), and Gov. Andrew Cuomo’s Cannabis Regulation and Taxation Act (CRTA) — offering different versions of that structure. Cuomo dropped his proposal from the state budget and the Krueger/Peoples-Stokes bill never made it out of committee.
Governor Andrew Cuomo is set to release details of a plan to make recreational marijuana legal in New York when he outlines his state budget proposal later this month. But the Democrat concedes that there are many unanswered questions about how to proceed.
Cuomo, who less than two years ago called marijuana a “gateway drug,” says he still has some questions and concerns about legalizing the drug for recreational use. But he says he’s working with a panel of experts, including law enforcement, and health officials who have determined it can be done safely, and that the “benefits outweigh the risks.” The governor says his position has also been influenced by the neighboring states of Massachusetts and New Jersey that have legalized marijuana or are in the process of doing so.
“You’ll just force people to drive to Massachusetts or drive to New Jersey and then come back into this state and use it in this state,” Cuomo said.
The governor says he’s working out a lot of the details right now on how to implement the program, including what the age requirement should be to gain access to the drug.
“How old, how many stores, how much marijuana do you sell to a person, what are the tax revenues?” Cuomo said. “The devil is in the details.”
There are many ideas on how to best use the revenue from the sale of marijuana, including one to help fix New York City’s subways.
Assembly Majority Leader Crystal Peoples-Stokes is sponsoring a bill she says would help right the wrongs created by the decades of marijuana prohibition. Peoples-Stokes, who is African American, says arrests for using the drug have fallen disproportionately on black and Hispanic New Yorkers, while white residents have rarely been punished. Her measure, which is sponsored by Senator Liz Krueger in the state Senate, would dedicate 50 percent of revenues raised from taxing marijuana sales to a Community Grant Reinvestment Fund, directed at neighborhoods most affected by prohibition. It would fund programs like job training, afterschool activities and reentry programs for people coming out of prison. Peoples-Stokes says it’s very important that legalization of marijuana include reparations for communities most negatively affected.
“It’s critical,” Peoples-Stokes said.
She says it will save the state money because fewer people will be in prison on minor drug charges, and will instead be able to be home to take care of their families.
Assemblyman Richard Gottfried, who chairs the Health Committee, sponsored the law to implement medical marijuana in New York a few years ago, and supports legalizing the recreational use of the drug.
Gottfried says he does not necessarily back dedicating sales tax revenues to a specific fund, though he does want to end inequities in the state’s criminal justice system over past enforcement of the prohibition of the drug.
“One reasons why I hate the term ‘recreational use’, is that this is not about people having a good time at parties,” said Gottfried. “This is about undoing and preventing the damage that our prohibition system does.”
Gottfried says he’d like to see past criminal records for marijuana related convictions erased.
The Assemblyman credits Cuomo and his staff for reaching out to supporters, and stakeholders, like marijuana growing businesses to get ideas on how to craft the bill. Gottfried says he does not want to see sales and distribution of the drug come under the control of big businesses, with existing distributors of medical marijuana having a greater influence than smaller startup companies.
And he also supports allowing New Yorkers to grow a limited amount of marijuana at home.
“In some product areas we do allow home production. If you want to brew beer or wine in your basement you’re free to do that,” Gottfried said. “Just don’t try to sell it to your neighbors.”
Not everyone is in favor of legalizing marijuana in New York.
The New York State Association of County Health Officials issued a statement, saying they have “serious concerns” and urging that legalization be approached “thoughtfully and with extreme caution.”
The county officials say no one under 21 should be permitted to use the drug, and any new rules should fall under the state’s Clean Indoor Air Act to ensure children, and other vulnerable populations are not exposed to marijuana use or secondhand smoke. The group also wants toxicology studies conducted to set standards for impaired driving under the use of the drug. The health officials say they are already dealing with the devastation from opioid abuse, and do not want to see the state inadvertently create another public health crisis.
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.
While the political evolution on legalizing marijuana has been slow, a new consensus by Democratic leaders seems to have arrived almost overnight.
“I think the debate is largely over in New York and we are down to working out the details,” Manhattan Assemblyman Richard Gottfried said.
