In December, New York’s governor, Andrew Cuomo, made a bold hire. In advance of the state’s latest attempt to legalize adult-use cannabis, Cuomo selected Norman Birenbaum to both get the bill over the finish line, and to run the state’s brand-new Office of Cannabis Management, if and when adult-use passes.
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Birenbaum brings significant experience to the role: for the past four years, he has held a similar position in Rhode Island, where he focused on revamping the state’s medical marijuana and industrial hemp programs, as well as leading an (unsuccessful) push to legalize adult-use cannabis.
Although there are optimistic indicators that New York will be able to pass legalization this year - from rising public support to evidence that legalization could reduce the dire budget gap - adult-use remains far from guaranteed.
Last year the state failed to pass an adult-use bill (or provide much-needed upgrades to the meager medical marijuana program, for that matter) for a myriad of reasons - from pressure from anti-legalization groups to wary lawmakers afraid support would cost them an election and a lack of specificity around how to distribute social equity funds.
Cuomo announced a new version of the Cannabis Regulation and Taxation Act (CRTA), rolled into the state budget, last month. (If the bill fails to pass as part of the budget, it can be passed as a standalone bill).
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Although the modified CRTA contains significant upgrades, it does not address the lack of specifics around how to distribute social equity funds, which progressive lawmakers have stated is imperative to their support. The current proposal instead calls for the creation of an Office of Cannabis Management to oversee the funds.
We caught up with Birenbaum to discuss his experience in Rhode Island, what’s changed since New York’s last attempts to legalize and his game plan for ensuring New York legislators can get this thing done.
This conversation has been edited for length and clarity.
What’s an example of something you learned in Rhode Island that is applicable to your new position?
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"One positive example was the experience that I had leveraging the existing unregulated market and operators and giving them a path to operating in a regulated system.
A lot of people talk about legalization as replacing or displacing or pushing out the legacy illicit market, but the truth is that this is not a one for one substitution. Those operators need to be engaged with to participate in a regulated market so we’re not replacing market share but converting it.
That's key, that's something we had a lot of success within Rhode Island: moving from what was almost exclusively a homegrown supply market and giving [the black market] the opportunity to participate in drafting of regulations and policies, giving them technical assistance to be able to apply, having it not be a race to the bottom and making sure people were going to be able to be successful."
What sorts of opportunities have you found to connect with the cannabis community in New York?
"This is really key, whether that’s meeting with existing medical marijuana licensees, patients, the Drug Policy Alliance, NORML, the Marijuana Policy Project or [people behind] pop-up events and delivery services.
We can’t meet the needs of the market and participants if we don't understand where they’re coming from and how they’re viewing this. These are important voices to hear from and people who don't necessarily traditionally have a presence at the capitol in Albany."
The state’s failure to pass legislation last year illuminated a divide between the priorities of New York City and other parts of the state that were less open to legal weed. How do you plan to bridge that gap?
"There are different needs across the state, different considerations. The needs of the five boroughs are different from the needs of the Capital Region. We’re taking a comprehensive approach, not a “one size fits all” view and that we want to work with everyone to make sure proper parts of the industry are placed in proper parts of the state.
[For example], in agricultural parts of the state, there can be cultivation and processing. We’re making sure people understand there is [an applicable] delivery based economy in the city which existed long before Amazon Prime."
Last year anti-legalization groups like Smart Approaches to Marijuana (SAM) spread a lot of misleading information about cannabis. How do you plan to counter them?
"There are legitimate reasons to be cautious and wary of legalizing this substance. One thing that I think gets conflated is legalization with overcommercialization and legalization with initiation. That’s to say that legalizing cannabis is not going to initiate activity. We've had a policy of prohibition for the better part of a century.
It has not worked. It has not worked to curb behavior, substance use disorder, to curb the illicit market; it hasn't worked to educate people about responsible use, for consumer protection; it has not worked by any measure imaginable. The question is: what is the alternative?
If you're SAM or another [anti-legalization] group and your message is, we need to stay with prohibition, then that is not the course this administration is charting. It's not something we believe is valid.
The other thing to keep in mind is that the region is moving. Massachusetts has done this. Maine has done this. Vermont has done this in terms of personal cultivation use level, looks like they're about to put in place commercial structure.
Connecticut’s governor just proposed this. New Jersey, right over the border, has put this to the ballot, which isn't kicking this down the road and delaying, it’s virtually giving it guaranteed passage looking at how popular this is in history of voter referenda on adult-use legalization.
