Erie County DA discusses legality of cannabis ‘gifting’

BUFFALO, N.Y. — You could call it cannabis confusion.

There are no legal cannabis sales in New York State. While recreational pot was legalized earlier this year, the state’s Cannabis Control Board and the Office of Cannabis Management are in the midst of building out a system for growing, testing and selling marijuana.

But to date, no cannabis retail licenses have been issued. That doesn’t mean there have been no transactions involving marijuana.

A cannabis event in Angola earlier this month is an example of commerce involving the “gifting” of pot. The event drew 80+ vendors. Most were offering marijuana as a gift, if someone purchased a sticker or a t-shirt or a picture.

Events like this have popped-up all around the state and got the attention of the chairwoman of the Cannabis Control Board Tremaine who said, “This conduct is not legal and must stop.”

Erie County District Attorney John Flynn has a different view.

“Right now, the way the current law stands is that it is legal to gift someone less than three ounces of marijuana even if it is part of a scam transaction. And I use that word scam not lightly because clearly that’s what it is,” said Flynn in an exclusive interview on the currently confusing world of legalized weed.

As long as the gifts are three ounces of cannabis or less and the receiver of the marijuana is at least 21 years old, the district attorney says it’s clearly within the boundaries of state law.

The merchant, or the gifter, could get a closer look from law enforcement says Flynn, if the purchased item is ridiculously overpriced. He used an example of someone offering a free joint if they bought a rubber band for $15.

Because under the legalization law cannabis is taxed. Flynn says that is another potential avenue where a marijuana gift could be seen as an illegal sale.

Police agencies have been leery about examining events such as the one in Angola because of the lack of clarity about what the exact elements are of a cannabis law violation. Flynn is scheduled to meet next month with the Erie County Police Chiefs Association to go over his advice on policing cannabis while the regulatory system is still under construction.

To enthusiasts, or maybe just the cannabis curious, the district attorney says this, “Just have less than three ounces. Just make sure you have less than three ounces. You’ve got nothing to worry about.”