California Cannabis LawyersYesterday, at the California Cannabis Business Conference in Anaheim (attended by our Southern California cannabis attorneys), the California Bureau of Cannabis Control (the “Bureau”) released information regarding temporary license applications under the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”), which we now know will start to issue on January 1, 2018–see the Bureau’s brochure on temporary licensing details here, and note that the other agencies have not yet released any information on temporary licenses for manufacturers and/or cultivators.

The Bureau will likely begin accepting applications prior to that date, but no temporary license application will be effective before January 1, 2018. Additionally, the Bureau expects that the next round of draft (temporary) rules pursuant to MAUCRSA will issue sometime in mid to late November, coinciding with the release of the temporary license application.

A temporary license is a conditional license that will allow a business to engage in commercial cannabis activity for a period of up to 120 days (i.e., 4 months). Within that 120 day period, the business with a temporary license must apply for their full state license. If the operator is unable to finalize their state license within that period (through no fault of their own), the state will grant extensions to the temporary licensee until the full license is issued.

The requirements for obtaining a temporary license to engage in commercial cannabis activity are as follows:

  1. Local jurisdiction authorization. Applicants must provide a copy of a valid license, permit, or other authorization to operate issued by the applicable local jurisdiction that allows the applicant to conduct commercial cannabis activity at their proposed location.
  2. Name. Applicants must indicate the name of the individual(s) or business entity applying.
  3. License type requested. Applicants must specify which of the license types (Distributor, Retailer, Microbusiness, Etc.) they are applying for.
  4. License designation. Applicants must indicate whether they are applying for an adult use (A-license) or medicinal (M-license) license.
  5. Contact information. Applicants must provide a designated primary contact including first and last name, title, address, phone number(s) and email address(es).
  6. Owners. Applicants must provide the name, mailing address, and email address of each “owner” that meets the criteria of Business and Professions Code Section 26001 (i.e., you own 20% or more of the company, you’re the CEO, you’re a director on the board of a non-profit, or you exercise any direction, control, or management of the company).
  7. Physical address. Applicants must provide the physical address of the location at which they intend to operate.
  8. Authorization to use location. Applicants must provide a copy of the title or deed to the land where the proposed premises is located, or a document from the landowner, such as a lease agreement, stating that the applicant has the right to occupy the property and may use the property for commercial cannabis activity.
  9. Premises diagram. Applicants must provide a diagram of the business’s layout at the proposed location.

It is important to note that local approval still reigns supreme–without the necessary city or county permits and/or licenses, applicants will not be able to obtain temporary or actual state licenses.

Receiver time?

Back in 2014, we wrote that bankruptcy is not an option for marijuana businesses. That issue has been litigated here and there since then, but as of today, cannabis businesses are no better off than before. The hard reality is this: all bankruptcy cases are handled in federal courts under rules outlined in the U.S. Bankruptcy Code. Those courts have held that it would be impossible for a U.S. Trustee to control and administer a debtor’s assets (cannabis) without violating the federal Controlled Substances Act.

Bankruptcy laws are designed to afford a fresh start to honest but unfortunate debtors, while providing equal treatment to creditors. Without recourse to bankruptcy, parties can only: (1) liquidate without court supervision, or (2) explore state court receivership. Liquidating without court supervision offers no protection to pot business creditors. State court receivership does afford protections, but adds complexity because states closely regulate who is allowed to possess and sell marijuana (through licenses). For a while, it was an open question as to whether a state court receivership would actually work in the cannabis context. Recently, one actually did.

In the case at issue, a landlord (creditor) had leased space to a licensed marijuana business tenant (debtor). The tenant failed to pay rent, and the landlord evicted the tenant and acquired a judgment for unpaid rent. Because RCW 7.60.010 et seq. provides that a Washington state court may appoint a receiver over a marijuana business, the landlord convinced the court to issue an order appointing a receiver to sell the tenant’s cannabis and satisfy the judgment. The landlord then successfully navigated the licensure issue with the Washington State Liquor and Cannabis Board, sold the pot, and collected on its judgment.

Washington is not the only pro-cannabis state with statutes and administrative rules that seek to bridge the bankruptcy gap by allowing creditors to seize and sell cannabis. In Oregon, OAR 845-025-1260 provides “Standards for Authority to Operate a Licensed Business as a Trustee, a Receiver, a Personal Representative or a Secured Party.” Our Oregon and Washington cannabis lawyers have assisted numerous clients in acquiring and perfecting security interests under the relevant rules. We expect California to adopt a similar regime.

