New York Cannabis Companies Sidestep Flower Ban With Ground Flower Refills

New York’s medical cannabis program prohibits smokeable flower. But some companies have figured out a loophole.
New York Cannabis Companies Sidestep Flower Ban With Ground Flower Refills

Flower is forbidden in New York, even for patients in the state’s medical cannabis program.

Except that it isn’t. Flower is legally available to New Yorkers with medical cards, so long as it’s ground up, ostensibly for vaping. But a bowl or a blunt will work just as well.

When New York started its medical program in 2014, Gov. Andrew Cuomo declared that smoking is bad for you. New Yorkers with medical marijuana cards are allowed to vape and to take tinctures, capsules, and chewables, but the Department of Health does not allow unprocessed flower. 

“Smoking medical marijuana is prohibited by the Compassionate Care Act,” said Jill Montag, public information officer for the New York DOH, referring to the medical cannabis law.  “Metered ground plant preparations for vaporization are the only approved route of administration for flower.”  

But cannabis companies in New York have discovered a backdoor way of providing legal flower, through ground flower pod refills. This is weed that is ground up. Other forms of processing require an extraction lab. But for ground flower, a handheld grinder from your corner headshop should do the trick.

Ground Flower Pods

Curaleaf, a Massachusetts-based provider with dispensaries and cultivation sites in 23 states, pioneered the ground flower pod in New York in 2019. Curaleaf was the exclusive provider for some time, but Columbia Care, Citiva, and Etain now sell them in New York. 

Citiva sells Curaleaf-brand ground flower and offered patients “Be Mine Bundles” ahead of Valentine’s Day, of 14g for $175 or 28g for $345. The emailed ad featured a heart-shaped picture of weed.

“No medical cannabis dispensary in New York sells or advertises products for smoking,” said Ngiste Abebe, president of the New York Medical Cannabis Industry Association (NYMCIA) and Director of Public Policy at Columbia Care. “Ground flower has been approved for sale by the state, and the pods produced under those auspices are intended for vaporization by medical patients.”

Curaleaf launched “New York State’s first medical cannabis flower products” at its Long Island dispensary in September 2019. The company referred to the products as “ground flower pods which are used in medical vaporizers.”

The ground flower pods raised eyebrows among patients, who realized they finally had access to legal flower. The flower was initially sealed into ceramic jars with perforated metal caps. In November 2019, a Youtuber named Mr. Sykes demonstrated how to crack one open, like an egg, with a gigantic nail.

“I’ve been sitting here all day trying to figure out how to open this thing,” said Mr. Sykes in his video, sporting facial studs and a dangly crucifix earring with a metal splint on his middle finger. “It’s ridiculous. It smells really good though, I’m not gonna lie.”

My. Sykes explained that, before he came up with the egg cracking method, he had laboriously gouged a hole in the metal cap. “Do not try this method,” he said, showing off the mangled metal cap. “I almost cut my hand off.”

It was a moot point by 2020, when Curaleaf started packaging the ground flower in glass jars, and eventually plastic jars, with childproof caps.  The ground flower bulk refills contain 7 grams, or a quarter ounce, for $85. The product comes in sativa, indica or hybrid, with different “inhalation vapor ratio” selections like 20:1, THC:CBD.

Mr. Sykes complained that the ground flower was intended for use in pricy vaporizers like Pax and Volcano, which are designed for flower, as opposed to vape pens, which are designed for THC oil cartridges. But that, of course, is the point: ground flower refills are intended for vaporization.

Later, in September 2020, Curaleaf was temporarily halted by the DOH for not grinding the weed finely enough. Montag said the ground flower pods were not being manufactured to DOH standards and “therefore were quarantined.” She said Curaleaf worked with the DOH to “bring these products into compliance” and resumed sales.

Patrik Jonsson, Curaleaf’s Regional President of the Northeast, said the incident stemmed from “a complaint over the size of our flower, which the Department of Health claimed was too large.” He said sales resumed after the flower was “ground according to the Department of Health’s new guidelines.”

But the fact remains that ground flower pod refills can be smoked if a patient is so inclined. 

Adam Fayne, a lawyer and multi-state cannabis regulatory expert, said producers “found an interpretation of the statute that allowed them to do this,” and the fact that the flower can be vaped “sort of checks that box.” True, the flower can be rolled into a joint, he said, but that doesn’t mean the product should be banned in a state that doesn’t allow smoking. 

So what are patients to do? Are they required by state law to vape the refills? Will they get in trouble if they’re caught smoking their medical flower in a bowl?

“No,” said Jonathan A. Havens, a Baltimore-based regulatory lawyer and colleague of Fayne who co-chairs their firm’s cannabis practice. “It shouldn’t be the patient’s job to do their own legal analysis of the product.”

He said that multiple states have had flower bans and the producers, not the patients, are the focus of regulatory enforcement.

“They might push it a little bit to see what they can do,” said Havens, referring to multiple-state operators. But they won’t push it too far, he said, because “compliance is their lifeblood.”

But just because it’s possible to smoke legal flower, that doesn’t mean you’re supposed to. Smoking is not what the law intended, according to David Holland, executive and legal director of Empire State NORML, a pro-legalization organization, and co-founder of the NYC Cannabis Industry Association.

“Rolling it into a blunt would defeat the spirit of the medical program because combustion itself and the chemicals and byproducts are considered a health hazard,” he said.

He also said that a patient caught burning flower in public could face a misdemeanor.

The way things are going, the quasi-legality of flower won’t be a matter of debate for more than another year or two, assuming that New York eventually legalizes adult-use cannabis as planned. Fayne said that adult-use typically comes with a broader application of cannabis.

“There were other states that passed various medical laws where flower was not allowed, but have evolved to allow flower,” he said. “If I had to guess, I would say that New York is headed in that direction, especially with Cuomo’s determination to legalize adult-use cannabis.”

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