BILL ANALYSIS Ó
SB 1262
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
SB 1262 (Correa) - As Amended: June 15, 2014
SENATE VOTE : 31-0
SUBJECT : Medical marijuana: regulation of physicians,
dispensaries, and cultivation sites.
SUMMARY : Establishes a licensing and regulatory framework for
the cultivation, processing, transportation, testing,
recommendation and sale of medical marijuana to be administered
by the Department of Consumer Affairs (DCA) and enforced
primarily at the local level. Specifically, this bill :
Physician and Physician-Related Provisions
1)Requires the Medical Board of California (MBC) to include the
inappropriate recommendation of medical marijuana in its list
of investigation and prosecution priorities.
2)Prohibits a person from recommending medical marijuana to a
patient unless that person is the patient's attending
physician.
3)Prohibits a physician who recommends medical marijuana to a
patient from accepting, soliciting, or offering any form of
remuneration from or to a licensed medical marijuana facility
if the physician or his or her immediately family have a
financial interest in that facility.
4)Requires MBC to consult with the California Marijuana Research
Program on developing and adopting medical guidelines for the
appropriate administration and use of marijuana.
5)Requires advertising for physician recommendations for medical
marijuana to meet all requirements to bear a prescribed notice
for consumers and comply with false advertising prohibitions
for healing arts practitioners, as specified, and prohibits
price advertising that is fraudulent, deceitful, or
misleading.
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DCA Licensing Provisions
6)Defines the following terms:
a) "Certified testing laboratory" means a laboratory that
is certified by DCA to perform random sample testing of
marijuana pursuant to the certification standards for these
facilities promulgated by DCA;
b) "Dispensary" means a distribution operation that
provides marijuana for medical use and that is licensed
pursuant to these provisions;
c) "Licensed cultivation site" means a facility that grows
marijuana for medical use and that is licensed pursuant to
these provisions;
d) "Licensed dispensing facility" means a dispensary or
other facility that provides marijuana for medical use that
is licensed pursuant to these provisions;
e) "Licensed processing facility" means a facility licensed
by DCA where marijuana or marijuana products are inspected,
packaged, labeled, or otherwise prepared prior to being
provided to another licensed facility ; and
f) "Licensed transporter" means an individual or entity
licensed by DCA to transport marijuana to and from licensed
facilities.
7)Prohibits selling, providing, growing, or processing marijuana
other than at a licensed facility, or transporting marijuana
without a license, and prohibits any of these activities for
any other purpose than those authorized under the Medical
Marijuana Program (MMP).
8) Requires DCA, prior to issuing a license to a dispensing
facility or a cultivation site, to require specified
information and a certified copy of the local jurisdiction's
approval to operate within its borders; payment of a fee in an
amount determined by DCA sufficient to cover but not exceed
the actual costs of the administration of the licensing
provisions; and an applicant's fingerprint images and related
information required by the Department of Justice (DOJ) to
obtain information as to the existence and content of a record
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of state and federal convictions and arrests, as specified.
9)Authorizes DCA to deny a license based on a past criminal
conviction if the crime is substantially related to the
qualifications, functions, or duties of the business for which
the license will be issued, and prohibits DCA from issuing a
license or renewing a license if the applicant fails to meet
any applicable requirements under these provisions or under
local ordinances, or if the applicant has been sanctioned by
DCA, a city, county, or city and county for marijuana
activities conducted in violation of these provisions or any
applicable local ordinance, or has had a licensed revoked in
the last five years, as specified.
10)Requires a license, once issued, to be suspended within five
days of notification to DCA by a local agency that a license
is no longer in compliance with local ordinances or
regulation.
11)Provides that each class of license is separate and distinct,
and prohibits licensees from holding a license in more than
one license class or being an officer, director, member,
owner, or shareholder in another licensed entity.
12)Requires DCA to promulgate, by July 1, 2016, regulations for
the implementation and enforcement of these provisions,
including licensure standards and fees; provisions for
enforcement; appropriate health and safety standards for the
packaging, labeling and dispensing of medical marijuana;
certified testing laboratory standards; and various forms and
applications.
13)Authorizes DCA to consult with other state agencies, state
departments, public entities, or private entities, as
specified, for the purposes of establishing statewide
standards and regulations.
