BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 1575                          |Hearing    |6/29/16  |
          |          |                                 |Date:      |         |
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          |Author:   |Bonta                            |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |6/22/16                          |Fiscal:    |Yes      |
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          |Consultant|Favorini-Csorba                                       |
          |:         |                                                      |
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                                   Medical cannabis



          Amends various provisions of the Medical Marijuana Regulation  
          and Safety Act.


           Background and Existing Law

           Federal and state law prohibits the possession, possession with  
          intent to sell, cultivation, sale, transportation, importation,  
          or furnishing of marijuana.  However, in 1996, California voters  
          approved Proposition 215, known as the Compassionate use Act of  
          1996 (CUA).  Under CUA, qualified patients with specified  
          illnesses or their primary caregivers cannot be prosecuted for  
          possessing or cultivating medical marijuana upon the written or  
          oral recommendation or approval of an attending physician.   
          Thus, CUA allowed qualified patients and primary caregivers to  
          obtain and use medical marijuana.  

          The Legislature clarified CUA in 2003 by enacting SB 420  
          (Vasconcellos, 2003).  SB 420 exempted qualified patients and  
          caregivers from prosecution for using or from collectively or  
          cooperatively cultivating medical marijuana and established a  
          medical marijuana card program for patients to use on a  
          voluntary basis.  SB 420 provides a safe harbor for qualified  
          patients as to the amount of marijuana they may possess and the  
          number of plants they may maintain.  It also protects patients  
          with valid identification cards from both arrest and criminal  







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          liability for possession, transportation, delivery, or  
          cultivation of marijuana.  Thus, California's estimated $1  
          billion medical marijuana industry existed amid a conflict  
          between federal and state law, and within state law itself.  The  
          industry remained largely unregulated until 2015.  
          
          Medical Marijuana Regulation and Safety Act.  In 2015, the  
          Legislature enacted the Medical Marijuana Regulation and Safety  
          Act (MMRSA), a package of legislation that comprehensively  
          regulates many aspects of medical marijuana including  
          cultivation, manufacturing, transportation, distribution, sale,  
          and product safety.  The MMRSA comprises three bills-SB 643  
          (McGuire, 2015), AB 243 (Wood, 2015), and AB 266 (Bonta, 2015).   
          Among other provisions, MMRSA: 
                 Creates the Bureau of Medical Marijuana Regulation (the  
               Bureau) within the Department of Consumer Affairs to  
               oversee and enforce the state's medical marijuana  
               regulations, in collaboration with the Board of  
               Equalization (BOE), the California Department of Public  
               Health (DPH), and the California Department of Food and  
               Agriculture (CDFA);
                 Establishes categories of licenses for various medical  
               marijuana activities, such as cultivation, manufacturing,  
               distribution, transportation, and sale, and provides  
               certain state agencies with the authority to issue those  
               licenses and enforce their terms;
                 Requires BOE and CDFA to implement a program that allows  
               regulators to uniquely identify each legally cultivated  
               medical marijuana plant and trace that plant throughout the  
               distribution chain;
                 Prohibits licensees from commencing activity under the  
               authority of a state license until the applicant has  
               obtained a license or permit pursuant to the applicable  
               local ordinance;
                 Includes protections of the ability of local governments  
               to pass and enforce laws, licensing requirements, and  
               zoning ordinances.
                 Authorizes local governments to establish a licensing  
               system for the cultivation of medical marijuana through  
               their current or future land use authority, and prohibits  
               the cultivation of medical marijuana without obtaining both  
               a state license-issued by CDFA-and a local license.
                 Provides that qualified patients and their caregivers do  
               not have to secure licenses for cultivation if they are  








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               growing marijuana for their own personal use in an area of  
               less than 100 square feet.
                 Phases out, within one year of notice on the Bureau's  
               website that licensing has begun, collectives and  
               cooperatives organized for the purpose of cultivating  
               marijuana for use by qualified patients and caregivers.
          