One of the reasons creditors get such high rates of interest for loans to cannabis businesses—in addition to the fact that banks won’t lend to them—is because many pot businesses lack lienable collateral. For many of them, the net worth of the business is mostly tied up in the cannabis itself. It is now clear that, at least in Washington, the cannabis can be liquidated by a third party, whether or not the pot was initially proferred by the debtor as collateral for a loan. In that way, cannabis businesses are being treated by progressive states much like non-pot concerns.

That we finally have had one successful state court receivership probably won’t nudge circumspect lenders to reach out to the cannabis industry. However, cannabis businesses can feel encouraged that their number one asset (their cannabis) may have marketable value when looking for loans; and lenders can feel hopeful that if everything falls apart, there may be liquidation value in the cannabis crop. None of this “solves” the bankruptcy issue, but it’s a step in the right direction.

Alameda cannabis lawyersCalifornia 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 cover who is banning cannabis, who is waiting to see what to with cannabis, and who is embracing California’s 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 California 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 Oakland and before that San FranciscoSonoma County, the City of Davis, the City of Santa RosaCounty and City of San BernardinoMarin CountyNevada County, the City of Lynwood, the City of CoachellaLos Angeles County, the City of Los Angeles, the City of Desert Hot SpringsSonoma County, the City of Sacramento, the City of BerkeleyCalaveras CountyMonterey County and the City of Emeryville.

Today’s post is on Alameda County.

Welcome to the California Cannabis Countdown.

Location.  Alameda County is the 7th most populous county in the state of California. Its county seat is in Oakland and it occupies much of the East Bay region. It’s home to the Alameda County Fair and the Alameda County Fairgrounds, which can boast to being the home of the oldest one-mile horse racing track in America. Hope that tidbit comes in handy on trivia night.

History with Cannabis and Current Cannabis Laws. Back in 2005, Alameda County (this post is addressing only Alameda County and not the City of Alameda) began regulating cannabis by passing a medical cannabis dispensary ordinance. Though we’re always happy to see cities and counties embrace cannabis businesses with sensible and reasonable regulations, Alameda’s first foray should be described as a very timid one. Alameda’s ordinance only addressed medical cannabis dispensaries and it capped the number of dispensary licenses at three and it also limited the amount of cannabis a dispensary could keep on its premises.

With friendlier regulations in Oakland, Berkeley, Richmond, and Emeryville, this first ordinance put Alameda at a competitive disadvantage with potential cannabis businesses when compared to those cities. With the passage of the Medical Cannabis Regulation Safety Act (MCRSA), Alameda County (along with a number of other California jurisdictions) decided it was time to amend their cannabis ordinance. In June of 2016, the Alameda County Community Development Agency and the Castro Valley Municipal Advisory Council held a meeting to begin the process of updating Alameda’s cannabis ordinance. If you’ve ever followed a cannabis ordinance as it winds its way through your local jurisdiction you are well aware that after one meeting comes many others – supervisor meetings, planning commission meetings, citizen advisory committee meetings, and interdepartmental working group meetings, just to name a few. Like Gremlins, the meetings just continue to multiply. Let me not be too harsh on Alameda because slow progress is better than no progress and definitely better than these alternatives.

Proposed Cannabis Laws: On August 1, 2017, the Alameda County Board of Supervisors conducted the first reading of its proposed amendments to their cannabis ordinance and on September 12th of this year (we like to keep you up to date here on the Canna Law Blog) the Board held a second reading of their cannabis ordinance. Here’s a list of the some of the highlights of Alameda’s cannabis ordinance:

  • Increases the number of dispensaries allowed from three to five.
  • Allows delivery of medical cannabis from permitted dispensaries within the county and from outside jurisdictions from 9:00am to 9:00pm.
  • Allows the sale, distribution, and delivery of edibles.
  • Removes the 100-pound limit on the amount of cannabis that can be stored by a dispensary on its premises.
  • Implements a two-year pilot program authorizing medical cannabis cultivation. This pilot program will authorize up to six cultivation permits – up to two indoor cultivation operations and four mixed-light operations. Outdoor cultivation is prohibited.
  • Nurseries may be permitted where cultivation is permitted.
  • Cultivation sites will have to be at least one thousand feet from any pre-K to 12th grade school, licensed child or day care facility, public park or playground, drug or alcohol recovery facility or public recreation center.

Although the caps imposed on medical cannabis dispensaries and cultivators will limit the innovation, investment, and tax revenue generated by Alameda County cannabis businesses, this is still a step in the right direction and we should not let perfect be the enemy of the good. We’re also optimistic that Alameda County will continue on its path towards increased legalization – perhaps with fewer meetings next time.

