Arkansas CannabisArkansas voters’ decision to approve state-legal medical marijuana evidences a shift in attitudes towards medical cannabis that transcends stereotypical red-state/blue-state division on progressive cannabis reform. Arkansas will soon join Florida and Louisiana as traditionally “southern” states to embrace some form of medical marijuana legalization.

The Arkansas Medical Marijuana Commission is developing rules and regulations that will shape the trajectory of medical cannabis in the state. Though medical marijuana is now enshrined in the Arkansas state constitution, the Commission’s implementation of the law will largely determine the character and viability of the system.

Investors and entrepreneurs looking to capitalize on Arkansas medical marijuana should consider several questions raised by the legalization amendment itself and by the actions the Medical Marijuana Commission has taken since the November vote. The Commission has yet to promulgate final rules, and it will not do so for at least a few more months. But the rules trickling in already shed some light on several challenges and opportunities facing early movers in Arkansas’ medical marijuana industry.

Do I have to be an Arkansas resident to enter the industry? Not necessarily. Issue 6 as passed requires an individual applying for a dispensary or cultivation license to have been a resident of Arkansas for the past seven consecutive years and a rule adopted by the Commission requires applicants establish residency through two forms of identification. However, Issue 6 requires only that 60% of the individuals owning an interest in a medical marijuana dispensary or cultivation operation meet the residency requirements. This means that even though the individual named as the applicant on the form must be a long-time, continuous resident of Arkansas, that individual can recruit non-resident investors if Arkansas residents make up 60% of the syndicate. Interestingly, Issue 6 states that 60% of owners must be Arkansas residents – not that 60% of the cannabis company must be owned by Arkansas residents. Accordingly, a group of six Arkansas residents could own a medical marijuana facility with as many as four non-residents even if the four non-residents own a disproportionate share of the ownership interest.

Residency rules are more and less restrictive for other medical marijuana stakeholders. For example, “visiting qualified patients” (defined as visitors and those who have lived in Arkansas for less than 30 days) may receive medical marijuana from Arkansas dispensaries if they present a valid medical marijuana registry identification card from another state. On the other hand, members of the Arkansas Medical Marijuana Commission must be residents for ten years.

Are there capital requirements to obtain an Arkansas cannabis license? Capital requirements are a big obstacle to entering the Arkansas medical marijuana market. The Commission recently approved a licensure and renewal fee of $100,000 for dispensaries and cultivation operations. This is in addition to the several thousand dollar –- and only partially refundable -– application fee. The fees are steep, especially considering the uncertainty surrounding the mostly unknowable and uncertain market and regulatory environment of the fledgling Arkansas medical marijuana industry. The Commission also required proof of assets or a surety bond of $1,000,000 and proof of $500,000 in liquid assets to obtain a license. We see these high financial barriers as likely to limit the growth of Arkansas’ cannabis industry, while at the same time leading to experienced and well-funded non-residents taking a large stake in it by providing necessary start-up capital. Our cannabis business lawyers are already getting a slew of calls and emails from cannabis industry veterans from outside Arkansas looking to get in and from Arkansas residents looking for experienced outside help and funding.

What else should I know before getting into an Arkansas cannabis business? In addition to the usual concerns about federal illegality of marijuana and obstacles to operating a marijuana business like lack of banking, investors in Arkansas should beware that the Arkansas Medical Marijuana Commission has yet to complete its work creating rules and much could change. Ultimately, the Commission’s final rules will not be finalized for a few months and all manner of restrictive local land use codes, ordinances, and other laws could result. Nonetheless, the potential for a vibrant medical marijuana industry in Arkansas is undeniable and investors and entrepreneurs should pay close attention. After all, Arkansas is famous for its diamonds in the rough.

