imagesOver the past year, cannabis in Oregon has been the subject of many national headlines. Most of this coverage has been positive, with reportage ranging from the state’s innovative recreational pot program to the recent display of marijuana plants at the Oregon state fair. Last week, however, Oregon cannabis was in the spotlight for a wholly undesirable reason: a hash oil explosion from an apparently illegal operation destroyed a house, damaged two more houses, and sent someone to the hospital. These incidents are not uncommon nationwide.

Oregon takes illegal processing of marijuana seriously, having made the activity a Class B Felony earlier this year. This class of felony is punishable by a maximum prison term of 10 years and a fine of $250,000. The sudden legislative attention to cannabis processing was a new development in the state. As we previously explained, until this year there was virtually no mention of pot processing in ORS Chapter 475 (the cannabis regulation statutes), or in the related Oregon Health Authority’s (OHA) administrative rules for medical marijuana. Everything was happening underground.

Our cannabis business lawyers represent quite a few cannabis processors both within and outside Oregon. In our view, the regulations related to processing are cumbersome as compared to any other class of license under the OHA’s Medical Marijuana Program, or the Oregon Liquor Control Commission’s (OLCC) recreational program. This is understandable, given the nature of the activity, but it is also frustrating because of the considerable overlap in baseline rules and fees for OHA and OLCC. When you add local fees to that (like those required by the City of Portland) the costs of doing business as an Oregon cannabis processor begin to feel oppressive.

The state could probably do a better job with regulating marijuana processors, by taking us up on our recommendation to combine the medical and recreational marijuana programs. Although streamlining the regulations of cannabis industry participants will not eliminate illegal activity entirely, one can infer that more sensible, navigable regulation will nudge some underground actors into compliance. It certainly couldn’t hurt.

The Oregon legislature meets again in February of 2017. Until then, local law enforcement will need to be especially vigilant as to underground hash oil processing, and OLCC and OHA will need to monitor cannabis tracking systems closely. Regarding our clients, legitimate processors will need to hustle to keep up with the ongoing compliance requirements related to their activities under administrative watch — including the requirement that OHA licensure (and not just a pending application) be in hand on October 1 for continued operation.

Hash oil explosions are very serious incidents and we hope to see Oregon lead the way in preventing them to the extent possible. The Oregon legislature’s felony designation was a start. Next, we could use a few carrots to go with the sticks.

 

California cannabisOn June 27, 2016, the California legislature passed Senate Bill No. 837 (SB 837) to amend certain areas of the MMRSA. To start, the bill changes the name of the Medical Marijuana Regulation and Safety Act, the Bureau of Medical Marijuana Regulation, and the Medical Marijuana Regulation and Safety Act Fund to the Medical Cannabis Regulation and Safety Act, the Bureau of Medical Cannabis Regulation, and the Medical Cannabis Regulation and Safety Act Fund, respectively. All references to medical marijuana or marijuana throughout the bill are also changed to medical cannabis or cannabis. These changes most likely reflect the legislature’s recognition of the industry’s preference for the term “cannabis” over “marijuana.”

In addition to the technical changes, SB 837 also includes substantive changes to the law, which affect the various state agencies involved in regulating cannabis businesses as well as potential licensees under the MCRSA.

Changes for State Agencies. Under SB 837, the BCMR formed under the Department of Consumer Affairs (DCA) remains responsible for the licensing of dispensaries, transporters, and distribution. Likewise, the Department of Food and Agriculture (DFA) is still responsible for licensing cultivation and the Department of Public Health (DPH) for licensing of manufacturers.

However, there has also been some shifting of the roles assigned to these agencies:

  • The BCMR has replaced the DPH as the agency responsible for licensing testing laboratories.
  • The DFA has replaced the BCMR as the agency responsible for establishing appellations of origin for cultivated cannabis.
  • The DPH’s role in regulating manufacturing has been expanded to cover developing standards for the manufacturing and labeling of all manufactured medical cannabis products and not just edibles. In addition, the DPH will now identify and report any medical cannabis products that have been adulterated or misbranded.

