BILL ANALYSIS Ó
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|Hearing Date:April 21, 2014 |Bill No:SB |
| |1262 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: SB 1262Author:Correa
As Amended: April 21, 2014Fiscal: Yes
SUBJECT: Medical marijuana: regulation of physicians, dispensaries,
and cultivation sites.
SUMMARY: Places certain practice restrictions and requirements on a
physician and surgeon who recommends medical marijuana to a patient;
requires medical marijuana dispensaries and cultivation facilities to
be licensed by the California Department of Public Health; provides
for enforcement of the licensing provisions by county health
departments; specifies that nothing shall prevent a city or other
local governing body from adopting local ordinances that regulate the
location, operation, or establishment of a medical marijuana
cooperative or collective.
Existing law:
1)Licenses and regulates physicians and surgeons under the Medical
Practice Act (Act) by the Medical Board of California (MBC) within
the Department of Consumer Affairs (DCA). (Business and Professions
Code (BPC) § 2000 et seq.)
a) Provides that the MBC shall take action against a physician
who is charged with unprofessional conduct, as specified. (BPC §
2234)
b) Requires the MBC to prioritize its investigative and
prosecutorial resources to ensure that physicians representing
the greatest threat of harm are identified and disciplined
expeditiously and includes in that prioritization list:
"Repeated acts of clearly excessive prescribing, furnishing, or
administering of controlled substances, or repeated acts of
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prescribing, dispensing, or furnishing of controlled substances
without a good faith prior examination of the patient and medical
reason therefor." (BPC § 2220.05)
1)The Compassionate Use Act of 1996 (CUA), an initiative measure,
prohibits prosecution for the possession or cultivation of marijuana
of a patient or a patient's primary caregiver who possesses or
cultivates marijuana for the personal medical purposes of the
patient upon the written or oral recommendation or approval of a
physician. (Health and Safety Code (HSC) § 11362.5)
2)Declares that the purposes of the CUA are:
a) To ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where that medical
use is deemed appropriate and has been recommended by a physician
who has determined that the person's health would benefit from
the use of marijuana in the treatment of cancer, anorexia, AIDS,
chronic pain, spasticity, glaucoma, arthritis, migraine, or any
other illness for which marijuana provides relief.
b) To insure that patients and their primary caregivers, who
obtain and use marijuana for medical purposes upon the
recommendation of a physician, are not subject to criminal
prosecution or sanction.
c) To encourage the Federal and State governments to implement a
plan to provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana. (HSC §
11362.5 (b) (1) (A) to (C))
3)States that nothing in the CUA shall be construed to supersede
legislation prohibiting persons from engaging in conduct that
endangers others, or to condone the diversion of marijuana for
non-medical purposes. (HSC § 11362.5 (b) (2))
4)Provides that, notwithstanding any other provision of law, no
physician in California shall be punished, or denied any right or
privilege, for having recommended marijuana to a patient for medical
purposes. (HSC § 11362.5 (c))
5)States existing law, relating to the possession and the cultivation
of marijuana, shall not apply to a patient, or to a patient's
primary caregiver, who possesses or cultivates marijuana for the
personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician. (HSC Section 11362.5
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(d))
6)Defines "primary caregiver" for purposes of the CUA as the individual
designated by a patient who has consistently assumed responsibility
for the housing, health, or safety of that person. (HSC §
11362.5(e).
7)Requires the California Department of Public Health to establish and
maintain a voluntary Medical Marijuana Program (Program) for
qualified patients to apply for identification cards, and county
health departments to issue identification cards to qualified
patients and their caregivers. (HSC § 11362.7, et. seq.)
8)Provides that qualified patients, persons with valid identification
cards, and the designated primary caregivers of qualified patients
and persons with identification cards who associate within the State
of California in order to cultivate marijuana for medical purposes,
collectively or cooperatively, shall not, solely on that basis, be
subject to state criminal sanctions for the possession, sale,
transport, or other proscribed acts relating to marijuana.
