Recreational marijuana FAQ

What we know – and what we don’t – about legalizing marijuana in New York.

Hands rolling a joint

Hands rolling a joint Tunatura/Shutterstock

Gov. Andrew Cuomo unveiled a plan to legalize and tax recreational marijuana as part of his executive budget proposal. The section spelling out the many, many details of marijuana legalization spans a whopping 191 pages. That gives lawmakers, advocates and opponents a lot to sift through. Some questions are answered in the bill, while other questions will likely spark ongoing debate over the next year. Here are some of the most pressing questions regarding what now seems like the nearly inevitable legalization of recreational marijuana in New York.

How many other states allow legal marijuana?

A total of 10 states and the District of Columbia have fully legalized recreational marijuana for adult use: California, Nevada, Oregon, Washington, Alaska, Colorado, Michigan, Massachusetts, Vermont and Maine. New York would be somewhat unusual among these states by legalizing marijuana through a statute, rather than through a ballot referendum with additional laws and regulations established after the fact. The only other state to go this route was Vermont, whose law went into effect in July 2018.

But isn’t this still technically illegal on the federal level?

Marijuana is still considered a Schedule I drug by the Drug Enforcement Administration, meaning the federal government considers it to have the highest risk for abuse and no accepted medical use. Under President Barack Obama, the Justice Department eased its enforcement of federal drug laws in states that had legalized marijuana. The Trump administration reversed that decision, but no state has faced serious consequences for its medical or recreational marijuana programs yet.

Who will oversee recreational marijuana?

Cuomo has proposed creating a new Office of Cannabis Management to oversee not just recreational marijuana but medical marijuana and industrial hemp as well. The office would be part of the Division of Alcoholic Beverage Control in the state Liquor Authority. It would be in charge of licensing growers, processors and distributors, as well as certifying patients for medical use.

What happens to the state’s existing medical marijuana program?

Much of the debate surrounding the legalization of recreational marijuana has centered around criminal justice and potential tax revenue. The fate of the state’s medical marijuana program, established in 2014 through the Compassionate Care Act, has played a smaller role in the conversation. Under Cuomo’s new budget proposal, patients with a “serious condition” must still receive certification from a doctor for medical marijuana, only now the Office of Cannabis Management would register patients, rather than the state Department of Health, which currently handles the program. This is still for the most part restricted to a limited number of conditions previously enumerated by the state, but Cuomo’s proposal expands the list slightly to include Alzheimer’s disease, muscular dystrophy, dystonia, rheumatoid arthritis and autism. It also gives the executive director of the Office of Cannabis Management the authority to add more conditions. Medical providers must also still register with the state after completing a short educational course. Overall, the proposal mostly transfers the program intact to the Office of Cannabis Management.

Are there any changes for patients using medical marijuana?

One notable change to the program is that patients would be able to grow their own marijuana at home, with a limit of four plants per registered patient. Patients previously were not allowed to grow marijuana, and the new proposal does not extend to recreational users. Further regulations regarding home growing would be determined by the executive director of the Office of Cannabis Management.

The program still faces a larger existential question in the face of recreational legalization, which only time will answer: whether the program will survive. Right now, medical marijuana is both expensive and difficult to come by. According to the Times Union, it can cost some patients close to $1,000 a month, and over a third of those who registered never got the drug last year. The possible proliferation of recreational marijuana may drive people away from the medical program in favor of self-medicating. Doctors involved with the program hope that competition from the recreational market will drive down medical marijuana prices. Those in the medical marijuana industry say allowing them to also sell recreational marijuana would lower prices.

While the circumstances are not identical to New York, Colorado did not see a significant decrease in medical marijuana patients following recreational legalization. Colorado also instituted a lower tax rate for medical products compared to its recreational counterparts.

What happens to those convicted of marijuana-related crimes?

