NYSBA Supports Legalization of Adult Recreational Marijuana Use in NY

By Christian Nolan

Aleece Burgio

The New York State Bar Association has adopted a report from the NYSBA Committee on Cannabis Law that supports the legalization of adult recreational marijuana use in New York.

The report outlines suggested strategies for the implementation of legalized cannabis in New York state, and was adopted at NYSBA’s House of Delegates meeting in New York City Jan. 31 as part of the association’s Annual Meeting.

“With the full support of the New York State Bar Association, we are hopeful our report will offer the necessary guidance to New York’s governing bodies as they consider the legalization of adult use cannabis,” said Aleece Burgio (Barclay Damon), who co-chairs the committee with Brian J. Malkin (Arent Fox) and presented the report to the House of Delegates.

“The report provides the necessary details surrounding safety, research, social equity, taxation, and other principles critical to the success of a legalized adult use program in this state,” continued Burgio. “While policy continues to evolve at the federal level, the committee also believes the most effective way to navigate this complex issue is for any comprehensive cannabis proposal to include hemp, medical marijuana and adult use.”

The approval was not unanimous, as some members of the House of Delegates expressed their concerns during the meeting.

“I think we’re making a fundamental mistake here by turning around and endorsing the legalization of marijuana,” said Michael Markowitz, of the Nassau County Bar Association. “What message are we sending out to the youth of our country by saying that this is OK, that it’s OK to take this drug?”

Andre R. “Drew” Jaglom, a member of NYSBA’s Executive Committee and chair of the Business Law Section, commented in support of the measure, though noting his remarks were his own and not on behalf of either group.

“Do we want to have a regulated controlled distribution of marijuana where it is more difficult for minors to get access to it but where there is testing and regulation, or do we want to continue with a black market unregulated criminal enterprise controlling the industry?” said Jaglom. “I think we’re better off regulating it than leaving it the way it is.”

In its detailed 23-page report, the committee said it was not aware of a single jurisdiction that has passed model cannabis regulation and legalized adult-use that would be appropriate for New York to adopt in total.

However, the committee noted that the nonprofit, nonpartisan RAND Corporation has been commissioned by several state legislatures for comprehensive advice and analysis prior to developing their legalized cannabis use legislation and believes New York would similarly benefit by commissioning RAND or a similar organization to conduct such a study or analysis.

The report also recommends that any New York legalized marijuana use legislation include:

  • USDA mandated cannabis testing
  • A comprehensive state Office of Cannabis Management
  • Provisions for local municipality “opt-out”
  • Social equity provisions
  • State tax
  • Advertising and marketing guidelines
  • State environmental protections

The committee also endorses an American Bar Association resolution that would resolve a conflict between federal and state law by exempting marijuana from the federal Controlled Substances Act for production, distribution, possession, or use of marijuana carried out in compliance with state laws.

Under the Compassionate Care Act of 2014, only New Yorkers with prescriptions from qualified medical providers to treat a limited number of ailments may legally use marijuana.

During the last legislative session, state lawmakers proposed various bills that would have legalized adult recreational marijuana use in New York. No such legislation passed, but lawmakers will again consider such proposals over the next couple months.

Last session, legislators did decriminalize marijuana, as possession of up to two ounces or less is now merely a violation.

Cannabis Regulation and Taxation Act
Axel Bernabe, assistant counsel to Gov. Andrew Cuomo for Health, was the keynote speaker Jan. 28 during the Committee on Cannabis Law’s program at Annual Meeting.

The governor’s proposal would create a state Office of Cannabis Management that would oversee all aspects of the marijuana industry including hemp, medical and adult use. He described the plan as a “bit innovative.” Currently, marijuana is regulated by various divisions of state government.

“What we’re really doing is shifting enforcement of marijuana from a criminal law framework to a public health framework,” said Bernabe.

The Committee on Cannabis Law was not the only NYSBA committee to review the state of cannabis law during Annual Meeting. On Jan. 29, the Commercial and Federal Litigation Section presented the program “Budding Cannabis and CBD Litigation – Are you ready for the green wave heading towards New York?”

Panelists for the discussion were Sara E. Payne of Jushi Holdings; James K. Landau of McCarthy Fingar; and Elinor C. Sutton of Quinn Emmanuel Urquhart & Sullivan.

During Payne’s cannabis background and overview presentation, she noted that 34 states and Washington D.C. have comprehensive medical marijuana programs; 11 states and Washington D.C. have legalized adult use recreational marijuana; and the 2020 cannabis industry market projections total approximately $17 billion — $7.7 billion for medical marijuana and $9.3 billion for adult use.

Lastly, the Local and State Government Law Section similarly looked at the regulation of marijuana during a presentation Jan. 30 by Patrick J. Hines of Hodgson Russ in Buffalo.

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