NYSF Comments on OCM’s Revised Proposed Regulations for Personal Home Cultivation of Medical Cannabis (Part 115)

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Summary of Suggested Comments | NYSF Comments on Regulations

Areas Where NYSF is Submitting Comments and Why

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Definitions: Immature cannabis plants | Mature cannabis plants | On the grounds

Personal Medical Cultivation: Where personal cultivation can take place | How many plants can be cultivated | Marking and spacing of plants grown by a Designated Caretaker | Reimbursement of costs to a Designated Caregiver | Where Designated Caregivers can grow

Sale: Sale of Medical Cannabis for Home Cultivation

§ 115.1 Definitions

1. Immature Cannabis Plant Definition Currently Reads:

(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.

Problem:

It is not possible to visibly observe whether a plant is female or male in advance of flowering. In addition, if the regulations limit pre-flowering plants to only three it would be impossible to grow from seed or outside and ensure you have adequate coverage of needed medicine. Most personal growers who grow from seed or outside understand that some will become male and some will be lost to the elements, whether that is predation from critters, drought, or error of the grower. Therefore, most rational growers will plant more seeds than needed and often growers will plant twice the amount as needed and cull the males and those that are not doing as well as others. We therefore offer the following correction:

In addition to this definition limiting outdoor cultivation of medicine, it limits the ability of Patients or Designated Caregivers to be able to ensure they have an adequate supply of the right medicine. If you limit the number of immature plants a Caretaker or Certified Patient can have by defining immature as the pre-flowering and vegetative stage of a cannabis plant, it will cause delays in between harvests which when growing for medicine is not an insignificant thing. Requiring vegetative plants, including mother plants, to be among the only allowable three “immature plants” will affect the number of clones you can take and start and even whether you can keep a mother plant, depending on the number of cultivars needed for medicinal purposes. If a Patient needs a specific cultivar and you already have three plants, the Patient will have to wait for those plants to flower before you can even start the needed cultivar, which in the end will cause Patients to have to wait for months before getting their allotted medicine.

Suggested Corrected Definition

We are requesting that plants counted towards you allotted amount only begin at the point at which you can sex the plant and ascertain that it is a female plant.
(3)"Immature Cannabis Plant" “means a female cannabis plant identifiable by visual examination of two observable white or pink pistils on calyxes or buds of pre-flowers observed at the node site”

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2. Mature Cannabis Plant Definition Currently Reads:

Below lists the section of the regulation for which NYSF is submitting suggested

language, edits, amendments or are seeking further clarification from the OCM.

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

Problem:

Limiting legal growers to only 3 non-flowering and 3 flowering might make for easy definition writing and enforcement but it shows a lack of sensitivity to what is needed to grow and harvest true medicine for patients. The appearance of flowers does not denote maturity. Most cannabis plants can flower anywhere from six to twelve weeks depending on the variety. Homegrowers have learned how to sex plants and how to ascertain when a plant is ready for harvest. A plant that is not yet within a few weeks of harvest should not be considered mature. We therefore offer the following correction:

Suggested Corrected Definition:

“Mature Cannabis Plant” “means a female plant that has larger, denser flower clusters throughout the plant, darker pistils, and brownish or amber trichomes throughout the plant that may be observed by visual examination.”

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3. On the Grounds Definition Currently Reads:

(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.

Problem:

This definition has a biased tone in that it permits only those with access to a yard, patio, rooftop, balcony, or terrace the ability to grow outdoors. Often those individuals from the communities most impacted by cannabis prohibition and the associated “war on drugs” do not have this type of access in their personal residence. Designated Caregivers from these neighborhoods would accordingly not have this access as well. Without this access, personal cultivators are limited indoor grow. Indoor grow, a relic of prohibition, is substantially more expensive than growing cannabis outdoors. This puts an undue burden on poor neighborhoods, which are often the neighborhoods the Cannabis Law seeks to assist. So this definition is the antithesis to the intentions of the Cannabis Law.

The costs to set up and maintain a grow are substantially higher for indoor grow. In addition to material costs, the associated electrical and utility costs to grow indoors is also often quite expensive. Growing cannabis outside is typically the most affordable method to cultivate cannabis. Therefore, regulations which inhibit, hinder, deter, impede, or block one population over another have no place in NY’s cannabis laws and policies. As long as the grow area is secured and takes reasonable measures to ensure no unauthorized person, including those under 21 years of age, can access the site, then the people should be allowed to grow cannabis there. We therefore offer the following correction:

Suggested Definition:

(6) “On the grounds” means the external areas of the private residence where the individual resides and has the legal right to use or any external areas the individual has legal rights to use for their own purposes.

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§ 115.2 Personal Home Cultivation of Medical Cannabis.