But it’s the details that will determine whether New York’s program is successful. When the state instituted its medical marijuana program, Gov. Andrew Cuomo insisted that patients could not smoke the drug, which is the most common form of consumption. As a result, advocates say New York’s program has had mixed results, with fewer patients than expected actually participating.
“We have to introduce flower both into our medical program and into our adult-use program,” marijuana advocate Cristina Buccola said. “‘Flower,’ meaning the actual marijuana bud that people smoke — some people prefer that in a medical program, but there’s a whole different way to use flower that does not involve smoking.”
“I think the administration’s view on marijuana has changed enormously from 2014 when we did the medical law,” said Gottfried, who has been working on marijuana legislation for decades. “I think that is partly due to big changes in public attitude.”
This week, Mayor Bill de Blasio, who had previously opposed legalization, weighed in on how he would like to see it done in New York.
“Why don’t we, from the very beginning, ensure that the game is not rigged? Instead of creating very loose laws or laws that favor the 1 percent and the corporations, why don’t we create laws that explicitly hold the corporations and the 1 percent at bay? Do not even let them into this new industry,” the mayor said on WNYC’s The Brian Lehrer Show.
The mayor went on to admit he does not yet have buy-in from Cuomo on his plan to keep the industry community-based, and a spokesperson for the governor was quite dismissive of de Blasio’s idea. Ultimately, the city has little say over the process, since a state law would establish marijuana legalization.
Single-payer health care may be one of the biggest debates in Albany in 2019, but it’s just one of a number of high-profile issues dealing with medical matters. Here are summaries of several health care issues expected to be at the top of the agenda.
✓ Reproductive Health Act
Although the Reproductive Health Act has passed in the Assembly the past two years, it has yet to come up for a vote in the state Senate. A priority for many Democrats in the chamber – and, importantly, for Gov. Andrew Cuomo, who said he wants it done in January – the bill would update the state’s abortion laws and codify federal protections into state law. Although abortion rights are guaranteed under the landmark Roe v. Wade U.S. Supreme Court decision, the laws on the books in New York were passed in 1970, three years before that decision. Although the state’s laws were considered progressive at the time, they have not been updated since. Democrats have argued that if a bloc of conservative judges on the Supreme Court overturned Roe v. Wade, abortion rights in the state would revert back to those passed in 1970. State Sen. Gustavo Rivera told City & State that he hopes the legislation will be addressed early in the upcoming session now that it has the votes to pass. “I would be willing to move that very quickly because I believe that it is very important, particularly with what’s happening on the national level,” said Rivera, who is likely to be named chairman of the state Senate Committee on Health.
✓ Single-payer health care
Perhaps the most expansive and expensive item on Democratic lawmakers’ agenda – and among the most controversial – is the New York Health Act, which would establish a single-payer health care system in the state and is estimated to cost $139 billion in 2022. Many incoming lawmakers campaigned on the promise that they would get it done, but even if it does pass, massive changes likely won’t happen right away. A single-payer system means that a single entity covers the cost of all health care, which is still delivered by private or nonprofit providers. Everyone pays into a single plan run by the government, which in turn is the only provider of coverage paying claims. Assemblyman Richard Gottfried’s bill has proposed one public option and a ban on the sale of private insurance unless it offers additional coverage not included in the state plan. One major obstacle the New York Health Act must overcome is a less than enthusiastic governor. Although Gov. Andrew Cuomo has expressed support for single-payer health care as a concept, he has repeatedly said that it would be better implemented at the national level. Other critics have raised concerns about the cost, although a study performed by the Rand Corp. that found total health care spending could be lower under the New York Health Act than if the status quo were to continue.
✓ Recreational and medical marijuana
The state has been slowly inching closer to legalizing recreational marijuana. Most notably, Gov. Andrew Cuomo has been coming around on the issue. Although he used to consider marijuana a “gateway drug,” the Cuomo administration this year released a report in favor of legalization, set up a working group to draft legislation and hosted a series of listening sessions across that state to gain public input. Although legislation to legalize the drug has never passed either chamber, public support has grown substantially, and candidates, such as former gubernatorial candidate Cynthia Nixon, campaigned on the promise of legalization. The state Legislature now appears poised to pass legislation that would regulate and tax marijuana.