          The MMRSA was finalized in the waning hours of the 2015  
          legislative session, resulting in some errors, inconsistencies,  
          and unresolved issues in the bills.  In early 2016, the  
          Legislature fixed two time-sensitive issues with the MMRSA  
          through urgency legislation that was signed by the Governor on  
          February 3, 2016 (AB 21, Wood).  AB 21 repealed a March 1, 2016  
          deadline for cities and counties to regulate medical marijuana  
          cultivation and amended the provisions governing the ability of  
          qualified patients and caregivers to cultivate marijuana for  
          their own use.  AB 21 was enacted knowing that more  
          comprehensive clean-up of MMRSA was needed.  The marijuana  
          industry, local governments, and others want the Legislature to  
          enact those changes.

           Proposed Law

           Assembly Bill 1575 changes the name of MMRSA to the Medical  
          Cannabis Regulatory and Safety Act, changes certain references  
          from "marijuana" to "cannabis," and makes additional changes to  
          the following areas:

                 Licensing authorities and restrictions.
                  o         Authorizes DPH to create, issue, and suspend  
                    or revoke manufacturing and testing licenses.
                  o         Makes DPH responsible for determining labeling  
                    and package requirements.
                  o         Gives individuals one year from the date after  
                    the Bureau posts a notice that licensing authorities  
                    have commenced issuing licenses to comply with  
                    commercial cannabis licensing laws.  
                  o         Authorizes the secretary or director of each  
                    licensing authority to prescribe, adopt, and enforce  
                    emergency regulations necessary to implement the Act.
                  o         Provides that state licenses are generally  
                    valid for 12 months from the date of issuance.
                  o         Allows a licensee to operate as a for-profit  
                    business, as a not-for-profit entity, or as a  








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                    combination of both.
                  o         Requires the Bureau to review the  
                    appropriateness of current license quantity and  
                    combination restrictions and report its recommendation  
                    for elimination or extension of these provisions to  
                    the Legislature by January 1, 2025.
                  o         Effective January 1, 2026, allows a licensee  
                    to only hold a state license in up to two separate  
                    license categories in certain combinations.
                 Dispensaries and delivery.
                  o         Amends the way dispensaries are classified and  
                    requires dispensaries to securely store medical  
                    cannabis.
                  o         Requires the Bureau to establish advertising,  
                    marketing, signage, and other labeling requirements  
                    and restrictions and requires all advertisements for  
                    licensees to include the valid state license number of  
                    the licensee.
                  o         Requires the Bureau to establish various  
                    regulations regarding the delivery of medical cannabis  
                    and medical cannabis products, including: minimum  
                    requirements for employees; protocols to provide  
                    qualified patients and primary caregivers with  
                    information on relevant laws, regulations, and local  
                    ordinances; a system for registering and maintaining  
                    the status of all delivery personnel of dispensaries;  
                    and minimum requirements for patient information that  
                    is stored by each delivery operation.
                  o         Requires all identifying information obtained  
                    about a qualified patient or primary caregiver to be  
                    obtained and stored in compliance with the  
                    Confidentiality of Medical Information Act and all  
                    other privacy laws and regulations.
                 Research & development, testing, and distribution.
                  o         Requires a testing laboratory to analyze  
                    samples in the final form which the patient will  
                    consume product, according to a scientifically valid  
                    methodology.
                  o         Prohibits a licensed testing laboratory from  
                    acquiring or receiving medical cannabis or medical  
                    cannabis products except from a licensed facility.
                  o         States that it is not a violation of this bill  
                    or any other state law for a business to obtain from a  
                    licensee less than eight ounces per month of medical  








