BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 643|
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UNFINISHED BUSINESS
Bill No: SB 643
Author: McGuire (D)
Amended: 9/11/15
Vote: 21
SENATE BUS, PROF. & ECON. DEV. COMMITTEE: 7-0, 4/20/15
AYES: Hill, Block, Galgiani, Hernandez, Jackson, Mendoza,
Wieckowski
NO VOTE RECORDED: Bates, Berryhill
SENATE GOVERNANCE & FIN. COMMITTEE: 5-1, 4/29/15
AYES: Hertzberg, Beall, Hernandez, Lara, Pavley
NOES: Nguyen
NO VOTE RECORDED: Moorlach
SENATE APPROPRIATIONS COMMITTEE: 5-1, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Nielsen
NO VOTE RECORDED: Bates
SENATE FLOOR: 26-13, 6/4/15
AYES: Allen, Beall, Block, Cannella, De León, Glazer, Hall,
Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara,
Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,
Moorlach, Pan, Pavley, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Fuller, Gaines, Huff,
Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak
NO VOTE RECORDED: Galgiani
ASSEMBLY FLOOR: Not available
SUBJECT: Medical marijuana
SOURCE: Author
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DIGEST: This bill establishes a regulatory framework for the
cultivation, sale, and transport of medical cannabis by the
Bureau of Medical Marijuana Regulation (Bureau), the Department
of Food and Agriculture (DFA), and other state entities.
Assembly Amendments add substantial amendments relating to
licensure and regulation of medical cannabis.
ANALYSIS:
Existing law:
1) Declares that the entities under the Department of Consumer
Affairs (DCA) are established for the purpose of ensuring
that those private businesses and professions deemed to
engage in activities which have potential impact upon the
public health, safety, and welfare are adequately regulated
in order to protect the people of California. (Business and
Professions Code (BPC) § 101.6)
2) Licenses and regulates physicians and surgeons under the
Medical Practice Act (Act) by the Medical Board of California
(MBC) within the DCA.
(BPC §§ 2000 et seq.)
3) Provides that the MBC shall take action against a physician
who is charged with unprofessional conduct, as specified.
(BPC § 2234)
4) 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,
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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)
5) The Compassionate Use Act of 1996 (CUA), an initiative
measure, prohibits prosecution for the possession or
cultivation of marijuana of a patient or a patient's primary
caregiver who possesses or cultivates marijuana for the
personal medical purposes of the patient upon the written or
oral recommendation or approval of a physician. (Health and
Safety Code (HSC) § 11362.5)
6) Declares that the purposes of the CUA are:
a) To ensure that seriously ill Californians have the
right to obtain and use marijuana for medical purposes
where that medical use is deemed appropriate and has been
recommended by a physician who has determined that the
person's health would benefit from the use of marijuana in
the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other
illness for which marijuana provides relief.
b) To ensure that patients and their primary caregivers
who obtain and use marijuana for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
c) To encourage the federal and state governments to
implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need
of marijuana. (HSC § 11362.5 (b)(1)(A) to (C))
1) 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))
2) Prohibits, notwithstanding any other provision of law, a
physician in California from being punished or denied any
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right or privilege for having recommended marijuana to a
patient for medical purposes. (HSC § 11362.5 (c))
3) 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
marijuana for the personal medical purposes of the patient
upon the written or oral recommendation or approval of a
physician. (HSC § 11362.5 (d))
4) Defines "primary caregiver" for purposes of the CUA as the
individual designated by a patient who has consistently
assumed responsibility for the housing, health, or safety of
that person. (HSC § 11362.5 (e))
5) States legislative intent to commission objective scientific
research by the University of California (UC) regarding the
efficacy and safety of administering marijuana as part of
medical treatment. Requires UC, if it accepts by appropriate
resolution the responsibility to create a California
Marijuana Research Program (Program) that it will develop and
conduct studies intended to ascertain the general medical
safety and efficacy of marijuana, and if found valuable, to
develop medical guidelines for the appropriate administration
and use of marijuana. (HSC § 11362.9)
6) Establishes the Medical Marijuana Program Act (MMPA), which
exempts qualified patients who hold an identification card
issued pursuant to the Medical Marijuana Program (MMP) and
the caregivers of those persons, from certain state criminal
sanctions related to the possession, cultivation,
transportation, processing, or use of limited amounts of
marijuana, as specified. (HSC §§ 11362.7 et seq.)
