Homegrown marijuana for personal use still outlawed in New York

ALBANY — New York is entering its third outdoor growing season since marijuana was legalized in the spring of 2021, but recreational users are still not allowed to legally cultivate their own plants — and that authorization may not come until well past next year’s planting season.

A provision in the Marijuana Regulation and Taxation Act approved the home cultivation of cannabis for personal use, but declared it can begin only after the state Office of Cannabis Management has issued “regulations governing home cultivation of cannabis, which will occur within 18 months of the first adult-use retail sale.”

But the first “legal” sale of recreational marijuana in New York did not take place until late December when a downstate nonprofit organization, Housing Works, opened a retail marijuana shop in New York City. That means the regulations authorizing homegrown plants for personal use may not be approved until July 2024.

State officials have said the delay in allowing homegrown marijuana was, in part, designed to prevent a proliferation of available marijuana that could impede the success of nascent retail stores. Last week, the first retail marijuana shop in the Capital Region opened in Schenectady.

But the strategy has not stopped a booming underground marketplace from emerging, including merchants who have opened unlicensed marijuana shops in bustling urban settings.

For now, only individuals with medical marijuana prescriptions are allowed to legally grow at home. They received that authorization last September when the state approved regulations allowing medical marijuana patients — who could already purchase products from licensed medical dispensaries — to grow up to three mature plants and three immature plants at home. They also have the option of using “designated caregivers” to grow the crops for them. 

The regulations additionally allow a medical patient or their caregiver to possess up to 5 pounds of cultivated marijuana in addition to any plants. Mature plants are those which have buds forming; immature plants can be any height as long as they do not have buds visible.

It is illegal for a patient or caregiver to sell marijuana, seeds or plants to another person, but they are allowed to give up to 3 ounces of cannabis or 24 grams of concentrated cannabis to another certified patient or caregiver. Practitioners certified to prescribe marijuana can do so for any reason, including insomnia and anxiety.

The delays in authorizing retail sales — and, as a consequence, the legalization of home cultivation for personal use — has sparked unrest in the industry and recently led a new coalition of medical marijuana license holders and recreational market hopefuls to file a lawsuit seeking to force the Office of Cannabis Management to open the retail licensing process “for all applicants.”

They contend the state’s prioritization of issuing licenses to retail store operators with past marijuana convictions did not align with the law that specified “the initial adult-use cannabis retail dispensary license application period shall be opened for all applicants at the same time.”

For those seeking to risk growing marijuana plants for personal use without a prescription — whether indoors or during New York’s limited outdoor growing season — the law change two years ago also led to a sharp decline in law enforcement initiatives targeting illicit harvesting. And now with marijuana prescription holders able to grow multiple plants in their gardens, it could become harder for police to enforce the regulations.

As of last week, the state had 120,827 registered medical cannabis patients — down from the 124,485 last September.

The Times Union reported two years ago that the number of marijuana plants seized by police across New York had plummeted as many law enforcement agencies abandoned their once-annual missions — often aided by State Police helicopters — to locate and remove the crops.

The costly missions, which usually unfolded during harvest season from August to October, had historically been a mix of State Police aerial units working with local sheriff’s departments and other agencies on the ground to spot and then remove large marijuana plantings.

For the State Police, the helicopter missions cost more than $1,000 per hour in fuel and maintenance costs, not including wages for pilots or others on board. Some of that money was reimbursed by the federal government based on the amount of plants seized.

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