(HSC § 11362.775)
9)Makes it a misdemeanor offense to, among other things, fraudulently
represent a medical condition or provide any material misinformation
to a physician, health department designee, or to law enforcement,
for the purpose or falsely obtaining an identification card;
fraudulently use any person's identification card in order to
acquire, possess, cultivate, transport, use, produce, or distribute
marijuana; counterfeit, tamper with, or fraudulently produce an
identification card; breach any confidentiality requirements
pertaining to an identification card program. (HSC § 11362.81)
10)Requires a person who seeks an identification card to pay a fee and
provide to the county health department the person's name, proof of
residency, written doctor's recommendation, doctor's name and
contact information, caregiver's name and duties, and patient's and
caregiver's government issued photo identification card. (HSC §
11362.715 (a))
11)Requires county health departments to issue serially numbered
identification cards to patients and caregivers containing: a unique
user identification number, an expiration date, the county health
department's name and telephone number, photo identification of the
cardholder, and a toll-free Department of Public Health telephone
number enabling state and local law enforcement officers to
immediately verify the card's validity. (HSC Section 11362.735 (a))
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12)Prohibits state or local law enforcement officers from refusing to
accept an identification card unless the officer has reasonable
cause to believe that the card is being used fraudulently or its
information is false or fraudulent. (HSC § 11362.78)
13)Provides that qualified patients, persons with valid identification
cards, and their designated primary caregivers who associate in
order to collectively or cooperatively to cultivate marijuana are
not subject to criminal liability on that basis. (HSC § 11362.775)
14)Prohibits medical marijuana dispensaries that possess, cultivate, or
distribute medical marijuana from being located within a 600 foot
radius of a school, and authorizes cities and counties to further
restrict the locations of medical marijuana collectives. (HSC §
11362.768)
15)Lists marijuana as a hallucinogenic substance in Schedule I of the
California Uniform Controlled Substances Act. (HSC § 11054 (d))
This bill:
1)States legislative intent to the following:
a) The broad authority granted by the California Constitution to
cities and counties to determine, the appropriate uses of land
within their borders, allows each city and county to determine
whether or not a medical marijuana dispensary or other facility
that makes medical marijuana available may operate within its
borders.
b) If, pursuant to this authority, a city or county determines
that a dispensary or other facility that makes medical marijuana
available may operate within its borders, then there is a need
for the state to license and regulate these dispensaries and
other facilities. A licensing requirement is not intended to
preempt local ordinances regarding the sale and use of medical
marijuana, including, but not limited to, security, signage,
lighting, and inspections.
c) The following elements are necessary to uphold important state
goals:
1. Strict provisions to prevent the potential diversion of
marijuana for recreational use.
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2. An effective means of restricting access to medical
marijuana by persons under
21 years of age.
a) The act shall not be construed to promote or facilitate the
non-medical, recreational possession, sale, or use of marijuana.
Physician and Surgeon / Medical Board Provisions (MBC)
2)Prior to recommending medical marijuana to a patient, a physician and
surgeon shall meet the following requirements:
b) Have a doctor-patient relationship.
c) Conduct an appropriate prior examination of the patient to
establish that medical use of marijuana is appropriate.
d) Consult with the patient as necessary and periodically review
the treatment's efficacy.
3)Requires a physician recommending medical marijuana to do the
following:
e) Include a discussion of the side effects.
f) Address in the recommendation what kind of marijuana to
obtain, including high tetrahydrocannabinol (THC) levels, low THC
levels, high cannabidiol (CBD) levels, low CBD levels, and
explain the reason for recommending the particular strain. Also
prohibits a physician and surgeon from recommending butane hash
oil.
g) Maintain records for individual patient supporting the
decision to recommend medical marijuana.
4)Makes specified requirements for any recommendation for medical
marijuana to a person under 21 years of age:
h) The recommendation must be approved by a board certified
pediatrician.
i) The recommendation must be for high CBD marijuana.
j) All recommendations must be for non-smoking delivery.
5) Makes it a crime (misdemeanor) for a physician who recommends
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marijuana to a patient for a medical purpose to accept, solicit or
offer any form of remuneration from or to a licensed facility if
the physician or his or her immediate family has a financial
interest as specified.
6) Requires MBC by January 1, 2016, to convene a task force of experts
on the use of medical marijuana, to review and update as necessary
physician guidelines for recommending medical marijuana to ensure
the competent review in cases concerning the recommendation of
marijuana for medical purposes.
7) Makes it unprofessional conduct (thus subject to disciplinary
action by the MBC), for a physician to recommend marijuana to a
patient for a medical purpose without an appropriate
prior examination and a medical indication, or to recommend marijuana
for non-medical purposes.
California Department of Public Health (CDPH) Licensing Provisions
8) Requires the CDPH to license dispensing facilities and cultivation
sites, and:
a) Prohibits a person from selling or providing marijuana other
than at a licensed dispensing facility.
b) Prohibits a person from growing or processing marijuana other
than at a licensed cultivation site.
1)Defines the following terms:
a) "Licensed cultivation site" means a facility that grows or
grows and processes marijuana for medical use and that is
licensed, as specified.
b) "Licensed dispensing facility" means a dispensary, mobile
dispensary, marijuana processing facility, or other facility that
provides marijuana for medical use that is licensed, as
specified.
c) "Minor" means a person who is under 21 years of age.
1)Prior to issuing a license to a dispensing facility or a cultivation
site, CDPH must require from each proposed facility:
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a) The name of the owner or owners and the address and telephone
number of the proposed facility.
b) A description of the scope of the proposed business.
c) A certified copy of the local jurisdiction's approval to
operate within its borders.
d) A completed application required by CDPH.
e) Payment of a fee, in an amount determined by CDPH, sufficient
to cover but not exceed the actual costs of the administration of
the licensing provisions.
f) Any other information required by CDPH.