7) Requires a person who seeks a MMP identification card to pay
a fee and provide to the county health department the
person's name, proof of residency, written doctor's
recommendation, doctor's name and contact information,
caregiver's name and duties, and patient's and caregiver's
government issued photo identification card. (HSC §
11362.715 (a))
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8) Requires the California Department of Public Health (CDPH) to
establish and maintain a voluntary program for qualified
patients to apply for identification cards, and county health
departments to issue identification cards to qualified
patients and their caregivers. (HSC § 11362.71 (a) & (b))
9) Provides that persons with valid identification cards shall
not be subject to arrest for possession, transportation,
delivery, or cultivation of marijuana, absent evidence of
fraud. (HSC § 11362.71 (e))
10)Requires county health departments to issue serially numbered
identification cards to patients and caregivers containing
the following: a unique user identification number, an
expiration date, the county health department's name and
telephone number, photo identification of the cardholder, and
a toll-free CDPH telephone number enabling state and local
law enforcement officers to immediately verify the card's
validity. (HSC § 11362.735 (a))
11)Prohibits medical marijuana dispensaries that possess,
cultivate, or distribute medical marijuana from being located
within a 600 foot radius of a school, and authorizes cities
and counties to further restrict the locations of medical
marijuana collectives. (HSC § 11362.768)
12)Provides that qualified patients, persons with valid MMP
identification cards, and the designated primary caregivers
of qualified patients and persons with MMP identification
cards who associate within California in order to cultivate
marijuana for medical purposes, collectively or
cooperatively, shall not, solely on that basis, be subject to
state criminal sanctions for the possession, sale, transport,
or other proscribed acts relating to marijuana. (HSC §
11362.775)
13)Prohibits state or local law enforcement officers from
refusing to accept an MMP identification card unless the
officer has reasonable cause to believe that the card is
being used fraudulently or its information is false or
fraudulent. (HSC § 11362.78)
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14)Makes it a misdemeanor offense to, among other things,
fraudulently represent a medical condition or provide any
material misinformation to a physician, health department
designee, or to law enforcement, for the purpose or falsely
obtaining an identification card; fraudulently use any
person's identification card in order to acquire, possess,
cultivate, transport, use, produce, or distribute marijuana;
counterfeit, tamper with, or fraudulently produce an
identification card; breach any confidentiality requirements
pertaining to an identification card program. (HSC §
11362.81)
15)Lists marijuana as a hallucinogenic substance in Schedule I
of the California Uniform Controlled Substances Act. (HSC §
11054 (d))
This bill:
Provisions related to Bureau administration:
1) Requires the Governor to appoint a chief of the Bureau,
subject to confirmation by the Senate, at a salary to be
fixed and determined by the DCA Director (Director) with the
approval of the Director of Finance. Requires the chief to
serve under the direction and supervision of the Director and
at the pleasure of the Governor.
2) States that every power granted to or duty imposed upon the
Director by this bill may be exercised or performed in the
name of the Director by a deputy or assistant director or by
the chief, subject to conditions and limitations that the
Director may prescribe. In addition to every power granted
or duty imposed with this chapter, the Director shall have
all other powers and duties generally applicable in relation
to bureaus that are part of the DCA.
3) Authorizes the Director to employ and appoint all employees
necessary to properly administer the work of the Bureau, in
accordance with civil service laws and regulations.
4) Authorizes the DCA as the sole authority to create, issue,
renew, discipline, suspend, or revoke licenses for the
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transportation, storage unrelated to manufacturing
activities, distribution, and sale of medical marijuana
within the state and to collect fees in connection with
activities the Bureau regulates.
5) Authorizes the Bureau to create licenses in addition to those
in this bill if the Bureau deems it necessary to effectuate
its duties.
6) Authorizes the Bureau to bring any legal action that is
necessary to collect any deficiency in the fee required to be
paid, and upon the Bureau's request, the Attorney General
shall bring the action.
Provisions related to licensing:
7) Requires the Bureau to mandate that applicants provide a full
set of fingerprints for purposes of conducting criminal
history record checks. States that the Bureau may obtain and
receive, at its discretion, criminal history information from
the Department of Justice (DOJ) and the United States Federal
Bureau of Investigation (FBI).
8) Authorizes licensing authorities administering this bill to
issue state licenses only to qualified applicants engaging in
commercial cannabis activity pursuant to this bill.