The Office of Cannabis Management could review and seal past marijuana convictions, although the speed at which this might occur is not made clear in Cuomo’s proposal. The process may involve resentencing for those currently imprisoned to reflect lesser charges under new laws.

Does this mean there will be no more marijuana arrests?

While marijuana would be legal under Cuomo’s proposal, that does not mean that people will no longer be arrested on marijuana-related charges. Aside from DWI and DUI charges (discussed in more detail below), growing a cannabis plant or selling marijuana without a license would still be against the law. Depending on the pricing and availability of the drug, there is a good chance that a black market would still exist that does not comply with new state regulations. For the most part, those found in violation of new laws and regulations would be charged with misdemeanors.

So how much can I legally carry at once?

According to The Buffalo News, you would be able to carry up to 1 ounce of cannabis or 5 grams of concentrated cannabis. This is also the same amount that a retailer would be allowed to sell to a single person in one day.

What about hemp?

The cannabis plant comes in many varieties, not just those with high concentrations of tetrahydrocannabinol, or THC, the plant’s main psychoactive component. Hemp comes from the cannabis sativa L variety of plant, which has a a THC concentration below 0.3 percent and is used for industrial purposes like clothing, paper, biofuel, food, body care and bioplastics. The state estimates hemp can be used to manufacture over 25,000 different products.

Hemp has long been classified as a Schedule I drug under federal law, lumped together with marijuana as a drug as dangerous as heroin. That changed in December 2018 when President Donald Trump declassified hemp as part of the 2018 Farm Bill, making it legal on the federal level, though leaving specifics on regulations up to individual states.

An industrial hemp pilot program already existed in New York under the state Department of Agriculture and Markets, established in 2015 and expanded in 2017 to include businesses and farmers. Cuomo’s new proposal differentiates between industrial hemp, encompassing nearly all nondrug-related uses of the plant, and hemp cannabis, which refers specifically to cannabis grown to cultivate cannabidiol, a popular form of hemp oil.

John Gilstrap of Hudson Hemp, an industrial hemp company participating in the pilot program, predicted that hemp will become a multibillion-dollar industry, outpacing the recreational marijuana business. “The recreational is always a sexy topic to talk about,” Gilstrap told City & State. “But people who are really into the science or to the business recognize that really, it’s the molecules, it’s all about the molecules in the end.”

How will recreational marijuana be taxed?

The governor proposed imposing three taxes on recreational marijuana. The first would occur during cultivation, at a rate of $1 per gram of cannabis flower or $0.25 per gram of cannabis trim. The second is a 20 percent tax on the sale of marijuana from a wholesaler to a retail dispensary. The third is a 2 percent tax on the same sale, but with proceeds going toward the county where the dispensary is located. Cuomo predicted this will generate $300 million in new revenues each year. However, he estimated that the first legal sale of recreational marijuana would not occur until at least April 2020, and if other states are any indication, it may take several more years for New York to see robust returns.

How will that new tax revenue be used?

Many have already begun debating how best to use marijuana tax money, such as investing in public transportation or reinvesting it into communities of color that were hurt by marijuana policing. Cuomo’s proposal earmarked money for the administration of the program and other program-related expenses; small-business development and loans; substance abuse and mental health treatment; and public health education. Each expense seems to be directly or indirectly related to the recreational marijuana program. Cuomo also said the Office of Cannabis Management could recommend other uses for the revenue.

Currently, it does not appear that the governor is specifically setting aside any of the money for the state’s general fund.

Will driving become more dangerous?

The short answer is maybe. In states where recreational marijuana has become legal, traffic accidents have increased. While studies haven’t proven a direct causal link between the two, the correlation is troubling. Part of the problem, according to state Sen. Todd Kaminsky, is that there is not enough public education about the dangers of driving high. Despite the fact that research has shown that driving while under the influence of marijuana slows reaction times and increases the likelihood of crashes, and a general consensus that driving while high is bad, Kaminsky referenced polling that shows there still seems to be a disconnect about just how dangerous driving high can be. “If we don’t have a conversation about road safety parallel to every other one about legalization, we’re not going to be prepared and we’re going to have fatalities,” Kaminsky told City & State. He held a roundtable with stakeholders last month to begin discussing the issue.