1)Requires CDPH, after consulting with outside entities, to establish
standards for quality assurance testing of medical marijuana, to
ensure protection against microbiological contaminants, and
prohibits non-organic pesticide use in any marijuana cultivation
site.
2)Imposes certain requirements and prohibitions upon a licensed
dispensing facility, including:
a) Prohibits acquiring, possessing, cultivating, delivering,
transferring, transporting, or dispensing marijuana for any
purpose other than those authorized by Article 2.5 (commencing
with Section 11362.7) of Chapter 6 of Division 10.
b) Prohibits acquiring marijuana plants or products except
through the cultivation of marijuana by that facility, if the
facility is a licensed cultivation site, or another licensed
cultivation site.
1)Prohibits a licensed facility from issuing a marijuana product to any
patient without first verifying that the recommending physician is
licensed to practice medicine in California.
2)Prohibits the distribution of any form of advertising for physician
recommendation of medicinal marijuana unless the advertisement
contains the following notice:
"NOTICE TO CONSUMERS: The Compassionate Use Act of 1996 ensures
that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where medical use is deemed
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appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use
of marijuana. Physicians arrive at the decision to make this
recommendation in accordance with accepted standards of medical
responsibility and are licensed and regulated by the Medical
Board of California. California law prohibits advertising that
includes statements of bait, discount, premiums, gifts, or any
statements of a similar nature."
3)Requires any advertising for physician recommendation for medicinal
marijuana to meet the advertising requirements of the Medical
Practice Act, and specifically prohibits fraudulent, deceitful, or
misleading statements, including statements or advertisements of
bait, discount, premiums, gifts, or any statements of a similar
nature.
4) Requires implementing sufficient security measures to deter and
prevent unauthorized entrance into areas containing marijuana and
theft of marijuana at those facilities. The security measures
shall include: limiting access to the facility to only registered
qualifying patients, personal caregivers, and facility agents;
preventing unauthorized individuals from remaining on the premises;
establishing limited access areas accessible only to authorized
facility personnel; and storing marijuana in a secure, locked safe
or vault to prevent diversion, theft, and loss.
5)Requires a licensed facility to notify law enforcement within 24
hours after discovering discrepancies during the inventory,
diversion, theft, loss, or any criminal activity involving the
facility or a facility agent, any loss or unauthorized alteration of
facility records, and any breach of security.
6)Requires a licensed cultivation site to weigh, inventory, and video,
all medical marijuana to be transported prior to its leaving its
origination location. Requires a licensed dispensing facility,
within eight hours after arrival at the destination, to re-weigh,
re-inventory, and video, all transported marijuana.
Local Government Provisions
7)Provides for enforcement by the county health department, with
oversight by the CDPH.
8)Authorizes an county enforcement officer to enter a facility during
the facility's hours of operation and other reasonable times to:
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a) Conduct inspections, issue citations, and secure samples,
photographs, or other evidence at a licensed facility or at a
facility suspected of being a dispensing facility or cultivation
site.
b) Obtain evidence, including documents, or copies of documents,
including inventories, or any record, file, paper, process,
invoice, video, or receipt in order to determine compliance with
the chapter.
1)Requires a county enforcement officer to make a written report and
furnish a copy to the facility owner upon the completion of an
inspection or investigation.
2)Requires local governments, upon request by CDPH, to provide reports
on the number and types of facilities operating within their
jurisdiction.
3)Makes a facility license subject to the restrictions of the local
jurisdiction in which the facility operates or proposes to operate.
Specifies that even if a license has been granted by CDPH, a
facility shall not operate in a local jurisdiction that prohibits
the establishment of that type of business.
4)Makes violation of the licensing provisions punishable by a civil
fine of up to $35,000 for each individual violation.
5)Specifies that nothing shall prevent a city or other local governing
body from:
a) Adopting local ordinances that regulate the location,
operation, or establishment of a medical marijuana cooperative or
collective.
b) The civil and criminal enforcement of those local ordinances.
c) Enacting other laws consistent with the licensing provisions.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by California Police Chiefs
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Association and League of California Cities (Sponsors) to establish
a regulatory framework for medical marijuana that prioritizes public
safety and local control.
According to the Author, SB 1262 is aimed at setting tighter
regulations on doctors who issue medical marijuana recommendations,
including recommendations to minors. The bill would require all
marijuana dispensing facilities and cultivations sites to be
licensed by the Department of Public Health (DPH). Approval from
local jurisdictions would be required as part of the state license.
The Author states that the bill also upholds local governments'
ability to ban medical marijuana dispensaries and all related
facilities, sets uniform health and safety
standards to be administered by counties with oversight by the DPH, and
outlines security measures for all medical marijuana facilities.
The Author writes, "While medical marijuana is legal in California, the
industry is poorly regulated. Existing laws lack appropriate
standards for medical marijuana recommendations, cultivation,
processing and sales. SB 1262 will set needed health and safety
standards, require licensing, protect local authority, and establish
security measures for the sale of medical marijuana."
