Adult-Use Home Cultivation Regulations Nearing Adoption-What Home Growers Can Expect
Adult-Use Home Cultivation regulations[1] allow New Yorkers to cultivate their own cannabis plants at home for their own personal use (sale is prohibited) and dictate the rules surrounding home growing in New York State. The rulemaking process generally takes anywhere from 6- 12 months from initial proposal to final adoption, so we won’t see home cultivation permits or licenses being issued until late 2024.
When the regulations become effective, adults over the age of 21 will be authorized to cultivate a maximum of three (3) mature and three (3) immature cannabis plants per person with a limit of six (6) mature plants and six (6) immature plants per private residence. “Immature” cannabis plants are non-flowering female cannabis plants which do not have buds present by visual examination. “Mature” cannabis plants are female cannabis plants that have flowered and have buds present by visual examination. Only female plants are counted toward the plant limits. If you begin your cultivation from seeds and it produces a male plant, you can grow an additional immature plant to replace it. Immature plants can transition to mature plants once any existing mature plants are trimmed and no longer in soil or their growing medium.
A private residence is any building or part of a building, or structure designed and occupied for residential purposes only. Home growers can only grow in residences where they primarily reside[2]. Private residences used for other purposes (ex: second home or rental properties) should not be used. Even if a person has multiple residences, he or she may only utilize a single site for personal adult-use cannabis cultivation. Growing can take place indoors or in non-shared outdoor areas that the individual has legal rights to, provided that the external areas are adjacent (next to) to the private residence. Growing cannabis in common areas is not permitted. Residences located next to or near a church or school may home grow provided that all rules, including safety and storage rules are obeyed.
While local municipalities may enact local laws that reasonably regulate the personal cultivation of adult-use cannabis by individuals, they may not completely or essentially prohibit home growing. Home growers will be required to store cannabis plants in a secure location that is not plainly visible from public view and in a manner that prevents theft, loss or access to residents under the age of 21. Acceptable security measures include utilizing locks, gates, doors, fences or other barriers to prevent unauthorized access. Home growers will also be required to remediate odor issues if they become a nuisance to neighbors.
Home growers will be able to possess up to five (5) pounds of cannabis flower (or the equivalent weight of such cultivated cannabis in cannabis concentrate) that has been trimmed from plants which have been cultivated in or on the grounds of said person’s private residence. Home growers will be permitted to process cannabis flower into cannabis concentrate as long as they do not utilize a liquid or gas, other than alcohol, that has a flashpoint below 100 degrees Fahrenheit. They may not utilize any processing equipment or process that poses an unreasonable risk of harm to persons or property.
Home growers can buy cannabis plants for home cultivation from retail dispensaries, microbusinesses and registered organizations with dispensing (RODs) who hold an active Nursery Dealer Registration Certificate from the New York State Department of Agriculture and Markets (Division of Plant Industry) to sell immature cannabis plants to customers. Under the Federal Agriculture Improvement Act of 2018, cannabis seeds can be sold in the United States. That means New Yorkers over the age of 21 interested in home cultivation of adult-use cannabis can purchase seeds over the internet, or from adult-use cannabis retailers who choose to sell seeds. Notably, OCM does not regulate the sale of seeds and operators do not need any additional certifications to sell seeds. Nothing prohibits cloning to make additional plants, as long as your plant count does not exceed the plant limits.
As always, please feel free to contact us if you have any questions about home growing. We can help you navigate this new area of law and protect you home and family from adverse consequences.
Tracy Jong is a Senior attorney at Evans Fox LLP with 30 years of experience focusing her practice in business law, intellectual property and licensing for alcohol and cannabis. Tracy Jong is a member of the New York Bar and is a registered attorney at the United States Patent and Trademark Office. She can be reached at [email protected].
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The content has been prepared for informational purposes only; it should not be construed as legal or tax advice, does not create or constitute an attorney-client relationship, and readers should not act upon it without seeking professional counsel.
[1] office-of-cannabis-management-previews-proposed-adult-use-home-cultivation-regulations-.pdf (ny.gov)
[2] New Yorkers who live in federally subsidized housing, including in NYCHA, any other Section 8 housing, or U.S. Military Bases, cannot home cultivate cannabis, since cannabis is still federally illegal and could be at risk of losing their housing if they participate in home cultivation. This is the case for both adult-use and medical home cultivation. Landlords, co-ops and condos cannot forbid residents from possessing cannabis in their private residences unless this would risk federal benefits to said housing units, however, they can determine whether or not they want to implement general odor mitigation policies as long as they are in compliance with state and local municipal laws, rules and ordinances.