On August 30 New York State Governor Andrew Cuomo’s office made a major announcement: the Governor will hold fifteen “listening sessions” on cannabis legalization at locations around the state in September and October. Those sessions are now underway.
The purpose of these sessions is to garner input from community members and key stakeholders on the implementation of a regulated marijuana program in New York State. This input will assist the Regulated Marijuana Workgroup in drafting legislation for an adult-use marijuana program for the legislature to consider in the upcoming session.
It is difficult to overstate the importance of what is happening. The Governor’s approach to cannabis legalization stands in marked contrast to the classic opacity of policymaking under his administration. It contrasts strongly to what happened in the lead-in to the enactment of the Compassionate Care Act, New York’s medical use-only statute, in 2014. While the advocates and legislators who had been pushing for such legislation for almost twenty years were closing in on the finish line, the Governor held his fire for months, releasing cryptic statements suggesting an openness to medical use; he finally showed his hand in the last days before the end of the legislative session, announcing that, my-way-or-the-highway, he would allow the creation of only the most restrictive medical use system in the United States (a system that this author immediately characterized as so dysfunctional as to be effectively useless).
The Governor is actively involved from the outset now: he has decided that he is going to make legalization happen – and indeed, lack of progress is indefensible with New Jersey (New Jersey!) steaming fast towards adult use. His active participation means that the legislation that is introduced will bear his name: there will be no mystery as to what legislation he will sign (assuming he’s re-elected), as he will be the author. What this Governor wants this Governor gets so there will be major explaining to do if, even with this high degree of personal investment in the process, he is unable to control the process (i.e. manage the legislature) well enough to deliver a legalization statute by the end of June.
Since 2013, the working model of legalization here has been the Marihuana Regulation and Taxation Act (MRTA). [New York’s Code still uses the archaic ‘h’ spelling.] The MRTA is a regulatory model based on alcohol control: it proposes to create a new article within the Alcoholic Beverages Control Law that will govern cannabis and assign regulatory control to the State Liquor Authority (SLA). That model offers great clarity as to the operation of such a system since there is extensive experience, including legal precedent, with the alcohol control statute, but on the other hand (a) it is an open question as to whether cannabis is so analogous to alcohol that it can be properly regulated by substituting “marihuana” for “alcohol” in the statute and (b) it is necessary to assess whether the SLA is actually prepared to regulate cannabis.
The report on legalization from the Department of Health to the Governor in July made no mention of the MRTA; the Governor’s announcement of the workgroup at the end of July stated that the workgroup would engage with the leadership of the Senate and the Assembly, “as well as bill sponsors of medical and regulated marijuana legislation,” suggesting that, as the resident experts on legalization legislation, their comments will be welcome, but leaving open the possibility that the workgroup will engage in a completely new drafting exercise.
All indications are that there could be a complete re-draft of a legalization bill, which means that the listening sessions will be extremely important, as will be the opportunity for written comments from the public.
One fundamental question in a regulatory system is who does the regulating. The workgroup does not include any representative from the SLA, strengthening the theory the Governor is not even considering going with the alcohol control model that provides the structure for the MRTA.
Part of the regulatory challenge – perhaps the majority of the challenge – posed by cannabis is its hybrid nature, in that it doesn’t stay neatly within any one regulatory category. It is a euphoriant analogous to over-the-counter consumer products (like alcohol, tobacco, coffee and energy drinks), a therapeutic product, whether in its raw botanical form or processed to some degree, and an agricultural commodity with multiple industrial uses. Even without a euphoriant use, cannabis control is currently split between the Department of Health (which regulates the medical use program) and the Department of Agriculture and Markets (which regulates the industrial hemp program). Assignment of regulatory authority over the adult use market to a third agency would mean that cannabis control is split between three primary regulators.
Perhaps the time has come to create a specialized freestanding agency analogous to the SLA (in that the SLA is a specialized agency regulating just one type of product) that will bear primary authority for all aspects of the cannabis market (except perhaps taxation).
New York City, the largest metropolitan area in the United States, with the largest cannabis consumer market and intricate political relationships, is the elephant in the cannabis control room. It is not represented in the workgroup. The City is its own unique political beast and the absence of any representation in the state workgroup is significant and a likely source of problems in formulating useful legislation. For example, it’s easy to see that one conflict between the City and the State will be allocation of cannabis tax revenue, considering that the question of how much the State should pay for the City’s expenses runs through the public fights between the Governor and his archrival, New York City Mayor Bill de Blasio; there are likely others lurking.
The great irony of the moment is that the Governor is now engaging in an unprecedented transparent process of policymaking to the extent that he is allowing for public input and it is the Mayor who is conducting opaque policy reform.
The most significant driver of reform here (aside from the realpolitik of the possibility that full legalization in New Jersey would leave Cuomo explaining why New York is only marginally more progressive than red states in terms of cannabis policy) is the horrific racially disparate impact of cannabis prohibition. Pressure has been growing on the Mayor and the New York City Police Department to stop arresting people for personal possession and use of cannabis. In June the Mayor and NYPD announced that NYPD will issue summonses (monetary fines) for cannabis possession and consumption offenses but with major carveouts, some of which plausibly make sense, like a person operating a motor vehicle, and some of which don’t, such as a person with no identification, who has an open warrant or who is on probation or parole. If there is no reason to arrest someone for smoking cannabis unless they pose a threat to themselves or others then there’s no reason to arrest them unless they pose a threat to themselves or others, right?
Certain pro-legalization Council Members and advocates have criticized the new policy as a positive step forward, but incremental and inadequate. However, there is a bigger policy question: who is doing the policy formulation and how does the public participate in the process? Whose idea was it to create those carve-outs? While the Governor’s policymaking – at least for the moment – has emerged into the sunlight, the Mayor’s policymaking is taking place in the dark.
The most likely next place for movement – unless actors outside of government (e.g. civic associations, organized labor and business associations) begin holding their own “public hearings” on policy – is the City Council. Although certain Council Members have taken leadership roles on legalization, whether simply endorsing it publicly or more actively criticizing the pace of policy change by the Mayor and NYPD, the Council is not moving anywhere near as quickly as the State.
This author has in the past suggested the creation of a task force on legalization within the City Council. The time is now for City government to catch up with and pass the State government on cannabis legalization: the Council can form a task force and begin holding public hearings so that the policymakers and electorate can educate themselves on cannabis policy and formulate policies best suited to this unique political environment. In fact, the field is open to all the elected officials – the five Borough Presidents, the Comptroller and the Public Advocate – to begin holding public discussions. The City will then be in a position to engage with the State at least by the time that the Governor introduces the legislation that will be drafted by the workgroup.
September 20, 2018 Noah Potter, Esq.