However, the future of the state’s existing medical marijuana program remains in limbo. Assemblyman Richard Gottfried, who sponsored the bill creating the medical marijuana program and has been one of its strongest advocates, said that in the coming session, strengthening and expanding the program will be “a major focus,” as will ensuring that it continues to run smoothly alongside potential recreational legalization. “So how we do that, I don’t know yet. But I know there is a lot of concern and brainpower being focused on it,” Gottfried told City & State. State Sen. Gustavo Rivera said he hopes that recreational legalization would also open the door for additional research to increase and expand the drug’s medical efficacy.
✓ Opioid epidemic
As the opioid epidemic continues to take lives across the state, state Sen. Gustavo Rivera told City & State that the state Senate intends to resume its work with the Task Force on Heroin and Opioid Addiction – first created in 2014 – and that state Senate Republicans could participate as well. When led by Republicans, the task force did not include Democrats. Additionally, Rivera said that the state Legislature will continue to explore the concept of harm reduction. The idea accepts that drug use will always be a part of society, but that society can take steps to cut down on the negative consequences of drugs. Namely, Rivera hopes to have productive conversations about a bill he sponsors to create safe injection sites, a highly controversial proposal to create legal locations where illegal drug users can get high in a supervised environment. “I believe that there is plenty of evidence-based programs that can be expanded and be created,” Rivera said. New York City Mayor Bill de Blasio championed a pilot program to open four such sites in the city, but the idea still faces major hurdles.
✓ Nurse staffing ratios
The issue of nurse staffing levels within hospitals has long been a priority of the New York State Nurses Association, a powerful union in the state. However, a bill on the subject has never passed the state Senate and rarely passes the Assembly. The main component of the bill would create a set ratio of patients per nurse to ensure that nurses are not overworked by caring for too many people, and to ensure that patients are receiving adequate care. However, other powerful interests have also opposed the legislation, including business groups and hospitals, who argue that while the bill addresses real problems with how care is administered, nurse staffing ratios are the wrong remedy. Like many pieces of legislation that have languished under Republican control of the state Senate, Democratic control of the chamber could give the bill a better chance to become law. “We’ve passed it before and I trust we will do it again,” said Assemblyman Richard Gottfried, who has long been a supporter of nurse staffing ratios. “And it’s very exciting that we now have a shot at having that pass the state Senate.”
The odds are strong that New York State will legalize marijuana next year, possibly as soon as the end of March. But what the system will look like — including who’ll be able to sell pot, where it can be smoked, and what will be done with taxes on sales — is largely in the hands of Gov. Andrew Cuomo, who has remained mum about his plans.
Last August, the governor appointed a 20-member task force to draft legislation for “a regulated adult-use marijuana program.” Cuomo spokesperson Tyrone Stevens tells Gothamist, “We expect to introduce a formal comprehensive proposal early in the 2019 legislative session.” Legislators and legalization activists expect the governor to include this language in his January budget proposal.
Between Cuomo’s reversal on the issue and the Democrats winning a solid majority in the state Senate, the main political obstacles to legalization have disappeared. “At this point, the debate is not really about whether to allow adult use, but how to structure the industry,” says Assemblymember Richard Gottfried (D-Manhattan), who sponsored both the 1977 law that decriminalized possession of marijuana and the state’s medical-marijuana measure in 2014.
Gottfried compares the task to building the framework for a legal alcohol industry after Prohibition was repealed in 1933. Will marijuana cultivation, distribution, and sales be limited to a handful of corporations, as in the state’s medical cannabis extract program, or will the industry be open to small businesses? Will tax revenues be earmarked to aid the communities that saw the most arrests during the eras of prohibition and stop-and-frisk? Will people convicted of marijuana offenses be able to get their criminal records expunged or sealed, or their punishment reduced? Will the law allow home growing or Amsterdam-style pot coffeehouses?
The governor’s office, for the moment, is remaining tight-lipped about its plans as it awaits the report of the task force. “The goal of this administration is to create a model program for regulated adult-use cannabis—and the best way to do that is to ensure our final proposal captures the views of everyday New Yorkers,” Stevens told Gothamist in an email. The governor’s office did not respond to more specific questions.
