BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  August 26, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          SB 643  
          (McGuire) - As Amended August 18, 2015


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          Urgency:  No  State Mandated Local Program:  YesReimbursable:   
          No


          SUMMARY:


          This bill creates a state licensing and regulatory framework for  
          medical marijuana.  The bill includes provisions related to  
          licensure; health and safety standards, which include testing  








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          and labeling; record-keeping; security; transportation;  
          taxation; certification of employees; and physician  
          recommendation and advertising.  Specifically, this bill:


            1)  Establishes parameters related to medical recommendation  
              of marijuana, requiring the Medical Board to prioritize for  
              investigation repeated acts of recommending marijuana for  
              medical reasons and adopt medical guidelines for its  
              administration and use, and prohibiting a physician from  
              recommending marijuana unless the person is a patient's  
              "attending physician," as defined by the Compassionate Use  
              Act.


            2)  Exempts from licensure a patient who cultivates or  
              possesses marijuana for personal medical use, or a primary  
              caregiver who cultivates, possesses or provides marijuana to  
              no more than five patients, as specified. 


            3)  Establishes the Office of Medical Marijuana Regulation  
              Office within the Business, Consumer Affairs, and Housing  
              Agency, to enforce its provisions.  Requires the Office, by  
              January 1, 2018, to promulgate regulations for  
              implementation and enforcement, as specified.


            4)  Requires the Office to convene an advisory committee, as  
              specified, to advise on the development of standards and  
              regulations.


            5)  Specifies protection of the public and preserving patient  
              access to medical marijuana are the highest priorities. 


            6)  Requires various licensee records to be kept in a  
              database, and made available with 24-hour access to  








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              information upon request.


            7)  Creates the fee-based Medical Marijuana Regulation Fund  
              and the Special Account for Environmental Enforcement;  
              specifies all penalties are deposited into the GF; and  
              authorizes the Office to administer a grant program to  
              allocate funds to state and local entities to assist with  
              administration and enforcement. 


            8)  Authorizes the Office to issue, suspend, and revoke  
              licenses for marijuana cultivation, manufacture,  
              transportation, storage, distribution, testing, and sale of  
              medical marijuana within the state, and to collect related  
              licensing fees.  


            9)  Establishes a tiered licensing scheme, depending on size,  
              complexity, and type of license, for cultivation,  
              manufacturers, dispensing facilities, distributors, and  
              testing entities.


            10) Requires the California Department of Food and Agriculture  
              (CDFA) to develop an organic designation or its equivalent,  
              and to establish appellations of origin for marijuana grown  
              in California.


            11) Prohibits unlicensed activity. Makes licensees subject to  
              local jurisdiction restrictions, including prohibitions on  
              operation. Requires local permits and state licenses in  
              order for a business to operate.  Specifies existing  
              businesses can operate until a license is approved or  
              denied.


            12) Specifies medical marijuana transportation requirements,  








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              including secure vehicles and minimum staffing.


            13) References, but does not explicitly allow, unlicensed  
              activity in the City of Los Angeles.


            14) Requires licensed facilities to implement specified  
              security measures, including access, storage, and inventory  
              controls.  


            15) Authorizes boards of supervisors to impose a tax on the  
              privilege of cultivating, dispensing, producing, processing,  
              preparing, storing, providing, donating, selling, or  
              distributing medical marijuana or medical marijuana products  
              by a licensee, and provides it is declaratory of existing  
              law.


            16) Requires a tracking program be in place prior to  
              commencement of licensure.


            17) Establishes food safety, potency, and labeling standards  
              for edible marijuana products.


            18) Requires the Office to promulgate standards for  
              certification of testing laboratories to perform random  
              sample testing of all medical marijuana products, and to  
              certify testing laboratories. 


            19) Requires the Division of Labor Standards Enforcement in  
              the Department of Industrial Relations (DIR) to develop  
              competency and training certification standards for  
              cultivation and dispensing employees.  









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            20) Makes willful violations of this act punishable by a civil  
              fine of up to $35,000. Technical violations are punishable  
              by fines of up to $10,000.


            21) Requires the California Highway Patrol (CHP) to conduct  
              research to determine whether a driver is operating a  
              vehicle under the influence of cannabis, and to assist law  
              enforcement agencies to establish best practices.  Funds  
              this activity through the fines and penalties account.


            22) Specifies funds for the establishment and support of the  
              Office shall be advanced as a loan from the General Fund,  
              and shall be repaid by the initial proceeds from fees.


          FISCAL EFFECT:


          Costs/Fees:


          1)Significant one-time costs in the range of $25 million (GF  
            loan) to establish the Office, basic structure, information  
            technology infrastructure, and regulations. The bill specifies  
            startup costs for establishment of the bureau are to be  
            advanced as a loan from the General Fund.   