California cannabis Having begun my cannabis legal career in Washington State, which is a cannabis marketplace that started with a loose collective model and then morphed into the heavily regulated medicinal and adult use marketplace it is today, I know firsthand that it will be no small task to get right on cannabis regulation here in California now. As we all know by now, cannabis regulations are constantly changing and in California such changes seem already to be hitting us nearly every month. California seems hellbent on getting revising (and re-revising) its regulations so as to get a strong regulatory grip over what will soon be the most profitable and dynamic legal cannabis market in the world (by far).

Cue AB 133, which is the most significant and realistic technical fix bill to California’s cannabis marketplace since passage of SB 94 this summer. SB 94 represents a regulatory union between medical and adult use cannabis from the get-go. Most other states that have legalized recreational cannabis already had a robust (though unregulated) medical cannabis market that they let remain for a while to the detriment of regulated operators, but California has decided from the outset that the two cannabis industries (medical and recreational) would be combined under one regulatory regime. However, there are flaws in SB 94 and a lot of gaps and ostensible impossibilities when it comes to logistics and operational standards. Though regulating agencies (like California’s Bureau of Cannabis Control) might normally be expected to interpret and fill in the blanks on legislation via rule-making, California isn’t leaving anything to chance with its proposal of AB 133.

If passed, AB 133 would make SB 94 even more business-friendly for operators and consumers. AB 133 would do the following:

  • Cannabis deliveries would allowed by a retailer using any technology platform owned, leased, or controlled by the retailer. Currently, retailers can only use technology platforms they own and control to undertake deliveries.
  • Holders of multiple cannabis licenses would no longer be required to keep their licenses “separate and distinct.” This likely will mean you can combine your multiple licenses or your adult use and medical operations on a single “premises.”
  • AB 133 would repeal the requirement that licensed medicinal cannabis manufacturers only manufacture cannabis products for sale by a medicinal cannabis retailer.
  • Verification of local approval would change for applicants that voluntarily provide proof of such approval to the state during the licensing process. Essentially, if you provide this proof to the State of California, it will presume you’re in compliance with local laws unless otherwise notified by the city or the county.
  • If you’re a cultivator and your water source stems from diversion, you will have until October 31, 2017 to get that use authorized and to disclose that diversion to the state (rather than the July 31, 2017 deadline that’s already come and gone).
  • If you’re under 21, you can be on the premises of an A-licensee so long as the A-licensee also holds an M-license at the same location. And if you’re over 21, you can be on the premises of an M-licensee so long as that licensee also holds an A-license at the same location.
  • Caregivers would be allowed on premises to purchase medical cannabis for verifiable qualified patients, but the Bureau of Cannabis Control would set forth the specific rules around these purchases.
  • Cannabis cooperatives would be barred from undertaking contracts, etc. with other cooperatives in other states.
  • The unlawful possession of concentrated cannabis amounts would be increased from 4 grams to 8 grams.
  • The cannabis cultivation tax would apply only to harvested cannabis that “enters the commercial market” and cannabis that “enters the commercial market” would re redefined to be cannabis or cannabis product that completes and complies with a quality assurance review and testing, except immature cannabis plants and seeds,
  • You won’t pay your cannabis excise taxes directly to the Board of Equalization anymore; you will instead pay them to the California Department of Tax and Fee Administration.

Though passage of AB 133 is not a cure-all for all that ails us in SB 94, it is a good start toward ensuring that some of the wider gaps in California’s existing cannabis legislation are headed off at the pass of rule-making. Most importantly, California is still on track to be one of the most business-friendly regulatory states, but we’ll see what future rule-making (and local restrictions) do to that status as fall approaches.

Cannabis Development Agreements
Development agreements should be in your real estate tool kit.

We’ve seen this movie before: a city gets excited about commercial cannabis opportunities and passes an ordinance allowing indoor medical cannabis cultivation. After the law goes into effect, neighbors complain about odors or aesthetic issues or just because they don’t want anything to do with cannabis in their neighborhood. Sooner or later, the right neighbor complains to the right city council member and cannabis suffers a major setback with a restrictive ordinance or even a moratorium. The city declares the “offending” cannabis business use to be nonconforming and issues a notice and order to abate. The cannabis business finds itself hundreds of thousand dollars in debt on its construction/build-out project without a path forward for being able to operate and a permit it can’t take elsewhere because it runs with the land.

How then should a would-be cannabis tenant or purchaser avoid this risk, or at least mitigate against it, before jumping into a huge investment for improving the land? A development agreement is one solution.

A development agreement is essentially a contract between a property owner/developer and a municipality that specifies how a given parcel will be improved and used for a certain finite period of time, and specifying how the planning and zoning laws for that parcel will change or not change during that time. Municipalities benefit from development agreements because by reducing risk they encourage development and increase property tax revenues. The property owner/developer benefits by having much greater certainty regarding the uses to which the property may be put.