2.Background. Since the approval of the CUA by voters in 1996,
commonly known as Proposition 215, state law has allowed
Californians access to marijuana for medical purposes, and
prohibited punitive action against physicians for making medical
marijuana recommendations. SB 420 (Vasconcellos, Chapter 875,
Statutes of 2003), allowed patients and primary caregivers to
cultivate marijuana for personal use and established in the CDPH a
medical marijuana card program for patients to use on a voluntary
basis.
In the intervening 11 years, although there have been several
legislative attempts, no broader, feasible regulatory structure has
been established, and the implementation of the CUA has been marked
by conflicting authorities, regulatory chaos, intermittent federal
enforcement action, and a series of lawsuits which have tested the
limits of the CUA, and focused on the extent of the authority of
local government.
The Author indicates that most attempts at medical marijuana
legislation in California have been geared toward state pre-emption,
and unsympathetic to the authority of local government. None have
been health-based, despite the medical rationale that spawned the
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CUA. None have sought to impose any health and safety standards,
despite the fact that the regulatory structure they tried to
establish would have exercised oversight over what is known to be a
psychotropic substance. And finally, no legislation has squarely
addressed the many public safety concerns triggered by such a
regulatory scheme, according to the Author.
3.Compassionate Use Act of 1996. California voters passed the CUA in
1996. The CUA established the right of patients to obtain and use
marijuana to treat specified illnesses and any other illness for
which marijuana provides relief. Additionally, the CUA specifically
protects physicians who recommend the use of marijuana to patients
for medical purposes and exempts qualified patients and their
primary caregivers from California drug laws prohibiting possession
and cultivation of marijuana.
The CUA is a broadly-framed law. It establishes the right of a patient
to obtain medical marijuana pursuant to a physician's
recommendation. The initiative then simply encourages the state and
federal governments to "implement a plan for safe and affordable
distribution of marijuana [to qualified patients]." It has been
argued that very little has been done to implement the initiative.
Instead of a comprehensive implementation plan, numerous
uncoordinated bills have been introduced in the Legislature.
Further, the courts have only provided a small measure of clarity
and certainty in this area.
4.CDPH Medical Marijuana Program. The California Department of Public
Health, Medical Marijuana Program (MMP) was specifically established
by SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) to create a
State-authorized medical marijuana identification card (MMIC), along
with a registry database for verification of qualified patients and
their primary caregivers. Participation by patients and primary
caregivers in this identification card program is voluntary. The
MMP Web-based registry allows law enforcement and the public to
verify the validity of a qualified patient or primary caregiver's
MMIC as authorization to possess, grow, transport, and/or use
medical marijuana within California. A qualified patient or primary
caregiver may possess no more than 8 ounces of dried marijuana per
qualified patient (HSC § 11362.77). Under the MMP, a patient or
qualified caregiver with a recommendation for medical marijuana from
a licensed California physician can for a MMIC through the local
County Public Health Department. Fees for the card registration
vary from county to county and the card is valid for one year, after
which the card must be renewed. A primary caregiver card will
expire when the patient's card expires.
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In order to apply for a MMP, a patient or qualified caregiver must
reside in the county where they apply, present the physician
recommendation for medical marijuana, and pay the fee required by
the county. Upon issuance of the MMIC, the card is registered into
an online database which law enforcement can use to verify whether a
MMIC is valid.
The MMP is a voluntary registration program. A patient or a qualified
caregiver is not required to obtain a MMIC or to participate in the
MMP in order to use medical marijuana upon the recommendation of a
physician under the CUA.
5.California Attorney General's Compassionate Use Guidelines. In 2003,
SB 420 additionally required the California Attorney General to
adopt "guidelines to ensure the security and non-diversion of
marijuana grown for medical use" (HSC § 11362.81 (d)). To fulfill
this mandate, in August of 2008, the Attorney General published
Guidelines for the Security and Non-Diversion of Marijuana Grown for
Medical Use (California Attorney General. August 2008) (Guidelines).
The Guidelines are intended to: (1) ensure that marijuana grown
for medical purposes remains secure and does not find its way to
non-patients or illicit markets, (2) help law enforcement agencies
perform their duties effectively and in accordance with California
law, and (3) help patients and primary caregivers understand how
they may cultivate, transport, possess, and use medical marijuana
under California law.
6.Marijuana - A Schedule 1 Drug. Even though California voters enacted
the CUA to permit the use of marijuana for medical purposes by
persons deemed qualified by their physicians, marijuana still is an
illegal drug both under federal and state law, and its use,
possession, distribution, cultivation, or sale carries criminal
penalties. Under California law, marijuana is listed as a
hallucinogenic substance in Schedule I of the California Uniform
Controlled Substances Act (HSC § 11054 (d)). Under federal law,
possession of marijuana, even by medical users, continues to be a
crime. The federal Controlled Substances Act specifies that, except
as provided, it is unlawful for any person knowingly or
intentionally to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense a controlled
substance. (21 U.S.C. Sec. 841(a)) The only exception provided in
the Controlled Substances Act for marijuana, a Schedule I drug, is
for its use in government-controlled research projects.
