Nearly three years after marijuana was legalized, the state is finally establishing rules to let anyone 21 or older grow a limited number of plants
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ALBANY — Nearly three years after marijuana was legalized in New York, regulators are poised to adopt rules that will allow anyone 21 or older to lawfully cultivate their own plants.
The proposed regulations, which are expected to be discussed at Wednesday’s meeting of the state Cannabis Control Board, include a provision that would allow retail marijuana store owners and operators to sell starter plants to customers.
If the draft regulations are adopted, it could set up a timeline for individuals to have up to six marijuana plants — three mature and three immature — in their gardens this year. New York is a few months away from its fourth outdoor growing season since marijuana was legalized in the spring of 2021, a law that led many people to wrongly believe they could grow their own marijuana without a license or — as of October 2022 — without a medical prescription for cannabis.
The proposed rules specify that each private residence, no matter how many adult residents live there beyond one person, can have no more than six mature plants and six immature plants growing at once. It also limits the amount of cannabis that someone can possess to up to 5 pounds of “cannabis flower that has been trimmed from plants, which have been cultivated in or on the grounds of said person’s private residence.”
For those who transform the flower to a concentrate, the limit on how much of that substance they can possess will be the equivalent of what the product would represent in weight from cultivated cannabis.
The provision in the Marijuana Regulation and Taxation Act that approved the home cultivation of cannabis for personal use had specified that it could take effect only after the state Office of Cannabis Management has issued “regulations governing home cultivation of cannabis, which will occur within 18 months of the first adult-use retail sale.”
But the first “legal” sale of recreational marijuana in New York did not take place until December 2022 when a downstate nonprofit organization, Housing Works, opened a retail marijuana shop in New York City.
The details on the limitations governing how many homegrown plants someone can have and how much of the finished product they can possess were listed in the law that legalized marijuana in New York. But the provision allowing licensed retailers to sell starter plants is a new provision and intended to give those store owners another way to generate revenue.
For retailers who want to sell starter plants, they will be required to have an active nursery dealer registration certificate from the state Department of Agriculture and Markets. They also will be required to label each plant with information that includes the strain, expected date of harvest and a warning to keep it out of the reach of children.
Marijuana seeds have been legally sold in the U.S. since 2018 under the federal Agriculture Improvement Act. The state Office of Cannabis Management does not regulate the sale of seeds and anyone 21 or older can purchase them online or at cannabis retail shops.
State officials have said the delay in allowing homegrown marijuana was, in part, designed to prevent a proliferation of available marijuana that could impede the success of nascent retail stores — which have already struggled to compete against hundreds, if not thousands, of shops selling cannabis products without a license.
The strategy of the delayed home-grow regulations has not stopped a booming underground marketplace from emerging, a fallout that has triggered an intensifying effort by state regulators and law enforcement agencies to shut down the underground shops.
For now, only individuals with medical marijuana prescriptions are allowed to legally grow at home. They received that authorization in October 2022 when regulations took effect allowing medical marijuana patients — who could already purchase products from licensed medical dispensaries — to grow up to three mature plants and three immature plants at home. They also have the option of using “designated caregivers” to grow the crops for them.
Those regulations additionally allow a medical patient or their caregiver to possess up to 5 pounds of cultivated marijuana in addition to any plants. Mature plants are those that have buds forming. Immature plants can be any height as long as they do not have visible buds.
It remains illegal for a patient or caregiver to sell marijuana, seeds or plants to another person, but they are allowed to give up to 3 ounces of cannabis or 24 grams of concentrated cannabis to another certified patient or caregiver. Practitioners certified to prescribe marijuana can do so for any reason, including insomnia and anxiety.
The delays in authorizing retail sales — and, as a consequence, the legalization of home cultivation for personal use — has sparked unrest in the industry. The rollout was further hampered when a coalition of medical marijuana license holders and recreational market hopefuls filed lawsuits seeking to force the Office of Cannabis Management to open the retail licensing process “for all applicants.”
They had prevailed in that litigation, arguing the state’s prioritization of issuing licenses to retail store operators with past marijuana convictions did not align with the law that specified “the initial adult-use cannabis retail dispensary license application period shall be opened for all applicants at the same time.”
It’s unclear what impacts there will be on the retail marijuana industry once homegrown marijuana becomes legal for anyone 21 or older. But for those who have been growing marijuana even if it was not allowed, there has been little risk of any legal consequences. The legalization of marijuana led to a sharp decline in law enforcement initiatives targeting illicit harvesting. And when marijuana prescription holders were able to grow multiple plants in their gardens beginning last spring, it became harder for police to enforce the regulations.
The Times Union reported three years ago that the number of marijuana plants seized by police across New York had plummeted as many law enforcement agencies abandoned their once-annual missions — often aided by State Police helicopters — to locate and remove the crops.
The costly missions, which usually unfolded during harvest season from August to October, had historically been a mix of State Police aerial units working with local sheriff’s offices and other agencies on the ground to spot and then remove large marijuana plantings.
For the State Police, the helicopter missions cost more than $1,000 per hour in fuel and maintenance costs, not including wages for pilots or others on board. Some of that money was reimbursed by the federal government based on the amount of plants seized
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