Cannabis estate planningLike many business owners, those who find success in the cannabis industry often want to leave their assets to friends and family at death. Unlike many other business owners, however, successful cannabis business owners’ largest assets are likely to be tied to what the federal government considers an illegal criminal enterprise. Whether you wish to bequeath a large grow operation, an ownership interest in a dispensary, or even a small personal stash, transfers of cannabis-related assets at death present unique challenges for individuals and estate planning professionals. No matter the situation, the basic question remains the same: What happens to my weed when I die?

Law professor Gerry W. Beyer of Texas Tech and Brooke Dacus published a law review article last year that sought to answer this question. It is an essential read for anyone in the cannabis industry considering how to arrange their affairs and the distribution of cannabis-linked assets at death. As is the case with many issues surrounding state-legal cannabis, a critical issue is the differential treatment of marijuana under state and federal law. Even in the realm of state law, however, the use of cannabis – even as part of a state-legal medical marijuana program – can raise issues related to one’s capacity to execute a will or even receive distributions from certain trusts. Beyer and Dacus do an excellent job awill actually be seized, it is impossible to know if that will be the case when it is time for a will to be administered.

What is more, a beneficiary may be criminally liable for possessing illegal materials like cannabis by function of the administration of the will itself. Beyer and Dacus draw a poignant analogy to a case where a beneficiary was found guilty of illegally possessing a firearm by a felon after having been given his father’s antique war-era gun at his father’s death and then keeping that gun unloaded in a closet. The court held that the heir’s possession of the firearm in a space the heir controlled was enough to violate the law. Beyer and Dacus also ask whether and to what extent an executor can administer an estate without exposing themselves to criminal liability. At least one federal court case cited by Beyer and Dacus suggests courts will not permit an executor to administer a will that includes cannabis, leaving the door open to penalties or perhaps even prison for someone who does so. It is important to note that cannabis and cannabis-related assets are subject to estate tax regardless of their legality.

Still other issues cloud the presumptive validity of a will executed by a testator who frequently uses cannabis or is under the influence of cannabis at the time of will execution. Though past habitual “drug use” has been found to interfere with testamentary capacity in some instances, Beyer and Dacus suggest most wills will be valid when an individual who uses cannabis is in fact in a state of mind to make estate planning decisions. Nonetheless, cannabis users and business owners should at least consider taking extra steps to demonstrate their testamentary capacity, such as by using a video explaining their intent, for example.

The wave of cannabis reform in the United States has been a game changer in many arenas, including the seemingly mundane like estate planning. Yet law can often be slow to catch up. Cannabis is a multibillion dollar industry on the cusp of even greater expansion, and those who reap the spoils should consider how to best protect and share their success with future generations.

Who knows, maybe someday cannabis estate planning will be a legal speciality.

home grown cannabisAs cannabis reform continues to spread across the United States, we are seeing a marketplace increasingly driven by business interests. This is the eighth 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 cannabis. Go here for the home grown laws in Washington and Oregon, here for the laws in California and Alaska, here for the home grown laws in Michigan and Illinois, and here for the laws in New York, Rhode Island, and Vermont, here for the laws in Hawaii, New Mexico and Nevada, here for Colorado and Montana, and here for the laws in Arizona, DC, and Massachusetts. 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.

2016 saw many states approve recreational or medical cannabis reforms. Though progress has been limited at the federal level, the tide of public opinion and state policy is increasingly clear. As part of our series on home cultivation of marijuana, what follows is a round-up of November changes to home cannabis cultivation in multiple states.

The new recreational marijuana states:

California. The first state to legalize medical marijuana has now embraced recreational cannabis with the passage of Proposition 64 in November 2016. The old law exempted qualified patients from prosecution if they cultivated no more than 100 square feet of marijuana for their own personal, medical use. Primary caregivers were permitted to grow up to 500 square feet.

The new law requires that amounts of marijuana possessed by people 21 years or older in excess of 28.5 grams be kept within or on the grounds of a private residence. The law allows no more than six living marijuana plants to be “planted, cultivated, harvested, dried or processed” within a single residence at one time. The state law also protects localities’ ability to pass laws regulating home cultivation within their jurisdictions.