The added certainty of stable zoning makes developers and their investors and lenders more willing to invest their time, effort, and financial resources into improving the land. Without a development agreement, developers typically must risk paying architects, engineers, and contractors before they can obtain a building permit from the municipality. Developers and municipalities often end up litigating over vested rights and the permitting process. Under California’s vested rights doctrine, only after developers obtain the building permit can they be certain their parcel will remain unaffected by future zoning law changes — and even this isn’t always a total certainty, as California courts have found exceptions that allow zoning changes, depending on the circumstances.

Given its unpredictability and its huge potential, California’s commercial cannabis industry is a prime candidate for development agreements, yet they are still rarely used for cannabis business land development. I see this as due to a combination of things, ranging from local government reluctance to tie land within city limits to uses the federal government still deems unlawful, to cannabis lawyers (especially those who only recently switched from representing cannabis criminal defendants) simply not knowing about development agreements. See How To Choose Your Cannabis Business Lawyer.

Whatever the reason, less certainty in already uncertain times is bad for all parties involved.

Cities want to attract responsible, experienced developers to improve land and public infrastructure and increase property values and tax revenues. Developers and their associates seek certainty that the improvements they pay to add to their land may be legally utilized. Cities that pass ordinances to allow cannabis business activities, as well as would-be purchasers and developers, should be considering development agreements as part of their commercial cannabis development plans.

California cannabis
When it comes to cannabis, Cali is the lead penguin.

Cannabis legalization inevitably leads states and local governments to at least discuss the impact of cannabis tourism. In your standard legalization regime, adults 21 and older from anywhere in the world can (and absolutely do) come to certain U.S. states to buy and consume cannabis from regulated storefronts whose cannabis products come from regulated cultivators, manufacturers, and (sometimes) distributors. Most state governments have put at least some kibosh on cannabis tourism for fear of incurring the wrath of the federal government. This is why cannabis cups with product on site are on the decline and why we don’t see states rushing to legalize cannabis lounges or clubs. Washington State has pretty much outlawed any form of meaningful cannabis tourism and Colorado has effectively done the same, with a only a few individual cities there pushing for consumption sites/rights under local laws.

There is though a bright and shining light at the end of the tunnel when it comes to cannabis tourism — California. With California’s passage of SB 94 (a/k/a the Medicinal and Adult Use Cannabis Regulation and Safety Act) we may actually see cannabis tourism take off and sustain itself here in the Golden State. It certainly does not hurt that cannabis is an entrenched cultural phenomenon here,

In addition to its SB 94-sanctioned event permit, California immediately stands out for two reasons: its legalization of on-site consumption hosted by licensees in certain scenarios and its creation of microbusiness licensees.

SB 94 will allow for cannabis consumption at retail and microbusiness establishments:

a local jurisdiction may allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a retailer or microbusiness licensed under this division if all of the following are met:
(1) Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age and older.
(2) Cannabis consumption is not visible from any public place or nonage-restricted area.
(3) Sale or consumption of alcohol or tobacco is not allowed on the premises.

For a state to out and out permit on-site consumption at a licensed business is pretty novel at this point. Of course, the catch is that the local government must approve such a set up (which will be a tough sell in some places), but California has fully opened the door on the conversation. Being able to consume in a store or microbusiness will undoubtedly drive consumers (and tourists) to these locations, giving retailers and microbusinesses the chance to have that Amsterdam-style coffee house feel that has so far been mostly lacking in every other cannabis-legal state.

And the microbusinesses themselves will be able to operate in a sort of winery type setup where you have smaller, more craft vertically integrated operators making everything (or nearly everything) in-house. If California can create winery like experiences for cannabis it will absolutely change the way cannabis is admired and enjoyed, which will assuredly capture the interest of locals and tourists alike. This opening up for public consumption will also go a long way in reducing the cannabis stigma.

Then there’s the question of whether we can expect California to embrace things like canna-crawls, bud and breakfasts, etc. In our experience, most state departments of transportation will not sanction licensing or permitting anything related to a canna-crawl and cities and counties are mostly turned off by the concept of cannabis-friendly hotels. Again, though, because cannabis is such a big part of California’s existing economy, such ideas hold less of a taboo here. Indeed, for just a few examples, Humboldt County just proposed an ordinance to allow for cannabis farm stays (i.e., bud and breakfasts), the City of Nipton will apparently (allegedly) turn into a “pot paradise” hospitality destination, and Coachella will have at least one cannabis cultivation-adjacent hotel in its future.

California cannabis is going to be huge — by many accounts, more than ten times bigger than Washington State, Oregon, and Colorado combined. If California successfully provides for public consumption and benefits from cannabis tourism (even if only in select cities and towns) the reverberations from this will be felt nationwide.

