Harris Beach: New York State Department of Health Releases Amended Proposed Hemp Regulations

On May 19, 2021, the New York State Department of Health released amended proposed hemp regulations in response to hundreds of public comments received. The proposed regulations are codified at 10 NYCRR Part 1005, titled “Medical Use of Marijuana & Cannabinoid Hemp.”

Meaghan Lambert Feenan

Most notably, the amended regulations expand the products hemp retailers are authorized to sell, allowing cannabinoid hemp sales in the form of transdermal patches, suppositories and those flower products not “clearly labeled or advertised for the purpose of smoking”. (The recently passed Marijuana Regulation and Taxation Act, or MRTA, only permits adult-use cannabis retailers to sell smokable hemp flower products.) Under the amended regulations, hemp flower products not intended for smoking must not be sold to persons under the age of 21 years old.

In response to public commentary, the Department amended the definition of “broad spectrum” and “full spectrum” hemp to better align with the industry terms. The amended regulations take a more strict approach to the regulation of synthetic cannabinoids, Δ8-THC and Δ9-THC products “created through isomerization”, prohibiting retailers for selling those categories of products outright and giving the department the express authority to impose a total THC cap on detectable levels of Δ8-THC and Δ9-THC in future regulation.

The Department proposes additional labeling and packing requirement for hemp products in the regulations, requiring all ingestible products to include detectable levels of Δ8-THC, Δ9-THC and Δ10-THC or any other marketed cannabinoid, and explicitly prohibits hemp products from being marketed to “imitate candy label or use cartoons or other images popularly used to advertise or be marketed to children”.

The amended regulations also reduce licensure fees for hemp processors; allow cannabinoid hemp retail applicants who submit an application prior to June 1, 2021 to sell hemp products before having their license approve; and limit supplement concentration to 3,000 mg of total cannabinoid per product, or 75 mg per serving. The Department of Health also amended some of the language to align with the expungement and retail provisions in the MRTA.

The amended regulations will become effective upon publication in the State Register; however, the amended packaging, labeling and laboratory testing requirements will not become effective until November 1, 2021. In the meantime, licensed hemp retailers may continue to sell most hemp retail products in their inventory.

The Department will accept public commentary on the proposed regulations through July 19, 2021.

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