Nevada. Nevada also voted to legalize recreational cannabis this November by passing its Question 2, though it had previously permitted medical marijuana. Nevada’s new law permits possession of up to one ounce of marijuana. It also allows home cultivation for individuals who live more than 25 miles from a registered marijuana dispensary. These individuals may grow up to six mature cannabis plants at a time.

Massachusetts. Massachusetts voted to approve legal recreational marijuana by passing Question 4 this year. The state allows persons 21 years of age and older to possess up to 10 ounces of marijuana at their home and grow up to 6 marijuana plants, up to 12 per household.

Maine. Like most of the other states to legalize recreational marijuana in 2016, Maine’s new law, Question 1, allows adults over 21 to cultivate up to 6 mature cannabis plants and possess as many as 12 immature plants. Outdoor grows are more heavily regulated.

 

The new medical marijuana states:

Florida. Unfortunately for green thumb patients and master growers alike, Florida’s Amendment 2 does not currently permit home cultivation of marijuana as part of its new medical marijuana program.

Arkansas. Arkansas’ Issue 6 also does not permit home cultivation of medical marijuana. Look here for more of our thoughts on Arkansas medical marijuana.

North Dakota. North Dakota’s Measure 5 allows qualified patients who live at least 40 miles from the nearest registered dispensary to grow their own.

Montana. Voters in Montana approved I-182 in November to permit medical marijuana in the state. Qualified patient home growers are allowed a total of 4 mature plants and as many as 12 seedlings. Patients are allowed to possess one ounce of usable marijuana.

Even as the tides of federal cannabis policy become increasingly uncertain, these states evidence that the times are indeed changing, and this holds true for growing your own as well.

 

Cannabis lawyersWalking home one freezing night in December 2014, I was taken aback to look up and see a storefront with a bright neon sign that read “CBD OIL SOLD HERE” in the window. It was not the “what” of the sign that startled me – CBD oil is, of course, a product with many therapeutic qualities and a wide range of uses – but the “where.” Far from cannabis-friendly Seattle, I was home for the holidays in southwest Missouri, a socially conservative state where attempts to even put medical marijuana on the ballot face fierce opposition. Though only a first-year law student at the time, I knew enough to know something did not add up: CBD is derived from the cannabis plant, and marijuana is illegal under federal — and, in Missouri, state law. Therefore, I thought, CBD is illegal. How were they getting away with this?

As I now know – and as we have explained before – the business in question was relying on an ambiguity in the Federal Controlled Substances Act’s definition of “marijuana.” The Controlled Substances Act does not include in its definition of “marijuana” the plant’s “mature stalks.” Mature stalks are the part of the cannabis plant used to make hemp, which is not prohibited by the Controlled Substances Act either. The stalks also contain CBD oil that can be extracted and used just the same as CBD derived from other parts of the plant. The ambiguity was enlarged with the passage of the 2014 farm bill, which allowed some cultivation of hemp with THC levels below 0.3%. Ergo, CBD oil is not technically illegal – right?

Wrong.

Two days ago, the Drug Enforcement Administration issued regulations that effectively put the kibosh on attempts to dance around the Controlled Substances Act’s definition of “marijuana” when it comes to CBD oil. The new rule creates a new “Controlled Substances Code Number” for “Marihuana Extract” and extends that classification to extracts “containing one or more cannabinoids from any plant of the genus Cannabis.” Because CBD is a cannabinoid and hemp is a plant of the genus Cannabis, the rule explicitly applies to the many CBD products currently being widely sold online and in shops like the one I encountered in Missouri. DEA confirmed as much in response to public comment on its initially proposed rule, stating that “[f]or practical purposes, all extracts that contain CBD will also contain at least small amounts of other cannabinoids. However, if it were possible to produce from the cannabis plant an extract that contained only CBD … such an abstract would fall within the new drug code 7350.” DEA justifies its new rule as necessary to fully comply with the UN Convention on Narcotic Drugs and finds its statutory authority to promulgate the rule in the Controlled Substances Act.

