Governor Andrew Cuomo appointed Norman Birenbaum to be New York’s first Weed Czar (officially, Director of Cannabis Programs) last month, just as the governor and lawmakers returned to the issue of legalizing adult-use marijuana after an earlier effort foundered in the mostly suburban districts of moderate Democrats across the state.
In his budget address last week, Cuomo said legalizing adult-use marijuana was a top-priority item and he and his team were confident their revised package would sway enough Democrats to include cannabis legalization in the budget deal to be hammered out in late March.
On Monday we talked to Birenbaum, who came from a similar post in Rhode Island, about the latest legalization push. The conversation has been lightly edited for length and clarity.
So if 10 years ago I told you you’d be the ‘weed czar’ from New York, would you have believed it? Is cannabis something you’ve always been passionate about? No. I was working for [Rhode Island] Governor [Gina] Raimondo, and her former chief of staff asked me what I knew about cannabis. I told him I could identify it by smell but, other than that, really nothing. It's been a wonderful and exciting and challenging ride ever since, and I'm very grateful to be here. But I never, never had this as an aspiration or as part of my career plans.
You weren't in New York yet when the legalization effort fizzled last year. What have you surmised about the sticking points—and how will you resolve them? Fortunately, there aren't a lot of sticking points. We've had a couple of iterations of proposals both from the governor and the legislature and, with every new draft, the proposals get closer and closer. There are a couple of details to iron out, mostly around the means and not the ends. Everyone's looking for public health and safety. Everyone's looking to prioritize a diverse industry that helps to repair the damages from prohibition to communities disproportionately impacted from the war on drugs.
Give me some examples of where you're close but still have to close distance on “means.” Two issues last year that came up were impaired driving, using cannabis, and then also social and economic equity provisions within the bill. This year, the governor has put forth a package to make sure that we have parity between enforcement for DUI or impaired driving under cannabis use and what we currently have in place now with DUI and impaired driving under alcohol use.
We’re looking at the same type of administrative penalties for refusing to undergo a law enforcement evaluation from a drug recognition expert, as currently exists when someone refuses to undergo a breathalyzer; making sure we have the same structures in place for open container laws and public consumption and in any type of use within a motor vehicle.
And then on the social and economic equity side, we've specified some more tools and mechanisms that we want to ensure that we have a diverse industry in the communities that have been disproportionately harmed from the war on drugs, that they have access to the industry, and the industry and tax revenue can be used to reinvest in these communities.
Let's unpack that social-equity side. Some states have found that taxing [legal marijuana sales] aggressively actually keeps people in the illicit market...because it is so expensive. I think that people are looking at a very narrow part of what consumers will value. It's not just about the tax rate, it's also about the availability. It's about making sure people have access to products that aren't on the illicit market right now [such as topical creams and certain edible products]. We know that people are willing to pay slightly more for safe product and for a product that comes in different forms and can really be tailored to their usage.
Speaking of different forms, would smokable cannabis -- the most affordable kind – be legal? It's not clear whether smokable is or is not in the executive proposal. In the proposal, we've given the authority to the Office [of Cannabis Management] to approve any and all forms of cannabis. The intent is definitely to make sure that we're capturing the illicit market and that it's as safe as possible from a public-health standpoint.
But there's only so much we can do with consumer behavior. That's been demonstrated through the failed policy of prohibition. Banning products does not work. So, if people are going to use products like smoking [cannabis] flowers, what can we do to make sure that flower is tested for mold and microbials and heavy metals and pesticides? It's providing the safest environment possible, to make sure that this doesn't contribute to other public-health events.
This new Office of Cannabis Management would have a lot of authority to regulate what forms of marijuana would be legal, among many other things. A lot would fall to this office rather than to elected officials. Is that the best mechanism? This industry is constantly changing, both in the technology that's used and the impacts to public health and safety—new data and new research that's becoming available. Western states are updating their regulations every eight to 12 months. If you have to go back to the legislature and change a statute every single time there's a change in the industry and every time new information comes to light, you're doing a disservice to consumers and not ensuring we have the best regulations for consumer protection. You're also doing a disservice to the licensees and the participants in the small businesses that we're helping to create. We need to be flexible to move with them and address their needs as well.
What does the proposal do to balance the interests of local small business and startups —in low income and minority communities, and in rural upstate communities—with those of the large multi-state operators and corporations who are eager to get into New York? First off, the proposal has different licensing tiers which are similar to what's in place with a three-tiered system for alcohol [producers, wholesalers and retailers]. You're making sure no one is in a position to manipulate or consolidate the market. We do not want a handful of well-capitalized businesses controlling the entire market. So by breaking out those different license functions and putting in some very, very strict limitations on both the number of retail licenses that a licensee can have and then also restricting the ability of retail licensees to engage in manufacturing, distribution, and also processing, we're making sure that there's a level playing field, especially for small businesses.
We've identified different areas where we want to make sure we have first access to applications, to licenses, and even to geographic [retail] locations that satisfy the requirements for social and economic empowerment applications. People who are able to satisfy this requirement are going to be able to apply first, be reviewed first, receive the license first, have access to capital through either zero- or low-interest loans, have access to incubation programs, for peer-to-peer mentorship, to receive workforce development and training to be successful in the industry.
What do you say to parents, physicians and others who say: ‘We acknowledge marijuana is already here in a vast illicit way but we don't think it’s something the state should make easier to get’? What I would say is there is a difference between legalization and commercialization. We are not looking to have a commercialized industry that is trying to create more consumers. We're trying to take the current use, which is supplied by the illicit market with products that are often dangerous or marketed towards children or youth or products, where a teenager can't even discern whether the product has cannabis in it or not.
And we're trying to put it in a regulatory structure to ensure that these products are not marketed toward or distributed toward the most vulnerable members of our communities, particularly children. We've seen success in this regard in other regulated industries. We have lower youth usage rates of alcohol and tobacco products right now than we've ever seen in this country in the last 100 years. There is data on the distribution and marketing of those products, and we don't have that for cannabis, and it's something we need. And in other states you have youth rates [of marijuana usage] that have either dropped or largely stayed the same.
The governor has opened discussions with neighboring states about “coordinating” marijuana policy. Since the governor hosted a multistate summit several weeks back, what kind of conversations have you and your staff had with other states? We've had continued conversations, and we are familiar with a lot of the proposals that either came out recently from Rhode Island or are expected to come out soon with Connecticut. And we've been working together to make sure that there are similar provisions for public health and safety to regulate product forms, advertising, marketing and also tax structures to make sure that we don't have a race to the bottom here in the Northeast, where it's very easy to travel from one jurisdiction to another. We are so densely populated, we need to make sure that we're doing this together.
