N.Y. Comp. Codes R. & Regs. tit. 9 § 123.10

Current through Register Vol. 46, No. 36, September 4, 2024

Section 123.10 - Retail Dispensary Operations

(a) A retail dispensary shall be a physical brick and mortar store in New York State with posted hours of operation to be authorized to sell cannabis products and related items to cannabis consumers by in-person sale, over the internet or via a digital application pursuant to this Chapter.

(b) The retail dispensary may operate a drive-thru service window or pre-order pick-up lanes for individuals using ground transport, with prior written approval from the Office and in compliance with all applicable state and local laws, rules, and regulations.

(c) Retail dispensary supervision and staffing requirements include, but are not limited to, the following:

(1) No employee shall be the employee in charge of more than one retail dispensary at the same time; and

(2) The following activities are to be performed by and overseen by the retail dispensary's employee in charge:

(i) the proper conduct of the employees of the retail dispensary;

(ii) the immediate supervision and management of the retail dispensary during hours of operation;

(iii) opening and closing the facility;

(iv) activities of retail dispensary employees;

(v) inventory and delivery acceptance;

(vi) recordkeeping and maintenance of files subject to audit or inspection by the Office;

(vii) employee training and compliance with state and local laws and regulations;

(viii) maintaining and providing to the Office, upon request, an up-to-date retail dispensary staffing plan for staff involved in activities related to the sale of cannabis products;

(ix) notifying the Office of the termination of an employee for diversion of cannabis product or theft of currency within 24 hours of the termination;

(x) notifying the Office of any change of information required to be reported to the Office;

(xi) the turning away of individuals who present a risk to the public; and

(xii) any other activity determined by the Office.

(3) No employee shall be required to enter a limited retail consumption facility to conduct the duties of their job unless the employee agrees to this condition at time of hiring and such agreement is noted by the employee in charge in the licensee's records. Licensees shall accommodate all reasonable requests from employees to alter the terms of such agreement and, in the event an employee notifies the Office or Board that their reasonable request was not accommodated, the licensee shall alter the terms of such agreement if the Board deems such request to have been reasonable. Failure by the licensee to comply with these requirements may result in suspension, revocation, and/or a civil penalty pursuant to Part 133 of this Title.

(d) Verification of identification and proof of age for retail dispensaries.

(1) No retail dispensary shall sell, deliver, or give away or cause or permit or procure to be sold, delivered, or given away any cannabis or cannabis product to any individual, actually or seemingly under the age of twenty-one (21) years of age or any visibly intoxicated individual.

(2) Retail dispensary staff shall inspect the individual's identification and determine the individual's age to validate that the individual is twenty-one (21) years of age or older. Valid identification and proof of age shall include:

(i) a valid driver's license or non-driver identification card issued by the New York State Department of Motor Vehicles, the federal government, any United States territory, commonwealth or possession, the District of Columbia, a state or local government within the United States or a provincial government of the dominion of Canada;

(ii) a valid federal, state, or local government identification, including IDNYC, stating the individual's age and a photograph of the individual's face;

(iii) a valid passport issued by the United States government or any other country;

(iv) a consular identification card; or

(v) an identification card issued by the armed forces of the United States.

(3) The retail dispensary employee may perform a transaction scan of the individual's identification as a precondition to the sale of any cannabis product.

(4) On-line orders, telephone orders or other means of orders not made in person for cannabis products shall include an attestation that the individual ordering is twenty-one (21) years of age or older. The retail dispensary employee who transports the cannabis product shall obtain verification of the identity and the age of the cannabis consumer at the point of delivery by viewing or scanning a document described in this Part before providing the cannabis product to the cannabis consumer. If the individual placing the order will not be the individual accepting the order, the individual placing the order shall attest that the individual accepting the order is over twenty-one (21) years of age and that individual shall provide verification of identity and age at the time of accepting the delivery or dispensing. Both individuals' identities shall be recorded in the licensees' point-of-sale system.

(5) A retail dispensary may not acquire or record cannabis consumer personal information without consent, unless this information is typically acquired in a sales transaction, which can include the cannabis consumer's age.

(e) Cannabis Product Sales Requirements.

(1) A retail dispensary will be operational and available to sell cannabis products to cannabis consumers only during their designated hours of operation as provided in the application for a license or in the retail dispensary operating plan. Retail dispensaries may operate within the business hours stipulated in section 119.2 of this Title, unless operating hours are otherwise specified by the jurisdiction in which the business operates, in accordance with Cannabis Law and this Chapter.