Furthermore, the agencies may now adopt emergency regulations to remain in effect for no longer than 180 days in order to carry out the purposes of the MCRSA. The use of emergency regulations should buy the agencies time to prepare final regulations while still commencing with state licensing in 2018 as promised.

Changes to License Types and RequirementsSB 837 also includes changes to the various license types which should be noted by any interested applicants.

For potential dispensary applicants, the Type 10 A license for a “Dispensary; No more than three retail sites” is now for a “Producing Dispensary; No more than three retail sites.”

For potential manufacturing applicants, the Type 8 license for “Testing” is now a “Testing laboratory” license. (Also note: infused butters are now excluded from the Milk and Milk Products Act of 1947.)

For potential cultivation applicants, several new rules were added regarding the source of water and diversion of water for cannabis grows. The State Water Resources Control Board, in consultation with the Department of Fish and Wildlife, is tasked with adopting principles and guidelines for diversion and use of water for cannabis cultivation. The bill also expands the ability of the Water Board to issue cease and desist letters to violating cannabis cultivators and adds new fines for violations based on period of time and acreage. (Also note: cannabis seeds are now excluded from state Seed Law).

For potential distribution applicants, the role of distributors has been diminished such that a distributor is not required to transport cannabis between a cultivator and a manufacturer for further manufacturing. For more information on the current status of distribution in California, see our previous post on the two sides of the distribution debate.

Finally, all applicants for a state license will now need to provide proof of a bond to cover the costs of the destruction of their medical cannabis or medical cannabis products due to a violation of the licensing requirements.

As a final note, SB 837 clarifies that medical cannabis businesses operating in compliance with local laws on or before January 1, 2018 can continue to operate until their license application is either approved or denied, but only if: 1) the business continues to operate in compliance with local laws and 2) submits a completed application with the appropriate licensing authority by the to-be-established deadlines. With new state rules being written and emergency regulations on the horizon, the urgency for California cannabis businesses to form their corporations, get in compliance, and prepare a completed application prior to 2018 is more certain than ever.

EDITOR’S NOTE: Three of our California cannabis lawyers (Tiffany Wu, Alison Malsbury and Hilary Bricken) will be putting on a FREE webinar on September 14, moderated by our lead cannabis corporate lawyer (Robert McVay). This webinar will focus on what you should be doing now to prepare your existing or future cannabis business for California’s soon to be legalized landscape. Go here on Eventbrite to sign up to attend.

Delaware cannabisThis is proving to be a big year for cannabis. As a result, we are ranking the fifty states from worst to best on how they treat cannabis and those who consume it. Each of our State of Cannabis posts will analyze one state and our final post will crown the best state for cannabis. As is always the case, but particularly so with this series, we welcome your comments. We have finally crossed the half-way point. The states featured going forward generally have mixed laws when it comes to cannabis. Some good, some bad, and some ugly. Today we turn to number 17: Delaware.

Our previous rankings are as follows: 18. Michigan; 19. New Hampshire; 20. Ohio; 21. New Jersey; 22. Illinois; 23. Minnesota; 24. New York; 25. Wisconsin; 26. Arizona; 27. West Virginia; 28. Indiana; 29. North Carolina; 30. Utah;  31. South Carolina; 32. Tennessee; 33. North Dakota; 34.Georgia; 35. Louisiana; 36. Mississippi; 37. Nebraska; 38. Missouri; 39. Florida; 40. Arkansas; 41. Montana; 42. Iowa; 43. Virginia; 44. Wyoming; 45. Texas;  46. Kansas;  47. Alabama;  48. Idaho; 49. Oklahoma;  50. South Dakota.

Delaware

Criminal Penalties. In 2015, Delaware decriminalized the possession of marijuana. A person in possession of less than one ounce of marijuana faces a $100 fine without incarceration. Delaware uses a list of aggravating factors that can result in more stringent penalties. For example, if a person commits the crime in a school zone, or a park, the penalties ramp up. The following list illustrates the potential prison sentence a person faces without the presence of an aggravating factor based on the amount of marijuana a person possesses:

  • Between 1 ounce and 175 grams earns up to 3 months incarceration and a $575 fine (all other fines for possession are discretionary).
  • 175-1,500 grams earns up to 3 years incarceration.
  • 1,500-3,000 grams earns up to 5 years incarceration.
  • 3,000-4,000 grams earns up to 8 years incarceration.
  • 4,000-5,000 grams earns up to 15 years incarceration.
  • Over 5,000 grams earns 2-25 years incarceration.

