BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 1575 |Hearing |6/29/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Bonta |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |6/22/16 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba | |: | | ----------------------------------------------------------------- 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 AB 1575 (Bonta) 6/22/16 Page 2 of ? 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 AB 1575 (Bonta) 6/22/16 Page 3 of ? 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 AB 1575 (Bonta) 6/22/16 Page 4 of ? 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 AB 1575 (Bonta) 6/22/16 Page 5 of ? 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 AB 1575 (Bonta) 6/22/16 Page 6 of ? 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, AB 1575 (Bonta) 6/22/16 Page 7 of ? 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 AB 1575 (Bonta) 6/22/16 Page 8 of ? 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 AB 1575 (Bonta) 6/22/16 Page 9 of ? 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. -- END --