(2) The retail dispensary shall:

(i) post, visible to consumers, its hours of operation in a conspicuous location inside each retail dispensary premises;

(ii) post, visible to consumers, any and all signs or posted placards required by the Office, including posting of the adult-use retail dispensary license issued by the Office and allowable possession and purchase limits, in a conspicuous location inside the retail dispensary premises;

(iii) only offer for sale cannabis products, cannabis paraphernalia, or cannabis merchandise with the licensee's brand. Such provision shall not preclude the sale of cannabis merchandise with the brand of a trade association. Cannabinoid hemp products may only be provided, however, when the retail dispensary has obtained a cannabinoid hemp retailer license pursuant to article 5 of the Cannabis Law;

(iv) offer for sale or provide containers to consumers for the secure storage of cannabis that lock and are child resistant pursuant to Part 128 of this Title;

(v) utilize an inventory tracking system pursuant to section 125.8 of this Title, with the capability of compiling a retail dispensary's cannabis product inventory, transaction data and tax liability as prescribed by the Office. The retail dispensary's system shall be compatible and capable of reporting the data to the Office on a real time basis; and

(vi) conduct a monthly analysis of its inventory tracking system to determine that no software has been installed that could be utilized to manipulate or alter inventory or sales data and that no other methodology has been employed to manipulate or alter data. The use of any means to willfully underreport or overreport sales or manipulate inventory is prohibited and subject to penalties pursuant to Cannabis Law and Part 133 of this Title.

(3) A retail dispensary may display, in secure, locked cases, samples of each cannabis product offered for sale. Authorized employees may remove samples from the display case and provide it to the cannabis consumer for inspection, provided the cannabis consumer may not consume or otherwise use or remove the sample from the retail dispensary.

(4) Cannabis products shall only be sold by authorized employees of the retail dispensary who shall be twenty-one (21) years of age or older if interacting with cannabis consumers.

(5) A retail dispensary shall be in a location consistent with distance requirements in Part 119 of this Title or as determined by the Board.

(f) Cannabis Product Sales Transactions Requirements.

(1) Each sales transaction record shall be sent to the Office's inventory tracking system, real-time, in a manner as determined by the Office, and provide enough detail to independently determine the taxability of each sale and the amount of tax due and collected. Detailed information required for each sales transaction includes, but is not limited to, the:

(i) individual item(s) sold, including the form and the quantity of cannabis products and any other items sold;

(ii) selling price;

(iii) tax due including a separate delineation for each retail tax imposed on adult-use cannabis pursuant to article 20-C of the Tax Law;

(iv) method of payment;

(v) first name and the first letter of the last name of the employee completing the sales transaction;

(vi) device that was used to complete a sales transaction that may be a combination of software and hardware;

(vii) unique identifier for the sales transaction; and

(viii) date and time of the sale;

(2) A cannabis consumer shall be offered a receipt of their purchase, including, but not limited to:

(i) the name, address, and license number of the retail dispensary;

(ii) the date and time of sale;

(iii) the form and the quantity of cannabis products and any other items sold;

(iv) the first name and the first letter of the last name of the employee completing the sale, and the delivery licensee's license number fulfilling the sale, if applicable; and

(v) the tax paid including a separate delineation for each tax imposed on adult-use cannabis pursuant to article 20-C of the Tax Law;

(3) Cannabis products purchased by a cannabis consumer may be placed into an exit package pursuant to Part 128 of this Title.

(4) Nothing in this section shall prevent a retail dispensary employee from refusing to sell cannabis product if, in their judgment, doing so could endanger the health or safety of the cannabis consumer.

(g) Retail Dispensary Prohibitions. A retail dispensary shall not:

(1) violate distance requirements pursuant to section 119.4 of this Title, or the Cannabis Law;

(2) conduct or transact business at a retail dispensary under a name which contains as a part thereof the words "drugs", "medicines", "drug store", "apothecary", "pharmacy", or similar terms or combination of terms, or in any manner by advertisement, circular, poster, sign or otherwise describe or refer to the licensed premises, or describe the type of service or class of products sold by the retail dispensary, by the terms "drugs", "medicine", "drug store", "apothecary", or "pharmacy'. A retail dispensary name shall comply with the requirements in Part 129 of this Title;