Thus far, calls to reclassify marijuana to remove it from the list of
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Schedule I drugs have not resulted in any change in classification.
Since marijuana is a Schedule I drug, the medical community is
unable to do any substantive clinical trials, controlled studies or
peer-reviewed research. Therefore, it is difficult, if not
impossible, for a physician to make recommendations about what kind
of marijuana to obtain (high THC, high CBD, low CBD) and explain the
reason for recommending the particular strain of marijuana. A lack
of evidence-based medicine further makes it difficult for a
physician to evaluate the efficacy of a patient's course of
treatment with medical marijuana. These are both elements of this
bill which may well prove problematic within the field of the
practice of medicine.
7.U. S. Department of Justice Guidance Rewarding Marijuana Enforcement.
In August of 2013, the U.S. Department of Justice (USDOJ) issued a
memorandum titled "Guidance Regarding Marijuana Enforcement" to all
U.S. Attorneys. The memorandum updated the prior guidance given by
USDOJ regarding marijuana enforcement under the federal Controlled
Substances Act, in light of state ballot initiatives that legalize
marijuana under state laws and that provide for the possession and
use of small amounts of marijuana.
While affirming that marijuana is still, at the federal level,
considered a dangerous drug and that the illegal distribution and
sale of marijuana is a serious crime, the memorandum outlines
enforcement priorities that are particularly important to the
federal government, including: preventing distribution to minors;
preventing revenue from marijuana from going to criminal
enterprises; preventing diversion to other states where marijuana is
not legal under state law; preventing state-authorized marijuana
from being a cover for trafficking in other illegal drugs or illegal
activity; preventing violence in cultivating and distributing
marijuana; preventing drugged driving and other public health
problems from marijuana use; and preventing growing, possessing or
using marijuana on public lands or on federal property
The document clearly lays out the federal expectation for the states
that have legalized marijuana, even if only for medical purposes,
that they will develop a robust system of regulation and
enforcement, and that such a system will reduce the likelihood of
federal enforcement activity.
8.Local Control of Medical Marijuana Dispensaries. In 2013, the
California Supreme Court in City of Riverside v. Inland Empire
Patients, upheld that local governments have inherent zoning power.
The issue in this case was whether California's medical marijuana
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statutes preempt a local ban on facilities that distribute medical
marijuana. The Court concluded they do not and upheld the City of
Riverside's implementation of a ban on medical marijuana
dispensaries and on any facility that is prohibited by federal or
state law.
9.Related Legislation. AB 604 (Ammiano, 2013) creates a Division of
Medical Cannabis Regulation and Enforcement within the Department of
Alcoholic Beverage Control with exclusive power to register persons
for the cultivation, manufacture, testing, transportation, storage,
distribution, and sale of medical cannabis within the state subject
to specified exemptions for a city or county. Provides that a
commercial registrant and its employees regarding medical cannabis
are not unlawful, as specified, and establishes requirements for the
transportation of medical cannabis. Specifies that its provisions
do not affect local zoning ordinances or laws of general
application. Makes a physician recommending marijuana to patients
without a good faith examination and medical reason to be
unprofessional conduct and should be given priority for
investigation and prosecution by the MBC. ( Status : Referred to
Senate Public Safety Committee.)
SB 439 (Steinberg, 2013) exempts medical-marijuana collectives and
cooperatives from criminal liability for possession, cultivation,
possession for sale, sale, transport, importation, and furnishing
marijuana. Clarifies MBC enforcement of medical marijuana
recommendations, what constitutes unprofessional conduct, and the
bar on the corporate practice of medicine. (Status: Referred to
Assembly Health Committee.)
AB 473 (Ammiano, 2013) enacted the Medical Marijuana Regulation and
Control Act, and create a Division of Medical Marijuana Regulation
and Enforcement in the in the Department of Alcoholic Beverage
Control to regulate the cultivation, manufacture, testing,
transportation, distribution, and sale of medical marijuana.
( Status : This measure failed passage on the Assembly Floor.)
AB 2312 (Ammiano, 2012) established a nine-member Board of Medical
Marijuana Enforcement within the Department of Consumer Affairs to
regulate the medical marijuana industry and to collect fees from
medical marijuana businesses to be deposited into a new Medical
Marijuana Fund. The bill would have authorized local taxes on
medical marijuana up to 5%. ( Status : This bill died in Senate
BP&ED.)
AB 2465 (Campos, 2012) made medical marijuana patient and caregiver
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identification cards mandatory, and required medical marijuana
collectives to keep copies of members' identification cards.
( Status : This bill died without hearing in Assembly Public Safety
Committee.)
