This past Friday I chaired a “Medical and Recreational Marijuana in Southern California” seminar in Santa Monica. During the seminar, Governor Brown signed into law the three bills that comprise the California Medical Marijuana Regulation and Safety Act (MMRSA). Needless to say, this was big news for all of us at the seminar. This is also, of course, big news for California and especially for its medical marijuana operators. These bills mean California will soon be moving away from an unregulated gray marijuana marketplace to a state law regulated medical marijuana regime. These bills mean that California will be getting the “robust regulations” the federal government requires from states for the Department of Justice to be even minimally disengaged from what goes on with cannabis within the state. These bills also mean that California will be entering a new era where the Department of Justice will (hopefully) finally cool its heels in the Golden State.

This post explains what you need to know now about California’s new medical marijuana rules. 

California's new medical marijuana regime means California is now open for legal cannabis businesses.
California’s new medical marijuana regime means California is now open for legal cannabis businesses.

Throughout the seminar on Friday, attendees wanted to know how the MMRSA would operate, what local power would look like now, how licensing and any “priority” would work, and how some of the ambiguities in the bills would be sorted out moving forward. I was lucky enough as chair to have California Assembly Member Reginald Jones-Sawyer as a speaker, especially since he played a large part in crafting the language that now makes up a solid majority of the MMRSA. Assembly Member Jones-Sawyer gave attendees valuable insight into how this legislation came to be and what most concerned state lawmakers. It should be no surprise that the legislature’s biggest concerns were edibles, youth access to cannabis, and the impact marijuana businesses would have on their communities.

It’s important to recognize that the MMRSA is made up of three bills–Assembly Bill 266, Assembly Bill 243, and Senate Bill 643, with each bill having a different function, while at the same time containing overlapping, identical language regarding certain aspects of medical marijuana control. I examine each of these three bills below:

AB 266:

AB 266 focuses on MMRSA’s overall regulatory and licensing set up by specifically doing the following:

  • Legalizing all “commercial cannabis activity” undertaken pursuant to a state medical marijuana operational license (and pursuant to a local license or permit, if required by your city or county).
  • Where California’s medical marijuana economy is currently made up of non-profit mutual benefit corporations or non-profit cooperatives, AB 266 allows for-profit businesses to obtain operational medical marijuana licenses from the state.
  • Establishing the Bureau of Medical Marijuana Regulation (BMMR), which will be part of the Department of Consumer Affairs, under the supervision and control of the Director of Consumer Affairs. The BMMR is vested with the power and authority to develop and implement any and all rules necessary to enforce the MMRSA.
  • Giving The Department of Consumer Affairs, the Department of Food and Agriculture, and the State Department of Public Health the power to promulgate and pass any rules necessary to implement the MMRSA.
  • Setting up 17 different kinds of medical marijuana operational license types and prohibits vertical integration (barring one exception below). A licensee may only hold a state license in up to two separate license categories out of the 17 and the state only permits certain combinations of licenses.
  • Providing for one difficult to attain carve-out for vertical integration. If your city or county has an ordinance that requires or permits vertical integration and your business was vertically integrated before July 1, 2015, and you’ve been continuously operating and registered with the Board of Equalization, you get to stay vertically integrated in the new licensing system until January 1, 2026 when that privilege will be repealed.
  • Permitting cities and counties to regulate medical marijuana businesses beyond the requirements set forth under the MMRSA and the BMMR’s rules, and the bill also allows them to ban medical marijuana businesses within their borders.
  • Mandating local approval of your marijuana business by providing that “[a] licensee shall not commence activity under the authority of a state license until the applicant has obtained, in addition to the state license, a license or permit from the local jurisdiction in which he or she proposes to operate, following the requirements of the applicable local ordinance.” Note that the revocation of your local permit or license means you cannot operate in that city or county even if you still have your state license.
  • Giving local jurisdictions the power to tax and assess fees against medical marijuana businesses.
  • Setting forth the requirements for marijuana deliveries in California. Delivery of marijuana by a dispensary to qualifying patients or designated primary care givers will be licensed by the state only if it is also allowed in the local jurisdiction in which the dispensary licensee operates.
  • Prioritizing licensing for certain medical marijuana businesses. In issuing licenses, the state must prioritize any facility or entity that can demonstrate to the state’s “satisfaction” that it was “in operation and in good standing with [its] local jurisdiction by January 1, 2016.” In addition, an MMJ business that is operating in compliance with local zoning ordinances and other state and local requirements on or before January 1, 2018, may continue its operations until its application for licensure is approved or denied. So in other words, if you can get your cannabis business up and running by the end of this year with local approval where required, you will likely have priority when it comes to licensing under the MMRSA. I and my firm’s other California-licensed cannabis lawyers are already getting calls and emails from existing  and new clients seeking help on this.