This has left the public debate largely in the hands of state legislators, who have expressed concerns about what form legalization will take. For example, a large majority of the more than 800,000 people arrested on marijuana charges in New York State in the last 20 years—more busts than anywhere else in the world—were black and Latino, primarily young men from lower-income urban neighborhoods. Therefore, many legalization advocates say, it would be only fair if the guy selling $20 sacks on Junius Street in Brownsville or Jefferson Avenue on Buffalo’s east side is provided an opportunity to get into the legalized business, and those neighborhoods should get quasi-reparations from the revenues raised from reefer.
“For me, it’s a social justice, economic justice issue before it’s a business issue,” says Assemblymember Crystal Peoples-Stokes (D-Buffalo), who last year co-sponsored the Marijuana Regulation and Taxation Act along with state Sen. Liz Krueger (D-Manhattan). To remedy the social ills caused by mass incarceration, she says, pot legalization legislation needs to have three guiding principles: sealing criminal records for marijuana arrests; investing ganja-tax revenues in job training, drug treatment, and education; and providing technical support and loans for microbusinesses.
For the New York-based Drug Policy Alliance, which advocates both legal marijuana and “harm reduction” approaches to opioid use, this form of restorative justice outweighs traditional legalization movement concerns like allowing home growing, or “social use”—allowing cities to opt in to legalization of marijuana bars and coffeehouses, subject to local anti-smoking laws.
Colorado and Washington, the first states to legalize adult use, barred anyone with a drug conviction from working in the industry, notes DPA deputy New York State director Melissa Moore. California and Massachusetts have made some affirmative-action efforts to expand participation by racial minorities and small farmers, she adds, and New York should do more.
A crucial issue here is whether the companies in the industry should be vertically integrated—handling cultivation, processing, distribution, and retail sales—as is required by the state’s current medical-marijuana program. “That’s exactly the model we don’t want to see,” says Douglas Greene, legislative director of the marijuana-legalization advocacy group Empire State NORML, citing its limited accessibility and high costs.
Setting up a vertically integrated business requires far more capital than opening a store or a farm, and so greatly limits small operators’ opportunities to enter the industry. There was “not a single minority applicant” among the 43 companies that sought one of the first five spots in the state’s medical-cannabis program, according to state Sen. Diane Savino (D-Staten Island), senate sponsor of the legislation that created the program in 2014, and only one of the five ended up owned by women.
While Gov. Cuomo initially insisted that medical-marijuana companies be vertically integrated, Krueger says the governor’s staff has indicated that he’s no longer seeking that requirement.
From the NYC Cannabis Parade held in May (Courtesy Scott Lynch)
One possible approach would be to model legal marijuana on the way the alcohol industry is regulated, says Gottfried. State liquor law strictly separates production, distribution, and retail sales, with a few narrow exceptions for craft brewers and small wineries. The Marijuana Regulation and Taxation Act would have the State Liquor Authority regulate adult use, but Krueger says she now believes it would be better to create a new agency to oversee adult use, medical use, and hemp, as it would have the specialized knowledge to regulate things like packaging and labeling.
“The way the industry develops has to be responsive to the communities targeted,” says Moore. “Not just jobs, but ownership.”
Even banning vertical integration would still leave poorer New Yorkers with significant barriers to opening their own businesses, however. “The biggest problem is access to capital,” says Savino, who notes that the state falls short of its goals for hiring minority and women-owned contractors every year—and that’s in fields that are not still illegal under federal law. Even a dispensary-only license could cost $500,000, she estimates.
The best opportunities for small operators, suggests Moore, might come in such ancillary businesses as delivery services, security, production of “edibles” like pot pastries, and legal and business services.
On the other hand, Local 338 of the Retail, Wholesale, and Department Store Union, which represents workers at three of the seven medical marijuana companies in the state, told an Assembly hearing on Long Island on December 3rd that vertically integrated businesses would be more likely to provide union-scale wages and benefits than smaller operations. “I’m sympathetic to that, but we’re going to have to find a sweet spot,” says Savino, who has not yet endorsed the Marijuana Regulation and Taxation Act. One possible compromise would be requiring businesses with more than 20 or so employees to sign a “labor peace” agreement that they won’t oppose union organizing, as the state now does for all medical marijuana companies.