Transportation and Security Provisions
14)Authorizes a licensed transporter to only ship marijuana and
marijuana products to licensed facilities and only in response
to a request for a specific quantity and variety from those
facilities.
15)Requires a licensed transporter, prior to transporting any
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medical marijuana product, to complete a shipping manifest
using a form prescribed by DCA and to securely transmit a copy
of the manifest to the licensee that will receive the medical
marijuana product, and to the department, prior to transport.
16)Establishes safety and staffing requirements for licensed
transporters when the vehicle contains medical marijuana, as
specified.
17)Requires licensed facilities to implement sufficient security
measures to deter and prevent unauthorized entrance into areas
containing marijuana and theft of marijuana at those
facilities, as specified, and requires a licensed facility to
notify law enforcement within 24 hours after discovering any
breach of security, as specified.
Health and Safety Standards Provisions
18)Requires marijuana and marijuana products to be tested by a
certified testing laboratory, and requires DCA to promulgate
regulations by July 1, 2016 setting minimum statewide health
and safety standards and quality assurance standards
associated with the cultivation, transport, storage, and sale
of all medical marijuana produced in this state.
19)Defines "edible marijuana product" as marijuana or
marijuana-derived product that is ingested or meant to be
ingested through the mouth and into the digestive system.
20) Requires DCA, by July 1, 2016, to establish quality
assurance protocols to ensure uniform testing, safety, and
labeling for all marijuana sold via dispensaries or other
facilities, or cultivated by any licensed facilities, as
specified, and to develop a list of certified testing
laboratories that can perform uniform testing in compliance
with these provisions and post that list on its Internet Web
site.
21)Provides that for purposes of these provisions, edible
marijuana products are deemed unadulterated food products, and
requires these products to comply with quality assurance
protocols and specified health and safety and labeling
standards, which include requiring products containing
tetrahydrocannabinol (THC) to be prepared in compliance with
maximum potency standards for THC and THC concentrates, as set
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forth in DCA regulations.
22)Requires licensees to bear the responsibility and the costs
for contracting with certified testing laboratories for
testing marijuana samples, and to provide test results to
local code enforcement officers, any other locally designated
enforcement entity, and DCA, as specified.
Local Government Enforcement and Taxation Provisions
23)Provides that a licensee shall be subject to the restrictions
of the local jurisdiction in which the facility operates or
proposes to operate, and that even if a license has been
granted, a facility shall not operate in a local jurisdiction
that prohibits the establishment of that type of business, and
that nothing in these provisions shall prevent a city or other
local governing body from adopting and enforcing local
ordinances that regulate the location, operation, or
establishment of a medical marijuana cooperative or
collective;
24)Provides that a licensee shall be subject to civil and
enforcement of local ordinances or other state and local laws,
as specified.
25)Requires local agencies to have the primary responsibility
for enforcement of health and safety standards in accordance
with DCA regulations.
26)Provides that a violation of these provisions is punishable
by a civil fine of up to $35,000 for each individual
violation.
27)Authorizes the legislative body of any county to levy a tax
on the privilege of cultivating, dispensing, producing,
processing, storing, providing, or distributing marijuana or
products containing marijuana, as specified, and provides that
those provisions are declaratory of existing law.
28)Makes findings and declarations relative to the need for a
statewide program for the regulation and control of medical
marijuana, and the importance of local control in implementing
such a program successfully.
EXISTING LAW
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1)Recognizes the authority of cities and counties to make and
enforce, within their borders, all local, police, sanitary,
and other ordinances and regulations not in conflict with
general interest laws. (Cal. Const. art. XI sec. 7)
2)Licenses and regulates physicians and surgeons under the
Medical Practice Act (Act) by the Medical Board of California
(MBC) within DCA. (Business and Professions Code (BPC)
Section 2000 et seq.)