What does this mean for sellers of CBD extracts online or in states with unfriendly cannabis laws? It means the DEA is explicitly saying that it considers your product to be illegal under the Controlled Substances Act along with other illicit cannabis products. It also means that they are enhancing their ability to track CBD and enforce its interpretation of the law.

In truth, CBD merchants were probably always on the wrong side of the gray area in DEA’s eyes because CBD extracts almost necessarily contain other cannabinoids. As DEA stated in its justification: “Although it might be theoretically possible to produce a CBD extract that contains absolutely no amounts of other cannabinoids, the DEA is not aware of any industrially-utilized methods that have achieved this result.” The difference now is that the DEA is officially putting CBD sellers on notice that their businesses are subject to enforcement action.

Though our cannabis lawyers are unhappy with the DEA’s statement, we would be remiss if we did not tell you that you would be wise to heed this warning: selling CBD is illegal.

Cannabis attorneysCannabis businesses must navigate many hurdles to survive and thrive in today’s evolving marijuana legal landscape, but not all challenges unique to this industry are caused by its precarious status under the law per se. Odor generated by marijuana cultivation is a prime example. As we have written previously, noticeable cannabis odor does not always make for a successful nuisance claim. But because not everyone wants to live next door to a pungent grow house, many localities have instituted specific rules to keep marijuana smell contained. This Cannabis Case Summary looks at the serious cost to cannabis businesses of disregarding cannabis smell rules, the potential difficulty of proving legal causation of marijuana odor, and the value of being a good neighbor.

According to the Boulder Daily Camera, Colorado cannabis producer Dandelion Grow was hit with a $14,000 fine in November for failing to comply with local cannabis odor rules. The citation came after a series of complaints that the grow’s smell could be detected from more than a block away. The city of Boulder requires cannabis businesses to limit odor to their own premises; Boulder County more permissively draws the line at licensees’ property boundaries. In response to the cannabis odor complaints, City of Boulder officials ordered Dandelion Grow eliminate the offensive odor and pay a $4,000 fine.

Just a weeks later, Dandelion Grow incurred a second fine for an identical cannabis odor violation – this time for $10,000. According to a Boulder city spokeswoman, Dandelion Grow had “elected not to make the necessary changes to come into compliance” with Boulder’s marijuana odor regulations. Dandelion Grow disputes this characterization and is moving to appeal the citation.

According to reports, Dandelion Grow is resting on two main theories to support its appeal. First, that such large fines – the largest in the history of Boulder’s legal cannabis industry – are unduly punitive because the company is working in good faith with the city to remedy the smell issue. Second, Dandelion Grow argues that it is only one of several cannabis-related facilities in the immediate area and the City of Boulder is arbitrarily pinning the odor on Dandelion Grow without adequately proving it is the only – or even the major – contributor to the cannabis odor.

This argument raises interesting questions concerning tort liability for a conventional nuisance claim with the same facts where a defendant presses on the element of causality. Unless and until the fabled marijuana breathalyzer begets court-admissible marijuana smell-o-vision, isolating a smell in a cluster of marijuana grow sites in close proximity will probably remain an inexact science.

However the Dandelion Grow case plays out, it should serve as a cautionary tale to cannabis businesses that local cannabis smell ordinances can carry real costs and consequences. Beyond the fines and the publicity, Dandelion Grow has also incurred and will likely continue to incur attorneys fees in fighting against the fines. We do not have enough facts to know what Dandelion Grow might have done differently, if anything at all, but this case should serve as a warning to cannabis growers to be wary of local laws, including cannabis smell laws.

