With the passing of the new Marijuana Regulation and Taxation Act (MRTA), we usher in a new era of cannabis legislation in New York. You might be wondering how this affects the current medical cannabis program. Here, we aim to break this down for you. We’ll also discuss some key differences between medical and adult-use (recreational) cannabis products and the regulations that distinguish them.
How the MRTA Affects the Medical Cannabis Program
Prior to the introduction of the MRTA, medical cannabis in New York State has been regulated by the New York State Department of Health. Under the new legislation, regulation of both medical and adult-use cannabis will be consolidated under the newly-formed Office of Cannabis Management.
The MRTA also greatly expands the current medical cannabis program.
Currently, medical cannabis products can only be manufactured in certain dosage forms associated with a permissible route of administration. This includes oral, oromucosal, topical, and inhalation products.
Oral dosage forms include capsules, tablets, powders, and chewable gels (gummies). Oromucosal dosage forms range from sublingual tinctures and oils to buccal sprays, orally disintegrating tablets, and lozenges.
Topical products include salves, balms, lotions, and suppositories.
Products for inhalation are intended for vaporization and include cannabis extracts and ground flower. Extracts are usually provided as vapor pen inhalers or cartridge vaporizers. Ground flower, on the other hand, is provided as metered pods or as “refills” which are simply jars filled with a designated quantity of ground flower.
Raw unprocessed flower is still not approved for sale in NY and smoking is not an approved route of administration. Therefore, all flower that’s purchased through the medical program is intended for vaporization use only. With the expansion of the medical program under the MRTA, patients will now be able to purchase raw unprocessed flower that’s intended for smoking. Patients will also be permitted to cultivate their own plants at home.
In addition to allowing new products, the medical program will expand its eligibility requirements.
Until now, in order to qualify for medical cannabis, individuals had to prove a diagnosis of at least one severe or life-threatening condition from a list laid forth by the state, accompanied by at least one symptom that is also included in the statute.
With the updated legislation, any health condition will be eligible for medical cannabis, provided it is recommended and prescribed by a licensed healthcare practitioner. Moreover, under the new medical program, patients will be permitted to possess up to a sixty-day supply of medical cannabis (as determined by their medical provider). This is double the thirty-day supply that is currently allowed. Finally, the MRTA permits current medical dispensaries to apply for recreational licenses. This will allow medical cannabis dispensaries (registered organizations) to enter the recreational market.
The Difference Between Medical and Adult-Use Cannabis
Considering raw unprocessed flower will now be permitted under the MRTA, the difference between medical and adult-use cannabis will be much narrower than originally anticipated. Beyond the fundamental differences of where the cannabis was produced (i.e. a registered organization’s production facility) and the intent of its use, the contrast essentially boils down to 1) THC and CBD content, and 2) the specific regulations such as taxation, labeling, etc. pertaining to the two.
The THC:CBD ratio is a key aspect governing cannabis’s therapeutic effects. In New York’s medical program, regulations determine what THC:CBD ratios dispensaries must offer.
Each registered organization is currently allowed to produce five distinct “brands” or ratios of products. One of those brands must be a low THC/ high CBD formulation, such as 1:20, and one must be approximately equal parts (1:1). The other three ratios are up for the dispensaries to decide.
Dispensaries may also wholesale from one another, which may result in product offerings at more than five distinct THC:CBD ratios.
Another aspect of the medical program’s product regulations is the cap on THC content. Currently, no medical cannabis product can contain more than 10 mg of THC per unit dose. As a result, the highest unit dose you’ll likely find at most medical dispensaries is 9-9.5 mg of THC. This was most likely done to reduce the likelihood of over consumption and the risks associated with it.
Other states that have legalized cannabis for adult-use have seen sharp rises in emergency room visits due to cannabis (THC) over-consumption, and in rare cases (and contrary to popular belief), this has even been associated with some deaths.
Adult-use cannabis will not be required to adhere to the same guidelines as medical cannabis. This will likely result in a larger selection of product types available and products that generally contain higher levels of THC.
But again, due to the many risks associated with over consumption, expect to see a unit dose cap on THC, although one that may be higher than the current cap of 10 mg on medical products.
There are also slightly different labeling guidelines for medical and adult-use cannabis.
While both require clear identification and health/hazard warnings, medical cannabis must be clearly designated as such, including a patient-specific label with suggested dosing instructions and use-by date.
Readers should also expect to see regulations that require tamper-evident and child-resistant packaging. This is currently required for the packaging of medical cannabis products and will almost definitely be adopted for adult-use products.
Possession of allowable quantities is another factor.
As mentioned previously, the MRTA will allow medical patients to possess up to a sixty-day supply of medical cannabis. With the adult-use program, individuals twenty-one years or older may possess up to three ounces while outside of their home, and up to five pounds stored inside of their home.
The regulations applying to home cultivation of cannabis plants are the same for both recreational and medical purposes, though medical patients may begin home cultivation sooner.
Each person within a household is allowed up to three mature plants and three immature plants, with a maximum of six mature and six immature plants per household. Medical patients are permitted to begin home cultivation six months after the effective date of the legislation, whereas adult-use home growers must wait until 18 months after the opening of the first adult-use dispensaries.
The last thing to consider when comparing medical cannabis to adult-use is taxation. As we reported in our Legislative Update column in the Spring issue of CannaBuff, consumers will pay significantly more in taxes on recreational cannabis. For many of us NYers, this probably comes as no surprise. For medical cannabis, the current excise tax of 7% will remain the sole levy.
Adult-use, on the other hand, will be subject to a 9% state tax and a 4% local tax, totaling an overall base rate of 13%. On top of this, a potency tax will be added, which is determined by the amount of THC contained within the product. This will be highest for edibles, at a rate of $0.03 per milligram of THC. For concentrates, it’s $0.008/mg, and for flower $0.005/mg.
When asked about the THC tax, which is the first of its kind nationwide, state officials responded this was to foster and promote temperance in consumption. This, again, highlights the state’s concerns about over consumption and the regulatory interventions the state is willing to make to attempt to address those risks.
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