Get your marijuana product recall plan in place. Now.
Get your cannabis product recall plan in place. Now.

Time and again I have warned cannabis industry participants that federal prohibition means nothing when it comes to liability created by defective products. Colorado is a prime example of the threat and the power of cannabis product recalls. And though for years now we’ve seen various cannabis businesses in Colorado pull their products from the shelves for illegal pesticides and/or manufacturing under unsanitary conditions, we have yet to see an official product recall for cannabis in the State of California. And why would we? The state hasn’t had any legitimate, enforceable, or uniform regulations to corral cannabis operators into worrying about consumer safety (other than self-imposed best practices). Though it’s pretty clear recalls should already be happening in California based on some of the available product in the state’s medical market, they haven’t yet, but they will.

With the passage of the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA” aka SB 94), medical and adult use cannabis in California will soon be under one regulatory regime. Outside of MAUCRSA’s mandatory quality testing and packaging and labeling thresholds, what will California’s ultimate quality assurance and consumer protection operational standards look like? MAUCRSA regulations will fill in the baseline blanks and that will happen this fall, according to the state.

I’ve practiced law in enough regulated cannabis states to know that quality assurance, testing, and protecting the public through total product perfection isn’t going to be easy or cheap and it’s going to be mandatory if you want to keep your cannabis license. Still, even with your best quality assurance game face, you may not (more like never) escape the toe catch that is products liability. And with California being such a litigious state, as the Wall Street Journal editorial board recently pointed out, it’s only a matter of time before even more plaintiffs start suing cannabis operators alleging defective, dangerous, or mislabeled products and Prop. 65 violations.

If you’re not familiar with product liability, the most important thing you need to know is that the cannabis industry is not immune from it just because cannabis remains federally illegal. And now that you know that, I suggest you read at least some of the following to better grasp how product liability laws can impact or even derail your cannabis business:

Just the mere fact that my firm’s cannabis attorneys have written so many blog posts and articles on cannabis safety and cannabis product liability ought to tell you how truly important this issue will be in California once things truly get rolling here.

What then should you as a California cannabis business owner do to protect yourself from product related lawsuits and government actions? Again, the MAUCRSA regulations will no doubt create a baseline of what operators need to do if their products are defective, but you’ll need to go above and beyond that to ensure you’re ready to take on a recall situation or to defend yourself in the event of a product liability lawsuit.

Oftentimes, one of the best ways to mitigate against product liability claims is by instituting a product recall. In most industries, recall standards are dictated by either federal or state law or both. But since cannabis is federally illegal, neither the Food and Drug Administration (FDA) nor any other federal agency has rules or guidelines on how to undertake a cannabis recall.

However, since the federal government “tolerates’ only the cannabis regimes of states with robust marijuana regulations, it is not surprising that most states with commercial marijuana laws require their licensed marijuana businesses have a recall plan in place as a condition for receiving state licensing — and California will probably be no different. But few states have much in the way of specifics on what should go into a cannabis business’s recall plan. When our cannabis attorneys draft marijuana licensing applications for our clients, we are careful to make sure the recall steps we map out in the licensing application recall plan can actually be fairly easily accomplished. A gold-plated grandstanding recall plan may sound great when you are working to secure your cannabis license, but if you can’t execute on or afford that plan, you are only creating trouble for your cannabis business down the road.

In crafting a realistic cannabis product recall plan, you should, at minimum, consider or do the following:

1. Create an overall recall strategy.

2. As part of your recall plan, create definitions and standards for classes of recall and the depth and scope of any given recall. If your state or local laws do not provide basic recall standards for cannabis businesses, check out the FDA’s website under Guidance for Industry: Product Recalls, Including Removals and Corrections.

3. Appoint a recall committee within your company, to be led by experienced personnel capable of evaluating and investigating product complaints to determine if a recall is warranted. This also entails your developing a product complaint form that will be utilized by customers. It is better to learn about product problems early.

4. Develop a complaint receipt and evaluation method to ensure your product complaint processing and investigations are logical, efficient, and comprehensive. There are few things worse than receiving product safety complaints and then ignoring them until the situation is out of control.

5. Truly ponder what your product complaint investigation will entail. What facts should your recall committee be gathering when seeking to determine if a product complaint is valid or if a recall is warranted? What should your recall look like, as based on the facts and circumstances and the threat your product may pose to consumers and vendors?

