This story was written in partnership with Crain’s New York, the trusted voice of the New York business community. 

One of the most controversial aspects of New York’s new recreational cannabis market is its tax system, which some have worried will undermine licensed businesses by driving consumers to cheaper underground dealers.

A white paper published in December by a pair of New York tax attorneys, just weeks before the formal start of recreational marijuana sales on Dec. 29, warned of that very possibility. It predicted—and was proven accurate after sales launched—that a legal eighth of cannabis flower in New York with 30% THC would cost about $75.

Prices at Housing Works—the first state-sanctioned cannabis retailer in the five boroughs—proved to be not far below that, with prices fluctuating because taxes are based on THC potency. According to the nonprofit’s online menu, an eighth of cannabis flower ranges in price and potency from 19% THC for $40 to 27% for $60. With the 13% excise tax added, out-the-door prices would be between $45 and $68, respectively.

But if customers remain price-sensitive, as data from other mature recreational marijuana markets suggest, then they’ll broadly be willing to pay only as much as 10% to 15% above prices on the unregulated market, according to the paper, authored by attorneys Jason Klimek and James Mann.

By contrast, unlicensed street vendors in New York City last month were peddling cannabis eighths for between $10 and $45, Green Market Report found.

Combine that with overall lax enforcement to date against the underground market, and the situation has the potential to undercut state-licensed retailers—particularly smaller and less-capitalized businesses—before they can truly get off the ground, Klimek and Mann asserted.

Charles King, the CEO of Housing Works, said in early January that he doesn’t think the situation is that dire, and companies such as his will be able to survive as long as they stick to a solid retail business plan and tap the immense tourism market.

“I think people know that you’re paying for quality, you’re paying for the taxes and all the rest of what goes with the regulated, licensed market,” King said.

Still, there will have to be more of a focus on enforcement against illicit competition by state authorities, King said.

It’s a big undertaking, as many illicit operators already have brand recognition by offering legally produced but illegally shipped cannabis from California and Oregon, such as the famed SoCal brand Jungle Boys. That’s one brand name New York City resident Joe Lustberg, managing partner at Upwise Capital, said he ran into recently at a smoke shop.

“For some cannabis operator who’s competing with the smoke shop next door [that is] able to sell California eighths for $30 [and] that’s better weed than what they’re selling at Housing Works, it’s tough,” Lustberg said.

The tax structure also might be altered by the Legislature, because making the system more business-friendly is a top priority of industry interests in Albany, including for the Cannabis Association of New York.

“I do feel confident that the state is very much aware of the issue with the potency tax and, at the very least, open to reform,” said Brittany Carbone, a board member of CANY and a cannabis farmer upstate. “It’s been well proven that more reasonable tax structures actually result in higher rates of purchase in legal dispensaries, which results in a net positive win for the state, in terms of tax revenues.”

Even if the tax structure doesn’t change, cannabis attorney Lauren Rudick said, the THC-based potency tax will probably encourage the creation and sale of a more diverse range of cannabinoid products that don’t rely only on THC to please consumers. And that could be just what the burgeoning industry needs: more product variety.

By the Numbers:

$68

Highest price, with taxes added, for an eighth of cannabis with 27% THC sold at Housing Works

$10

Lowest price for an eight of cannabis bought on the street

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