Upcoming Deadline to Comment on New York’s Medical Homegrow Regulations

By Andrew Kingsdale

January 15, 2022

Last year, the State of New York legalized the home cultivation of cannabis through the Marijuana Regulation and Taxation Act (MRTA).  Home cultivation for adult use will not be permitted until the first commercial retail stores are licensed, but home cultivation for medical purposes may commence as soon as the proposed regulations are finalized.  

The proposed regulations can be found here, and the deadline to submit comments on them is this Tuesday, January 18, 2022.  Comments should be submitted to the Office of Cannabis Management (for submission details, click here and scroll down to “Medical Cannabis Regulations”).

We commend New York for allowing home cultivation.  Before passing MRTA, New York studied how other states have implemented home cultivation in this impact assessment.  

Nevertheless, the proposed regulations are not perfect, and the problems likely will affect both medical and adult-use homegrowers, unless addressed now.  Here are three comments we plan to submit to New York’s Office of Cannabis Management:

1. Remove Unconscionable Plant Limitations: The regulation’s proposed plant limits – no more than three mature cannabis plants and three immature cannabis plants per patient at any one time – are unconscionable for many patients. California cannabis law offers an example of a better alternative: a “medical needs” exemption. California Health & Safety Code section 11362.77(b) states: “If a qualified patient or primary caregiver has a physician’s recommendation that this quantity [“no more than six mature or 12 immature cannabis plants per qualified patient”] does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of cannabis consistent with the patient’s needs.”  The number of plants that a certified patient may grow should be based on the patient’s medical needs (as determined by a medical practitioner), and not some arbitrary number. 
2. Prohibit Unfair Local Restrictions: In California, some cities and counties have banned all outdoor personal grows and even have imposed arbitrary square-footage canopy restrictions, placing undue burdens on home cultivators. New York’s Penal Code Section 222.15, ¶6 states that a county, town, city or village may not “enact or enforce any such regulation or regulations that may completely or essentially prohibit a person from engaging in” home cultivation in compliance with state law.  New York’s regulations should explicitly state that an enclosed area may be either indoor or outdoor (or both), and without any limitations on canopy size.  
3. Clarify or Remove Vague Security and Odor Rules: The proposed regulations would require home cultivation be conducted in “a reasonable manner that prioritizes attempts at mitigating cannabis odor,” and that home cultivators “install[] and maintain[] reasonable security device(s).” (Proposed Section 115.2(f), italics added.) Reasonable to whom? State regulators?  Local Authorities? Your neighbors? Such vague “reasonability” standards should be either clarified or removed entirely. 

We encourage all New Yorkers to submit comments to OCM, or to reach out to us if you would like assistance doing so.

This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding New York’s cannabis and hemp laws and regulations, or for assistance submitting comments on the proposed regulations discussed above, contact the Law Offices of Omar Figueroa at info@omarfigueroa.com to schedule a confidential consultation. ATTORNEY ADVERTISEMENT: This post may constitute lawyer advertising. The attorney responsible for this advertisement is Andrew Kingsdale. Prior results do not guarantee a similar outcome.