(3) prominently display cannabis products or cannabis paraphernalia or cannabis merchandise or any packaging or labeling that could reasonably be mistaken for a cannabis product in a storefront window or other similar location that makes the product or paraphernalia easily visible to individuals utilizing the public thoroughfare on which the dispensary is located;

(4) sell or otherwise dispense any cannabis product later than the product date of expiration or use by date marked on the label, however, when the cannabis product is identified as an outdated product, the secure segregation and holding of such product beyond its date of expiration or use by date for disposal shall not be deemed a violation of this paragraph;

(5) dispense or otherwise sell cannabis products from a vending machine or allow such a vending machine to be installed at the interior or exterior of the premises of the retail dispensary;

(6) abandon the licensed premises without surrendering the license to the Board and making appropriate arrangements for the disposal of cannabis products;

(7) sell cannabis products obtained through the use of, or accept a sale of cannabis products from, any business that does not hold a license in New York State pursuant to article 4 of the Cannabis Law;

(8) provide cannabis samples to a cannabis consumer, other than to allow inspection of the product prior to purchase;

(9) allow employees under twenty-one (21) years of age to have direct interaction with individuals inside a licensed retail dispensary;

(10) engage in cannabis processing, manufacturing, or compounding at the retail dispensary;

(11) knowingly sell, deliver, or give away to a cannabis consumer:

(i) any amount of cannabis product which they know would cause the cannabis consumer to be in violation of the Cannabis Law or possession limits established by article 222 of the Penal Law;

(ii) any cannabis product, cannabis paraphernalia, or cannabis merchandise if the cannabis consumer is unable to produce valid proof of government-issued identification and age confirming that they are twenty-one (21) years of age or older;

(iii) cannabis products if the cannabis consumer or the public would be placed at risk. This includes, but is not limited to, the cannabis consumer engaging in daily transactions that exceed the legal possession limits or that create a risk of diversion;

(iv) food, beverage, or personal care item that is not a cannabis product;

(v) any product that contains nicotine; and

(vi) alcoholic beverage as defined in section 3 of the Alcohol Beverage Control Law.

(12) make recommendations to a cannabis consumer who is also a medical cannabis patient if the patient's dosing recommendation is 'Per Pharmacist Consultation' and that patient presents their patient certification, issued pursuant to Part 113 of this Title, at the retail dispensary, without disclosing to the cannabis consumer that they are not a pharmacist. Further, any patient who presents a valid medical cannabis patient certification shall be provided a list of the nearest registered organization dispensing facilities;

(13) solicit or receive an order for, keep or expose for sale, or keep with intent to sell any cannabis product or cannabinoid hemp product to a cannabis consumer by means of any vehicle or wheeled frame used for transporting objects, for carrying goods and materials, including, but not limited to, a cart, car, van, truck or trailer;

(14) place back into stock of any retail dispensary or re-dispense cannabis product which is returned by a cannabis consumer. The returned product shall be quarantined for disposal pursuant to section 125.9 of this Title;

(15) sell any form or type of cannabis product not authorized by Cannabis Law or this Chapter;

(16) sell any cannabis product that has not passed quality assurance laboratory testing pursuant to Part 130 of this Title;

(17) sell any cannabis product for which the required tax pursuant to article 20-C of the Tax Law has not been paid;

(18) sell any cannabis product that does not meet the packaging and labeling requirements in Part 128 of this Title;

(19) advertise or market any cannabis or cannabis products not in compliance with Part 129 of this Title;

(20) allow the consumption of any cannabis product by employees, individuals or cannabis consumers, including any smoking or vaping, in any area of the licensed premises except a consumption facility;

(21) pay for marketing or promotion through a third-party platform, marketplace, or aggregator that lists cannabis products for sale;

(22) contract with a third-party provider offering two or more of the following services: point of sale, payment processing, inventory tracking, or e-commerce, unless such third-party provider offers readily accessible integration of the same functionality to independent alternative service providers for each service offered pursuant to this provision; provided however that such third-party provider may impose commercially reasonable terms and require compliance with applicable security and privacy laws and regulations in providing such integration; or

(23) fulfill any order placed or otherwise acquired from the retail dispensary's purported website on a third-party marketplace or aggregator where other retail dispensary licensees are listed, or visa-versa.

(h) Exceptions. Nothing in this section shall prohibit:

(1) delivery of cannabis products into a town, city or village that, by local law, prohibits the establishment of a retail dispensary; and

(2) delivery of cannabis products into a local jurisdiction beyond the prohibited hours for retail dispensary sales in such jurisdiction provided the delivery occurs within the hours of operation set forth in this section.

