On January 19, 2021, Assemblywoman Donna Lupardo introduced Assembly Bill 02682. This bill would legalize hemp flower sales in New York State, reversing regulations proposed by the NYS Department of Health that blanketly prohibits the sale of all hemp flower products.
The bill would amend the regulations by striking ‘hemp’ from the definition of ‘cannabinoid hemp product.’ This would effectively remove unprocessed hemp from the authority of the DOH. ‘Cannabinoid hemp products’ would then exclusively refer to ‘processed cannabinoid hemp’ and ‘derived hemp extracts used for human consumption.’
Under the proposed amendments to the DOH regulations,
"Cannabinoid hemp" means any [hemp and any] product processed or derived from hemp, that is used for human consumption provided that when such product is packaged or offered for retail sale to a consumer, it shall not have a concentration of more than three tenths of a percent delta-9 tetrahydrocannabinol.”
Further, the bill would add a new subdivision, stating
“Nothing in this article shall prohibit or otherwise prevent the sale of hemp, provided that the hemp has not undergone processing as defined in subdivision eight of section thirty-three hundred ninety-eight of this article.”
By redefining cannabinoid hemp to only include processed hemp or derived hemp extracts, unprocessed flower would fall outside the scope of the regulations and the DOH. While this would allow hemp buds to be sold in the state, other products such as pre-rolls and cigarettes might still be prohibited.
The ban on flower was the most controversial provision in the regulations. Many industry operators considered the prohibition unnecessary and threatening, posing a great economic threat to cultivators who often make a majority of their income from flower sales.
Over the past two years, the price paid to farmers for a pound of hemp used for extraction into oil fell from an average of $40 to $4 – a 90% drop. Hemp flower, however, continues to offer high margins for farmers in the hemp marketplace – one pound of flower can fetch anywhere from $125 to $250 on the wholesale market. If the DOH flower ban remains in place, it would have serious economic consequences for hemp growers throughout New York.
Cultivators won’t be the only ones to feel these effects – the popularity of hemp flower products has allowed small-business retailers to flourish in New York. For some retailers, flower products can represent more than half of all hemp sales.
It is imperative that New York State amend the regulations to allow flower sales if it wishes to bolster its hemp industry. If the provision stays, New York would join Georgia, Iowa, Louisiana, Indiana, Texas and Kentucky as the only states in the nation with prohibitions on hemp flower.
According to Governor Cuomo,
"These regulations are the next step toward regulating the growing hemp industry in New York in a way that protects consumers and helps ensure the industry's long-term viability. Establishing the State's Cannabinoid Hemp Program to regulate production and sale of hemp and hemp extract will help protect both consumers and farmers."
The DOH regulations are a great step forward in setting nation-leading progressive hemp policies that protect both producers and consumers. But if New York truly wishes to protect its farmers and consumers, it must follow through with its goals and ensure that flower product sales are permitted under these regulations.
The Senate version of A02682 is likely to be introduced by newly elected Senator Michelle Hinchey sometime in the coming weeks. Senator Hinchey is also the new chair of the Senate Agriculture Committee.
With the support of both Agriculture Committee chairs, hopes are high that A02682 will pass the Assembly and Senate, although what response the executive may have to this legislative effort is unclear.