The other question SAM and other opponents should be asking themselves is: how long do we want New Yorkers to go right over the bridge - or the other side of the tunnel - and purchase a product, bring it back here but leave the revenue that's going to public health and public safety in neighboring states? It’s great for them, not for us."
Lawmakers like Senator Kreuger have stated they won’t support the CRTA unless it allocates specific funds for social equity programs. The current proposal doesn’t do that; doesn’t this leave the door open for the same mistake to be made again?
"The governor has made improvements this year [including] incorporating additional information that we’ve seen with social equity and economic equity programs in other states to make sure it’s a diverse industry and one that helps lift the communities that were impacted by the war on drugs.
We are of the belief that we have really done anything and everything we can think of to make sure this is successful and that we’re addressing social and economic challenges that communities have had, and leverage the industry to correct past wrongs.
If there are additional things that legislature would like to see in there, in terms of mechanisms, then we want to have that conversation and figure out how to best incorporate them to get this done."
But what about this specific sticking point?
"There's going to be a process going through the budget where we work with the State Senate and Assembly to iron out these issues.
We are very very confident and optimistic that we’re going to be able to settle these minor points.
We’ve seen two versions of [the more progressive] MRTA with a third expected shortly, and two versions of the CRTA. These bills have gotten closer and closer they are nearly identical in their intent.
This is what the budget process is for. There’s a month where people basically live in Albany so we can iron these things out. "
So you’re confident that a compromise can be reached during the budget process?
"We all want the same thing. As long as everyone understands that, there’s no reason why we can't arrive at that destination."
Two additional facets of the current proposal have raised concerns among activists: a ‘sniff and search’ policy that allows law enforcement to search a car if the smell of cannabis is suspected, and a homegrow policy for medical patients that permits the state to inspect their house. How do you ensure these policies don’t lead to an abuse of oversight and perpetuate New York’s history of racially-biased policing?
"The CRTA has been structured to... diagnose and enforce impaired driving with cannabis as we do with alcohol. We have similar structures [regarding] possession and use in motor vehicles and open container requirements.
We have similar provisions when it comes to refusing a diagnostic test or evaluations [which, for cannabis, may soon include a cheek swab or oral fluid test], so that if you’re refusing to undergo an assessment, then it’s the same administrative suspension of your license.
The administration is not reinventing the wheel here. We’re taking tried and true practices that already exist right now.
When it comes to the homegrow side, there is a very cautious approach because homegrowng cannabis, if left unregulated, does pose significant threats to public health and safety. You have a lot of people not following building codes; you see fires all the time from lights / HVAC systems that are done without proper inspections.
You see issues with people having their homes broken into or made the target of criminal activity because people know there’s a grow there, either because they can smell it down the block or because you're the only garage in winter that has only snow melted off the roof because of heat from the lights and lamps.
[Homegrow] is very difficult to regulate, and it can exasperate the illicit market. Someone can grow a minimal amount without much infrastructure, or someone can invest tens of thousands to grow hundreds of thousands of this product and do so in a way where they’re diverting to the illicit market and where the product itself is potentially harmful. "
I recognize this isn’t exactly a savory note to end on, but I’m wondering if you can speak to big cannabis companies’ significant lobbying efforts on behalf of legalization; how do you ensure New Yorkers can be confident those voices don’t have undue influence in this process?
"It’s a perfectly valid question. When you look at the history of legalization, whether for medical marijuana or adult use, the established industry didn't always used to be this big...If it wasn't for a lot of these larger players putting money behind their convictions you wouldn't have seen initial campaigns and movement on this issue; you wouldn't have these ballot initiatives.
That's not to say that every large operator is a good operator, but to categorically dismiss people and judge them without acknowledging the history of what this looked like in the early 2010’s is a little narrow and misguided.
The other thing is that we absolutely want this to be a diverse market and free from manipulation and free from monopoly. The way we have structured proposals, with different tiers....is directly to give people a place in a market that is stable, which is in direct conflict with the argument that it’s going to be overrun by large entities.
This will be [centered around] small businesses. If people are giving money, that’s their prerogative. But the proof is in pudding, and the pudding is a 200 page plus document that makes our intention clear and sets up a regulatory structure so that we don't have the type of market dominance and manipulation that people would be afraid of."