NOTE: The above is part of our plan to summarize all cannabis civil cases with a published court decision. By civil case, we mean any case that involves cannabis or the cannabis industry that is not a strictly criminal law matter. These cannabis case summaries are intended both to keep you up to date on cannabis laws as interpreted by the courts and also to serve as a resource for anyone conducting cannabis law research. We also will seek to provide key unpublished cannabis law decisions as well, when available.

Cannabis lawyersOf the many states that voted on marijuana reforms in 2016, Arkansas – #40 in our State of Cannabis series – is for me the most intriguing. This November Arkansas voters approved an amendment to the state’s constitution to allow medical marijuana use by qualified patients and to authorize medical marijuana dispensaries and cannabis cultivation facilities for that purpose. The ballot measure, known alternatively as Issue 6 and as the Arkansas Medical Marijuana Amendment, passed by a 53% to 47% vote. This is an almost exact reversal of the vote that rejected a different medical marijuana initiative in 2012.

Issue 6 is fairly progressive, at least by the standards of some states’ very restrictive medical marijuana laws. Qualifying conditions for cannabis in Arkansas include a long list of afflictions, including catch-all categories for ailments that cause chronic pain, nausea, seizures, or muscle spasms. The amendment authorizes use of cannabis flower, vapor, wax, and oil by qualified patients. The amendment officially takes effect in 120 days, during which time state authorities are to develop necessary rules and regulations. Once implemented, patients will be able to obtain registrant cards from their physician.

Interestingly, Issue 6 was originally not the only medical marijuana proposal on the ballot in Arkansas this year. Issue 7, which would have created a similar but distinct program, was slated to go before voters until the Arkansas Supreme Court struck it from the ballot in October after invalidating thousands of signatures, bringing the amendment below the ballot access threshold. Issue 7 would have added several more ailments to the list of cannabis qualifying conditions, including anorexia, asthma, and autism. It also would have authorized home cultivation of medical marijuana, which is not permitted by Issue 6.

Ironically, the signature challenge was brought by a pair of attorneys who advocate complete cannabis legalization. Despite their support for cannabis reform, they worried inclusion of Issue 7 on the same ballot as Issue 6 would risk failure of both initiatives by causing voter confusion. Though advocates of Issue 6 described the Arkansas Supreme Court’s decision to strike Issue 7 from the ballot as “bittersweet” at the time, the success of Issue 6 should please both parties, especially since several conditions not specifically listed as cannabis eligible under Issue 6 may nonetheless fall into one of its broad symptom-based categories.

Issue 6’s convincing victory at the ballot box should be heartening to advocates of marijuana reform. Arkansas’ embrace of medical marijuana may serve as a model for other conservative states and may help anchor what middle-of-the-road solutions for those states going forward. Issue 6’s success reflects the broad, bipartisan nature of the trend towards cannabis reform. To illustrate, both solid red Arkansas and true blue California approved liberal cannabis laws in 2016 by similar margins. Issue 6 passed with about 53% of the vote and California’s Proposition 64 passed with about 57%. In the same election, however, these two states had near opposite outcomes in the presidential race: Arkansas went to Trump with 60% of the vote and Clinton won California with a 61% majority, highlighting that cannabis reform is oftentimes not a Democrat-Republican issue. Arkansas is yet one more sign that we as a country are on the precipice of a tipping point towards general acceptance of cannabis.

Marijuana TrademarksSecuring federal cannabis trademarks is a unique challenge. In a world of federal marijuana prohibition, federal registration of trademarks remains, in nearly all respects, a non-starter. Today’s Cannabis Case Summary illustrates how such a case plays out when owners of intellectual property go forward and attempt to obtain federal intellectual property protections. Spoiler alert: it did not go well for the applicant.

Last month the Trademark Trial and Appeal Board (TTAB) affirmed denial of a would-be registrant’s marks used in connection with the sale of pre-loaded disposable cannabis oil vaporizers marketed as “JuJu Joints.” While some sly cannabis business applicants attempt to pass their registrations off using vague terms like “herbs” or “aroma therapy,” that was not the case here. The applicant, JJ206 LLC, filed to register the marks “Powered by JuJu” and “JuJu Joints” with the intent to use the marks in connection with a “smokeless cannabis vaporizing apparatus, namely, oral vaporizers for smoking purposes.” These marks were rejected by the Examining Attorney both initially and on appeal before the matter reached the TTAB, which affirmed the prior denials.