Another issue is protecting the established medical-cannabis industry from being wiped out once people can buy actual herb rather than the expensive extracts that are the only form of marijuana currently allowed for medical uses. It’s “not entirely clear” how that could be done, says Gottfried. One possibility would be permitting medical dispensaries to run adjacent storefronts to sell legal marijuana, which could be opened while other businesses are still waiting to get licenses. Savino endorsed this approach, with the caveat that those companies “shouldn’t be allowed to control the market” by getting an early jump on legal sales.
The Marijuana Regulation and Taxation Act would allow both social use and home growing of up to six plants. But similar provisions have been sacrificed in other states’ legislation, to placate those who don’t want to see people go to jail for pot but also don’t like the idea of “marijuana bars.”
Gottfried contends that if people can consume alcohol in a bar, they should be able to do the same with cannabis. Peoples-Stokes says not allowing social use “would be kind of unfair,” particularly because federal law now bans public-housing residents from smoking in their homes.
Savino opposes permitting home cultivation. “That’s crazy,” she says. “Do you think we’re going to [be able to] keep people from selling it?” But other states allow home gardens: The Michigan law enacted by voters in November lets people grow up to 12 plants for personal use, notes Krueger. The people most upset by that, she says, are would-be retailers who don’t want competition.
The state legislature’s Republicans, now less than 40 percent of the members of both houses, are conspicuously absent from the ranks of legalization supporters. Peoples-Stokes says she’s had “great conversations” with some GOP legislators, but “none of them are willing to go on the record.” Outgoing Senate Majority Leader John Flanagan (R-Suffolk) did not respond to requests for comment.
Another idea floated recently is to use marijuana-tax revenues to help fix the city’s subways, what former City Council Speaker Melissa Mark-Viverito calls “weed for rails.”
But while public support for legalization could soar if it would spare late-night and weekend riders from having to take shuttle buses, Gottfried is skeptical about the idea, given that the state Department of Health estimated in July that cannabis taxes would bring in $248 million to $678 million a year, while Metropolitan Transportation Authority head Andy Byford has said the subway system would need $4 billion a year to modernize. And even that higher revenue figure was based on a price and tax rate—$374 an ounce, or more than $450 after adding a 15 percent tax surcharge and sales taxes—that would risk pushing people back to the black market. (Delivery services advertise $100 quarter-ounces on Craigslist, with one Queens dealer offering ounces for $260. In legal states, a newly opened pot shop in Massachusetts charges $300, and Oregon prices are as low as $75.)
In any case, legislators say, the change in public attitudes on legalizing marijuana has been dramatic for its speed — as fast, notes Gottfried, as the rapid acceptance of same-sex marriage.
“Four years ago, people would have said it’s impossible,” says Savino. “Now, more and more people are asking ‘Why is marijuana illegal? It makes no sense.’”
Taxpayers could soon be on the hook to help low-income New Yorkers score medical marijuana, thanks to a bill that would force public health-insurance plans to cover it.
Patients in the state currently have to pay out of pocket for their prescription pot.
But state Sen. Diane Savino (D-SI/Brooklyn) and Assemblyman Richard Gottfried (D-Manhattan) and pushing a doobie-ous scheme that would require government health-insurance programs such as Medicaid, Child Health Plus, the Essential Plan, Elderly Pharmaceutical Coverage and workers’ compensation to cover weed as they would any other prescription.
“It’s unfair not to cover marijuana when opioids, OxyContin and Ambien are covered,” Savino told The Post. “We have to push the envelope.”
The lawmakers claim it will help battle the opioid epidemic ravaging the state.
“For thousands of patients, medical marijuana is a safer and more effective medication than other drugs, especially opioids,” Gottfried argued.
But both lawmakers acknowledge the state would likely have to draw from the public purse to cover their plan.
The federal government likely wouldn’t provide financial support for the program because authorities in Washington still classify weed as an illegal drug.
The bill also wouldn’t require private insurers to offer coverage, although Savino says she would support an amendment to mandate that they do.
“Insurance companies are leery because the federal government still considers marijuana an illegal drug,” she said.
Medical marijuana in New York can come in a variety of forms, including tablets and oils that can be vaped, but it can’t be smoked under the current program, which was launched in 2016.