Delaware sanctions the distribution, manufacture, or sale of marijuana similarily, with penalties increasing with the presence of aggravating factors. The penalties for distribution, manufacture, or sale of marijuana depend on the amount present:

  • Less than 1,500 grams earns up to 8 years incarceration.
  • 1,500-4,000 grams earns up to 15 years incarceration.
  • Over 4,000 grams earns 2-25 years incarceration.

Medical Marijuana. In 2011, the state enacted the Delaware Medical Marijuana Act. Patients can legally obtain medical cannabis after a physician certifies in writing that the patient suffers from a qualfiying condition and that marijuana may help alleviate the symptoms. Patients must also apply to the Delaware Department of Health and Social Services. The Department may then issue an ID card to the patient.

Qualifying medical conditions include cancer, HIV/AIDS, decompensated cirrhosis, multiple sclerosis, amyotrophic lateral sclerosis,; Alzheimer’s disease, or PTSD. A medical condition that produces wasting syndrome, intractable nausea, seizures, severe and persistent muscle spasms, or severe debilitating pain may also warrant medical marijuana use.

Patients in Delaware are not able to grow their own medicine and must turn to dispensaries. Compassion centers are non-profit businesses that cultivate marijuana and provide it to patients. The first Delaware cannabis dispensary did not open until 2015, four years after legalization. Currently, Delaware has only one operational compassion center, but, its cannabis industry is slowly expanding, with others applying to open compassion centers to compete with the single entity currently operating.

Bottomline. Delaware proudly refers to itself as the first state because it was the first colony to ratify the U.S. Constitution. Though it is progressive with its cannabis laws, it is far from being the first state in cannabis. Delaware’s criminal laws could certainly use some improvement and when it comes to medical marijuana, one dispensary is not enough, even for a small state like Delaware. Yet overall Delaware is on a good trajectory toward cannabis liberalization.

 

 

 

Quote-25Aug

Evangelist Franklin Graham, in his attempt to use “Reefer Madness” style scare tactics, actually does a great job at pointing out some of the positive changes the United States has experienced during the Obama Administration. Four states HAVE legalized recreational pot, and all of their economies are thriving because of it. And yes, adult recreational use IS on the ballot in five states for this November.

And though we’ve come a long way, we’ve also only just begun. Even if all five states (Arizona, California, Maine, Massachusetts, Nevada) voting to legalize cannabis in November approve their legalization, nine states is not enough. We cannot stop until the number of states with legal cannabis is fifty. We cannot stop until the longstanding stigma associated with cannabis has ended and people like Franklin Graham realize the futility of trying to frighten voters out of doing what’s right. Because the truth is, cannabis is not dangerous or harmful to our youth, our nation, or our future.

But thanks, Franklin, we’ll ignore your ignorant call to voters and take your comments as a compliment. Vote this fall to support cannabis legalization.

 

Ohio and Michigan home grown cannabisAs cannabis reform has spread across the United States, it has given birth to a marketplace increasingly driven by business interests. This is the third installment in our series looking at how the changing landscape of cannabis policy affects a key group of often-overlooked stakeholders: medical marijuana patients who choose to cultivate their own supply of medicine. Go here for the home grown laws in Washington and Oregon, and here for  the home grown laws in California and Alaska. Though there are undeniably many benefits to the expansion and professionalization of the commercial cannabis industry, it is also important to account for these small-scale medical marijuana producers that started it all.

This week we look to two Midwestern states that have, to varying degrees, embraced medical cannabis: Michigan and Illinois. These states are relatively new entrants to the medical marijuana scene, legalizing in 2008 and 2013, respectively. Michigan and Illinois are also useful case studies of wildly different approaches to legalizing, regulating, and managing medical marijuana programs at the state level.