JJ206 made a number of arguments in support of its application, none of which were persuasive to the Board.

JJ206 first argued that JuJu Joints are in the same “league” as e-cigarettes and therefore should be afforded similar protections. The TTAB quickly dispensed with this argument by citing the Trademark Act’s clear language requiring that an applicant have a “bona fide intent to use the mark in lawful commerce,” and the Controlled Substances Act’s (CSA) prohibition of marijuana as a Schedule I drug with no lawful use.

Next, JJ206 made a type of common law trademark argument, claiming that denial of registration would cause confusion for consumers as to the origin and consistency of potentially competing products. The TTAB did not reach the factual merits of JJ206’s confusion argument, instead hanging its hat on the necessity of lawful use in commerce.

Additionally, JJ206 pointed to other marks that have been granted registration despite their relationship to cannabis. The TTAB distinguished these prior registrations, however, on the basis that they were not used in connection with federally illegal commerce involving the cannabis plant. In fact, these registrations were granted to companies that sell products like hemp lotion and certain seed and stalk extracts permitted by federal laws. Because JJ206 sought to register a mark attached to a product explicitly intended to be used for consumption of cannabis vapor, the TTAB rejected their argument. Similarly, JJ206 pointed to pending trademark registrations “in support of the marijuana industry.” The TTAB dismissed this argument as well because registrations are, by law, considered independent of other applications and the pendency of an application does not speak to its lawfulness or likelihood of approval.

Finally, the TTAB addressed a trio of theories familiar to proponents of recent cannabis reforms. First, that JJ206’s products distributes its products only within states where cannabis is legal on the state level. Second, that there is a legitimate medical use of cannabis. And third, that JJ206 operates in accordance with the Cole Memo’s directives by working only in compliance with state cannabis laws. In response to each, the TTAB noted the continued illegality of cannabis under the CSA, and emphasized that lawful use in commerce under federal law is a fundamental and inescapable prerequisite to federal trademark protection.

As this case illustrates, federal trademark registration remains all but impossible under federal law for cannabis products and it likely will until there is reform at the federal level. Until then, cannabis businesses are best advised to seek state-level trademark protection – if they can, and to speak with their trademark attorney about the possibility of registering their marks for ancillary goods and services at the federal level.

In re JJ206, LLC, dba JuJu Joints. [Link]

NOTE: The above is part of our plan to summarize all cannabis civil cases with a published court decision. By civil case, we mean any case that involves cannabis or the cannabis industry that is not a strictly criminal law matter. These cannabis case summaries are intended both to keep you up to date on cannabis laws as interpreted by the courts and also to serve as a resource for anyone conducting cannabis law research. We also will seek to provide key unpublished cannabis law decisions as well, when available.

Oregon cannabis lawDespite all that has been going on with the Clinton-Trump-Johnson-Stein race, voters interested in how cannabis will be treated in their states need to look at down ballot races as well. November’s state-level elections carry particular importance to the medical and recreational cannabis communities, who rely on friendly state law in the face of federal prohibition. Even in a state like Colorado, where cannabis is enshrined in Amendment 64 of its state constitution, state governments can act to substantially facilitate or frustrate reforms. To help voters assess the candidates and elected officials in their states, the National Organization for Reform of Marijuana Laws (NORML) released its 2016 Governor’s Scorecard grading all 50 governors from A to F based on their stance towards marijuana. Today we will assess how NORML graded the governors in major cannabis states and take a look at what earned one state’s governor the scorecard’s sole A+.

