(1) “Cultivation” means growing, cloning, harvesting, drying, curing, grading, and trimming of the cannabis plant.

(2) “Designated caregiver” means an individual designated by the certified patient. A designated caregiver is twenty-one years of age or older for purposes of this Part.

(3) “Immature cannabis plant” means a non-flowering female cannabis plant or a cannabis plant which does not have buds that may be observed by visual examination.

(4) “Mature cannabis plant” means a female plant that has flowered and that has buds that may be observed by visual examination.

(5) “Office” means the New York State office of cannabis management.

(6) “On the grounds” means the external areas of the private residence where the individual resides and has legal rights to use such external areas for their own purposes, including but not limited to, a backyard or any land adjacent to the private residence.

(7) “Personal Home cultivation” means growing, cloning, harvesting, drying, curing, grading, and trimming of cannabis plants for medical use that is subject to Cannabis Law Article 3 and Penal Law Article 222.

(8) “Private residence” means any building or part of a building, or structure designed and occupied for residential purposes, including but not limited to a private home; townhouse; condominium; co-op; apartment; or mobile home. For purposes of this Part, a hospital, hotel, motel, resort, or other similar public accommodation, shall not be considered a private residence, except as may be expressly allowed by the Board.

(9) "Process” or “Processing" means extracting, preparing, treating, modifying, compounding, manufacturing or otherwise manipulating cannabis for use to concentrate or extract its cannabinoids. For purposes of this section, processing does not include growing, cultivation, cloning, harvesting, drying, curing, grinding, or trimming.

(10) “Proportional” means commensurate to the needs of the certified patient.

(1) conducting cannabis cultivation in an enclosed area, which may not be plainly visible from public view, including from the street of the private residence or on the grounds of the certified patient or designated caregiver’s private residence; and

(2) locking and storing cannabis in a manner that prevents theft, loss, or access, which may include, but are not limited to locks, gates, doors, fences, and other barriers by an unauthorized person, including a person under the age of 21.

(1) keep any cannabis being cultivated for the designated caregiver’s certified patient separate from any other cannabis being cultivated, and in a manner that can readily determine to whom such cannabis plants belong;

(2) only receive reimbursement for the actual costs of goods, materials, or utilities for which they have incurred expenses directly related to the cultivation of cannabis for the certified patient, and not receive reimbursement or compensation for their time, knowledge, or expertise;

(3) not sell any cannabis produced by any immature cannabis plant or mature cannabis plant which is or was cultivated for a certified patient, even if the certified patient no longer needs or wants such cannabis; and

(4) only cultivate cannabis at, or on the grounds of, the designated caregiver’s private residence or the certified patient’s private residence.

(1) if failing to do so would cause the landlord to lose a monetary or licensing related benefit under federal law or regulations; or

(2) if a property has in place a smoke free policy, it is not required to permit the smoking of cannabis products on its premises, provided no restriction may be construed to limit the certified medical use of cannabis.

(1) Labeling shall include the following information:

(i) strain name in bold type;

(ii) product type (eg cannabis seeds, cannabis plant);

(iii) potential potency, as confirmed by testing of the parent cannabis plant (THC:CBD levels);

(iv) date of harvest;

(v) unique identification number (UID);

(vi) any pesticides used in the cultivation;

(vii) name of the entity, licensed or registered with the Office, that cultivated the cannabis;

(viii) name of the entity, licensed or registered with the Office, that sold the cannabis, if different from cultivator;

(ix) for seeds, a seed count and net weight must be included on the packaging label in US customary units and metric;

(x) a warning to “keep out of reach of children”; and

(xi) any other information as determined by the Office.

(2) The label shall be printed on or affixed to any package or container that is used to display the cannabis seed or cannabis plant for retail sale.

(3) Packaging shall be in a manner that is not attractive to minors and that preserves the integrity of the cannabis.

(4) Packaging and labeling shall not contain any untruthful or misleading statements including, but not limited to, health or benefit claims.

(1) written instructions for basic care and environmental considerations for the plants (light, water, temperature controls) and the method for destruction if necessary, such as if the plants develop disease, or die; and

(2) disclosure of any pesticide use in cultivation and a document signed by a duly authorized representative from the registered organization attesting that only pesticides that are registered by the New York State Department of Environmental Conservation or that specifically meet the United States Environmental Protection Agency registration exemption criteria for Minimum Risk Pesticides, and only in accordance with section 325.2(b) of title 6 of the NYCRR have been used;

(1) stored in a secure area or location within the dispensing facility accessible to the minimum number of employees essential for efficient operation, to prevent diversion, theft or loss; and

(2) stored in such a manner as to protect against physical, chemical and microbial contamination and deterioration. However, a registered organization shall not apply any pesticides to live plants at the dispensing facility;

(1) only conduct sales of medical cannabis for home cultivation at their dispensaries or via delivery service to certified patients twenty-one years of age or older or their designated caregivers who are registered with the Office;

(2) sell seeds and immature plants only in quantities determined by the Office in guidance.