Michigan. As of 2013, medical marijuana dispensaries are illegal in the state of Michigan. Accordingly, patients must either grow their own medicine or acquire it from a registered caregiver, who is limited to five patients apiece. Patients who choose to cultivate their own supply are, however, allowed to possess a fairly generous twelve cannabis plants, provided those plants are in a private and locked facility. From these twelve plants, a patient may possess only two and one-half ounces of usable marijuana at a time. Patients should be careful to follow all Michigan laws when transporting usable marijuana, which require all transport be done securely and according to specific rules.

Illinois. As would-be home growers of medical marijuana in Illinois will know all to well, the state’s medical marijuana program does not currently permit home cultivation of any amount of marijuana. Nor does the law allow for cannabis caregivers to cooperatively cultivate any amount of marijuana for patients. This is partly because the state initiative that first authorized medical marijuana was styled as a “pilot program,” intended for the state to test the waters of marijuana reform. Unlike Michigan, patients are able to obtain marijuana from state-approved medical marijuana dispensaries. Patients are allowed to possess up to two and one-half ounces of usable marijuana in a fourteen day period. Nonetheless, patients committed to cultivating their own cannabis supply are out of luck in the Land of Lincoln.

As always, patients and caregivers in Michigan and Illinois should be careful to stay up to date on current state cannabis laws and be ready for things to change over time.

Next week we will set our sights to the east as we analyze home grown medical marijuana laws in the states of New York, Rhode Island, and Vermont.

Cannabis LawyersI met last week with John Hudak, Deputy Director and Senior Fellow at the Brookings Institute for a wide-ranging conversation on all things cannabis. Hudak has established himself as a major voice on cannabis policy issues. He regularly writes for Brookings, covering issues like the perceived threat of “big” marijuana, Nevada’s legalization efforts, and the DEA’s recent decision to expand cannabis research. Hudak is often asked by reporters to weigh in on major marijuana stories, recently providing perspective to the New York Times.

The Brookings Institute is one of the oldest and most highly regarded think tanks in Washington DC. Think tanks produce research for lawmakers and regulators to, among other things, help them write and analyze rules and laws. Brookings researches topics including economics, governance, foreign policy, and global development. In the last few years, Brookings has provided significant research on cannabis legalization, led by Hudak.

It makes sense for Brookings to research and write about marijuana laws since each state that legalizes medical or recreational marijuana needs guidance on creating workable legislation and rules for implementing legalization. State regulators can and do use research from institutions like Brookings to help guide them through the legalization process and beyond.

That one of Washington D.C.’s oldest and most respected think tanks is spending so much time and energy on cannabis legalization illustrates how far the cannabis industry has come in this country. A few years ago, marijuana legalization was seen as a “fringe issue” with but small pockets of support around the country. Fast forward to 2016 and marijuana is now taking center stage as multiple states are looking at legalizing recreational or medical marijuana or decriminalizing the plant. A recent Gallup poll shows that roughly 33 million Americans use cannabis. Hillary Clinton’s campaign has promised to reschedule marijuana if she is elected President. America’s voters care about cannabis.

Though nationwide legalization still appears to be years away, the marijuana movement is growing up. Initially, this movement was widely perceived as supported by those under 30 looking to get high legally, it now includes doctors, lawyers, policy wonks, and Members of Congress. Legalization supporters are learning to play the bureaucratic games lawmakers understand. The Brookings Institute provides advocates with respected research they can use to build their case for legalization.

Hudak told me about one particular quote that conveyed how far the movement had come. In 2014, Brookings analyzed Colorado’s marijuana regulators. Jacob Sullum, writing for Reason.com wrote an article about Brookings’ report and closed with the following line:

To me, the really exciting aspect of all this regulatory information is that Colorado has succeeded in making marijuana boring by making it legal.

Cannabis has been prohibited for almost 80 years. I can hardly wait until cannabis has been legal for so long that it has become boring everywhere.

Cannabis Trademarks

For the past few years, the United States Patent and Trademark Office (USPTO) has repeatedly expressed concern over eliminating what it deems “deadwood” from the federal trademark registry. “Deadwood” consists of trademark registrations that are not actually in use for the goods or services named in the registration. Under U.S. trademark law, all registrations must be renewed between the fifth and sixth year anniversaries of registration by filing an affidavit pursuant to Section 8 of the Trademark Act declaring that the mark is still in use in commerce, or by filing a declaration of permissible non-use under Section 71. If either of these filings is not made, the registration will be cancelled.