Washington. Democratic Governor Jay Inslee, who is up for re-election this November, received a B- grade from NORML. According to its scorecard, NORML docked points for Governor Inslee’s veto of a bill that would have allowed limited licensed hemp production (the veto was eventually overridden). Governor Inslee gets credit for allowing adults to purchase high-THC concentrates and extracts. There is surprisingly no mention of Governor Inslee’s testimony to Congress in favor of relaxed access to banking for cannabis businesses, worth at least half a letter grade boost given the huge challenge banking presents to the industry. NORML notes that Governor Inslee strongly advocates a comprehensive federal solution for cannabis reform. For more on Washington’s cannabis laws overall, check out our Washington cannabis blog posts here.

Oregon. Democratic Governor Kate Brown, also up for re-election this year, received an A from NORML. Here, NORML’s reasoning is fairly straightforward. Governor Brown adopted progressive cannabis policies in the early days following passage of Measure 91. Governor Brown signed legislation allowing medical dispensaries to sell edibles, extracts, and concentrates to adults in the lead up to recreational licensing. She also signed the bill to remove the 2 year residency requirement to acquire a cannabis license, which has proven to be a boon to cannabis investment in the state. For more on Oregon’s lack of a residency requirement, check out Oregon Opens Its Cannabis Industry to Non-Residents and for more on Oregon’s cannabis laws overall, check out our Oregon cannabis blog posts here

California. Democratic Governor Jerry Brown received a C grade from NORML. Governor Brown was criticized for his hesitance towards recreational cannabis. Governor Brown said he supports states like Washington and Colorado experimenting with recreational cannabis, but mused “how many people can get stoned and we still have a great state…?” Governor Brown is likely to become a part of that cannabis experiment soon whether he likes it or not, as California looks poised to approve recreational cannabis this November. Governor Brown was also knocked for having opposed recreational marijuana as Attorney General. NORML did give Governor Brown credit for signing a bill to reform California’s often disorganized medical marijuana program and for supporting the ability of medical cannabis patients to obtain organ transplants. For more on California’s cannabis laws overall, check out our California cannabis blog posts here.

Colorado. Democratic Governor John Hickenlooper received a B from NORML. Most notably, Governor Hickenlooper was quoted shortly after the passage of recreational cannabis that if he had a “magic wand” he would use it to undo legalization. When asked the same question after having had more time to experience the many benefits legal cannabis has brought to Colorado, he backtracked and said he may not wave his magic wand after all. For more on Colorado’s cannabis laws overall, check out our Colorado blog posts here.

The Best of the Best: Vermont. Democratic Governor Peter Shumlin of Vermont received NORML’s only A+. Governor Shumlin approved an expansion of Vermont’s medical marijuana program to make access easier and increase the number of qualifying conditions. But what sets Governor Shumlin apart is his approach to recreational cannabis reform. Governor Shumlin supports legislative legalization of cannabis. He argues this is crucial to fix the implementation issues of voter-driven initiatives and to create a sophisticated, well-regulated market. To this end he (sadly unsuccessfully) pushed legislation to legalize recreational cannabis in 2016.

Home grown marijuanaAs cannabis reform has spread across the United States, it has given birth to a marketplace increasingly driven by business interests. This is the fourth 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 cannabis. Go here for the home grown laws in Washington and Oregon, here for the laws in California and Alaska, here for the home grown laws in Michigan and Illinois, and here for the laws in New York, Rhode Island, and Vermont, here for the laws in Hawaii, New Mexico and Nevada, and here for Colorado and Montana. 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.

Arizona. Arizona approved medical marijuana in 2010 with Proposition 203, which allows qualified patients access to cannabis. Qualifying cannabis patients under the age of 18 must designate their parent or guardian as a designated caregiver to obtain cannabis on their behalf. Qualified cannabis patients or their designated caregiver can cultivate marijuana at their residence only after being licensed by the state. Cannabis patients and caregivers will only be licensed to cultivate their own marijuana if the patient lives more than 25 miles from the nearest state-licensed dispensary. Once approved, a qualified patient or caregiver is permitted to possess up to 12 plants. The plants must be kept in a locked and enclosed space. From these plants, a patient may possess up to 2.5 ounces of usable marijuana in a 14-day period.