3)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
prescribing, dispensing, or furnishing of controlled
substances without a good faith prior examination of the
patient and medical reason therefor." (BPC 2220.05)
4)Prohibits the possession, possession with intent to sell,
cultivation, sale, transportation, importation, or furnishing
of marijuana, except as otherwise provided by law. (Health
and Safety Code (HSC) Section 11357, 11358, 11359, and 11360)
5)Prohibits prosecution under the Compassionate Use Act of 1996
(CUA), an initiative measure, 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. (HSC 11362.5)
6)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))
7)Provides that 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))
8)States that 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
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marijuana for the personal medical purposes of the patient
upon the written or oral recommendation or approval of a
physician. (HSC 11362.5(d))
9)Defines "attending physician" as an individual who possesses a
license in good standing to practice medicine or osteopathy
issued by the MBC or the Osteopathic Medical Board of
California and who has taken responsibility for an aspect of
the medical care, treatment, diagnosis, counseling, or
referral of a patient and who has conducted a medical
examination of that patient before recording in the patient's
medical record the physician's assessment of whether the
patient has a serious medical condition and whether the
medical use of marijuana is appropriate. (HSC 11362.7(a))
10)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 11362.7(d))
11)Requires the California Department of Public Health to
establish and maintain a voluntary Medical Marijuana 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.)
12)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 documentation by the
attending physician in the person's medical records stating
that the person has been diagnosed with a serious medical
condition and that the medical use of marijuana is
appropriate, and the doctor's name, contact information, and
California medical license number, as specified. (HSC
11362.715(a))
13)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; counterfeit, tamper with, or
fraudulently produce an identification card; breach any
confidentiality requirements pertaining to an identification
card program. (HSC 11362.81)
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14)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
solely on that basis. (HSC 11362.775)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill would establish a licensing
and regulatory framework for medical marijuana that would
require DCA to license dispensing and processing facilities,
cultivation sites, transporters, and certified testing
laboratories. It would establish baseline standards for
transportation, security, testing, and other health and safety
requirements for medical marijuana, while requiring DCA to
promulgate regulations for the further development of
standards and implementation of the program. This bill would
recognize the primary role of local governments in approving
the operation of individual facilities and enforcing the given
standards, and also clarify the ability of physicians to
recommend and advertise the recommendation of medical
marijuana.
SB 1262 aims to address problems with the regulation of the
medical marijuana, which is technically legal in California
but poorly regulated and without appropriate standards for
physician recommendation, cultivation, processing, sale and
enforcement. This bill is co-sponsored by the California
Police Chiefs Association and the League of California Cities.
2)Author's statement . According to the author, "Since the
approval by voters in 1996 of the Compassionate Use Act
(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 (2003), allowed patients and primary
caregivers to cultivate marijuana for personal use and
established in the Department of Public Health a medical
marijuana card program for patients to use on a voluntary
basis.
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"In the intervening 11 years, no broader, feasible regulatory
structure has been established, and the implementation of the
Compassionate Use Act has been marked by conflicting
authorities, regulatory chaos, intermittent federal
enforcement action, and a series of lawsuits which have tested
the limits of the Act, and focused on the extent of the
authority of local government.
"Nearly all 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
Prop. 215. 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.
"[This bill would]: (1) protect local control by precluding an
operator from obtaining a state license unless the operator
has first secured all necessary local permits from a
particular jurisdiction; (2) uphold local governments' ability
to ban dispensaries and all related facilities; (3) impose
uniform quality assurance standards as well as health and
safety standards to be administered by counties with oversight
by the Department of [Consumer Affairs]; and (4) require a
series of detailed security measures to prevent diversion and
recreational use at all medical cannabis facilities."
3)The Compassionate Use Act (CUA) and SB 420 . In 1996, voters
approved the CUA, which allowed patients and primary
caregivers to obtain and use medical marijuana, as recommended
by a physician, and prohibited physicians from being punished
or denied any right or privilege for making a medical
marijuana recommendation to a patient. In 2003, SB 420
(Vasconcellos) (Chapter 875, Statutes of 2003), established
the Medical Marijuana Program (MMP), which allowed patients
and primary caregivers to collectively and cooperatively
cultivate medical marijuana, and established a medical
marijuana card program for patients to use on a voluntary
basis. The card can be used to verify that a patient has
authorization to possess, grow, transport, or use medical
marijuana in California, and that a caregiver has
authorization to possess, grow, and transport medical
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marijuana in California. The MMP facilitates the registration
of qualified patients and their caregivers through a statewide
identification system, and qualified patients and their
caregivers may apply for and be issued an identification card
through their county of residence. Upon issuance of the card,
it is registered with an online database which law enforcement
can use to verify whether a card is valid.