Issuance of a state license or a determination of compliance with local law by the [state] shall in no way limit the ability of the City of Los Angeles to prosecute any person or entity for a violation of, or otherwise enforce, Proposition D, approved by the voters of the City of Los Angeles on the May 21, 2013, ballot for the city, or the city’s zoning laws. Nor may issuance of a license or determination of compliance with local law by the [state] be deemed to establish, or be relied upon, in determining satisfaction with the immunity requirements of Proposition D or local zoning law, in court or in any other context or forum.

AB 243:

AB 243 focuses on regulating marijuana cultivation for medical use and on California’s environmental concerns regarding marijuana cultivation. This bill:

  • Gives the California Department of Food and Agriculture the power to promulgate any and all rules necessary to accomplish the regulation of medical marijuana cultivators. The Department of Food and Agriculture will also be the one issuing and overseeing all cultivators licenses.
  • Tasks the California Department of Pesticide Regulation, in consultation with the California Department of Food and Agriculture, with dealing with pesticide usage and safety as those relate to marijuana cultivation.
  • Calls for the California Department of Food and Agriculture to work with the Department of Fish and Wildlife and the State Water Resources Control Board to ensure that “individual and cumulative effects of water diversion and discharge associated with cultivation do not affect the instream flows needed for fish spawning, migration, and rearing, and the flows needed to maintain natural flow variability.”
  • Provides for the same standards set forth in AB 266 regarding local control and licensing and permitting to apply in AB 243. Nonetheless, “[i]f a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016, the [state] shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county.”
  • Does not apply to qualifying patients engaged in personal cultivation if the cultivation area does not exceed 100 square feet and if the qualifying patient does not sell, distribute, donate, or provide marijuana to any other person or entity. It also does not apply to designated primary care givers growing for qualifying patients if the cultivation area does not exceed 500 square feet, he or she cultivates marijuana exclusively for the personal medical use of no more than five specified qualified patients for whom he or she is the primary caregiver, and he or she does not receive remuneration for these activities, except for compensation provided in full compliance with Section 11362.765(c) of the California Health and Safety Code.
  • Calls for the California State Department of Public Health to develop standards for producing and labeling all edible medical cannabis products. The Department of Public Health will also almost certainly be in charge of regulating the edible potencies as well.

SB 643:

Just like its companion bills, SB 643 contributes to the regulatory and oversight structure of the MMRSA. It also specifically sets forth standards for licensed medical physicians and doctors of osteopathy (“physicians”) who recommend marijuana for medical use and it delves into the criminal background standards for applicants. The main points of this bill are the following, it:

  • Tasks the California Medical Board with prioritizing investigations of physicians who excessively recommend cannabis for medical use, fail to have a bona-fide patient relationship with those persons for whom they recommend cannabis, or who fail to adhere to sufficient record keeping regarding their cannabis recommendations.
  • Makes it a misdemeanor for a physician to recommend medical cannabis to a patient and then to accept, solicit, or offer any form of remuneration from or to a state-licensed medical marijuana business if the physician or his or her immediate family have a “financial interest” in that business.
  • Mandates that applicants for any medical marijuana license must submit fingerprints to the Department of Justice for a criminal background check.
  • The state can deny a license application if “[t]he applicant or licensee has been convicted of an offense that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made. . .” In determining which offenses are “substantially related to the qualifications, functions, or duties of the business or profession for which the application is made,” the state will take into account the following:
    • felony convictions for the illegal possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance
    • violent felony convictions
    • serious felony convictions
    • felony convictions involving fraud, deceit, or embezzlement
  • Allows for the denial of a license application if the applicant has any history of local sanctions, fines, or penalties for violations of local ordinances, including those related to medical marijuana commercial activity, and for any revocation of a local license within the three years prior to the application for a state license.
  • Requires applicants to “[p]rovide evidence of the legal right to occupy and use the proposed location.” Applicants for a cultivator, distributor, manufacturing, or dispensary license, must also provide the state with “a statement from the owner of real property or their agent where the cultivation, distribution, manufacturing, or dispensing commercial medical cannabis activities will occur, as proof to demonstrate the landowner has acknowledged and consented to permit cultivation, distribution, manufacturing, or dispensary activities to be conducted on the property by the tenant applicant.”
  • Compels applicants for a cultivator or a dispensary license to provide the state with “evidence” that their proposed location is at least 600 feet from a school. School has not yet been defined.
  • Mandates that applicants with twenty or more employees provide the state with a “statement” that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement.
  • Requires that those seeking to cultivate, distribute, or manufacture medical cannabis must submit a detailed operational plan disclosing to the state their plans for cultivation, their extraction and infusion methods, their transportation processes, and their inventory and quality control procedures.
  • Tasks the state with developing an “organic certified” standard for medical marijuana in California by January 1, 2020, “if permitted [to do so] under federal law and the National Organic Program.”

All of the bills also mandate that various state agencies set up rules and systems for the following:

  • Tracing cannabis product
  • Record keeping
  • Anti-diversion systems for transporting cannabis product
  • Quality assurance testing standards
  • Robust labeling and packaging
  • Safe product handling
  • Security requirements

We will need to see how the various California state agencies use their rule making authority to fill in the blanks left by the three bills. For example, licensing and renewal fees have yet to be set, we don’t yet know exactly how edibles and infused products will be regulated under the bills, residency requirements (if any) and investment regulations need to be set, and none of the bills directly discuss how medical marijuana businesses will (or will not) be able to advertise their products and services. These issues, and more, will be addressed through state agency rule making that will take place until at least January 2018.

In our practice at Canna Law, we’ve handled licensing applications for all kinds of complicated and heavily regulated state licensing regimes with comprehensive and complicated barriers to entry, including in New York, Washington, Oregon, Alaska, Florida, Nevada, Minnesota, Maryland, and Illinois. It is obvious to us that in crafting its own three medical cannabis bills, California borrowed language from already existing laws and regulations in many of these states. It is also clear to us that California is going to have one of the most comprehensive and complicated medical marijuana licensing regimes in the country. Consequently, California medical marijuana businesses should start preparing now for this future of extremely robust regulation. Though California probably will not issue licenses until well after January 1, 2018, it is never too early to prepare your business for the radical changes this new and massive regulatory system will bring.

  • Axas

    There seems to be some question about when businesses can operate on a for profit basis in CA under the new law. Does it start on January 1, 2016 when the law goes into effect or in 2018 once the business receives licensure?

    • Mike Donaldson Law

      MMRSA went into effect on 1/1/16. It explicitly allows for profit businesses. However, you cannot comply with MMRSA until both a local and state permit are obtained. State permits won’t be issued until 2018. Until then, we’re all operating under the CUA and MMP.

