MARIJUANA REGULATORY STRUCTURE LEGISLATION

Transcription

1 MARIJUANA REGULATORY STRUCTURE LEGISLATION Key County Issue Medical Cannabis Regulation & Safety Act Adult Use of Marijuana Act Proposition 64 Local Control Local control clauses Referenced in Business & Professions Codes (a), (a) & (c) Locals are responsible for awarding local licenses to operate Referenced in Business & Professions Code (a) Cultivation must comply with local rules Referenced in Health & Safety Code (b) (3) Local fee and tax power Referenced in Business & Professions Code (d) Personal grows restrictions Referenced in Health & Safety Codes (a) (1) & (b) (1) Personal grow of six plants maximum Referenced in Health & Safety Code (a) (3) Locals cannot ban indoor personal grows of 6 plants on a residence Referenced in Health & Safety Codes (b)(2) State cannot approve applicants that conflict with local rules Referenced in (e) Main local control provisions Referenced in Health & Safety Code Allows local governments to prohibit/restrict marijuana use in publicallyowned facilities Referenced in Health & Safety Code (g) Broad and explicit county taxing authority Referenced in Business & Professions Code County Taxing Authority County authority to tax deliveries Referenced in Business & Professions Code (c) Local fee and tax authority Referenced in Business & Professions Code (d) Referenced in Business & Professions Code Broad and explicit county taxing authority Referenced in Revenue and Taxation Code

2 Licensing Entity Local license issuance Referenced in Business & Professions Code (a) Bureau of Medical Cannabis Regulation in Department of Consumer Affairs - Primary state licensing entity Referenced in Business & Professions Codes 19302, 19303, California Department of Food & Agriculture has role in cultivation licensing Referenced in Business & Profession Code (e) Referenced in Health & Safety Code (b) (1) (B) Cultivation licenses must first commence locally Referenced in Health & Safety Code (b) (2) Department of Consumer Affairs issues licenses for dispensary, distributor, transporter, special dispensary, testing laboratories Referenced in Business & Profession Code (d) & (a) Department of Public Health issues licenses for manufacturers Referenced in Business & Profession Code No mandatory local license issuance requirement Bureau of Marijuana Control in Department of Consumer Affairs is primary state licensing entity Referenced in Business & Professions Codes (a) (b) (c) & (d) California Department of Food & Agriculture has role in cultivation licensing Referenced in Business & Professions Code (a) (2) Department of Consumer Affairs issues licenses for dispensary, distributor, transporter, special dispensary, transportation, storage, distribution, sale Referenced in Business & Professions Code (a) (1) Department of Public Health issues licenses for manufacturers/testing laboratories Referenced in Business & Professions Code (a) (3)

3 Environmental Enforcement Establishment of the Medical Cannabis Fines & Penalties Account Referenced in Business & Professions Code Fine & penalty monies dedicated to state and local environmental enforcement efforts Referenced in Business & Professions Code (c) Bureau of Marijuana Regulation shall establish a grant program to locals for regulation/enforcement assistance Referenced in Business & Professions Code (d) Water diversion protections Referenced in Business & Professions Code (d) Cultivation standards Referenced in Business & Professions Code (e) (2) Identify water source Referenced in Business & Professions Code Referenced in Business & Professions Code Referenced in Business & Professions Code Referenced in Business & Professions Code (b) (1) Referenced in Business & Professions Code (c) Referenced in Business & Professions Code State agency focus on environmental damage by cultivation Referenced in Business & Professions Code Collective Model/Personal Grows Abolishes collective model Licensing requirements for all commercial cannabis activities Referenced in Business & Professions Code (a) Referenced in Health & Safety Code (b) Personal grow exemption/primary caregiver exemption for 5 patients Referenced in Business & Professions Code (a) & (b) Those exempt must still comply with local restrictions Referenced in Health & Safety Code (g) Cannot cultivate without license Referenced in Referenced in Business & Professions Code (b)

4 Date of Licensure After January 1, 2018 Referenced in Business & Professions Code (c) Licensing entities shall begin issuing licenses by January 1, 2018 Referenced in Referenced in Business & Professions Code (c) Detailed Regulatory Standards Department of Consumer Affairs, California Department of Food & Agriculture & Department of Public Health have broad regulatory authority Referenced in Business & Professions Code California Department of Food & Agriculture responsible for cultivation regulations including weight and measures Referenced in Business & Professions Codes (a), (e) (1) Department of Pesticide Regulation & Department of Public Health develop pesticide standards Referenced in Business & Professions Code (b) Annual license Referenced in Business & Professions Code (b) Dispensary security standards Referenced in Business & Professions Codes (c) & (d) Testing laboratories Referenced in Business & Professions Codes 19343, 19344, Residency requirements None Department of Public Health promulgate regulations for manufacture and testing Referenced in Referenced in Business & Professions Code Department of Consumer Affairs, California Department of Food & Agriculture & Department of Public Health have broad regulatory authority Referenced in Referenced in Business & Professions Code All licensee must be bonded for tax liabilities Referenced in Referenced in Revenue & Taxation Code (b) Department of Pesticide Regulation & Department of Public Health develop pesticide standards, no Department of Public Health, but include California Department of Food & Agriculture & Water Regional Control Board Referenced in Referenced in Business & Professions Codes (a) (b) & (e) Annual license Referenced in Referenced in Business & Professions Code (c) California residency requirements Effective until January 1, 2020 Referenced in Referenced in Business & Professions Code