          2)Annual costs, conservatively around $20 million and  
            potentially exceeding $50 million (Medical Marijuana  
            Regulation Fund), to maintain the Office within the Agency to  
            regulate the medical marijuana industry.  

            As a comparison, the budget of the Department of Alcoholic  
            Beverage Control (ABC) is approximately $60 million and 450  
            positions. The ABC is charged with licensing and regulating  
            persons and businesses engaged in the manufacture, importation  








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            and distribution of alcoholic beverages, and administering the  
            provisions of the ABC Act to protect the health, safety,  
            welfare and economic well-being of the state. In addition, the  
            ABC Appeals Board has a $1 million budget.  

            Based on funding and staffing levels of the ABC, and  
            considering the complexities of the undertaking and the  
            significant start-up costs of any new entity (adoption of  
            regulations and fee schedules, office equipment and expenses,  
            etc.), it appears reasonable to assume the costs of providing  
            statewide regulation for cultivation, manufacture, testing,  
            transportation, distribution, and sale of medical marijuana,  
            along with associated hearings, appeals, litigation and  
            enforcement, would  conservatively  be in the range of 35% of  
            the ABC budget.  

          3)This bill establishes unspecified registration fees. The costs  
            of creating and maintaining the Office, as specified, would  
            require significant application fees. For purpose of  
            illustration, the average fee to cover the cost of a $20  
            million entity, if there were 5,000 annual applications, would  
            be $4,000 per application.  

          4)Unspecified revenues related to marijuana cultivation based on  
            an additional fee assessment, distributed to the Account to  
            State Water Resources Control Board, the Department of Fish  
            and Wildlife, the Department of Forestry and Fire Protection,  
            the Department of Pesticide Regulation, and the Department of  
            Food and Agriculture to support enforcement of environmental  
            regulation. 

          5)One-time costs potentially exceeding $100,000 (Contingent Fund  
            of the Medical Board of California) to issue medical  
            guidelines related to marijuana. Ongoing costs to the  
            California Medical Board for investigating physicians who  
            overprescribe marijuana should be minor and absorbable.

          6)Minor ongoing costs to DOJ for background checks, covered by  
            applicant fees. 








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          7)Litigation costs to DOJ to defend the office, estimated in the  
            range of $10 million. Costs would be reimbursed by DCA,  
            presumably with applicant fee revenue, if sufficient.



          8)One-time costs to DIR to certify cultivation and dispensing  
            employees in the range of $1 million (GF), and $900,000  
            annually ongoing (Medical Marijuana Regulation Fund).  



          9)One-time costs to the Office, likely in the range of millions,  
            as well as costs in a similar range ongoing, to certify  
            laboratories for testing of marijuana (Medical Marijuana  
            Regulation Fund).  

          10)          Unknown, potentially significant non-reimbursable  
            local law costs for enforcement of medical marijuana  
            regulation. 



          Tax and penalty revenue:

          1)Unknown moderate local revenue increase, potentially in the  
            millions of dollars, from a permissive and unspecified local  
            tax. 

          2)Unknown GF revenue from fines of up to $35,000 for willful  
            violations and up to $10,000 for technical violations of the  
            act.
          


          COMMENTS:










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          1)Purpose. According to the author, this bill seeks to resolve  
            many of the issues created by the enactment of Proposition  
            215, or the Compassionate Use Act, and subsequent legislation.  
            The author states California voters clarified their desire to  
            legalize medical marijuana; however, there are growing issues  
            and concerns for many stakeholders. For instance, he notes  
            trespass grows have become an environmental disaster,  
            illegally diverting millions of gallons of water from rivers  
            and streams, creating a clearance ground for pesticides,  
            insecticides, rodenticides, and fertilizers, and depositing  
            large amounts of sediment into waterways from crop runoff. The  
            author concludes this bill contains provisions necessary to  
            recognize the voters' mandate of Proposition 215 and  
            streamlines the ability of the medical marijuana industry to  
            grow and sell a legal product. 


          2)Current Medical Marijuana Law. Possession and sale of  
            marijuana is a crime under federal law, and federal law  
            preempts state law. California patients who obtain a  
            physician's recommendation are protected from prosecution for  
            possessing or cultivating an amount of cannabis reasonably  
            related to their current medical needs, as are patients'  
            caregivers. Patients and caregivers who obtain a state Medical  
            Marijuana Program (MMP) identification card from their county  
            health department are protected from arrest and prosecution  
            for possessing, delivering, or cultivating cannabis. Patients  
            and caregivers who engage in these activities, however, remain  
            liable to federal arrest and prosecution, and those who  
            operate dispensaries face frequent federal enforcement  
            actions.  A brief history of relevant law is below:


             a)   In 1996, California voters passed Prop 215, the  
               Compassionate Use Act (CUA), which prohibits prosecution  
               for growing or using marijuana if a person has an oral or  
               written recommendation of a physician. 