Public health experts are turning to marijuana to help cancer patients and others manage chronic pain as a nonaddictive alternative to opioids, which have fueled an overdose epidemic across the country.
Nearly 1,500 people died in the five boroughs last year because of overdoses — five times as many people who died in homicides — figures from the city’s Health Department show.
Opioids were linked to more than 80 percent of those overdose deaths.
There are 98,101 New Yorkers registered in the medical-marijuana program, but a study found one-third of the patients visited a dispensary only once for weed treatment.
New York lawmakers are under increasing pressure to act as New Jersey quickly moves toward full-scale legalization, which could be in place by next year.
Public heath insurance programs would be required to cover medical marijuana in New York if a new Assembly bill is enacted.
“Cost is the primary barrier to patient access in New York’s medical marijuana program,” reads a memo attached to the legislation. “Medicaid, other public health plans, and commercial health insurance plans do not cover medical marijuana, forcing patients to pay out of pocket. Some patients begin treatment only to stop due to inability to pay, while others turn to the black market.”
“For thousands of patients, medical marijuana is a safer and more effective medication than other drugs, especially opioids.”
The bill, filed on Monday by Assemblyman Richard Gottfried and 17 cosponsors, would add medical cannabis coverage to four publicly funded health programs—Medicaid, Child Health Plus, workers compensation and EPIC, as well as the largely publicly funded Essential Plan.
“For Medicaid and Child Health Plus, there would presumably not be federal matching funds until the federal government changes its policies, but New York’s Medicaid and Child Health Plus programs have always covered people and services for which we do not receive federal match,” the Assembly memo says.
The bill also clarifies that while commercial health insurance programs are not required to cover medical marijuana, they are free to do so. And it would allow state regulators to certify medical marijuana dispensaries as Medicaid providers solely for the purpose of dispensing cannabis.
If enacted, it would be the latest in a series of steady expansions to the the state’s medical cannabis program. Earlier this year, for example, regulators moved to allow medical marijuana to be recommended for any condition for which opioids would normally be prescribed.
Meanwhile, the administration of Gov. Andrew Cuomo (D) is considering more broadly legalizing marijuana. Officials are conducting a series of listening sessions around the state on the topic, and the governor created a task force to draft legalization legislation that lawmakers can consider in 2019.
The Albany County district attorney made an impassioned plea for taxing and regulating the sale of marijuana to adults at a State Assembly hearing October 16, saying ending the war on pot is a logical next step in the process that began in 2004 with the repeal of the draconian Rockefeller era drug laws.
David Soares, who is also the president of the New York State District Attorneys Association, said there is disagreement on this issue within that group but that “several” DAs had similar views. Soares has intensively studied Colorado’s example as the first state to permit adult use of marijuana and emphasized that the new tax revenues from legalization must restore “vulnerable” communities where residents have been arrested by the tens of thousands while pot use by white New Yorkers was overlooked by law enforcement.
“Real Courage,” he told a joint hearing of several Assembly Committees on adult use of marijuana, is about addressing the “aftermath” of the war on drugs, winning the peace with a plan for “reconstruction” of neighborhoods unsettled by mass incarceration. Simply closing the illegal market for pot could have grim consequences; dealers could replace what is on their shelves with opioids.
“If you don’t recycle the money, you’re buying yourself a bigger problem,” Soares warned.
Proposed legislation creating a tax and regulate system provides for community reinvestment. Sponsored by Manhattan Democratic Senator Liz Krueger and Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat, the measure creates a marijuana revenue fund from tax receipts — net of administrative and oversight costs — that would funnel 25 percent to the State Education Department, 25 percent for drug treatment and public education, and 50 percent for community reinvestment.
Specific regulations implementing the legislation would be drafted by a new bureau in the State Liquor Authority, which was established in 1933 to create from scratch a system of legal liquor sales following the repeal of Prohibition. The SLA would repeat this mission by licensing and managing the production and sale of legal marijuana.
A cornerstone of the SLA is a system favoring small business ownership of retail outlets, Krueger told a conference, also held October 16, organized by Capalino+Company, which is recruiting clients that would benefit from a regulated market. Under this approach — which represented a persistent theme touched on at the event that drew roughly 200 people — residents of low-income neighborhoods would be given an opportunity to go into business as retail sellers of legal marijuana.