Is there a test for driving while high?

Adding to the complications of safe driving in the age of recreational marijuana is that unlike with alcohol, there is no accurate field sobriety test for marijuana intoxication levels. Currently, the only way to determine someone’s blood THC content is through a blood test, which attorney and cannabis law expert Elizabeth Kase said can back up the court and quickly cost lots of money. Breathalyzer-like devices claiming to accurately detect THC are in development, but are not yet on the market.

There is also the matter of determining what level of THC in the blood constitutes impairment. Some states have set the level at 5 nanograms per millimeter of blood. But even this is imperfect, since different ingestion methods of the same amount of marijuana can lead to widely varying levels of THC in the blood.

In order to address some of the concerns regarding impairment, Cuomo plans to convene a traffic safety commission as part of his marijuana proposal.

What if you don’t want recreational marijuana in your town?

As part of his proposal, Cuomo included the ability for counties and municipalities with populations over 100,000 to “opt out” of the new regulations by banning the cultivation, processing, distribution and sale of recreational marijuana within their jurisdictions. This does not mean that possession of marijuana would be illegal, but for the general consumer, one would need to purchase it somewhere else. New York is not the first state to provide this option, with many municipalities in Michigan choosing to opt out of its new recreational marijuana program. So far, North Hempstead on Long Island is the only places to opt out.

Kase warned that allowing municipalities to opt out can impede the rollout of the program. She pointed to Massachusetts, which has similar opt-out options and local zoning issues, where she said it has taken the recreational marijuana program longer than planned to get up and running following its 2016 ballot initiative. Currently, the state has eight dispensaries. “I think you’re going to see more and more of this in upscale neighborhoods,” Kase said. “That is going to put a crimp and cramp in the rollout – potentially.”

How strict will New York’s regulations be?

The answer to this question is still hard to determine as many specific regulations need to be established. But given the restrictive nature of New York’s medical marijuana program, it wouldn’t be a surprise if the state institutes a similarly strict recreational program.

How will sales and licensing work?

The state plans to offer individual licenses for cultivation, processing, distributing, retail and on-site consumption. Anyone with a cultivation license to grow marijuana would not be allowed to also have a retail license to sell it. A single entity can, however, hold a processing and distribution license. The idea is to avoid the vertical integration of the marijuana business and ensure a separation between the companies growing the product and those who ultimately sell it to consumers. This structure is different than the state’s medical marijuana industry, in which the company that grows and processes the drug is the same that runs the dispensaries. There is an exception for organizations currently registered with the medical marijuana program that would allow them to produce and sell recreational marijuana without being subject to the restrictions applied to other companies.

On-site consumption licenses permit consumers to use or ingest marijuana products within their premises. Those with a retail license may also have one for on-site consumption, though there are restrictions about consumption within locations that are also dispensaries. And don’t expect to be able to purchase marijuana products at bars, as any location with a liquor license would not be allowed to have a retail license for marijuana.

Will there be a cap on licenses?

Cuomo’s proposal may set a limit on the number of licenses issued, but leaves that decision up to the unnamed executive director of the Office of Cannabis Management. That person could choose a number, or choose not to impose a limit. If the rules turn out anything like the medical marijuana program, licensing could be fairly restrictive. Only 10 medical marijuana companies are allowed to operate in the state, up from five initially, and each can only have a maximum of four dispensaries.

Correction: The town of Hempstead will vote later this month on a one-year moratorium on dispensaries and sales of recreational marijuana. An earlier version of this story misrepresented the town's stance on the drug.

Clarification: Only counties and municipalities with populations over 100,000 can opt out of the new marijuana law.