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             b)   In 2003, SB 420 (Vasconcellos, Statutes of 2003), the  
               Medical Marijuana Program Act, created a voluntary  
               identification card that patients and caregivers could  
               obtain to protect them from arrest, and limited the amount  
               of marijuana that could be legally grown and possessed.
          
             c)   In 2005, the U.S. Supreme Court ruled in Gonzales v.  
               Raich (2005) that the federal government can enforce  
               marijuana prohibitions despite state medical marijuana law.  




             d)   In 2010, the CA Supreme Court ruled in People v. Kelly  
               that the MMP section limiting quantities of cannabis is  
               unconstitutional because it amends a voter initiative. 



             e)   In 2013, the CA Supreme Court held medical marijuana  
               statutes do not preempt a local ban on facilities that  
               distribute medical marijuana, and that municipalities may  
               prohibit such conduct as a public nuisance (City of  
               Riverside v. Inland Empire Patient's Health & Wellness  
               Center).  
          


             f)   Also in 2013, the U.S. Department of Justice (USDOJ)  
               issued guidance that stated, "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 federal priorities which include the most  
               significant public threats, including disrupting gang and  
               cartel activities, preventing revenue diversion, etc.  DOJ  








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               states where strong state and local regulatory systems  
               exist, "enforcement of state law by state and local law  
               enforcement and regulatory bodies should remain the primary  
               means of addressing marijuana-related activity."   
               California is the only state that permits medical marijuana  
               in the absence of a robust statewide regulatory system;  
               half of all states have some such system.



          1)Comments.



               a.     Organizational Structure. This bill places  
                 significant authority in a newly created Office within an  
                 existing state agency.  The duties of the office will  
                 include promulgating regulations, contracting for a  
                 significant information technology project that will meet  
                 the bill's requirements, developing licensure programs  
                 and processes, conducting licensure and enforcement  
                 activities.  The licensed entities are disparate, from  
                 farms to laboratories to retail outlets.  While there is  
                 value in centralizing control and accountability, such a  
                 structure may fail to leverage existing state expertise  
                 and lead to a misalignment of duties by placing only  
                 those specific to marijuana in a stand-alone entity.  For  
                 example, California Department of Public Health (CDPH)  
                 would be in the business of licensing all laboratories in  
                 the state, except for those dealing with marijuana  
                 testing, even though presumably they may have existing  
                 regulatory relationships with same laboratories for other  
                 non-marijuana activities.  CDPH has existing  
                 infrastructure for doing this activity, including  
                 regulatory expertise, technical field staff, fee  
                 collection infrastructure, and other assets that could be  
                 leveraged. 










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                 An alternative approach would be to combine a central  
                 entity with the ability to leverage existing expertise.   
                 For example, a bill could assign duties to appropriate  
                 existing agencies but play a coordinating role.  Or, a  
                 bill could require a central coordinating Office to issue  
                 all regulations, but allow the Office to contract via  
                 interagency agreement with CDPH and CDFA or other  
                 appropriate entities for actual licensure and enforcement  
                 activities. Staff could work within CDPH but under an  
                 interagency agreement with the Office, in order to  
                 maintain a higher level of accountability for the overall  
                 regulatory structure and prevention of diversion to the  
                 black market.  There are a number of organizational  
                 options, but more flexibility may offer some benefits. 








                 In addition or alternatively, a centralized Office could  
                 be set up initially, in order to ensure consistency in  
                 the promulgation of regulations and operations, with the  
                 intent that program activities could be spun off from the  
                 centralized office once start-up activities are complete  
                 and regulatory programs are robust. 



                 Inserting a sunset date on the operation of the office  
                 would provide a natural opportunity for the Legislature  
                 and administration to reconsider whether the chosen  
                 approach is still the right one after start-up activities  
                 are completed.    










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               b.     Fiscal comments.  The bill should specify that  
                 licensure fees can be scaled based on size and regulatory  
                 complexity.  In addition, the fee revenue for different  
                 license types is not differentiated.  This may result in  
                 cross-subsidization between licensure categories.   
                 Regulatory fees that are out of proportion to the cost of  
                 regulation may confer legal risks that fees are  
                 impermissible, and as a matter of principle they should  
                 be scaled according to regulatory costs.  Staff suggests  
                 greater differentiation between categories to ensure  
                 licensees are fairly charged.  
          Analysis Prepared by:Lisa Murawski / APPR. / (916)  
          319-2081