5 Transportation Standards Transportation operators must be licensed, bonded & insured Referenced in Business & Professions Code (a) Detailed manifest/accessible records required Referenced in Business & Professions Codes (b), (c), (d) and (e) Bureau to develop minimum security requirement for transportation Referenced in Business & Professions Code (b) Local governments cannot prevent transportation of marijuana by licensee on public roads Referenced in Referenced in Business & Professions Code (b) Transportation operators must be licensed, bonded & insured Referenced in Business & Professions Code (a) (2) Bureau to develop minimum security requirement for transportation Referenced in Business & Professions Code (b) Local governments cannot prevent transportation of marijuana by licensee on public roads Referenced in Business & Professions Code (b) Referenced in Business & Professions Code (b) (2) General Enforcement Cities can request to be primary enforcement entity Referenced in Business & Professions Code (b) State not required to enforce local standards Referenced in Business & Professions Code (b) State disciplinary action could occur for failure to comply with local ordinance Referenced in Business & Professions Code (e) Peace officers can enforce licensing scheme Referenced in Business & Professions Code (b) Locals can request to be primary enforcement entity Referenced in Business & Professions Code State is not required to enforce local standards Referenced in Business & Professions Code (a)

6 Mobile Retail Deliveries Permitted, unless prohibited by local ordinance Referenced in Business & Professions Code Can only be made from a licensed retailer Referenced in Business & Professions Code (b) Retail transactions can only be made from a licensed retailer Referenced in Business & Professions Code (a) Customer must maintain proof of delivery request Referenced in Business & Professions Code (b) Local governments cannot prevent transportation of marijuana by licensee on public roads Referenced in Business & Professions Code (c) Referenced in Business & Professions Code (b) (2) License Prohibitions (Criminal Record) Previous criminal violations that could trigger failure to obtain state license: Felony illegal involvement in controlled substances Fraud, deceit & embezzlement Illegal patient recommendations Illegal cultivation activities Record of violations in last 3 years Specified serious felonies Specified violent felonies Failure to have tax registration Referenced in Business & Professions Code (b) (5) Previous criminal violations that could trigger failure to obtain state license: Fraud, deceit & embezzlement Illegal cultivation activities Record of violations in last 3 years Specified serious felonies Specified violent felonies Failure to have tax registration Using minors for drug trafficking Referenced in Business & Professions Code (b) Local Involvement in License Revocation Yes. Referenced in Business & Professions Code (b) (3) Yes. Referenced in Business & Professions Code 26031

7 Advertising Restriction & Edibles Labeling No advertising restrictions Edibles labeling requirements Referenced in Business & Professions Code Labeling requirements Referenced in Referenced in Business & Professions Code Advertising restrictions Referenced in Referenced in Business & Professions Codes 26150, 26151, 26152, & No giveaway of product Referenced in Referenced in Business & Professions Code Cross Ownership of Licensing Extensive restrictions Referenced in Business & Professions Code No alcoholic beverage retailers can hold a medical marijuana license Referenced in Business & Professions Code Minimal restrictions in owning other licenses, as follows: Testing facilities cannot hold other licenses Referenced in Business & Professions Codes in (b) & (c) Alcoholic beverage retailers & tobacco retailers cannot hold any marijuana license Referenced in Business & Professions Code (a) Licensees can hold medical marijuana licenses Referenced in Business & Professions Code (b) Type 5 licensees shall not be able to hold testing licenses or distributor/transporter license Referenced in Business & Professions Code (e) Local Examination of Licensee's Records Yes. Referenced in Business & Professions Codes (c) & (d) Yes. Referenced in Business & Professions Code (c) Peace officers can inspect premise Referenced in Revenue & Taxation Code 34016

8 Employer Restrictions/Drug Free Workplace Employers can adopt policies regarding employee use Referenced in Business & Professions Code Employers can adopt policies regarding employee use Referenced in Health & Safety Code (f) Background Checks Prospective licensees must submit to State Department of Justice background checks Referenced in Business & Professions Code Nothing explicit -- Electronic submission of fingerprint images required Referenced in Business & Professions Code Addresses Doctor/Patient Relationship Facility/restrictions on financial interest Referenced in Business & Professions Code 2525(a) Physician recommendation requirements Referenced in Business & Professions Code & Physician advocating Referenced in Business & Professions Codes (a) & (b) Not Applicable