Billed as the “Cannabis Summit: Developing a Sustainable Cannabis Economy in New York,” the Capalino event featured a keynote addresses by Melissa Mark-Viverito, the former City Council speaker who is now a senior official at the Latino Victory Fund, and Melissa Moore, the deputy state director of the Drug Policy Alliance, a leader in the movement to end drug prohibition.
Krueger’s bill would permit people with marijuana convictions to petition for a review of their criminal justice records. Marijuana convictions complicate the abiity of some to access jobs and scholarships for which they are otherwise qualified.
In his hearing testimony, Soares strongly supported this objective, saying, “We must work to seal and reclassify” previous convictions and “move from stigma to opportunity.”
Krueger voiced particular pride that her bill would respect New Yorkers who object to second-hand smoke. Tenants in smoke-free buildings would be prohibited from smoking pot at home. Doctors, she said with a sly grin, believe that inhaling a burning leaf of any kind is dangerous.
Soares — responding to questions from the Assembly panel chaired by Dick Gottfried from Manhattan, the Health Committee chair, Joe Lentol from Brooklyn who heads the Codes Committee, and Manhattan’s Linda Rosenthal, chair of the Committee on Alcoholism and Drug Abuse — devoted a lot of time to addressing the risks of drivers being stoned. Currently, the police bring charges as soon as they smell pot, but with legalization that trigger would disappear. The Albany prosecutor said police would have to be trained in drug detection, and if a reliable blood test were developed police labs would need additional funding. He recommended that anyone refusing a blood test have their license suspended.
In any discussion of plans for legalizing pot, Krueger acknowledged, the elephant in the room is a proposal from Governor Andrew Cuomo that is likely to be part of the budget he unveils next year. The governor’s wishes would hold center stage in Albany.
On a rainy night in September, hundreds of people packed into the Kumble Theater at Long Island University Brooklyn to talk about pot. The event was one of 15 listening sessions Gov. Andrew Cuomo set up around the state for input to draft legislation that would legalize and regulate recreational marijuana. Each attendee had two minutes to speak, and many spoke passionately about the medical benefits of the drug. New Yorker Tom Hilgardner argued that the distinction between medical and recreational cannabis should no longer exist. “It’s really of no use,” he said. “All use, even self-medication – people think they’re using it recreationally. It’s probably the body telling you there’s a medical benefit.”
Shortly afterward, Michael Zaytsev, a cannabis entrepreneur and founder of the Meetup group High NY, offered a different take. “I won’t go too far into the medical program, or my criticism, but we need to regulate that separately from adult use, I believe,” he said.
The remarks sum up a key question regarding the future of New York’s existing medical marijuana program: What impact would a recreational market have on the current medical one?
One key factor is price. Dr. Kenneth Weinberg with Cannabis Doctors of New York, a group of doctors who certify patients and offer consultations, said he hopes that legalizing recreational marijuana will bring down the cost of medical marijuana – presumably by expanding the supply. Marijuana and medicines derived from it are not covered by any insurer, private or public, because the federal government still recognizes marijuana as a Schedule I drug, which means the government considers it extremely dangerous and without any medical purpose. So patients still need to pay for it out of pocket, even with a certified medical marijuana card. “One of the major roadblocks is that people can’t get the cannabis,” Weinberg said. “I have a number of patients who I will certify and then will call back and they’ll say … ‘I went in and it was so expensive, I couldn’t keep doing it.’”
But for many patients, recreational marijuana would not be a replacement. Weinberg said that many patients would still benefit from consultations with doctors who can recommend the best course of action for people, many of whom have exhausted other treatment options. Most of the patients he sees have no interest in the recreational products they could buy if New York legalizes recreational marijuana. “The majority of the people who come in specifically ask me – they want to make sure they don’t get high,” Weinberg said.
Then there are the potential inconsistencies that could arise. Other states have faced challenges in reconciling recreational marijuana with medical marijuana programs in recent years, and may serve as a cautionary tale. Over the summer, Vermont became the most recent state to legalize cannabis, and it did not make changes to its medical marijuana program, leading to confusion about the two conflicting sets of regulations. There were questions about how much cannabis one can legally carry, how many plants one can grow and how much can be harvested from homegrown plants. Different rules apply for those with medical cards and those who obtain the newly legalized substance for recreational purposes.