4. Where Personal Cultivation can take place, Currently Reads:

(c) The personal home cultivation of medical cannabis may only occur in, or on the grounds of, a person’s private residence

Problem:

As long as the grow area is secured and takes reasonable measures to ensure no unauthorized person, including those under 21 years of age, can access the site, then the people should be allowed to grow cannabis there. The government should no longer seek to limit or prohibit access to this medicine and any regulations which seek to do so for one population over another are out of alignment with the letter and the spirit of the Cannabis Law. Those individuals who live in areas without access to personal outdoor space, such as those communities most impacted and harmed by the war on drugs, should not be shut out of personal cultivation or forced to pay higher costs to grow indoors. They must be given the same choices as all other citizens. New York State, the Cannabis Control Board and the Office of Cannabis Management should not deny Certified Patients and Designated Caregivers the ability to cultivate outdoors in a secure location where they have been granted the legal right to do so. Prohibiting this ability is to perpetuate the unbalanced policies and laws of prohibition that solely targeted our poorest communities. We therefore offer the following correction:

Suggested Amendment:

(c) The personal home cultivation of medical cannabis may only occur in, or on the grounds of, a person’s private residence or grounds where the cultivator has legal rights to use the area for their own purposes

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5. How many plants can be cultivated, Currently Reads:

(2) (k) Designated caregivers growing on behalf of a certified patient may grow up to six cannabis plants for one certified patient. A designated caregiver can grow for up to four certified patients at a time. Provided however, a designated caregiver shall not grow more than twelve cannabis plants.

Problem:

Limiting the number of patients a Designated Caregiver can assist, especially in light of the fact that each Certified Patient can only have one Designated Caregiver, is a limit on the patient. Further, not allowing Designated Caregivers to grow additional plants per Certified Patient, directly hurts the patient and interferes with the Patient’s ability to access affordable and safe medicine. As such, this regulation is unjust and wholly unwarranted. This law restricts the patient, not the cultivator. If the Cannabis Law allows each individual within the state to grow and possess up to six plants (3 mature and 3 immature) but then only allows a Designated Caregiver who is caring for four patients, a maximum of only twelve plants, including their own

personal grow, this directly and negatively impacts those Certified Patients who need the most assistance. This is an ill placed and undue burden on the most vulnerable of our society, those who are financially insecure and physically unwell. We therefore offer the following solution:

Suggested Amendment:

(2) (k) A Designated Caregiver can grow for up to four Certified Patients at a time. Designated Caregivers growing on behalf of a certified patient may grow up to six cannabis plants for themselves, up to six cannabis plants for each Certified Patient. Provided however, Designated Caregivers shall not grow more than 30 cannabis plants.

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6. Marking and Spacing of plants grown by a Designated Caretaker, Currently Reads:

(l)(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;

Problem:

There is no clear understanding of what the term “separate’ is describing. In addition, given the limited space of many city dwellers and limited outdoor space that is considered secure per the purposes of these regulations, requiring any form of “separation” of the plants and therefore greater outdoor space needed, puts a biased and undue burden on the populations with limited or without readily accessible outdoor space. It is also a superfluous requirement. If each plant must be clearly marked as to ‘readily determine to whom such cannabis plants belong’ the added requirement that a clearly marked plant be also marked by physical separation is unnecessary and unneeded. We offer the following solution:

Suggested amendment:

(l)(1) keep any cannabis being cultivated for the Designated Caregiver’s Certified Patient clearly marked in a manner that can readily determine to whom such cannabis plants belong;

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7. Reimbursement of costs to a Designated Caregiver, Currently Reads:

(l)(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;

The Problem:

Such a regulation presumes that the cannabis will be cultivated indoors and excludes the demands of outdoor cultivation. It is unclear how one would go about determining what percent of the utility is being used per plant and without equal allotment of plants per patient, this cannot be something that is simply, easily or verifiably calculated. We therefore offer the following suggestion:

Suggested Amendment:

(l)(2) only receive reimbursement for the actual costs of goods, materials, or resources 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;

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8. Where Designated Caregivers can grow, Currently Reads:

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

The Problem:

As stated above, such regulations present a bias against individuals without access to outdoor space. If the cultivator has the legal right to cultivate at a site and that site can be secured per the proposed regulations of this section, then Certified Patients and Designated Caregivers should not be prohibited from growing this natural medicine. Amending the language to allow for cultivation in areas where the cultivator has legal rights to access but not their private residence would allow greater access to medicine. Such aras could include but are not limited to secured gardens in churches, community plots, or even municipal compassionate care gardens. This amendment would provide space for those without access to outdoor cultivation space, space to grow their needed medicine.

Suggested Amendment:

(4) only cultivate cannabis at, or on the grounds of, the Designated Caregiver’s private residence or the Certified Patient’s private residence or where the cultivator has legal rights to use the area for their own purposes.

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Section 115.3 Sale of Medical Cannabis for Home Cultivation

We have no amendments for this section and only offer the following comment:

We commend the regulators on not limiting where certified patients and designated caregivers can obtain seeds, plants, and/or clones. We recommend allowing certified patients and caregivers the ability to purchase seeds, clones, and / or plants directly from micro-licensed cultivators.

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