In June of this year, the USPTO announced that it would be creating new rules requiring additional documentation under Section 8 and Section 71 of the Trademark Act to prove the registrant is actually using its mark in commerce for all of the goods or services specified. These new rules will require submitting information, exhibits, affidavits or declarations, and any other additional specimens of use as may be “reasonably necessary” for the USPTO’s examining attorney to ensure that the mark in question is in use on all of the goods or services claimed in the application. The claim and justification here is that there are too many unused registered trademarks, and that unless we clean up the clutter on the registry, trademark clearance will become more and more burdensome for applicants and for examining attorneys.

So how do these changes potentially impact cannabis businesses? As we’ve discussed before, federal trademark protection is unavailable to marks used on federally illegal goods and services, including cannabis. However, one brand protection strategy we’ve recommended is to obtain registration for ancillary goods or services that do not violate the Controlled Substances Act (CSA). For example, if you manufacture a cannabis-infused beverage AND you produce and sell a non-infused version of that beverage, it may be possible to secure a federal trademark registration that covers your non-infused beverages. We have many clients that have been successful using this strategy, although we’ve noticed more push back from the USPTO with respect to these applications in recent months.

Ultimately, the key to registering ancillary goods to protect a mark also used on cannabis-related products is that you must actually use the mark on those ancillary goods. A few token sales, without ongoing use of the mark on those goods, would be exactly the issue the USPTO is looking to address by clearing out “deadwood.” If you are not able to meet the requirements for a Section 8 affidavit or a Section 71 declaration, your mark will be cancelled. We’ve seen a rush by cannabis businesses to register their marks for whatever they can get, but it’s important to carefully consider what goods and services you will actually be providing to avoid the risk of losing your registration altogether. There is oftentimes little point in spending time and money to get a trademark now if you are just going to lose it eventually anyway.

The IP Kat (a fantastic and entertaining source for intellectual property news), wrote a couple of weeks ago about the USPTO’s move to clear “deadwood” from the register, and made a great point: “[W]hen the claim is made that deadwood and resulting clutter on the registry place an increasingly heavy burden on clearance, what is really being said is that the mark under consideration is straddling the divide between being descriptive and suggestive.” The post also notes that the real issue at play is that too many descriptive/suggestive marks are being accepted without having proven secondary meaning. Which raises another issue we’re seeing with proposed cannabis trademarks: most of them are descriptive.

We’ve written about choosing a brand that won’t get you sued, but it’s also important to choose a brand that is eligible for trademark protection. The relative strength or weakness of a mark will fall somewhere on the following spectrum:

  • Fanciful Marks: These marks consist of a combination of letters with no meaning; they are invented words. Some examples of famous fanciful marks are EXXON and KODAK.
  • Arbitrary Marks: These marks are composed of a word or words that have a common meaning, but have no relation to the goods or services to which the mark is applied. Perhaps the most famous example of an arbitrary mark is APPLE, used on computers.
  • Suggestive Marks: Suggestive marks hint at or suggest the nature of a product without specifically describing the product. An example of this type of mark is AIRBUS for airplanes.
  • Descriptive Marks: These marks are comprised of words that actually describe the goods or services provided; descriptive marks are too weak to function as a trademark and cannot be registered. Note that it is possible to register a descriptive mark if it has obtained secondary meaning due to use in commerce for some years – in the nascent cannabis industry, however, it is unlikely many marks would meet these requirements.
  • Generic Words: These words and phrases are so inherently descriptive of a product or service as to be incapable of functioning as a trademark; they are the common names of the product or service in question, and cannot be registered.

Fanciful and arbitrary marks afford the highest level of trademark protection. Often the line between suggestive and descriptive marks is blurry, making suggestive marks, though capable of registration, much weaker. In developing a brand, avoid the use of descriptive or generic marks altogether.

The takeaway here is two-fold. First, make sure that if your cannabis company is looking to register a federal trademark for ancillary goods or services, your company actually intends to sell those ancillary goods on an ongoing basis. Second, carefully consider the strength of your mark before investing heavily into brand development.