Under the MPP, a person is required to get a recommendation for
medical marijuana from an attending physician, which is
defined to mean someone who " has taken responsibility for an
aspect of the medical care, treatment, diagnosis, counseling,
or referral of a patient and who has conducted a medical
examination of that patient before recording in the patient's
medical record the physician's assessment of whether the
patient has a serious medical condition and whether the
medical use of marijuana is appropriate." Written
documentation of this recommendation is required to be
submitted to the county in order to receive a medical
marijuana card.
4)The California Attorney General's Compassionate Use
Guidelines . SB 420 required the California Attorney General
to "develop and adopt appropriate guidelines to ensure the
security and non-diversion of marijuana grown for medical use
by patients qualified under the Compassionate Use Act of
1996." In 2008, the Attorney General issued guidelines 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.
According to a 2011 letter, after a series of meeting with
stakeholders to assess whether to clarify the 2008 guidelines
to stop the exploitation of California's medical marijuana
laws by gangs, criminal enterprises, and others, the Attorney
General decided to postpone the issuance of new guidelines
because of pending litigation and to urge the Legislature to
amend the law to establish clear rules governing access to
medical marijuana.
5)California Supreme Court affirms local control over medical
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marijuana . By exempting qualified patients and caregivers
from prosecution for using or from collectively or
cooperatively cultivating medical marijuana, the CUA and the
MPP essentially authorized the cultivation and use of medical
marijuana. These laws have triggered the growth of medical
marijuana dispensaries in many localities, and in response,
local governments have sought to exercise their police powers
to regulate or ban activities relating to medical marijuana.
After numerous court cases and years of uncertainty relating to
the ability of local governments to control medical marijuana
activities, particularly relating to the ability to control
the zoning, operation, and existence of medical marijuana
dispensaries, the California Supreme Court, in City of
Riverside v. Inland Empire Patients (2013) 56 Cal.4th 729,
held that California's medical marijuana statutes do not
preempt a local ban on facilities that distribute medical
marijuana. The court held that nothing in the CUA or the MMP
expressly or impliedly limited the inherent authority of a
local jurisdiction, by its own ordinances, to regulate the use
of its land, including the authority to provide that
facilities for the distribution of medical marijuana will not
be permitted to operate within its borders.
6)Federal Controlled Substances Act . Despite the CUA and SB
420, marijuana is still illegal under state and federal law.
Under California law, marijuana is listed as a hallucinogenic
substance in Schedule I of the California Uniform Controlled
Substances Act. Yet, the CUA prohibits prosecution for
obtaining, distributing, or using marijuana for medical
purposes. However, under the federal Controlled Substances
Act, it is unlawful for any person to manufacture, distribute,
dispense or possess a controlled substance, including
marijuana, whether or not it is for a medical purpose. As a
result, patients, caregivers, and dispensary operators who
engage in activities relating to medical marijuana may still
vulnerable to federal arrest and prosecution.
According to the California Attorney General's guidelines, the
difference between state and federal law gives rise to
confusion. However, California has tried to avoid this
conflict not by legalizing medical marijuana, but by deciding
not to use the state's powers to punish certain marijuana
offenses under state law when a physician has recommended its
use to treat a serious medical condition.
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7)U.S. Department of Justice (USDOJ) Guidance Regarding
Marijuana Enforcement . On August 29, 2013, the USDOJ issued a
memorandum that updated its guidance to all U.S. Attorneys in
light of state ballot initiatives to legalize under state law
the possession of small amounts of marijuana and provide for
the regulation of marijuana production, processing, and sale.
While the memorandum noted that illegal distribution and sale
of marijuana is a serious crime that provides a significant
source of revenue to large-scale criminal enterprises, gangs,
and cartels, it also noted that USDOJ is committed to using
its limited investigative and prosecutorial resources to
address the most significant threats, which include:
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.
According to the USDOJ, "In jurisdictions that have enacted laws
legalizing marijuana in some form and that have also
implemented strong and effective regulatory and enforcement
systems to control the cultivation, distribution, sale, and
possession of marijuana, conduct in compliance with those laws
and regulations is less likely to threaten the federal
priorities set forth above?In those circumstances, consistent
with the traditional allocation of federal-state efforts in
this area, enforcement of state law by state and local law
enforcement and regulatory bodies should remain the primary
means of addressing marijuana-related activity."
