New York activists are ready for 2021 to be the year that the state finally legalizes marijuana. But one little-noticed provision of the cannabis reform proposal introduced by the governor in his budget request last week has become a major source of contention.
That said, Gov. Andrew Cuomo’s (D) second-in-command told Marijuana Moment that the policy at issue—an increase in penalties for certain cannabis-related offenses—could change as the administration and lawmakers negotiate the finer details of the proposal.
While marijuana would be legal to purchase and possess for adults 21 and older under Cuomo’s plan, the legislative text he released also contains a section that would make it a class D felony—punishable by up to 2.5 years in prison—to sell cannabis to anyone under the age of 21.
That’s a significantly more serious penalty that what’s currently on the books. As it stands, an illicit sale to an underage person is a misdemeanor.
Advocates say this proposal runs counter to the stated intent of the legalization measure, which is to end marijuana criminalization and promote social equity. Cuomo has repeatedly recognized that people of color are disproportionately targeted by police when it comes to cannabis enforcement—and there’s no reason to believe that would be any different if this policy were to go into effect.
Lt. Gov. Kathy Hochul (D) told Marijuana Moment in a phone interview on Tuesday that the administration remains “very concerned about making sure that no one under the age of 21 is participating” in the marijuana market, and the intent of the section at issue is deterrence.
But while the provision was included in the governor’s budget plan, she also left room for further revisions, stating that “much of it is going to be negotiated with the legislature, and all these details can be resolved with their input as well.”
Eli Northrup, a New York public defender and member of the reform coalition Smart START NY, ignited a conversation over the youth penalty provision last week, arguing on Twitter that legalization “cannot mean increased criminalization.”
Under @NYGovCuomo marijuana “legalization” proposal, released Tuesday, selling ANY amount to a person under 21 is a class D felony which carries the potential of 2.5 yrs in prison. This same behavior is currently a misdemeanor. Legalization cannot mean increased criminalization.
— Eli Northrup (@EliNorthrup) January 21, 2021
The text of the proposal at issue states that a “person is guilty of criminal sale of cannabis in the second degree when he knowingly and unlawfully sells…any amount of cannabis or concentrated cannabis to any person under twenty-one years of age” and that such an offense is “a class D felony.”
Here’s the provision in the Governor’s revenue proposal for those interested pic.twitter.com/DACDpTwhw4
— Eli Northrup (@EliNorthrup) January 21, 2021
Melissa Moore, New York state director for the Drug Policy Alliance, told Marijuana Moment that “if we’re going to legalize, that needs to mean not creating new marijuana crimes.”
Cuomo has “really acknowledged the fact that the harm of marijuana criminalization has fallen disproportionately on communities of color in New York, and we need to move out of that scenario and get it right this time,” she said.
“He said too many black and brown New Yorkers have been the target of enforcement—that there’s been this exaggerated injustice of the justice system,” Moore continued. “If that’s the case, then as we’re turning the page in the playbook and moving into a legalization framework, then why on earth would you establish really harsh penalties and create new crimes, as he’s done in his proposal?”
Hey @NYGovCuomo we watching you 👇🏿 @startsmartNY coalition member @EliNorthrup of @BronxDefenders with the truth – legalization does not mean increased criminalization. Stay focused yall, are people are worth more than talking points. cc: @FABNEWYORK @oldmanebro @MichaelSkolnik https://t.co/OaQcQvI9B3
— Kassandra Frederique (@Kassandra_Fred) January 21, 2021
One of the goals of taxing and regulating cannabis sales for adults is to disrupt the illicit market and prevent youth use by ensuring that marijuana is sold at licensed facilities where there are policies in place to stop underage people from accessing those products. And to that end, there should be business-level penalties for dispensaries that violate the law such as revoking a license, Moore said.
But what the governor’s language threatens to do is further criminalize individuals over marijuana even as the state moves to establish a regulated market, advocates argue. Hypothetically, a police officer would be able to arrest a 22-year-old college student for selling a joint to a 19-year-old classmate, for instance, and giving police that latitude could lead to a continuation of discriminatory enforcement.