6. Create a distribution list so your product recall committee can quickly and easily identify all affected products and product lots for disposition and potential destruction. The distribution list should — at minimum — include the names of all affected consumers and vendors, their contact information, and the dates on which the products were sold to them or consumed by them, and it should also include any side effects, injuries, or illnesses resulting from product use. Time is of the essence here. My law firm had a regional food client that inadvertently failed to issue a recall notice to one of many supermarket chains to which it sold its food. This supermarket chain was so angry about having been kept out of the loop that it refused ever to purchase our client’s product again. Then other supermarket chains learned of our client’s failure to notify this one supermarket company and they too ceased all of their purchasing. Needless to say, our client company no longer exists. Don’t let this sort of thing happen to you.

7. Institute a method of stock recovery so all tainted product in inventory is effectively quarantined from sale and distribution.

8. Generate your recall notice and be very careful with your wording in how you alert vendors and consumers to the recall. You want to effectively communicate that a product has been affected and how to deal with that, but you also want to minimize whatever liability your product problems may create for the company. On a case by case basis, consideration should also be given to drafting a press release to help the company’s PR. For this you absolutely need attorney help.

9. Make sure to as quickly as possible (preferably in advance) alert your outside advisors (your lawyers, your insurance broker, etc.) regarding your recall.

10. Set out in your recall plan your options for product disposition. Will you destroy a product? Cleanse and then repurpose it? Lay out your options in your plan now so you are not scrambling to try to figure out your possible options later, when you have no time to do so.

11. Record everything you do. Document every effort you make and record all your communications with consumers and vendors. If there is a legal action later, you will want to be able to show the court that you took all reasonable steps to ensure consumer safety.

In addition to formulating a solid and reliable recall plan, you also might want to consider conducting a mock recall to ensure your recall systems will work when the real deal occurs. Compliance audits can also be a big help in shoring up loose ends on a recall.

Cannabis product recalls are only going to increase in California as robust regulations under MAUCRSA hit all cannabis operators, so get your cannabis product recall plan in place now.

 

California cannabis processors

Three of our California cannabis lawyers recently did a webinar on the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) and how it repealed the Medical Cannabis Regulation and Safety Act (“MCRSA”) while consolidating some of MCRSA’s provisions with the licensing provisions of the Adult Use of Marijuana Act (“AUMA”). If you missed the webinar don’t you worry, we’ve got you covered right here. During the webinar we received so many great questions from our attendees (close to 1,500 people signed up!), we decided to address them here on the Canna Law Blog. Last week we discussed the future and unknowns surrounding onsite consumption in California. This week we’re going to discuss California cannabis processors.

If you find yourself thinking you never read anything about about cannabis processors in the MAUCRSA, go ahead and give yourself a pat on the back because it does in fact nowhere mention processors, nor is there any mention of processors in the California assembly and senate bills that made up the MCRSA. Upon passage of the MCRSA, the California Department of Food and Agriculture (“CDFA”) held eight public workshops to solicit feedback from the public and interested stakeholders. After the workshops, the CDFA published a scoping report detailing some of their findings. When the CDFA released its proposed regulations for the medical cannabis cultivation program it also released a companion Initial Statement of Reasons (“ISOR”) and it is in the ISOR where we are first introduced to processors.

In the ISOR, the CDFA states “it was brought to the Department’s (that’s the CDFA) attention that some cultivators send untrimmed, uncured, or unpackaged cannabis to locations off-site for processing” and decided to add the processor as a new license type. Under the proposed regulations, a processor can also hold different types of cultivation licenses but would not be allowed to grow cannabis plants at the processing facility. The proposed annual license fee for processors was $2,790 – which was on the lower end for cultivation license type fees. The CDFA went on to define a processor in the proposed medical regulations as a cultivation site that conducts only trimming, drying, curing, grading or packaging of cannabis and non-manufactured cannabis products.

What caught many people’s attention is how CDFA classified pre-rolls as a type of non-manufactured cannabis product. Though consumer feedback on the quality of pre-rolls varies, there’s also a burgeoning marketplace for cannabis businesses that promote quality and brand themselves accordingly. The CDFA also envisioned an increased interest in processor licenses as they assumed approximately 20% of California’s cannabis production would be processed through California licensed cannabis processors. As you can imagine, our cannabis attorneys were getting a boatload of inquiries regarding this license type, but then California Governor Jerry Brown signed MAUCRSA into law and just like Keyser Söze, it was gone.

But is the processor license type gone for good here in California? Will those with cultivation licenses under MAUCRSA be allowed to conduct cannabis processing on their premises or will the CDFA bring back from the dead the processor as a separate license type in California? We’ll have to wait until the CDFA publishes its new proposed regulations in the fall under an emergency rule-making process so that the state will be able to issue cannabis licenses beginning on January 02, 2018. Since the processor license type was so short-lived, even if the CDFA does re-create it as a license type it will probably take some time for cities and counties to add processors to their licensing structure.

We’ll keep you posted on any new developments.