SB 1182 (Leno, 2012) provided that a cooperative or collective that
operates within the Attorney General's (AG) shall not be subject to
prosecution for marijuana possession or commerce, as specified; and
provided that where such an entity operates within the AG's
guidelines, the entity and its employees, officers and members shall
not be subject to prosecution for marijuana commerce because the
entity or its employees, officers, or members received compensation
for actual expenses incurred in carrying out activities in
compliance with the guidelines. ( Status : This bill died on Senate
Floor.)
SB 129 (Leno, 2012) prohibited employment discrimination on the basis
of a person's status as a qualified patient (medical marijuana user)
or on the basis of the person's positive drug test for marijuana,
provided the person is a qualified patient and the medical use of
marijuana does not occur at the place of employment or during hours
of employment. ( Status : This bill died on Senate Inactive File.)
AB 1300 (Blumenfield, Chapter, 196, Statutes of 2011) provided that a
local government may enact an ordinance regulating the location,
operation or establishment of a medical marijuana cooperative or
collective. Authorized a local government to enforce such
ordinances through civil or criminal remedies and actions; and
authorized the local government to enact any ordinance that is
consistent with the Medical Marijuana Program, which is intended to
implement the CUA.
AB 1017 (Ammiano, 2011) made the cultivation of marijuana alternatively
punishable as a misdemeanor with a penalty of imprisonment in a
county jail for a period of not more than one year. ( Status : This
bill failed passage on Assembly Floor.)
AB 223 (Ammiano, 2011) provided that the CUA does not authorize a
qualified patient or person with an identification card to engage in
the smoking of medical marijuana within 600 feet of the grounds of a
school, recreation center, or youth center, unless the medical use
occurs within a residence or within a medical marijuana cooperative,
collective, or dispensary. ( Status : This bill died in Assembly
Public Safety Committee.)
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SB 626 (Calderon, 2011) would require the Board of Equalization (BOE)
to establish a nine-member task force to conduct a study to
determine ways to enhance collections of sales and use taxes on
retail sales of marijuana and ensure proper regulation of the
cultivation, transportation, and distribution of marijuana and
marijuana products. ( Status : This bill was held in Senate
Appropriations Committee.)
SB 847 (Correa, 2011) prohibited any medical marijuana entity that
possesses, cultivates, or distributes medical marijuana from
locating within 600 feet of a residential area unless a local
ordinance has been adopted to specifically regulate the location of
these entities in relation to residential use. ( Status : This bill
was vetoed by Governor Brown.)
AB 2650 (Buchanan, Chapter 603, Stats. 2010) prohibited operation or
establishment of a medical marijuana cooperative, collective,
dispensary or provider within 600 feet of a school; provided that
ordinances adopted prior to January 1, 2011 regulating the location
or establishment of such a medical marijuana entity shall not be
preempted by the bill; authorized a local entity to only adopt an
ordinance that restricts the location or establishment of a medical
marijuana entity at a further distance than is restricted by the
bill.
SB 1098 (Migden, 2008) required the State Board of Equalization to
administer a tax amnesty program, as specified, for medical
marijuana dispensaries, as defined. ( Status : This bill died in
Senate Revenue and Taxation Committee.)
SB 529 (Migden, 2007) required the Board of Equalization to administer
a tax amnesty program, as specified, for medical marijuana
dispensaries. ( Status : This bill was gutted and amended to
different subject.)
SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) established the
Medical Marijuana Program Act, a statewide, voluntary program for
the issuance of identification cards to identify persons authorized
to engage in the medical use of marijuana under the CUA.
10.Arguments in Support. In sponsoring the bill, the League of
California Cities writes that in 2013, the League and the California
Police Chiefs Association "joined forces to defeat no fewer than
four bills in the California Legislature that sought to regulate
medical marijuana. We opposed each of the bills over concerns they
would have preempted local control, ignored significant public
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safety concerns, and failed to address important health and safety
issues." The League states that SB 1262, "which has been carefully
vetted with city attorneys, police chiefs, and the League's Public
Safety Policy Committee, provides what California has lacked since
the passage of Proposition 215 in 1996: a reasonable public safety
and health-based approach to implementing this proposition in a
state with great size and diversity."
The California Police Chiefs Association argues that the bill
establishes an improved regulatory structure to ensure that
Proposition 215 works as originally envisioned to assist patients
with legitimate medical needs, in a manner that works for law
enforcement, city and county governments, local community
organizations, and medical professionals. "As police chiefs and
local government leaders, we believe it is time to address the flaws
associated with
Proposition 215 implementation in a responsible, realistic and
health-based fashion while also protecting the needs of legitimate
medical patients."
A number of California cities and city police associations have
written, voicing support for the bill, stating that previous
legislation sought to pre-empt or undermine local control, only
partially addressed the significant public safety concerns raised by
medical marijuana, and failed to address important health and safety
issues that are inevitably triggered by a regulatory process for any
medicine. The supporters state that municipal governments, are on
the front lines on this issue along with local police departments,
and have to cope with the effects of the current chaotic regulatory
structure for medical marijuana on a daily basis. These supporters
believe that the bill puts a responsible regulatory structure in
place that protects patient access while protecting local control
and addressing public safety issues.