Beyond the underage provision, advocates also have outstanding concerns the Cuomo plan’s omission of a home cultivation option for medical patients or recreational consumers.
The lieutenant governor told Marijuana Moment that while such activity would not be allowed under the budget proposal as submitted, “everything is always on the table” as the administration works with legislators to enact legalization.
“It’s certainly something that has been brought to our attention,” she said. “I can’t say that there’s a change in that at this point, but I also have to ask advocates to recognize that this is a major societal, cultural shift for a state like New York, that we view ourselves as very progressive, but much of New York State is not New York City. There are very conservative areas of our state.”
“I know these these areas are hesitant philosophically, and in order to get their buy-in and acquiescence and acceptance of what is, in their mind, really dramatic shifts in the state policy, we have to take smaller steps,” she added.
Meanwhile, advocates have also expressed frustration over the limited amount of funding for social equity grants that’s included in the governor’s proposal.
The administration says it expects the state to bring in about $350 million in marijuana tax revenue, and the plan allocates $100 million of those funds to social equity grants over the course of four years, followed by a recurring $50 million annually.
“The parameters of that [grant program] have not been established yet,” Hochul said. “This is where we want to have input from those communities to determine, does this help businesses set up retail operations in order to be in the communities legally selling marijuana? Does this create other opportunities to address job training?”
“We want to make sure that these communities also have access to the jobs and the job training,” she added. “There are many ways that we can address this, and we’re not going to say the answers—I think the answers lie in those communities themselves.”
Activists have also pointed out that Cuomo’s proposal “seeks to enhance criminal penalties for driving under the influence of marijuana and creates new criminal penalties for growing and selling marijuana without a license.”
The Governor's proposal also seeks to enhance criminal penalties for driving under the influence of marijuana and creates new criminal penalties for growing and selling marijuana without a license.
— Brooklyn Defender Services (@BklynDefender) January 22, 2021
All that said, the governor’s budget plan—which includes legalization language for the third year in a row—is not the finished product, as Hochul pointed out. Rather, it represents a starting point for negotiations with his office and the legislature, where other reform bills have been introduced for this session.
And unlike in past sessions, the legislature will have more influence this year after Senate Democrats secured a supermajority in the November election. If the governor were to veto any bill over details he didn’t like, they could potentially have enough votes to override him.
Advocates are confident that lawmakers will recognize the potential consequences of provisions they see as problematic and will work to remove or revise them as the legislature takes up the issue.
To that end, New York’s legal cannabis market could end up looking more like what’s outlined in a bill introduced by Sen. Liz Krueger (D) and 18 cosponsors at the beginning of this month. The legislation would make it so adults 21 and older would be able to purchase cannabis and cultivate up to six plants for personal use.
It would also provide for automatic expungements for those with prior cannabis convictions and it also includes low- or zero-interest loans for qualifying equity applicants who wish to start marijuana businesses.
In any case, there’s growing recognition in the state that legalization is an inevitability.
The top Republican in the New York Assembly said last month that he expects the legislature to legalize cannabis this coming session.
Senate Majority Leader Andrea Stewart-Cousins (D) said in November that she also anticipates that the reform will advance in 2021, though she noted that lawmakers will still have to decide on how tax revenue from marijuana sales is distributed.
Cuomo also said that month that the “pressure will be on” to legalize cannabis in the state and lawmakers will approve it “this year” to boost the economy amid the health crisis.
The push to legalize in New York could also be bolstered by the fact that voters in neighboring New Jersey approved a legalization referendum in November.
Separately, several other bills that focus on medical marijuana were recently prefiled in New York, and they touch on a wide range of topics—from tenants’ rights for medical cannabis patients to health insurance coverage for marijuana products.
Federal Agency Loosens Marijuana-Related Grant Funding Restrictions For Mental Health Treatment
The federal Substance Abuse and Mental Health Services Administration (SAMHSA) loosened restrictions this week on grant funding for state health providers and other entities that allow patients to use medical marijuana for mental heath treatment.