(3) provide certified patients or their designated caregivers with a safety insert at the time of sale. The safety insert shall include:

(i) the medical cannabis strain and potential potency;

(ii) information about contraindications;

(iii) warning of adverse effects and/or any potential dangers stemming from the use of medical cannabis;

(iv) instructions for reporting adverse events;

(v) a warning about driving and operation of mechanical equipment while under the influence of medical cannabis;

(vi) information on tolerance, dependence and withdrawal, and substance abuse, how to recognize what may be problematic usage of medical cannabis and how to obtain appropriate services or treatment;

(vii) language stating medical cannabis seeds and plants must be kept secure and out of reach of children;

(viii) language stating that the certified patient, or designated caregiver, may not distribute medical cannabis to anyone else;

(ix) language stating that unwanted, excess, or contaminated medical cannabis must be disposed of in a manner that makes it nonrecoverable beyond reclamation; and

(x) language stating that medical cannabis for home cultivation is not required to be, and has not been, safety compliance tested.

(1) perform seed to sale tracking of medical cannabis for home cultivation and submit seed to sale data from the registered organization’s system of record to the Office in a format as determined by the Office;

(2) file electronically with the Office, utilizing a transmission format acceptable to the Office, a record of all medical cannabis seeds or plants that have been sold not later than 24 hours after the cannabis was sold to the certified patient or designated caregiver. The information filed with the Office for medical cannabis sold shall include:

(i) a serial number that will be generated by the dispensing facility for each type of medical cannabis sold to the certified patient or designated caregiver;

(ii) an identification number which shall be provided by the Office, to identify the registered organization’s dispensing facility;

(iii) the metric quantity for the medical cannabis for home cultivation sold;

(iv) the patient name, date of birth and gender;

(v) the patient address, including street, city, state, zip code;

(vii) the certified patient’s registry identification card number;

(viii) if applicable, designated caregiver’s name and registry identification card number;

(ix) the date the medical cannabis was sold by the dispensing facility; and

(x) any other information determined by the Office.

(1) Medical cannabis seeds or plants returned to the dispensing facility shall be securely stored separate from working inventory while awaiting disposal and disposed of as determined by the Office.

(2) Registered organizations shall notify the Office within 24 hours of the following;

(i) any adverse events that the registered organization is made aware of;

(ii) any incident involving theft, loss or possible diversion of medical cannabis;

(iii) any suspected or known security breach or other facility event that may compromise public health or safety, or which requires response by public safety personnel or law enforcement;

(iv) any vehicle accidents or incidents occurring during transport of medical cannabis.

(3) Within ten days of the occurrence of one of the events in paragraph (2) of this subdivision, the registered organization shall submit a complete written incident report to the Office detailing the circumstances of the event, any corrective actions taken, and where applicable, confirmation that appropriate law enforcement authorities were notified.

(4) Quarantine any lot of medical cannabis returned or as directed by the Office, and not transport, distribute, dispense or destroy such lot unless prior approval is obtained from the Office.

(5) Submit medical cannabis, samples and manufacturing materials to the Office upon request.

Statutory Authority:

Pursuant to section 13 of the Cannabis Law, the Cannabis Control Board (Board) is vested with the authority to promulgate rules and regulations necessary to effectuate the provisions of the Cannabis Law. Section 41 of the Cannabis Law authorizes the home cultivation of medical cannabis pursuant to any regulations made by the Board and section 43 of the Cannabis Law explicitly empowers the Board to promulgate such regulations. Furthermore, section 222.15 of the Penal Law requires the Office of Cannabis Management (OCM) to issue regulations for home cultivation of cannabis by certified patients and cannabis consumers.

Legislative Objectives:

The Legislative objective of section 41 of the Cannabis Law and section 222.15 of the Penal Law is to expand patient access to cannabis by allowing for the personal cultivation of cannabis by certified medical patients. The proposed regulation will advance this objective by providing certified patients with a cost-effective means of obtaining cannabis through personal cultivation, while creating a set of standards governing the conduct and activities relating to the personal cultivation of cannabis.

