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November 3, 2021

The Third New York State Cannabis Control Board Meeting

On Wednesday, November 3, 2021, the New York State Cannabis Control Board (CCB) of the Office of Cannabis Management (OCM) held its third public meeting. The CCB addressed cannabinoid hemp regulations, OCM staffing, and the executive director’s report.

The biggest news out of the CCB meeting was the adoption of the cannabinoid hemp regulations (Regulations). The regulations have been in a proposed form for over a year. Board Member Jen Metzger provided an overview of the cannabinoid hemp program, noting that the program does not include hemp seed, fiber, or industrial products. Further, the choice of the word “cannabinoid” was purposeful, as cannabis contains hundreds of cannabinoids and the program is meant to address cannabinoids beyond cannabidiol (CBD).

The Regulations adopt new manufacturing standards that require good manufacturing practices specific to the product form (e.g., food-grade cannabinoid products must be produced using food-grade good manufacturing practices).

Further, the Regulations implement packaging and labeling standards that contain (1) a nutritional or supplement fact panel, (2) total cannabinoids per product or serving, stating the amount of CBD or tetrahydrocannabinol (THC), as applicable, (3) a QR code or link to a certificate of analysis, (4) product warnings, (5) a mechanism to report adverse events, (6) a list of all ingredients, (7) an expiration or best by date, and (8) the country where the hemp was sourced.

The Regulations also implement laboratory standards. Labs must be ISO/IEC 17025 accredited to test medical marijuana in New York State, and a full panel of testing is required, including cannabinoid profile, heavy metals, microbial impurities, pesticides, mycotoxins, and residual solvents.

The CCB discussed future changes to the Regulations that will include:

  • Changing the per serving milligram cap for dietary supplement cannabinoid hemp products from 75 mg to 100 mg
  • Removing the requirement that cannabinoid hemp products be shelf stable
  • Increasing the acceptable THC concentration of intermediary hemp extract from 3 percent to 5 percent
  • Establishing a process for small hemp farmers to affordably process and manufacture their own product, similar to an adult-use microbusiness license
  • Allowing out-of-state manufacturers to omit the label warning that products may cause consumers to fail a drug test
  • Moving hemp testing limits from regulation to guidance documents
  • Modifying regulations to list milligrams of total THC per serving and per package on cannabinoid hemp product labels
  • Requiring hemp processors to include on the label the states from where the hemp used to manufacture the product was sourced
  • Defining “craft” cannabis to prohibit advertising and marketing from processors who do not meet the definition

Christopher Alexander, the executive director of the OCM, gave some further clarity to several cannabinoid hemp questions posed by the board members. Smokeable flower is allowed to be sold under the cannabinoid hemp program, but items such as prerolled flower will be sold under the adult-use program. Moreover, it was emphasized that delta-8 THC is immediately banned under the cannabinoid hemp program and that regulation of delta-8 THC will be addressed in a future adult-use package. This presumably applies to delta-10 THC as well, as both were specifically addressed in the proposed regulations when first released. Lastly, one of the goals of the Regulations was to create a high standard for New York State cannabinoid hemp products. The New York State hemp product symbol “will be a flag to consumers that the product was produced and processed in New York subject to the standards” laid out in the Regulations.

The Regulations will take effect immediately. However, regulations concerning packaging, labeling, and laboratory testing will not go into full effect for six months.

CCB Chair Tremaine Wright discussed the continuation of OCM hiring efforts, and the CCB accepted the recommendations of another slate of OCM hires. The executive director noted that some OCM staff that have transferred from other government agencies have started working, and they hope to have others start as early as next week.

OCM Executive Director Alexander gave a report to the CCB summarizing events since the previous CCB meeting. In his report, Alexander noted that the sale of whole flower to medical cannabis patients has officially begun, and patients should ask their registered organization dispensaries when to expect to be able to buy whole flower.

Alexander discussed the New York State Department of Labor guidance on New York Labor Law Section 201(d) regarding employment and cannabis use. He noted that employers cannot discriminate against an employee’s cannabis usage outside of work. However, employers can take action regarding impairment on the job. Further, employers cannot drug test for cannabis unless allowed under New York Labor Law Section 201(d)(4)(A), other New York State laws, or federal law or regulation. Employers can prohibit cannabis usage and possession on employer property and in employer vehicles.

The regulations governing home cultivation by medical cannabis patients have been published on the OCM’s website and are open for public comment until January 18, 2022.

In regard to adult-use cannabis usage, Alexander noted that driving while high will result in receiving a citation for driving under the influence (DUI) in New York State. He also stated that cannabis should be locked up and stored securely. Specifically, Alexander noted cannabis should be kept out of sight and away from individuals under 21 years old and pets. Lastly, Alexander emphasized that cannabis is not legal everywhere. Since cannabis remains illegal federally, a person cannot cross state or international borders in possession of cannabis (and this includes medical patients) and that it is illegal to possess cannabis on federal property or lands.

Alexander announced that, in an effort to keep the public informed of municipal opt outs, the OCM has posted a form on its webpage for local municipal officials to use to notify the OCM of the opt out.

While the finalizing of the Regulations will certainly add clarity to the cannabinoid hemp program, questions regarding the regulations of other intoxicating cannabinoids like THC-O and the enforcement of the delta-8 THC ban remain.

Additionally, no mention was made regarding adult-use regulations. However, in her speech at the Rochester cannabis business symposium, CCB Chair Wright indicated the CCB and the OCM were operating on an 18-month time frame stating, “What we do control is getting (dispensaries) licensing and giving them all the tools so they can work within our systems. That’s what we are saying will be achieved in 18 months. Not that they’re open, not that they’ll be full-blown operations, because we don’t know that.”

Barclay Damon’s Cannabis Team will continue to closely monitor developments pertaining to the MRTA’s rules and regulations. If you have questions about the MRTA, please contact one of Barclay Damon’s cannabis attorneys. 

If you have questions regarding the content of this alert, please contact Jason Klimek, Cannabis Team co-leader, at jklimek@barclaydamon.com, or another member of the firm’s Cannabis Team.

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