The Pennsylvania Department of Drug and Alcohol Programs flagged the new policy change in a notice to SAMHSA grant recipients on Monday. It said that the federal agency has removed language from its terms and conditions that until now has prevented grant funds from going to any institution that “provides or permits marijuana use for the purposes of treating substance use or mental disorders.”
This restriction led the state department to issue a memo in June warning recipients and applicants about the possible withholding of funding.
Despite the recent change, SAMHSA is still continuing a narrower ban that says federal funds themselves “may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana.”
The broader prohibition, which has now been rescinded, prompted a notice last year from Maine’s Education Department, which said is was no longer eligible for certain federal funds to support mental health programs in schools because the state allows students to access medical marijuana.
It seems the federal agency is now being somewhat more permissive.
Here’s how SAMHSA’s updated marijuana restriction reads:
“SAMHSA grant funds may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana. See, e.g., 45 C.F.R. 75.300(a) (requiring HHS to ensure that Federal funding is expended in full accordance with U.S. statutory and public policy requirements); 21 U.S.C. 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana).”
The older, more broad prohibition read:
“Grant funds may not be used, directly or indirectly, to purchase, prescribe, or provide marijuana or treatment using marijuana. Treatment in this context includes the treatment of opioid use disorder. Grant funds also cannot be provided to any individual who or organization that provides or permits marijuana use for the purposes of treating substance use or mental disorders. See, e.g., 45 C.F.R. § 75.300(a) (requiring HHS to “ensure that Federal funding is expended in full accordance with U.S. statutory requirements.”); 21 U.S.C. §§ 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana). This prohibition does not apply to those providing such treatment in the context of clinical research permitted by the DEA and under an FDA-approved investigational new drug application where the article being evaluated is marijuana or a constituent thereof that is otherwise a banned controlled substance under federal law.”
The marijuana restrictions were first added to grant award terms for Fiscal Year 2020. The language was initially carried over to Fiscal Year 2021 but was more recently switched out for the narrower language by the federal agency.
In a January 2020 FAQ that the Pennsylvania department shared from SAMHSA this June, the federal agency responded to a prompt inquiring whether grant recipients can serve patients who are “very clear about their wish to remain on their medical marijuana for their mental or substance use disorder.”
“No. The organization cannot serve a patient who is on medical marijuana for a mental or substance use disorder and wishes to remain on such treatment,” it said. “SAMHSA promotes the use of evidence-based practices and there is no evidence for such a treatment; in fact, there is increasing evidence that marijuana can further exacerbate mental health symptoms.”
While the agency seemed adamant in enforcing that policy at the time, it appears to have had a change of heart and has since loosened the restriction.
A SAMHSA spokesperson told Marijuana Moment that the new rules took effect on Sunday, but played down their significance.
“This Aug. 1 clarification simply made clearer what was already in place: SAMHSA funds should not be used to procure a federally prohibited substance,” he said in an email.
While it is true that the revised provision, as was the case in the prior language, states that federal funds cannot be used to pay for marijuana, the spokesperson avoided commenting on the new deletion of the broader prohibition on grants going to entities that otherwise allow patients to use medical cannabis to treat substance use or mental disorders.
After SAMHSA announced in 2019 that its marijuana policy would impact organizations applying for its two main opioid treatment programs and another that provides funding to combat alcoholism and substance misuse, the Illinois Department of Human Services and Oregon Health Authority issued notices on the impact of the rule.
Read the Pennsylvania department’s notice on the SAMHSA marijuana policy change below:
Photo courtesy of Philip Steffan.
Mexican Lawmakers Could Finally Legalize Marijuana Sales Next Month (Op-Ed)
The legislature missed repeated deadlines, and then the Supreme Court moved to allow homegrow. What’s next?
By Zara Snapp, Filter
Mexico has never seemed so close and yet so far from fully regulating the adult-use cannabis market.