8)Physicians and Medical Marijuana . The MBC licenses,
regulates, and disciplines California physicians. Although
state law prohibits punishing a physician for simply
recommending medical marijuana to treat a serious medical
condition, the MBC can and does take disciplinary action
against physicians who fail to comply with accepted medical
standards when recommending marijuana. According to the MBC,
physicians will not be subject to investigation or
disciplinary action by the MBC if the decision to recommend
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medical marijuana was made in accordance with accepted
standards of medical responsibility, which include history and
prior examination of the patient, development of a treatment
plan, provision of informed consent, periodic review of the
treatment's efficacy, consultation as necessary, and proper
record keeping.
Despite this language and the implied relationship that is
supposed to exist between a physician and a medical marijuana
patient, sponsors and others report that persons easily obtain
recommendations for medical marijuana without a proper
examination and without any meaningful interaction between a
patient and a physician. According to the sponsors, 20
states, excluding California, and the District of Columbia
authorize the use of medical marijuana, and of those, 16
states expressly require a bona fide doctor-patient
relationship in order to obtain medical marijuana, and the
remaining five expressly require in statute some evidence
indicating the existence of a doctor-patient relationship.
This bill would require a doctor-patient relationship as a
precondition to a medical marijuana recommendation.
9)Arguments in support . According to the co-sponsors,
California Police Chiefs Association, Inc., "Although
initially presented to voters as another medical remedy for
patients in extreme health distress, [Proposition 215's]
implementation has been both chaotic and uneven.
"Among the most troublesome issues with Proposition 215 includes
the ability of virtually anyone to obtain a medical marijuana
recommendation from a compliant doctor; unreliable quality
control for consumers with respect to potency and the presence
of carcinogenic pesticides or other contaminants; as well as
retail outlets that often become magnets for criminal
activity.
"[This bill] establishes an improved regulatory structure to
ensure that Prop. 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 we believe it is time to address the flaws
associated with the implementation of Proposition 215 in a
responsible, realistic and health-based fashion while also
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protecting the needs of legitimate medical patients."
According to the cosponsors, League of California Cities, "[This
bill], in contrast to nearly all previous attempts,
acknowledges local regulatory authority by establishing a
state licensing scheme that defers to local land use powers;
under SB 1262, it will not be possible for a prospective
operator to obtain a state license to operate a dispensary or
other facility until and unless that operator can produce
evidence of local permitting approval. This protects both the
jurisdictions that have enacted bans on such facilities, as
well as those that have elected to allow and actively regulate
them.
"[This bill] squarely addresses the many public safety concerns
that arise with a marijuana regulatory scheme by requiring
minimum security requirements that must be observed at all
dispensaries, as well as transport and inventorying procedures
to minimize the possibility of diversion of marijuana for
non-medical/recreational uses which could stimulate cartel
activity. As proposed to be amended, it further requires a
doctor-patient relationship in association with medical
marijuana recommendations - a standard that has been adopted
by statute in all other states that have legalized marijuana
for medical purposes. Finally, SB 1262 addresses the
significant public health concerns triggered by medical
marijuana, by requiring for the first time the development of
uniform testing standards to identify and eliminate
contaminants and toxins injurious to human health.
"This proposal, which has been carefully vetted with city
attorneys and police chiefs, and has received significant
input from counties and the medical profession, provides what
California has lacked since the passage of Proposition 215 in
1996: a reasonable public safety and health-based approach to
implementing a reasonable and responsible regulatory scheme
for medical marijuana."
10)Questions and comments for the Committee . Under this bill,
DCA would be tasked with myriad duties involved in this novel
licensing and regulatory scheme for medical marijuana, which
covers nearly every aspect of the medical marijuana industry.
As would be expected for any new regulatory program of this
scale and scope, a number of outstanding issues and questions
will need to be addressed in order to ensure that the program
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has the greatest chance of success.
What should the program's organizational structure be?
According to DCA, it currently issues more than 2.8 million
licenses, certificates, and approvals to individuals and
businesses in 250 categories, which involves setting and
confirming the qualifications and competency for professionals
regulated by nearly 40 DCA boards and bureaus. These programs
license, register, or certify practitioners; investigate
complaints; and discipline violators. Boards, committees, and
even one commission operate semi-autonomously under
government-nominated boards but rely on DCA for administrative
support, while bureaus, programs, divisions, and offices are
under the direct control of DCA. Unlike the boards and
bureaus, DCA itself does not issue licenses but rather serves
broader functions (e.g., oversight, legislative relations, and
contracting) and provides services to individual boards and
bureaus (e.g., investigation/enforcement, test design, and
administrative support).