CROPLike many commercial crops, cannabis cultivation can be water intensive. Increased production in pot-friendly states has been flagged by many as a water and electricity usage issue, especially in light of oft-strained natural resources. For this reason, some of the Western states have begun to regulate cannabis businesses’ water and power usage. In the case of Oregon, environmental impact has been a key consideration for some time.

Last year, the Oregon legislature passed HB 3400, an omnibus bill legalizing recreational marijuana. In that historic law, the legislature called for a task force to assess water and electricity use by cannabis cultivators. The aptly named Cannabis Environmental Best Practices Task Force has been busy, meeting five times between April and August of 2016. Recently, it published its Working Document, which will soon be finalized into a proper report and submitted to the legislature. Oregon hopes these findings will serve as a model to other states with similar concerns.

Those who testified at the Task Force meetings represent a wide range of parties vested in Oregon cannabis, including growers, private sector service providers, and public utilities. Based on their testimony and other research, the Task Force identified best practices for cannabis cultivation, and identified ways stakeholders can encourage responsible cultivation practices for new industry entrants. According to the Task Force, Oregon should follow four distinct priorities to address the environmental impact of cannabis producers:

  1. Support access to education and technical assistance related to cultivation practices;
  2. Support the creation of voluntary third party certification programs;
  3. Encourage research into cannabis issues, including environmental best practices, health, and other aspects of the cannabis sector; and
  4. Investigate water regulations for small-scale producers.

This guidance demonstrates progressive, institutional concern with creating a sustainable medical and recreational cannabis industry. It seems likely that the state will adopt these recommendations. As to the cannabis cultivators themselves, they would be wise to proactively comply with any “best practices” identified by the Task Force and adopted by the legislature. Not only is that the right thing to do, but gaining certification as an environmentally friendly operator may boost the bottom line.

For existing cannabis producers in Oregon, the new guidance does not change the requirement to acquire and maintain required water rights. Nor does it eliminate the need to submit an Electricity and Water Use Estimate form upon license application. Instead, the guidance simply focuses on the manner in which cannabis growers can shrink their collective environmental footprint.

Looking ahead, increased regulation of water usage for cannabis cultivation is inevitable as water-starved states like California vote on recreational pot this year. Oregon’s move – explicitly billed as a model for other states – sets a positive standard for states that will encounter these issues in the coming months and years. It is our hope that these recommendations see wide acceptance and smooth implementation, and lead the conversation on the environmental impacts of cannabis production nationwide.

California cannabis lawyers
Los Angeles County? Better have a Plan B.

Until recently, the “Wild West” of U.S. cannabis lacked robust statewide regulations which left California cannabis companies subject to unclear rules and risk of federal shutdowns. The Medical Marijuana Regulation and Safety Act (MMRSA) created these regulations, but ultimately left control in the hands of local cities and counties.

At last count, California has 58 counties and 482 incorporated cities across the state, each with the option to create its own rules or ban marijuana altogether. In this California Cannabis Countdown series, we plan to cover who is banning, who is waiting, and who is embracing the change to legalize marijuana — permits, regulations, taxes and all. For each city and county, we’ll discuss its location, history with cannabis, current law, and proposed law to give you a clearer picture of where to locate your cannabis business, how to keep it legal, and what you will and won’t be allowed to do. Our last California Cannabis Countdown post was on the City of Los Angeles, and before that, the City of Desert Hot SpringsSonoma County, the City of Sacramento, the City of BerkeleyCalaveras CountyMonterey County and the City of Emeryville.

Welcome to the California Cannabis Countdown.

Continue Reading The California Cannabis Countdown: Los Angeles County

Michigan cannabisThis is proving to be a big year for cannabis. As a result, we are ranking the fifty states from worst to best on how they treat cannabis and those who consume it. Each of our State of Cannabis posts will analyze one state and our final post will crown the best state for cannabis. As is always the case, but particularly so with this series, we welcome your comments. We have finally crossed the half-way point. The states featured going forward generally have mixed laws when it comes to cannabis. Some good, some bad, and some ugly. Today we turn to number 18: Michigan.