9 Appellation/Organic Standards/Agricultural Product Criminal Penalties Statues California Department of Food & Agriculture shall establish organic program by 2020 Referenced in Business & Professions Code (a) Bureau of Marijuana Regulation may establish appellations Referenced in Business & Professions Code (b) County of origin labeling standards Referenced in Business & Professions Code (c) For the purposes of this section Classifies cannabis as a Agricultural Product Referenced in Health & Safety Code (a) No criminal penalties if licensed Referenced in Business & Professions Codes (a) & (b) No license, then one is eligible to face criminal penalties Referenced in Business & Professions Codes (a) & (c) California Department of Food & Agriculture shall establish organic program by 2020 Referenced in Business & Professions Code Bureau of Marijuana Regulation may establish appellations Referenced in Business & Professions Code (a) County of origin labeling standards Referenced in Business & Professions Codes (b) & (c) Classifies cannabis as a Agricultural Product Referenced in Business & Professions Code (a) For the purposes of this section No criminal penalties if licensed Referenced in Business & Professions Code (a) No license, then one is eligible to face criminal penalties Referenced in Business & Professions Code (c) Track & Trace/Unique Identification System California Department of Food & Agriculture shall establish a unique identifier program Referenced in Business & Professions Codes (a), (e) (3) & (e) (4) Locals can administrate their own unique identifier program Referenced in Health and Safety Codes (e) (1), (e) (2), (e) (3), (e) (2) Board of Equalization for tax compliance associated with unique identifier program Referenced in Revenue & Tax Code California Department of Food & Agriculture shall establish a unique identifier program Referenced in (c) (1) Locals can administrate their own unique identifier program Referenced in (d) Personal grows are not required to be part of unique identifier Referenced in (e) (1) Tax compliance associated with unique identifier Referenced in Business & Professions Code 26170

10 State & Local Regulatory Fee Authority Yes, explicit fee authority Referenced in Business & Professions Code Nothing explicit -> Rely on local control for fee recovery County Identification Cards No reference County identification cards protocols Referenced in Health & Safety Codes (a) & (b) Fees limitations Referenced in Health & Safety Code (b) Fee cost County recovery Legislative appropriation Referenced in Health & Safety Code (e) Legislative Furtherance Not applicable Legislature can adopt further measures by majority vote Referenced in Business & Professions Code (c) State Appellate Body No reference Creation & scope of Marijuana Control Appeals Board Referenced in Business & Professions Code 26040

11 Overconcentration of Retail Licenses No reference Ability to restrict issuances of licenses due to excessive concentration Referenced in Business & Professions Code (c) Retail Security Requirements Retail facility security requirements Referenced in Business & Professions Code (c) Local Control/Public Consumption No reference Locals can allow for public consumption Referenced in Business & Professions Code (d) Non-Profit No reference Possible creation of state non-profit license category Referenced in Business & Professions Code

12 ADDENDUM MEDICAL MARIJUANA LICENSE CATEGORIES TYPE Type 1 Type 1A Type 1B Type 2 Type 2A Type 2B Type 3 Type 3A Type 3B Type 4 Type 6 Type 7 Type 8 Type 10 Type 10A Type 11 Type 12 CLASSIFICATION Cultivation; Specialty outdoor; Max 5,000 sq ft per premise/ 50 mature plants Cultivation; Specialty indoor; Max 5,000 sq ft per premise Cultivation; Specialty mixed-light; Max 5,000 sq ft per premise Cultivation; Outdoor; 5,001 10,000 sq ft per premise Cultivation; Indoor; 5,001 10,000 sq ft per premise Cultivation; Mixed-light; 5,001 10,000 sq ft per premise Cultivation; Outdoor; 10,001 1 acre sq ft per premise* Cultivation; Indoor; 10,001 1 acre sq ft per premise* Cultivation; Mixed-light; 10,001 1 acre sq ft per premise* Nursery; Can transport live plants Manufacturer 1; Products using nonvolatile solvents Manufacturer 2; Products using volatile solvents Testing Laboratory Dispensary; General Dispensary; No more than three retail sites Distribution Transporter *CDFA shall have a limit on the number of licenses in this type. ADDITIONAL LICENSE CATEGORIES CREATED IN PROPOSITION 64 Type 5* Type 5a* Type 5b* Type 12 Cultivation; Outdoor large Cultivation; Indoor large Cultivation; Mixed light large Microbusiness *Delayed issuance until January 1, 2023; Could be eligible in the scheme

13 ADDENDUM STATE TAX PROPOSED IN PROPOSITION 64 State 15% excise retail (in addition to sales & use tax) Referenced in Revenue & Taxation Code (a) No sales & use tax on medical cannabis Must present medical identification card to enjoy exemption Referenced in Revenue & Taxation Code (g) State cultivation tax: Flowers: $9.25 per ounce Leaves: $2.75 per ounce Referenced in Board of Equalization: Collects & administers Can make adjustment Use tax stamps Link to track & trace Personal cultivation and caregiver exemption Paid quarterly Effective January 1, 2018 May require licensees to have security requirements for tax liabilities Proceeds from taxes placed in Marijuana Tax Fund Administration Then: 60% = Youth-related use 20% = Environment-related 20% = Local government & California Highway Patrol Legislature can change tax distribution formula after July 1, 2028