      • Laura L. Hall

        Just a side note, that although the state licenses will not be available until 2018, a cannabis farmer ‘should and can’ start complying with MMRSA today. All users of surface water (cannabis farmers or not) are required by law to register their water use by filing an Initial Statement with the California Department of Water Rights Board. Pursuant to MMRSA as part of AB 243 (see third bullet under AB 243 above), the California Regional Water Quality Control Board’s are requiring cannabis farmers to enroll in Orders.

        In northern California, under the North Coast Regional Water Quality Control Board’s Order R1-2015-0023, cannabis farmers are now enrolling in Humboldt, Mendocino, and Trinity Counties. Humboldt County is the first to have regulations in place at the county level.

        The Central Valley’s Order R5-2015-0113 was adopted on October 2, 2015, and things are happening, but at a slower pace than the North Coast.

        For the North Coast Order you can go to: http://www.waterboards.ca.gov/northcoast/board_decisions/adopted_orders/pdf/2015/15_0023_Cannabis_Order.pdf

        • Mike Donaldson Law

          Great point, Ms. Hall.

  • TCheck

    Thanks for summarizing the three bills! I would like to know from the growers, dispensaries, and patients’ perspectives, whether these new laws are beneficial.

  • Dan

    Where California’s medical marijuana economy is currently made up of non-profit mutual benefit corporations or non-profit cooperatives, AB 266 allows for-profit businesses to obtain operational medical marijuana licenses from the state.
    The price of weed in Calif. Wiil go back up to $20 a g and eventually $25 a g. Bullshit.

    • President Gas

      From the tone of your comment it seems you are implying that the current “non-profit” status of dispensaries is keeping prices at an acceptable level. I am in the business and I can assure you these non-profits are making a killing profit wise. As an example ………. I wholesale them an item for $10. You know what they mark it up to you for ? $30 … no BS. What’s going to raise prices is the regulation and taxes.

  • Beedogz

    Same question as below. Will CA medical mj companies be allowed “for profit” on 1 Jan 2016, or not until 1 Jan 2018 (for existing medical mj companies)?

    • Mike Donaldson Law

      MMRSA allows for profit businesses. However, you cannot comply with MMRSA until both a local and state permit are obtained. State permits won’t be issued until 2018. Until then, we’re all operating under the CUA and MMP.

  • Skip Jones

    We are only subjected now to more regulations and enforcement by anti marijuana advocates, I don’t care how much rhetorical text they use, its still a way to make things harder for the patients to grow their own medicine…..impeach the politicians that ban the sun.

  • jim

    Again and again,laws are passed threw the assembly and house and yet the cities and counties enact stricter ordinances to make and involvement in medical/recreational production or use illegal within their jurisdictions they oversee.
    The task of law enforcment to restrict may have eased by DEA the local gestapo’s now will get the funding direct and trickle up and down the the in power system.
    The will of the people shown at the polls since the first win for medical usage and access the local governments have restricted that voice and message to say Feds say no, so we say no.
    Well the Feds have backed off? And we now find local government has reared its venomous head.
    This bill smell worse that the odor from a well maintained garden or dispensary….

  • President Gas

    Over 12 differnent State agencies will have some say in this new regulation/licensing…. all expected to work in conjunction with each other. Never gonna happen and by the time ANYTHING comes of this ……. recreational will make it all moot.

  • Amos Germain

    Just awesome topic! This helped me a lot. Thanks.

  • Wes Dee

    I am a grown man almost in tears as i did some unintelligent things a few years ago and got a transporting felony in another state .. safe to say i will not be allowed to purchase a commercial permit? Please help ..would i be able to gain employnent in the industry under someone who has said permit?

  • Ryan Lennon

    My home of calavers county has went full board with the commercial cannabis farms and registration with over 700 reg farms. Except for the issue that they have told personal grows that they have to follow the same guidelines as commercial operations . As AB 243 states for personal and caregivers the county is doing the complete opposite. Is this something that the county has a right to do. Calaveras needs help badly , there has been talks of starting anti Marijuana militias to go after growers and even medical patients who use cannabis. Patients and growers are in fear from our own community.