Our previous rankings are as follows: 19. New Hampshire; 20. Ohio; 21. New Jersey; 22. Illinois; 23. Minnesota; 24. New York; 25. Wisconsin; 26. Arizona; 27. West Virginia; 28. Indiana; 29. North Carolina; 30. Utah;  31. South Carolina; 32. Tennessee; 33. North Dakota; 34.Georgia; 35. Louisiana; 36. Mississippi; 37. Nebraska; 38. Missouri; 39. Florida; 40. Arkansas; 41. Montana; 42. Iowa; 43. Virginia; 44. Wyoming; 45. Texas;  46. Kansas;  47. Alabama;  48. Idaho; 49. Oklahoma;  50. South Dakota.

Michigan

Criminal Penalties. The possession of any amount of marijuana can earn up to 1 year in prison and a maximum fine of $2,000. The use of marijuana can earn up to 90 days in prison and a maximum fine of $100. A person who faces a possession or use charge may earn a conditional discharge, provided that he or she has no prior offenses.

The exchange of marijuana without remuneration (i.e., a gift) earns up to 1 year in prison and a maximum fine of $1,000. The sale of under  5 kilograms earns up to 4 years in prison and a maximum fine of $20,000. The sale of between 5-45 kilograms earns up to 7 years in prison and a maximum fine of $500,000. The sale of over 45 kilograms earns up to 15 years in prison and a maximum fine of $10,000,000.

Medical Marijuana. In 2008, voters passed the Michigan Medical Marijuana Act (MMMA), legalizing medical marijuana. The act was ambiguous and complicated. In a case reviewing the act, Michigan Court of Appeals Judge Peter J. O’Connell acknowledged this and made the following warning:

Reading this act is similar to participating in the Triwizard Tournament described in J.K. Rowling’s Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.

Several attempted legislative fixes and court challenges failed to clarify the law (Michigan Radio, the local NPR affiliate, provides a helpful timeline). In 2013 the Michigan Supreme Court issued an opinion clarifying the MMMA. In State of Michigan v. McQueen, the court ruled that the MMMA did not permit marijuana dispensaries and prohibited unrestricted retail sales of marijuana. As a result, Michigan closed medical marijuana dispensaries. A recent opinion from a Michigan Court of Appeals has affirmed that patients are limited in how they can obtain medical cannabis. Patients can grow their own marijuana or obtain it from a caregiver who can provide marijuana for no more than five patients. Patients who choose to grow their own cannabis must keep no more than 12 marijuana plants in a locked facility, not viewable by the public. If grown outdoors, the plants must remain in a fenced structure that restricts the public’s access to and view of the plants.

Patients must obtain a registration card after receiving a recommendation from a physician for a qualifying condition. The MMMA named several qualifying conditions, including cancer, HIV/AIDS, and Alzheimer’s disease. Patients may also use medical marijuana to treat chronic and debilitating medical conditions not named in the statute if the condition or treatment for the condition causes two of the following side effects: cachexia or wasting syndrome, severe and chronic pain, severe nausea, seizures, or severe and persistent muscle spasms. Michigan will recognize medical marijuana authorizations from other states, provided that the other states also recognize Michigan cannabis authorizations.

Recreational Marijuana. Legalization proponents in Michigan are currently in a legal battle attempting to place a legalization initiative on the 2016 ballot. There is a challenge as to whether some signatures used to qualify the initiative for the ballot were over 180 days old, rendering them invalid. At this time, the fate of the legalization ballot is still unknown.

Bottomline. The criminal laws in Michigan are fairly middling. The penalties are in line with laws across the country. It is unfortunate that Michigan still criminalizes the use of marijuana. Michigan’s medical marijuana laws are a mess. Depending on how you feel about regulations, this could be deemed a positive or a negative. The state does not have dispensaries but does allow for homegrows. Some may view Michigan’s uncertainty as an opportunity to grow marijuana without interference from regulatory bodies. Others may see the lack of clarity as a reason to worry. It can be hard to predict the legality of a certain action when the rules are so unclear. Finally, although it may not happen in 2016, Michigan appears to be moving towards full legalization. Overall, Michigan marijuana is probably the most confusing state but still not too bad.