In the coming months, New York legislators will likely be sweating out the details of the adult-use cannabis regulations that Democratic Gov. Andrew Cuomo has said is one of his top priorities for the first 100 days of 2019.
A panel of industry veterans, policy wonks, and public health officials who met earlier in December 2018 want to see the new cannabis law grounded in what has worked in pioneering states such as Colorado, Washington, and Oregon, but tempered by those states' missteps as well.
“I think it's really important to know that we are looking at what hasn't worked and looking to do things differently,” said Shanita Penny, the panel moderator for the discussion on Dec. 11, 2018, as part of the “Marijuana: Justice. Equity. Reinvestment” conference in Albany, New York. The two-day event was hosted by the New York office of the Drug Policy Alliance (DPA).
Penny runs a cannabis consulting firm, Budding Solutions, and heads the Minority Cannabis Business Association, which is focused on economic empowerment, social justice, and patient and consumer advocacy for communities most impacted by the war on drugs.
Social Justice: the Starting Point
There's currently a bill in both houses of the New York Legislature, the Marijuana Regulation and Taxation Act (MRTA), authored by Assemblywoman Crystal Peoples-Stokes and state Sen. Liz Krueger, which could be the basis for final regulations. Yet nothing is certain except that “things are moving incredibly fast right now and these kinds of discussions are going to become more urgent,” according to Brad Usher, Krueger's chief of staff.
Usher said at its heart MRTA is “an attempt to recognize the drug war was a failure” and that making cannabis illegal “was not an effective way to serve the public health, broadly speaking.”
Jolene Forman, a staff attorney for the DPA, said the MRTA addresses the policy successes and failures of other cannabis laws.
“It does not just build on the huge penalty reductions that happened in other states, but the retroactive penalty reductions that we have in California and Oregon,” she said. For instance, under MRTA people who have been convicted of low-level cannabis possession or sales charges will have those convictions vacated from their record. Additionally, people currently incarcerated for those offenses would either be released or have their sentences reduced in line with the new laws.
The bill takes another social justice aspect from Massachusetts and California by requiring a 50 percent investment of cannabis tax money in the communities hardest hit by the war on drugs. The Community Grant Reinvestment Fund “can really start to repair some of harms of the drug war,” Forman said. Twenty-five percent would go to the department of education and the rest of the money would go to study the impacts of cannabis legalization and the efficacy of the regulations. “The monies from legalization offer opportunities to do better research and educate the public,” Forman said.
Penny said it's important to be sure that the tax revenue doesn't end up going to a general fund.
“We know our communities are the last to get what's needed, let alone what's owed to us because of the war on drugs,” she said. “It will be important that we lead with that and that there are community stakeholders who are involved in how those funds are spent.”
Equitable Market Access to the Industry
The social justice component also should include making sure there's a level playing field for smaller businesses and ensuring communities that have been disproportionately impacted by the drug war have ways of participating in the market, according to Usher. One way to help is through mandating vertical integration — seed-to-sale operations — for micro-businesses. “The goal there is to ensure that local businesses, smaller businesses, have the opportunity to participate,” Usher said.
There was some give-and-take between panelists on whether vertical integration should be allowed. Penny felt some larger seed-to-sale businesses are necessary, especially when the market first opens up, because they are able to get their products out sooner than a smaller business or a business that depends on some other aspect of the supply chain.
Danica Lee, the director of the Public Health Division of the Denver Department of Public Health and Environment, which oversees the inspection and enforcement of cannabis businesses as they pertain to public health, said she's seen a trend in the state towards larger businesses absorbing smaller ones because of burdensome regulations. “You need to have that balance, and Colorado is not there yet,” Lee said.
Protecting Public Health
The experts also discussed public health, with significant input from Adam Karpati from Vital Strategies, a New York-based public health non-governmental organization (NGO). It suggested:
- Strict marketing and advertising to reduce overconsumption and protect youths.
- Packaging that is accurate and clearly labeled.
- Testing of products to detect a variety of possible contaminants.
A less-often discussed aspect of the public health component is ensuring that a robust medical cannabis program continues after adult-use legalization arrives, according to Cristina Buccola, an attorney, advocate, and adviser in marijuana and hemp industries. She suggested expanding New York's limited medical cannabis program and allowing doctors and other medical practitioners more leeway to determine their patients' cannabis needs. She said adult-use programs need to address the sometimes-large dosage needs of patients, particularly those younger than 21.
When the adult-use market came online, states such as Oregon, Nevada, and Colorado saw large drops in registered medical cannabis patients — 42, 32, and 22 percent respectively, according to Buccola.
“If we don't start to buttress [medical cannabis programs] what's going to happen is that we may end up with a de facto adult-use-only program and no one really benefits from that,” Buccola said. “We really need to continue to think about the patient and providing the patient access.”
Allowing for some local control without hindering small businesses or limiting patients' and consumers' access to cannabis was another topic of discussion.
Dasheeda Dawson, the founder and president of MJM Strategy, a cannabis-centered strategy and marketing firm, said she believes California is a good case study. Dawson said that the high level of local control means that there are places where you can consume cannabis outside and “literally two blocks down you can get a citation.” She conceded that it was at the local level where “you're starting to see some of the nuances within the community and what they actually need” but that “if you give too much local control it can be very confusing to the consumer and can also stifle the market as a whole because it's too fragmented.”
A similar situation arose in Massachusetts, where Community Host Agreements are in place — basically contracts between business owners and the municipality in which they're located — that have hamstrung businesses that are sometimes required to pay high fees for permission to operate, according to Buccola.
For Lee, local control is vitally important to protect consumers. In a number of instances, notably in Colorado, she noted that local health agencies have led the way in addressing consumer protection issues that the state didn't.