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                    cannabis to conduct research and development with  
                    written authorization by the relevant city, county, or  
                    city and county, if that local agency expressly  
                    authorizes that activity by local ordinance. 
                  o         Repeals a requirement that a distributor  
                    inspect the product to ensure its identity and  
                    quantity before ensuring the cannabis product is  
                    tested by a testing laboratory.
                  o         Clarifies and establishes procedures for  
                    providing medical cannabis and medical cannabis  
                    products to a distributor and for testing those  
                    products and requires the Bureau to specify how  
                    medical cannabis meant for wholesale purposes must be  
                    inspected by the distributor, tested by a laboratory,  
                    and packaged and sealed prior to activities other than  
                    dispensing.  
                 Penalties.
                  o         Imposes civil penalties on a person engaging  
                    in commercial cannabis activity without a license and  
                    required associated unique identifiers of up to twice  
                    the amount of the license fee for each violation, per  
                    day.
                  o         Allows the licensing authority, state or local  
                    authority, or court to order the destruction of  
                    medical cannabis associated with that violation; and  
                    specifies the funds in which to deposit the penalties.  

                  o         Allows licensing authorities to review and  
                    reduce penalties in some cases.
                 Local authority.

                  o         Provides that the fees established by  
                    licensing authorities are in addition to, and do not  
                    limit, any fees or taxes imposed by a city, county, or  
                    city and county in which the licensee operates.
                  o         States that an ordinance that regulates  
                    cannabis or marijuana, or medical cannabis or medical  
                    marijuana, does not require the consent of the  
                    Secretary of the CDFA under the Secretary's authority  
                    to oversee local seed, plant, and crop ordinances. 
                  o         Authorizes a dispensary to provide cannabis in  
                    a city, county, or city and county that does not  
                    expressly prohibit it by local ordinance.
                  o         Authorizes a city to contract with the  








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                    relevant county to enforce local licensing  
                    requirements.
                  o         Prohibits cities and counties from regulating  
                    packaging safety standards, but allows regulations of  
                    appellations of origin or other branding or marketing  
                    materials.
                  o         Clarifies that a person or entity shall not  
                    submit an application for a state license unless that  
                    person or entity first receives a license, permit, or  
                    authorization specific to commercial cannabis activity  
                    from a local jurisdiction, and prohibits state  
                    licensing authorities from issuing a license to an  
                    applicant that cannot document its local approval.
                 Miscellaneous.

                  o         Redefines "owner" to mean a person (1) having  
                    an aggregate ownership interest of five percent or  
                    more in the licensee or (2) who has the power to  
                    direct, or cause to be directed, the management or  
                    control of the licensee, and includes members of the  
                    boards of directors.

                  o         Clarifies definitions for commercial cannabis,  
                    commercial marijuana activity, cultivation site,  
                    cultivator, dispensary, distributor, manufacturer,  
                    manufacturing site, and other terms.

                  o         Requires the Bureau to be subject to review by  
                    the appropriate policy committees of the Legislature  
                    by January 1, 2023.

                  o         States the intent of the Legislature to enact  
                    a statute that improves the medical cannabis  
                    industry's ability to comply with federal law and  
                    regulations that would allow improved access to  
                    banking services and requires BOE, in conjunction with  
                    the Department of Business Oversight, to recommend  
                    improvements to the financial monitoring of medical  
                    cannabis businesses.

                  o         Allows existing collectives and cooperatives  
                    organized under SB 420 to operate for profit, not for  
                    profit, or any combination of the two, if they have a  
                    valid BOE Seller's Permit and a local license, permit,  








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                    or authorization, until phased out as under existing  
                    law.
                  o         Makes advertising by a collective without  
                    including a BOE Seller's permit number an infraction,  
                    punishable by a fine of $500.

           State Revenue Impact

           No estimate.


           Comments

           1.  Purpose of the bill  . Prior to MMRSA, the medical cannabis  
          industry operated in a legal grey area.  The MMRSA creates a  
          complex regulatory program for overseeing every aspect of  
          medical cannabis production, including over a dozen types of  
          licenses for various commercial activities and provisions  
          governing interactions with local regulations, product and  
          consumer safety, patient protection, and control of cannabis  
          throughout the supply chain.  But some changes are needed to  
          ensure the proper functioning of the regulatory program, given  
          its complexity and that these regulations are imposed wholesale  
          on a formerly unregulated and somewhat underground industry.  AB  
          1575 makes these changes to MMRSA to further its original intent  
          and goals.  AB 1575 represents a collaborative approach that  
          continues to balance local control with many of the needs of  
          existing medical cannabis businesses.  These changes represent  
          the difference between a successful effort that ensures a  
          well-regulated, functional medical cannabis industry and the  
          reemergence of a black market with the associated local, state,  
          and federal law enforcement issues.
           