California cannabis lawyer
When it comes to California’s cannabis laws, you cannot afford to live in a dream world.

Since moving to Los Angeles, I have non-stop been reviewing the work of other “cannabis attorneys” from all over California that were working for their clients under Proposition 215, and I have to say that far too much of what I’ve seen has disturbed me when it comes to corporate formation, financing, and entity structures. What seems to have occurred under Prop. 215 (which is a terrible piece of law if you’re looking to be a real cannabis business) is that many self-proclaimed industry attorneys in and out of California abandoned any semblance of helping their clients comply with the corporations code, federal and state tax laws, and various basic transactional laws and standards. All of this is coming to light now because many Prop. 215 “collectives” want to start for-profit companies to pursue licensure under the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA“) and/or merge their collective into a for-profit entity for the same reason. Unfortunately, this kind of transition is going to be legally impossible because of how these collectives were originally structured (combined with their failure to comply with corporate laws) or it will be rife with liabilities because of straight-up bad legal advice.

In defense of California, I have to say that this sort of off-the-cuff lawyering is always par for the course in states where cannabis businesses had to operate in the grey. In those situations, few successful corporate lawyers are willing to risk their law license and so what happens instead is that criminal lawyers (whose business is on the decline due to decreased arrests) and new lawyers step in to fill the void. From this the problems arise. Now might be a good time for you to check out Seven Keys to Choosing Your Cannabis Business Law Firm.

Below then is my top five list of the worst legal advice our California lawyers have seen given to Prop. 215 collectives here in the Golden State.

  1. Your bylaws aren’t that big of a deal. The majority of operators in California are non-profit mutual benefit corporations (“NPMBC”) because a 2008 California State Attorney General memo interpreted Proposition 215 to permit only non-profit entities to “collectively or cooperatively” produce and distribute cannabis medicine by and among qualified patients. Many lawyers (apparently unfamiliar with California’s corporate laws) failed to draft corporate bylaws or provided only boilerplate bylaws for the directors and members to control the entity. A very specific portion of the California corporations code deals with NPMBCs and if your NPMBC does not have proper bylaws in place, its operations will be controlled by statute and you may be legally prohibited from acting on behalf of the entity. What’s even worse though than having no bylaws are boilerplate bylaws that are not followed by the corporation’s directors. I’ve seen bylaws that focus on essentially made-up compliance with Prop. 215. and that ignore every other facet of actually running the NPMBC and I’ve heard multiple times of lawyers who claim that the only reason to have these bylaws at all is to show to the police in an event of a raid. This is obviously a problem when it comes to what happens on wind-up and dissolution, where assets go upon dissolution, how the entity is managed, and who has authority to do what, and these corporations are having to learn this now, in their hour of  need.
  2. Membership voting doesn’t matter. This ties in to having poorly written or no bylaws. Member voting absolutely matters. Most NPMBCs were never told that they vested corporate voting rights in their entire patient membership, which means they cannot do anything without putting it to a vote of their entire collective. We have also seen many NPMBCs set up where their directors vote on day-to-day decisions but all members get to vote about dissolution, dissemination of assets, etc., which is not what you want to see if you want to do a for-profit merger. To make matters even worse, many of these NPMBCs require a vote of their entire membership to amend the bylaws to address these sorts of situations. Some even require this vote be unanimous for anything to happen. Just imagine for a minute finding and getting hundreds of people to vote your way; not going  to happen.
  3. The IRS won’t care about relationships between collectives and their management companies. Some lawyers told collective operators to start a parallel management company along with their NPMBC so that they could get bank accounts, run payroll, and provide various “management services” to the NPMBC. Their real plan though was to strip out cash from the NPMBC (which can’t otherwise make a profit).  Unfortunately, astoundingly few of these lawyers gave a thought to how the IRS would view all this for income tax purposes. Fast forward just a bit and we now have the IRS applying Section 280e to these management companies that are managed or controlled by the same people who sit on the board of the NPMBC. In many instances, the IRS sees these as “designed to hide” relationships set up as a front set up to allow those who control the NPMBC to get paid large amounts. And no surprise, the IRS is not liking what it is seeing.
  4. Don’t document anything. Is cannabis still illegal at the federal level? Yes. Is there criminal liability for doing pretty much anything related to cannabis? Yes. But if you are going to run a cannabis operation that complies with state law you need to  document what you are doing, especially your compliance efforts. And if you ever want legitimate relationships with future financiers, handshake deals and fly-by-night dealings are not going to cut it, especially now that MAUCRSA has passed. The number of collectives that have told me that they can’t now operate properly under local law requirements or that they’re getting hung up on negotiations with a financier because of a lack of documented operating history or a lack of vendor or other contracts is staggering.
  5. Merger is a collective’s best option under MAUCRSA. Definitely not true for most collectives, and don’t even get me started on the stupidity of selling your collective. In California, many collective operators want to merge with for-profit entities using the same management, name, and assets as the non-profit entity. But mergers, even those done purely as a reorganization, can be complicated beasts. For many collective operators, their relationships with amorphous management companies, their outstanding tax liabilities, their lack of any written operating history or contracts, and their prior general corporate incompetence would make merging a poor choice. The corporate, tax, tort, contract, and debt liabilities of the nonprofit would transfer to the surviving entity — and those liabilities can be countless for businesses that have worked outside the bounds of the law for years. Unless your collective has followed California’s corporations code, reported its income to the IRS and paid its taxes to the Board of Equalization, documented its arm’s length transactions with third parties, and has transferable assets of real value,  a merger will probably not be the way for you to go unless you want to carry all of your Prop. 215 baggage with you.
California cannabis events
California cannabis events. So far, so good.