Needs and Benefits:

The proposed regulations are necessary to allow certified patients to cultivate their own cannabis within their private residence. The regulations establish minimum standards for the personal cultivation of cannabis. To achieve this, the regulations require certified patients to conduct cannabis cultivation in a secure location at or on the grounds of a certified patient’s private residence. The regulations would also impose a duty on patients to take reasonable measures to ensure that cannabis plants, and any cannabis cultivated from such plants, is not readily accessible to anyone under the age of twenty-one. In addition, the proposed regulation authorizes designated caregivers to grow cannabis on behalf of a certified patient that is under twenty-one years old or whose physical or cognitive impairments prevent them from cultivating cannabis. The proposed regulations are also necessary to restrict the processing of cannabis cultivated by certified patients and designated caregivers by prohibiting the use of any liquid or gas, other than alcohol, that has a flashpoint below 100 degrees Fahrenheit. The proposed regulation includes minimum standards for the transport, sale, storage, and documentation of medical cannabis plants and seeds sold by registered organizations for personal home cultivation.

Costs:

Cost to the Regulated Entity:

The proposed regulations do not impose any new cost to any registered organization or other licensees or permittees operating in accordance with the Cannabis Law.

Costs to Local Government:

The proposed regulations do not require local governments to perform any additional tasks; therefore, it is not anticipated to have an adverse fiscal impact.

Costs to the OCM:

The proposed regulations will not result in any additional operational costs to the OCM.

Local Government Mandates:

The proposed regulations will not impose any new programs, services, duties, or responsibilities upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

The proposed regulations will not create any additional paperwork.

Duplication:

Title V of Article 33 of the Public Health Law (Compassionate Care Act) and Part 1004 to Title 10 of the Codes, Rules, and Regulation of the State of New York (NYCRR) currently regulate the Medical Use of Marihuana. Pursuant to section 64 of Chapter 92 of the Laws of 2021, the Compassionate Care Act will be repealed on March 22, 2022, six months after the full Board was created. Moreover, section 62-e of Chapter 92 of the Laws of 2021 sets out that 10 NYCRR Part 1004 shall continue in full force and effect until duly modified or abrogated by the Board.

Alternatives:

The Board is statutorily required to promulgate regulations pursuant to Sections 13,41 and 43 of the Cannabis Law, and Section 222.15 of the Penal Law. In drafting the proposed regulations, one alternative the Board considered was to take a more restrictive approach to the personal cultivation of cannabis and require certified patients and designated caregivers to maintain document of their grow and higher security requirements. However, the Board ultimately determined that such additional requirements would put an undue burden on certified patients and designated caregivers and were not necessary. Requests were made to clarify landlord rights, the term private residence and the rights to cultivate outdoors on private residences. Changes were made to the regulations to clarify landlord rights and private residence as well as include a new definition for “on the grounds” to address outdoor cultivation on private residences. Finally, there was a need to provide guidance for registered organizations regarding labeling, packaging, tracking, sales, storage and reporting to the office for medical cannabis for home cultivation. Where the regulation only addressed such matters for certified patients and designated caregivers previously, the regulation needed to be updated to include the aforementioned requirements for registered organizations.

Federal Standards:

There are currently no federal standards for the home cultivation of cannabis for personal use.

Compliance Standards:

The regulations shall be effective upon publication of the Notice of Adoption in the State Register. However, cultivation of cannabis by any person other than a certified patient or designated caregiver is not authorized until adult-use licensees are authorized to begin selling adult-use cannabis in the State of New York.

Nothing in the document has changed since the previously published version.

The New York State Office of Cannabis Management (the “Office”) received over 160 comments in response to the proposed rulemaking adding a new Part 115 to Title 9 of the Code, Rules and Regulations of the State of New York relating to address home cultivation of medical cannabis. Public comments were received from industry stakeholders, including retailers, the general public, and industry associations. The comments covered almost every aspect of the proposed regulation, including limits on the number of cannabis plants, security and disposal requirements, cultivation processes, and cannabis testing.

Many commenters expressed concern regarding plant limits. Additionally, commenters sought clarification regarding the definition of private residence, source of cannabis for home cultivation, sale of home-cultivated cannabis products, security requirements and odor mitigation. Commenters also expressed concerns with the impact that regulations will have on landlord rights and their ability to protect properties from any damage resulting from home cultivation. Commenters also sought clarification regarding the terms “immature” and “mature”, as well as the term “grinding” in the definition of “processing”.

As a result of these public comments, the Office has amended the proposed regulation and is issuing a Notice of Revised Rulemaking.