A first Supreme Court resolution determined in 2015 that the absolute prohibition of cannabis for personal use was unconstitutional because it violates the right to the free development of personality. To reach jurisprudence in Mexico, five consecutive cases, with the same or more votes each time, must be won before the Supreme Court. This was achieved in October 2018, which detonated a legislative mandate that within 90 days, the Senate should modify the articles in the General Health Law that were deemed unconstitutional.
The first deadline came and went without the Senate modifying the articles; so the Senate requested an extension, which was granted. The second deadline to legislate expired on April 30, 2020—but another extension was provided because of the COVID-19 pandemic.
At first, it looked like the third time was the charm. The Senate overwhelmingly approved the Federal Law to Regulate and Control Cannabis in November 2020 and passed it to the Chamber of Deputies, the lower house, for review and approval. Since the deadline of December 15, 2020, was fast approaching, the Chamber asked for its own extension. The Supreme Court granted it (until April 20, 2021) and the bill underwent significant changes before being approved by the Chamber on March 10, and so sent back to the Senate.
The Senate certainly had enough time to review and either reject or accept the changes made by the lower house. That would have made this a shorter story. However, the Senate had other plans. Rather than approve the bill or request an additional extension, it simply did not do anything. June’s national midterm elections were approaching, and political calculations were made. The legislative process came to a standstill.
Since the Senate did not approve the bill by the deadline, the Supreme Court basically did what it had mandated Congress to do. It activated a mechanism to guarantee rights that had only been undertaken once before in Mexican history: the General Declaration of Unconstitutionality (GDU).
On June 28, the Supreme Court approved, with a qualified majority of eight of the 11 Ministers, that two articles in the General Health Law must be modified to permit adults to cultivate cannabis for personal use in their homes.
These changes were officially published on July 15, with specific instructions to the Health Secretary to approve authorizations for any adult who applies.
The GDU has certain restrictions attached, including that this is only for personal use and cannot be used to justify any commercialization of cannabis or cannabis-derived products. Adults cannot consume in front of minors, or other adults who have not expressly given their permission. Nor can they operate heavy machinery or drive while under the effects.
With the GDU, the judicial process concludes. However, the Supreme Court was clear in its final recommendations: Congress can and should legislate to clear up inconsistencies and generate a legal framework for cannabis users.
Whether the Senate decides to take up the matter again in September when it returns to its legislative session will depend largely on its political whim. The body no longer has a deadline to meet; however, there are growing calls from society to regulate the market beyond home-grow, as well as several legal contradictions that obviously need to be harmonized.
The General Health Law has now been modified and the health secretary must approve permits or authorizations for adults to cultivate in their homes. But the Federal Criminal Code has not changed—it still penalizes those same activities with sanctions ranging from 10 months to three years or more in prison.
The Supreme Court decision ignores the need for a comprehensive regulation that would allow the state to apply taxes to commercial activities, which are currently still criminalized with penal sanctions. It also overlooks the urgency of an amnesty program for the thousands of people currently incarcerated on low-level cannabis charges, or hampered by criminal records for such charges.
The Senate should now revisit the bill it initially passed. It should maintain the positive aspects of the bill, which would improve things well beyond the scope of the Supreme Court decision. These include provision for cannabis associations (permitting up to four plants per person for up to 20 members), for home-grow without the need to request authorization, and for a regulated market with a social justice perspective—allocating 40 percent (or more!) of cultivation licenses to communities harmed by prohibition and imposing restrictions on large companies.
The Senate could also build upon the previous version of the bill by eliminating simple possession as a crime, by allowing the associations to operate immediately and guaranteeing the participation of small and medium companies through strong government support.
During the last three years, and before, civil society has closely accompanied the process of creating this legislation, providing the technical and political inputs needed to move forward in a way that could have great social benefits for Mexico.
By becoming the third country in the world to regulate adult cannabis use, after Uruguay and Canada, Mexico could transition from being one of the largest illegal producers to being the largest legal domestic market in the world. As well as economic benefits, this could have substantial impacts on how criminal justice funds are spent, freeing up law enforcement dollars to focus on high-impact crimes and changing the way the state has shown up in communities that cultivate cannabis.