Given that this bill does not provide for the creation of a new
board or bureau, the Committee may wish to discuss how the
licensing functions required by this bill would be carried out
by DCA itself in its current form. Additionally, these new
licensing functions will require new staff in any event, and
the Committee may wish to discuss what level of additional
staffing may be required, where those staff should be located,
and how those staff and any attendant start-up costs should be
paid for until the number of licensees is large enough to make
the program self-sustaining.
Is greater clarity needed for the licensure programs ? In its
current form, this bill provides for four different categories
of licensure: cultivation sites, processing facilities,
transporters and dispensing facilities. While it appears that
the bill intends to license entities rather than individuals,
that point should be made clear.
Perhaps most importantly, the Committee may wish to discuss
the proper level of background investigation and security
needed to ensure that the licensees are reliable, as the
current language is arguably vague on this point. As an
example, the dispensary facility license requires the
"applicant" to provide fingerprints and undergo a background
check - but such an entity may have multiple owners and dozens
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or even hundreds of employees. If a high level of security is
appropriate for licensees in order to prevent diversion of
medical marijuana to the black market, then perhaps more
extensive background check requirements would be appropriate.
Does DCA need additional technical expertise or advice? This
bill would require DCA to, among other things, establish a
licensing and regulatory structure and guidelines for medical
marijuana, and be responsible for certifying marijuana testing
laboratories and licensing cultivation sites, transporters,
dispensing facilities, and processing facilities, and set
appropriate standards and fees for all of them. DCA is also
required to promulgate regulations not just for implementation
of the licensing program and enforcement, but health and
safety requirements and quality control procedures for
production, labeling and sale of medical marijuana.
These responsibilities will require a high level of expertise
in multiple new issue areas, such as product testing standards
to identify and eliminate chemical residues, microbiological
contaminants and mold in products; minimum health and safety
standards and quality assurance standards relating to the
cultivation of marijuana plants and the transport, storage,
and sale of medical marijuana; the creation of uniform testing
standards for marijuana; and the setting of maximum potency
standards for THC and CBD. Wisely, this bill does authorize
DCA to consult with other state agencies, state departments,
public entities, or private entities for the purposes of
establishing statewide standards and regulations, and requires
DCA to promulgate these regulations 18 months after enactment
of the bill.
Nevertheless, the Committee may wish to consider how to ensure
that DCA will have the resources, staff, and access to experts
that it will need to carry out this bill. One immediate
suggestion would be to establish an advisory committee or a
taskforce with the requisite expertise to assist DCA during
this rulemaking process. Such an advisory committee could
include representatives from local health departments or code
enforcement, local law enforcement, representatives from MBC
and the Board of Pharmacy, the State Department of Public
Health, the Attorney General's Office, and other medical
marijuana experts.
How to incorporate information technology? To perform its
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duties under the bill, DCA would likely need to establish a
database to process and track all licensees and to perform
other information-related duties required under the bill, such
as receiving all shipping manifests and test results for
medical marijuana.
The Committee may wish to inquire of DCA how well existing or
developing systems, such as BreEZe, could accommodate those
needs, or what changes to the BreEZe implementation would be
required to include this new program. Other considerations
include how to facilitate easy information sharing between DCA
and local governments at the lowest cost.
How to better define the roles of the state and local
agencies ? The bill requires facilities, cultivation sites,
and transporters to be licensed by DCA, and requires
enforcement of these provisions and health and safety
standards to be carried out by primarily at the local level.
It also appears that some licenses would be required to have
documented approval from a local government entity as a
precondition to issuance, which would be an unusual imposition
on the traditional prerogative of DCA to control professional
licensing. As a result, there may be some inevitable
confusion between DCA and local governments in their
enforcement roles.
The Committee may wish to ask the author or sponsors to
clarify which elements of this bill are intended to be
enforced by DCA and which would be enforced by local agencies.
The author and sponsor may also wish to clarify DCA's primacy
in making licensing decisions and local agencies' primacy in
making land use decisions.
Are stop-gap measures needed for the transitional period?