In case you missed it, on June 27, 2017, California Governor Jerry Brown signed into law the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”). MAUCRSA repealed the Medical Cannabis Regulation and Safety Act (“MCRSA”) while consolidating some of the MCRSA’s provisions with the licensing provisions of the Adult Use of Marijuana Act (“AUMA”). Our firm just recently held a webinar on the major changes between the MCRSA and MAUCRSA and what California cannabis businesses can expect from California’s Bureau of Cannabis Control (be sure to check in regularly as we’ll be posting the webinar on our site in the next couple of days). During the webinar we addressed a whole host of questions but due to the number of attendees (nearly 1,500 of you signed up) and the volume of questions, we couldn’t get to all of them. Fret not though my friends, as over the coming days we’ll be answering many of your questions here on the Canna Law Blog. As a matter of fact, how about I start now and discuss a topic on which we received a lot of questions: onsite consumption at cannabis events (where such events have slowly started to fade because of robust state cannabis regulations–see here and here).

The AUMA granted local jurisdictions the authority to decide whether smoking, vaporizing, and ingesting cannabis would be allowed by a retailer or a microbusiness. Ultimately, the ability to provide a unique and personal experience via onsite consumption will enhance California cannabis retailers and microbusinesses abilities to differentiate themselves in the marketplace. Onsite consumption will also prove to be a big advantage for California cannabis businesses bordering Nevada, as state regulators there grapple with the issue of onsite consumption.

The MAUCRSA also built on the AUMA’s concept of onsite consumption by allowing for temporary event licenses for onsite cannabis sales and consumption at district agricultural association events and your local county fair–just when you thought churros couldn’t get any better! Does that sound too good to be true? Well that’s because I haven’t mentioned the following caveats:

  • Only a licensee can receive the temporary event license;
  • Your local jurisdiction has to authorize such events in the first place;
  • Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age and older;
  • Cannabis consumption is not visible from any public place or nonage-restricted area; and
  • Sale or consumption of alcohol or tobacco is not allowed on the premises. Sorry, but no jamming out to Phish with a beer and a pre-roll in your future.

The MAUCRSA also states the activities at such events must be “otherwise consistent with regulations promulgated and adopted by the Bureau [of Cannabis Control] governing state temporary event licenses.” What are these regulations you ask? Unfortunately we won’t know until the Bureau releases them in the fall. Normally we’d look to the draft medical regulations the Bureau released this past April for guidance but those regulations didn’t cover onsite consumption and they only apply to MCRSA (and have been withdrawn because of MAUCRSA). What we do know is there’s a lot of interest in how the Bureau will interpret the definition of premises. Premises is currently defined in the MAUCRSA as follows:

The designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the applicant or licensee where the commercial cannabis activity will be or is conducted. The premises shall be a contiguous area and shall only be occupied by one licensee.

If the area “held under the control of the applicant and licensee” is separate and distinct from the rest of the fairground, will that constitute separate premises and satisfy the alcohol restriction? At most county fairs you’ll find a great selection of local wines and craft beers and that’s not going to be changing any time soon. However we foresee county fairs will not want to miss out on the revenue and foot traffic a well-cultivated list (pun definitely intended) of cannabis businesses can attract.

Will the Bureau propose reasonable regulations (perhaps restricting cannabis consumption to evening hours?) to allow county fairs to provide for reasonable consumption of alcohol and cannabis on county fairgrounds? Will the one licensee restriction apply to temporary events? That seems unlikely, but until the State of California releases its cannabis regulations we won’t know for certain. What we do know is that these temporary event licenses will be a great way for entrepreneurial cannabis businesses to market themselves – let’s just hope the Bureau issues business friendly and reasonable regulations.