District of Columbia.  The District of Columbia also approved medical marijuana in 2010 by city council vote approving Amendment Act B18-622. DC moved to legalize recreational cannabis in 2015 despite some meaningful pushback from Congress. DC law currently permits adults 21 years of age and over to possess up to 6 marijuana plants, only three of which may be mature. Up to 12 plants can be grown in a house with more than one adult over 21 years of age, with up to six mature plants. Personal marijuana cultivation must be done within one’s own residence and is not allowed in public housing.

Massachusetts. Massachusetts first approved medical marijuana in 2012 by ballot measure. The state is home to some of the most distinctive and interesting home cultivation laws in the country. Patients may only cultivate their own marijuana with a hardship cultivation registration, which requires the cannabis patient prove their access to a registered dispensary is limited by at least one of three factors. First, a patient can provide verification that obtaining cannabis from a registered dispensary presents a financial hardship. Alternatively, a patient can establish a lack of transportation to a registered dispensary and the lack of a caregiver that will deliver to their home. Finally, patients can submit that there is no registered dispensary within a reasonable distance from their home. To actually obtain a hardship cultivation registration, patients must submit paperwork describing their situation with proof establishing their need to cultivate at home and their inability to get cannabis from a registered marijuana dispensary. Once granted registration, cannabis patients may cultivate no more than the required number of cannabis plants sufficient for a two-month supply and they must keep their plants in an enclosed and locked facility.

Home grown cannabis
Colorado and Montana both have beautiful scenery and mediocre home grown cannabis laws

As cannabis reform has spread across the United States, it has given birth to a marketplace increasingly driven by business interests. This is the fourth 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, here for the home grown laws in California and Alaska, here for the home grown laws in Michigan and Illinois, and here for the laws in New York, Rhode Island, and Vermont, and here for the laws in Hawaii, Nevada, and New Mexico. 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 at the laws governing home cultivation of cannabis in Colorado and Montana. These states’ laws largely track the home grown rules of other states and underscore how home-grown laws can lag behind general cannabis reform.

Colorado. In 2000, Colorado voters approved Amendment 20, which established a medical marijuana program in the state for qualified patients. In 2012, Colorado then became the first state to legalize recreational possession and consumption of cannabis. Colorado’s medical marijuana program permits home cultivation in a way similar to many states that have not authorized recreational legalization, however. Under current state law, a medical marijuana patient or primary caregiver who possesses a Medical Marijuana Registry identification card can possess two ounces of usable marijuana and six cannabis plants (three of which may be flowering at the time). Patients who possess more than the allotted amount available to them have an affirmative defense of medical necessity if arrested for possessing a larger amount prescribed by their physician. Cannabis plants must be enclosed within locked premises that are not visible to the public. The rules vary somewhat for households that do and do not have minor residents, the underlying policy being to protecting minor residents from exposure to outdoor or otherwise accessible cannabis grow operations. Home cultivated marijuana cannot be sold to any other person, patient or not – only licensed producers are permitted to sell cannabis into the recreational market.

Montana. Montana initially approved of medical marijuana by ballot initiative in 2004 and the program survived a 2011 attempt at repeal. Montana currently permits home cultivation of cannabis by patients. In its fairly standard medical marijuana legislation, Montana permits registered cardholders to possess up to four mature, flowering cannabis plants and as many as twelve seedlings. From this, a patient may possess up to one ounce of usable marijuana. In addition, a registered cardholder who assigns a primary caregiver to provide them with their medicine is not allowed to grow their own cannabis as well. Since Montana does not have state-licensed dispensaries the importance of home cultivation is elevated. A Montana cannabis caregiver can provide for only two patients at one time.