International Faith Based Coalition (IFBC) states its strong support of
the bill stating "The sad fact is that anyone who simply wants to
get high can obtain a marijuana recommendation from a compliant
doctor. Here in Sacramento the infamous 'Dr. Skype' was churning
out medical recommendations in a 42 second time-frame. Those 42
seconds included a 'consultation' conducted on Skype. Unhappily,
the "Dr. Skype" example is not an isolated one, as this practice of
recommendations for everyone pervades the state." The IFBC writes
that requiring the existence of a bona-fide doctor-patient
relationship in order to issue a medical marijuana recommendation
assures that people who need to obtain a recommendation for
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legitimate medical purposes may obtain one, while eliminating the
deplorable practices that have been taking place.
The Association For Los Angeles Deputy Sheriffs ; Association Of Orange
County Deputy Sheriffs ; California Fraternal Order Of Police ;
California Police Chiefs Association ; Long Beach Police Officers
Association ; Los Angeles County Professional Peace Officers
Association ; Los Angeles Police Protective League ; Riverside
Sheriffs Association ; Sacramento County Deputy Sheriffs Association ;
Santa Ana Police Officers Association write in support that what
voters did not have in mind is what we have today: A state of
affairs where medical marijuana recommendation fraud is so rampant
that virtually anyone in California may obtain a recommendation to
use marijuana.
11.Arguments in Opposition. Butte County opposes the bill, stating
that the bill would specifically assign enforcement responsibilities
on county health departments, and argues that this assignment of
enforcement responsibilities weakens local control.
12.Oppose Unless Amended. California Medical Association (CMA) opposes
the bill unless amended, stating that generally speaking, the issues
of inappropriate recommendations of medical marijuana stem from a
lack of enforcement of existing and widely accepted community
standards of care involving medical marijuana. CMA states that it
has been working with the Author and recommends amendments to make
enforcement of the medicinal marijuana recommendations an
enforcement priority of the MBC, and in addition recommends six
other consumer protections that would make a meaningful impact on
inappropriate recommendations. CMA states that several provisions
of the bill could subject physicians to federal enforcement action
due to the Schedule I federal classification of marijuana. The bill
would require physicians to include in the recommendation the type
and strength of marijuana to use, despite the fact that this
information is generally not available due to the federal Schedule I
designation. CMA states that the bill would create additional and
significant hurdles for children who suffer from epilepsy, seizures,
and other neurological conditions, despite promising outcomes that
have been reported.
California National Organization for the Reform of Marijuana Laws (Cal
NORML) strongly opposes the bill unless it is amended. Cal NORML
contends the bill restricts recommendations to a patient's primary
care physician or a physician referred by his or her primary care
physician. Committee staff notes that the Author has removed this
provision in the latest amendments. Cal NORML believes the bill
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restricts a physician's right to recommend contrary to the CUA. The
bill would further restrict recommendations for minors to
pediatricians only. Cal NORML recommends the bill be amended to
provide for separately regulates processing facilities, and that the
physician referral restrictions be removed from the bill.
Law Enforcement Against Prohibition (LEAP) opposes SB1262's provisions
restricting physician recommendations, and has taken an oppose
unless amended position on the bill. At the same time LEAP regards
the remainder of the bill as a first step towards legal regulation,
in keeping with the CUA, for a system of safe and affordable
distribution of marijuana to all patients in medical need.
Yolo County Board of Supervisors opposes the bill unless amended, and
writes that while the County welcomes more regulation of the medical
marijuana industry, it cannot support the bill as written, since the
bill currently imposes a state-mandated local program by designating
county health departments as the enforcement agencies for medical
marijuana dispensary licensing. "County health departments do not
have the funding, staff, or expertise to act as the enforcement
agencies for medical marijuana dispensary licensing."
Americans for Safe Access (ASA) , recommends amendments to ensure that
the interests of legal medical marijuana patients are respected,
including: establishing incentives for local jurisdictions that
choose to regulate medical marijuana cultivation, processing,
provision, and testing; providing sliding scale licensing fees to
protect smaller cooperative patient cultivation; including language
to ensure that cooperatives and collectives qualified to operate
under Measure D, in Los Angeles in 2013, and other similar local
ordinances will also be qualified under the bill; significantly
revising the provisions for doctors who recommend medical marijuana
to ensure that the bill does not inadvertently choke off access to
medicine for legitimate patients.
Greater Los Angeles Collective Alliance (GLACA) states that changes
need to be made to the bill to reflect the realities of how those
who use medical cannabis obtain recommendations from doctors. CLACA
states: "Without these changes, you will have cut off access to
medical cannabis for the sickest and most vulnerable of the
population; those with terminal illnesses who have been thrown into
poverty as their disease progressed."
Rural County Representatives of California (RCRC) has an oppose unless
amended position and states that the issue of marijuana cultivation
is of particular focus to RCRC's member counties, and in the absence
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of state policies, a number of counties have adopted ordinances
banning dispensaries and restricting/banning growing marijuana.