(i) Cannabis Consumer Education.

(1) The retail dispensary shall be required to make available to cannabis consumers, including to consumers who place delivery orders, certain public health and other educational materials provided or required by the Office.

(2) Consumer education materials may not make health claims regarding cannabis or cannabis products.

(3) Consumer education materials shall be made available for inspection by the Office upon request.

(j) Storage Requirements. All cannabis products shall be stored in accordance with section 125.3 of this Title.

(1) A retail dispensary shall store working stock of cannabis products locked behind a counter or other barrier to ensure a cannabis consumer does not have direct access to the cannabis products.

(2) Retail dispensaries shall have policies and procedures in place for the handling and storage of cash at the retail dispensary and for transportation of cash to financial institutions to prevent theft, loss and associated risks to the safety of employees, retail customers and the general public.

(k) Delivery Service. Retail dispensaries providing delivery service shall have a written delivery service plan available for inspection by the Office. Delivery of cannabis products to a cannabis consumer shall be conducted pursuant to section 123.20 of this Part and section 125.10 of this Title;

(l) Product Returns and Recalls.

(1) All recalls shall be conducted pursuant to section 125.9 of this Title, unless the retail dispensary is otherwise directed by the Office.

(2) Retail dispensaries shall establish written policies and procedures to monitor, track and resolve complaints, cannabis product returns and quality assurance concerns.

(m) Pricing.

(1) A retail dispensary shall designate the price of each cannabis product or item sold by attaching to, or otherwise displaying immediately adjacent to each such item displayed in the interior of the licensed premises where sales are made, a price tag, sign or placard setting forth the price at which each such item is offered for sale at the dispensary. Pricing shall also be included on any menu accessible to cannabis consumers.

(2) The price of all cannabis products and items offered for sale on the internet to prospective cannabis consumers shall be available on any internet website or digital application of the retailer.

(3) No retail dispensary shall refuse or fail to make product pricing available to cannabis consumers, upon request, including quoting pricing to a prospective cannabis consumer by telephone or other means of communication.

(4) When the retail dispensary displays a cannabis product price, it shall also display, separately, but in a similar font size or manner to the price, the total cost of the item which includes all taxes that would be paid by the consumer on the cannabis product or item.

(n) Cannabinoid hemp products in an adult-use retail dispensary.

(1) Adult-use retail dispensaries that sell cannabinoid hemp product to a cannabis consumer shall comply with the applicable requirements of Part 114 of this Title, including obtaining a cannabinoid hemp retail license.

(2) Cannabinoid hemp flower products clearly labeled or advertised for the purposes of smoking, or in the form of a cigarette, cigar, or pre-roll, or packaged or combined with other items designed to facilitate smoking may be sold at a retail dispensary.

(o) Limited Retail Consumption Facility.

(1) A limited retail consumption facility shall be a type of consumption facility that is that is a part of the licensed premises of the associated dispensary regardless of whether the facility is indoors, as follows:

(i) within the boundaries of the same parcel as the associated dispensary; or

(ii) within the boundaries of a parcel which is contiguous with the parcel containing the associated dispensary.

(2) Cannabis products sold at a limited retail consumption facility may not be rolled, packed, split, infused, mixed, or otherwise prepared by a licensee or any persons affiliated with the licensee, including, but not limited to, the licensee's employees;

(3) A limited retail consumption facility shall not charge an entry fee, cover, or other similar fee for limited retail consumption facility functions, provided however, such limited retail consumption facility may charge such fee in association with an event, including, but not limited to, cannabis events pursuant to section 120.19 of this Title;

(4) A limited retail consumption facility shall not have a point of sale within the limited retail consumption facility;

(5) A limited retail consumption facility shall not allow an adult-use nursery, cultivator, processor, distributor, cooperative or collective, microbusiness, ROD, ROND, registered organization registered under article 3 of the Cannabis Law, or cannabis laboratory licensee or permittee or any true party of interest of any of the aforementioned to advertise at the limited retail consumption facility through use of a brand representative;

(6) The Office may limit the number of cannabis events at a limited retail consumption facility;

(7) A limited retail consumption facility shall comply with the requirements of Part 125 of this Title which pertain to a consumption facility; and

(8) A limited retail consumption facility shall comply with any other requirements as determined by the Board.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 123.10

Adopted New York State Register September 27, 2023/Volume XLV, Issue 39, eff. 9/27/2023