While the bill has a July 1, 2016 deadline for DCA to
promulgate regulations, it does not speak to what should
happen during the period before the regulations are completed
and go into effect. As such, the Committee may wish to
discuss with the author and the sponsors how this 18-month
transitional period should be handled, and whether provisional
licensure or emergency regulations may be required.
Other issues? As this bill would deem edible marijuana
products to be "unadulterated foods," and the Retail Food Code
defines an "adulterated" food, in part, as a food that bears
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or contains any poisonous or deleterious substance that may
render the food impure or injurious to health, the language
should be clarified to ensure that foods with marijuana in
them could still be adulterated if other dangerous substances
were found within them. Furthermore, the author may wish to
consider clarifying whether the Sherman Food, Drug, and
Cosmetic Law, the Retail Food Code, or any other health and
safety standards would apply to facilities that produce and
distribute these edible marijuana products.
Additional questions and points of clarification could be
raised if time permitted.
11)Related legislation . AB 1894 (Ammiano) of 2014 would enact
the Medical Cannabis Regulation and Control Act to license and
regulate the cultivation, manufacture, testing,
transportation, storage, distribution, and sale of medical
cannabis, and would create the Division of Medical Cannabis
Regulation and Enforcement within the Department of Alcoholic
Beverage Control. This bill failed passage on the Assembly
Floor on May 29, 2014 on a 26-33 vote.
AB 473 (Ammiano) of 2013 would enact the Medical Marijuana
Regulation and Control Act to license and regulate the
cultivation, manufacturing, testing, transportation,
distribution, and sales of medical marijuana and medical
marijuana products, and would create the Division of Medical
Marijuana Regulation and Enforcement within the Department of
Alcoholic Beverage Control. This bill failed passage on the
Assembly Floor on May 31, 2013 on a 35-37 vote.
AB 604 (Ammiano) of 2013 would enact the Medical Cannabis
Regulation and Control Act to license and regulate the
cultivation, manufacture, testing, transportation, storage,
distribution, and sale of medical cannabis, and would create
the Division of Medical Cannabis Regulation and Enforcement
within ABC. This bill is currently in the Senate Public
Safety Committee.
12)Previous legislation . AB 2312 (Ammiano) of 2012 would have
established the Medical Marijuana Regulation and Control Act,
authorizing local taxes on medical cannabis and creating a
board to regulate the medical cannabis industry. This bill
was held in the Senate Committee on Business, Professions and
Economic Development.
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AB 2465 (Campos) of 2012 would have made medical marijuana
patient and caregiver identification cards mandatory, and
required medical marijuana collectives to keep copies of
members' identification cards. This bill was held in the
Assembly Public Safety Committee.
SB 1182 (Leno) of 2012 would have provided that a cooperative or
collective that operates within the Attorney General's (AG)
guidelines 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. This bill was held on the
Senate Floor.
AB 1300 (Blumenfield), Chapter 196, Statutes of 2011, provides
that a local government entity may enact an ordinance
regulating the location, operation or establishment of a
medical marijuana cooperative or collective; authorizes local
government entities to enforce such ordinances through civil
or criminal remedies and actions; and authorizes a local
government entity to enact any ordinance that is consistent
with the Medical Marijuana Program.
SB 626 (Calderon) of 2011 would have required 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. SB 626 was
held in the Senate Appropriations Committee.
AB 390 (Ammiano) of 2009 would have legalized the possession,
sale, cultivation and other conduct relating to marijuana and
required the Department of Alcoholic Beverage Control to
administer and enforce the terms of legalized marijuana. This
bill was held in the Assembly Health Committee.
SB 1098 (Migden) of 2008 would have required the State Board of
Equalization to administer a tax amnesty program, as
specified, for medical marijuana dispensaries, as defined. SB
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1098 was held in the Senate Revenue and Taxation Committee.
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 Compassionate Use Act.
Proposition 215, of the November 1996 General Election,
prohibits prosecution for the possession and cultivation of
cannabis by a patient or a patient's primary caregiver with a
physician's written or oral recommendation.
13)Double-referral . This bill is double-referred to the
Assembly Public Safety Committee, where this bill will be
referred if approved by this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association, Inc. (co-sponsor)
League of California Cities (co-sponsor)
Opposition
None on file.
Analysis Prepared by : Eunie Linden / B.,P. & C.P. / (916)
319-3301