RCRC states that the bill takes a completely different perspective
than RCRC's policies which advocates a strong regulatory scheme at
the state level which is administered by a state agency. Although
local agencies must retain their police power, particularly over
land use, counties expect to have minimal involvement in the
administration of the state's medical marijuana regulatory scheme.
RCRC states that the bill as drafted places new requirements on a
number of county entities (environmental health, agricultural
commissioners, sheriff's departments) to perform a number of
regulatory activities. The resulting new responsibilities would
require a dramatic restructuring to limit a county's role and
responsibilities and place the day-to-day regulation of medical
marijuana with the State of California.
13.Policy Issues. Several policy concerns are noted in regard to this
bill which the Author and Sponsors should address in the event that
the bill moves forward.
a. Apparent lack of enforcement. In stating the need for the
bill, proponents have raised a number of anecdotal accounts of
problems with physicians making recommendations for patients to
use medical marijuana. These range from the so called "Dr.
Skype" in Sacramento who spent an average of 42 seconds meeting
with a patient over an Internet video connection before
recommending medical marijuana, to advertising for physician
referrals by bikini-clad roller skaters on beach boardwalks, to
guarantees in advertising that "you will get a marijuana card or
your money back," to handing out discount cards at hemp
festivals, to doctors who will recommend medical marijuana for
virtually any medical condition alleged by a patient with little
or no verification by the physician. It appears that these cases
are not only egregious but are also currently in violation of the
standard of care for a physician under the law. This appears to
be an argument that there is a current lack of enforcement by
state regulatory agencies, in particularly by the MBC.
b. Pediatrician referrals for persons under 21. The bill
requires medical marijuana referrals for persons under 21 years
of age to be made by board certified pediatricians. Typically
pediatricians see children only up to 18 years of age. Thus, the
bill leaves a gap in who can recommend medical marijuana for
persons between 18 and 21 years old.
c. Physician recommendations for specific strains of medical
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marijuana. The bill requires a physician recommendation to
address what kind of marijuana to obtain, including high THC
levels, low THC levels, high CBD levels, low CBD levels, and
explain the reason for recommending the particular strain of
marijuana, and prohibits a physician from recommending butane
hash oil. Since there is an admitted paucity of clinical data
and empirical studies regarding specific uses and types of
applications of medical marijuana, these requirements may be
misplaced. The Committee may wish the Author or Sponsors to
address this issue.
d. Criminal background checks. Admittedly, the emergence of
medical marijuana has a strong likelihood of attracting a
criminal element to the cultivation, processing or dispensary
components of the regulated practice. However, it does not
appear that there are any provisions for criminal background
checks by the CDPH in licensing dispensaries or cultivation
facilities or by their employees or agents.
e. Enforcement and licensing. The bill requires dispensaries and
cultivation facilities to be licensed by CDPH, and provides for
enforcement of the licensing provisions to be carried out by
county health departments. This arrangement appears to create a
disconnect between the licensing and enforcement agencies, and
increases the likelihood of the agencies moving in divergent
directions. The Committee may wish the Author or Sponsors to
discuss how these issues might best be addressed in the bill.
NOTE : Double-referral to Health Committee (Second). Any amendments
to this bill should be made in Senate Health Committee.
SUPPORT AND OPPOSITION:
Support :
California Police Chiefs Association (Sponsor)
League of California Cities (Sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Association of Code Enforcement Officers
California Fraternal Order of Police
City of Adelanto
City of Beaumont
City of Canyon Lake
City of Chowchilla
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City of Covina
City of Encinitas
City of Etna
City of Fortuna
City of Gardena
City of Glendora
City of Hemet
City of Highland
City of La Palma
City of Lathrop
City of Lodi
City of Merced
City of Norwalk
City of Rancho Cordova
City of Rancho Cucamonga
City of Rancho Mirage
City of Rosemead
City of Sacramento
City of San Carlos
City of Woodland
Covina Police Department
El Monte, South El Monte Chamber of Commerce
International Faith Based Coalition
Long Beach Police Officers Association
Los Angeles County Police Professional Peace Officers Association
Los Angeles Police Protective League
Mammoth Lakes Police Department
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs Association
San Diego County District Attorney
San Diego District Attorney
Santa Ana Police Officers Association
Smart Approaches to Marijuana (Project SAM)
Town of Colma Police Department
Town of Danville
Support if Amended :
Patient Advocacy Network
Opposition :
Butte County Board of Supervisors
Oppose Unless Amended :
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American Academy of Cannabinoid Medicine
Americans for Safe Access
California Medical Association
California National Organization for Reform of Marijuana Laws (oppose
unless amended)
California National Organization for the Reform of Marijuana Laws (Cal
NORML)
Drug Policy Alliance
Law Enforcement Against Prohibition
Rural County Representatives of California
The Greater Los Angeles Collective Alliance
Yolo County
Consultant:G. V. Ayers