Under the New York state’s existing medical marijuana program, patients are not allowed to grow their own cannabis, but new regulations could still come into conflict with existing ones. Perhaps the most immediate issue would be the type of cannabis one can buy and use. Medical marijuana is limited to nonflowering cannabis – that is, it cannot be smoked. Patients must consume it through vaporization, oil, pills or other nonsmoking methods. Under legislationpreviously introduced in the state Legislature to legalize and tax cannabis, there would be no restrictions on the method of use. Plus, the governor has not drafted the legislation he plans to introduce.
Additionally, patients as young as 18 can now use medical marijuana if they are certified. Most proposals for recreational marijuana set the age floor at 21, the same as with alcohol. This raises the question about the legality of 18- to 20-year-olds who possess medical marijuana, and which law would apply – an issue that arose in Vermont.
Of course, the introduction of a recreational marijuana market alongside the medical marijuana program can go smoothly. Colorado established its medical marijuana program in 2000 and legalized recreational use in 2014. According to Michael Van Dyke, who oversees the marijuana programs at the Colorado Department of Public Health and Environment, the state did not make any changes to its medical marijuana program in 2014, largely because it was created through a constitutional amendment and changes could not be made easily. (New York’s medical marijuana program was created through state legislation.) Van Dyke said the new recreational market had little effect on the medical marijuana program, and the state did not see a significant drop in medical marijuana cardholders. Those certified with the program were able to continue buying their products, which are set at a lower tax ratethan recreational products.
Although New York is looking to other states for guidance, no one knows yet whether the medical program will be changed in any way if recreational marijuana becomes legal. Assemblyman Richard Gottfried, who sponsored the bill that created the state’s medical marijuana program in 2014, said that he has had conversations with the governor’s office about the issue, but that they have not come to any conclusions. “Several of us in the Legislature are in close consultation with the governor’s people,” said Gottfried, who chairs the Assembly Health Committee. “So how we do that, I don’t know yet. But I know there is a lot of concern and brainpower being focused on it.”
Gottfried said while there is still no clear picture about how the medical marijuana program may evolve, he hopes the state can make it less restrictive. Currently, patients only qualify for medical marijuana if they have one of about a dozen qualifying conditions. Gottfried has been advocating to expand the list of qualifying conditions independently from the recreational marijuana debate, but he hopesthose changes come about in tandem with legalizing recreational marijuana.
Although other states have navigated this issue, each state has its own rules and regulations that were introduced in different ways at different times. Legalization is happening piecemeal across the country rather than uniformly at a national level.
More broadly, regulating both medical and recreational marijuana poses a novel policy question. There is little precedent for a substance approved for medical use that may also be widely used recreationally in a legal setting, while still being a controlled substance at the federal level.
Yet Gottfried did draw an analogy to foods with positive health benefits that people consume on a daily basis. He said that the problem lies in that fact that marijuana is not actually viewed this way in general. “The things that we consume that are very healthy for us, like oranges and milk, you would never think of them being pharmaceutical,” Gottfried said. “But if you extract the vitamin C from it, or produce it artificially, then the (U.S. Food and Drug Administration) supervises the production it. The FDA doesn’t supervise the production of oranges.”
This suggests that the future of medical marijuana may lie in the extraction of individual compounds found within cannabis that have medical benefits, which can be regulated separately from the growth of the plant itself. However, that largely depends on the federal government’s categorization of cannabis as a Schedule I substance.
As it stands, the question of legalizing recreational marijuana in New York still largely relies on the outcome of the November election. Even as the governor holds his listening sessions and convenes policymakers and experts to craft legislation, legalizing recreational marijuana may largely depend on Democrats winning control of the state Senate. Without that, the questions about the future of the medical marijuana program in the new environment could become moot.
I represent Chelsea, Hell’s Kitchen, Midtown, and parts of Murray Hill and the Lincoln Center area in the State Assembly. I have been chair of the Assembly Health Committee since 1987. During off hours, I like to write Chinese calligraphy.