           2.  Provisions of interest  . Local governments in California have  
          dual interests in the regulatory framework for medical cannabis:  
          (1) to ensure the integrity of the overall licensing scheme to  
          make sure that individuals operating commercial cannabis  
          activities within their jurisdictions are comprehensively  
          regulated by the state through the licensing system, and (2) to  
          maintain local control and authority over cannabis activities is  
          preserved.  In many ways, AB 1575 furthers these goals, such as  
          by setting a low threshold for who is considered an owner of a  
          medical cannabis facility, reiterating that local licenses are  
          needed before applying to the state for a license, and  








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          clarifying that any state license fees are in addition to any  
          local fees.  Yet these considerations need to be balanced  
          against the burdens on legal medical cannabis producers.  Given  
          that cannabis production has been somewhat illicit, onerous  
          regulatory requirements may drive some producers back  
          underground and undermine the entire regulatory program.  Thus,  
          some areas of discussion among the varied stakeholder remain,  
          including:

                 Defining ownership to cover all individuals that have  
               control over a facility without unduly limiting the ability  
               of licensees to invest in other aspects of medical cannabis  
               production.

                 Balancing the privacy considerations of qualified  
               patients and caregivers vs. the ability of local law  
               enforcement to evaluate the legal status of cannabis  
               activity.

                 Ensuring local oversight over cannabis research and  
               development while allowing businesses to pursue those  
               efforts without going through the full permitting process. 

          3.  Related legislation  . SB 837 (Committee on Budget and Fiscal  
          Review), which was enrolled on June 21st, enacts clarifying  
          changes to MMRSA requested by state agencies charged with  
          implementing the act.  SB 837 enacts some of the same changes as  
          AB 1575, such as establishing the role of Department of Public  
          Health for issuing licenses relating manufacturing and testing  
          of medical cannabis.  However, the bills also differ  
          significantly, such as how water sources and the environment are  
          protected from cultivation activities and the types of licenses  
          that may be held concurrently.

          3.  Mandate  . The California Constitution generally requires the  
          state to reimburse local agencies for their costs when the state  
          imposes new programs or additional duties on them.  AB 1575  
          makes it an infraction for a collective or cooperative to submit  
          an advertisement that does not include the valid seller ID  
          number issued by BOE. By creating a new crime, AB 1575 creates a  
          new state-mandated program.  But the bill disclaims the state's  
          responsibility for reimbursing local governments for enforcing  
          these new crimes.  That's consistent with the California  
          Constitution, which says that the state does not have to  








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          reimburse local governments for the costs of new crimes (Article  
          XIIIB, 6[a][2]).

          4.  Incoming  ! AB 1575 passed the Senate Business, Professions,  
          and Economic Development Committee at its June 20th meeting on a  
          vote of 6-1.


           


          Assembly Actions

           Assembly Business and Professions:           14-0
          Assembly Banking and Finance Committee:      8-2
          Assembly Appropriations Committee:           15-1
          Assembly Floor:                              65-8

           Support and  
          Opposition   (6/23/16)


           Support  :  Americans for Safe Access; California Cannabis  
          Delivery Association; California Cannabis Industry Association;  
          California Credit Union League; California Police Chiefs  
          Association; California State Association of Counties; City of  
          Santa Monica; Consortium Management Group; Kind Financial;  
          League of California Cities; Rural County Representatives of  
          California; Southern Humboldt Community Alliance; UCBA Trade  
          Association; Urban Counties of California.

           Opposition  :  One individual.


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