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Jeffrey Hoffman is a New York City-based attorney who hosts “Ask Me Anything about Cannabis Legalization in New York” each week on LinkedIn. Hoffman and NY Cannabis Insider have partnered to bring those sessions into print in a Q&A format.
Hoffman’s practice focuses on cannabis industry clients, including licensees in the adult-use market, practitioners in the medical cannabis space, and cannabis-adjacent product and service providers.
He has a particular interest in social and economic equity cannabis license applicants, and he also informs and assists those convicted of cannabis offenses in getting such convictions expunged from their record. He can be reached at info@420jurist.com.
The following AMA from August 30 has been edited for length and clarity.
Why is Part 116 so susceptible to legal challenge?
Part 116 is the technical name for the CAURD regulation. Unfortunately, while it appears that the CCB and OCM had very good intentions when it came to the equity program here in New York, they simply didn’t implement it via regulation in a way that would have cleanly passed muster.
First we had the Variscite case in federal court over a Dormant Commerce Clause issue, and now we have multiple state lawsuits which argue that CAURD is unconstitutional and that OCM did not follow black letter law in opening the first retail application. Regardless of what happens in the current litigation, and it may take a while to untangle that, we simply need to do a better job in crafting our regulations.
When will non-retail license applications be available, such as cultivation, processing, and microbusiness?
October. The CCB board meeting is the 12th of September – that’s when they’ll adopt the regs. The regs say you have to give 30 days notice to open the application. So if they adopt the regs on September 12th, the earliest they could open it is October 12th. I would hope they open it as early as they can. That’s what the judge told them to do. So October 12th looks like the earliest date it could be, and I hope it is then. But if it’s not, I would imagine it would be some time immediately after that.
What do you make of cannabis being moved to Schedule III?
You’re jumping the gun a bit on that question. What has happened is that Health and Human Services has made a recommendation to the Drug Enforcement Administration that they make a recommendation to the Attorney General that he reschedule. There are some benefits to this, such as 280E goes away and it probably addresses some sentencing issues as well. But do we really want cannabis to be regulated like other pharmaceutical drugs? I think not. It’s not REschedule. It’s not DEschedule. It’s UNschedule. Legalize it, and I’ll advertise it.
What do you think happens next with the CAURD lawsuits?
Right now everything is frozen. OCM submitted an initial list of exemptions, but somewhere in the filings there was a comment which seemed to indicate that not everyone on the list met the judge’s criteria. So the judge just froze everything, probably at least until the September 15 hearing. I think OCM will try again with their list and the judge may let a few through. Next we start discovery and then off to a trial on the merits. In the meantime, as OCM gets the application open and gives licenses to the various priority classes, I hope the judge allows more CAURDs to open.
Will Aaron Boone be fired?
Probably.
When will the distribution license come into play?
Hopefully that is one of the licenses that will come when the application opens in October. And at some point after these licensees are operational, the AUCCs and AUCPs will no longer be able to distribute to the retailers on their own.
What is your opinion on indoor cultivation for the microbusiness license?
If your main goal is to sell high-end, trophy flower, that’s probably the way to go. If your main goal is to sell edibles, vapes, and/or concentrates (more Moroccan style hash please!) then maybe not. That limit on canopy size really defines what your potential inventory can be.