Rather than eradicating crops, the government could accompany communities in gaining legal licenses, provide technical assistance and improve basic services. These positive externalities of regulation could signal a shift from a militarized state of war to a focus on rights, development and social justice.
Of course, this all depends on key political actors recognizing the benefits—and that requires political will. Mexico deserves better; however, it remains to be seen whether legislators will act.
This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.
Oregon Governor Plans To Veto Bill To Regulate Kratom Sales That Advocates Say Would Protect Consumers
The governor of Oregon has announced her intent to veto a bill that’s meant to create a regulatory framework for the sale and use of kratom for adults.
The Oregon Kratom Consumer Protection Act is bipartisan legislation that would make it so only people 21 and older could purchase the plant-based substance, which some use for its stimulating effects and which others found useful in treating opioid withdrawals.
Vendors would have to register with the state Department of Agriculture to sell kratom. The agency would be responsible for developing regulations on testing standards and labeling requirements. The bill would further prohibit the sale of contaminated or adulterated kratom products.
But while the House and Senate approved the legislation in June, Gov. Kate Brown (D) said on Sunday that she plans to veto it, in large part because she feels the federal Food and Drug Administration (FDA) is better suited to regulate the products.
“Given there is currently no FDA-approved use for this product and there continues to be concern about the impacts of its use, I would entertain further legislation to limit youth access without the state agency regulatory function included in this bill,” the governor said.
This comes as a disappointment to advocates and regulators who share concerns about the risks of adulterated kratom but feel a regulatory framework could help mitigate those dangers and provide adults with a safe supply of products that have helped some overcome opioid addiction.
“Kratom has been consumed safely for centuries in Southeast Asia and Americans use it in the same way that coffee is used for increased focus and energy boosts. Many use kratom for pain management without the opioid side effects,” Rep. Bill Post (R), sponsor of the bill, wrote in an op-ed published in June. “The problem in Oregon is that adulterated products are being sold.”
“Kratom in its pure form is a natural product,” he said. “Adulterated kratom is a potentially dangerous product.”
Pete Candland, executive director of the American Kratom Association, said in written testimony on the bill in February that four other states—Utah, Georgia, Arizona and Nevada—have enacted similar legislation with positive results.
He said that “the number of adulterated kratom products spiked with dangerous drugs like heroin, fentanyl, and morphine in those states has significantly decreased” in those states.
Meanwhile, six states—Vermont, Alabama, Indiana, Wisconsin, Arkansas and Rhode Island—have banned kratom sales altogether.
Candland said that number is actually a testament to the noncontroversial nature of the plant, as prohibition is only in effect in six states despite “a full-throated disinformation campaign on kratom by the FDA with outrageously untrue claims about kratom being the cause of hundreds of deaths.”
After failing to get kratom prohibited domestically, FDA recently opened a public comment period that’s meant to inform the U.S. position on how the substance should be scheduled under international statute.
“Kratom is abused for its ability to produce opioid-like effects,” FDA wrote in the notice. “Kratom is available in several different forms to include dried/crushed leaves, powder, capsules, tablets, liquids, and gum/ resin. Kratom is an increasingly popular drug of abuse and readily available on the recreational drug market in the United States.”
Responses to the notice will help inform the federal government’s stance on kratom scheduling in advance of an October meeting of the World Health Organization’s (WHO) Expert Committee on Drug Dependence, where international officials will discuss whether to recommend the substance be globally scheduled.
Last week, the U.S. House of Representatives approved a report to spending legislation that says federal health agencies have “contributed to the continued understanding of the health impacts of kratom, including its constituent compounds, mitragynine and 7-hydroxymitragynine.”
It also directed the Health and Human Services secretary to continue to refrain from recommending that kratom be controlled in Schedule I.
Late last year, the Agency for Healthcare Research and Quality (AHRQ) asked the public to help identify research that specifically looks at the risks and benefits of cannabinoids and kratom.
The Centers for Disease Control and Prevention (CDC) last year separately received more than one thousand comments concerning kratom as part of another public solicitation.
Photo courtesy of Wikimedia/ThorPorre.