Prohibits anyone from engaging in commercial cannabis
activity without a state license and a local permit, license,
or other authorization after regulations are implemented.
9) Prohibits a licensee from commencing activity under the
authority of a state license until the applicant has obtained
a license or permit from the local jurisdiction in which he
or she proposes to operate, following the requirements of the
applicable local ordinance.
10)States that revocation of a local license, permit, or other
authorization shall terminate the ability of a medical
cannabis business to operate within that local jurisdiction
until the local jurisdiction reinstates or reissues the local
license.
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11)Requires a person to get a local license prior to applying
for a state license.
12)Requires an applicant for state licensure to do the
following:
a) Electronically submit fingerprints and any other
required information to the DOJ for purposes of obtaining
state and federal convictions and arrests.
i) Requires the DOJ to report the following to the
Bureau:
(1) Every conviction rendered against the
applicant, except a conviction for which relief has
been granted as specified;
(2) Every arrest for an offense for which the
applicant is presently awaiting trial, whether the
applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial;
and,
(3) Sex offender registration status of the
applicant;
ii) Requires the licensing authority to request
subsequent notifications on applicants from the DOJ;
and,
iii) Requires the DOJ to charge applicants a fee
sufficient to cover reasonable costs;
b) Provide documentation issued by the local jurisdiction
in which the proposed business is operating certifying
that the applicant is or will be in compliance with all
local requirements;
c) Provide evidence of the legal right to occupy and use
the proposed location;
d) For an applicant seeking a cultivator, distributor,
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manufacturing, or dispensary license, provide a statement
from the owner of real property or their agent where the
activity will occur to prove that the landowner has
acknowledged and consented to the activity to be conducted
on the property by the applicant;
e) If the application is for a cultivator or dispensary,
provide evidence that the proposed location is located
beyond at least a 600 foot radius from a school;
f) Provide a statement, signed under penalty of perjury,
that the information provided by the applicant is
complete, true, and accurate;
g) For an applicant with 20 or more employees (not
counting supervisors), provide a statement that the
applicant will enter into, or demonstrate that it has
already entered into, and abide by the terms of a labor
peace agreement;
h) Provide the applicant's seller's permit number, as
specified, or indicate that the applicant is currently
applying for a seller's permit;
i) Provide any other information required by the
licensing authority;
j) For an applicant seeking a cultivation license,
provide a statement declaring the applicant is an
"agricultural employer," as specified, to the extent not
prohibited by law;
aa) For an applicant seeking licensure as a testing
laboratory, register with the DPH and provide any
information required by DPH; and,
bb) Pay all required fees.
13)Provides that for applicants seeking licensure to cultivate,
distribute, or manufacture medical cannabis, the application
shall also include a detailed description of the applicant's
operating procedures for all the following, as required by
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the licensing authority:
a) Cultivation;
b) Extraction and infusion methods;
c) Transportation process;
d) Inventory procedures; and,
e) Quality control procedures.
14)Requires the licensing authority to deny an application if
either the applicant or the premises for which a state
license is applied do not qualify for licensure under this
bill.
15)Authorizes the licensing authority to deny the application
for licensure or renewal of a state license if any of the
following apply:
a) Failure to comply with the provisions of this bill, or
any rules or regulations adopted pursuant to this bill;
b) Conduct that constitutes ground for denial of
licensure under existing law, as specified;
c) A local agency has notified the licensing authority
that a license or applicant within its jurisdiction is in
violation of state rules and regulations relating to
commercial cannabis activities, and the licensing
authority, through an investigation, has determined that
the violation is grounds for termination or revocation of
the license. The licensing authority shall have the
authority to collect reasonable costs, as determined by
the licensing authority, for investigation from the
licensee or applicant.
d) The applicant has failed to provide information
required by the licensing authority.
e) The applicant or licensee has been convicted of an
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offense that is substantially related to the
qualifications, functions, or duties of the business or
profession for which the application is made, except that
if the licensing authority determines that the applicant
or licensee is otherwise suitable to be issued a license
and granting the license would not compromise public
safety, the licensing authority shall conduct a thorough
review of the nature of the crime, conviction,
circumstances, and evidence of rehabilitation of the
applicant, and shall evaluate the suitability of the
applicant or licensee to be issued a license based on the
evidence found through the review.
f) States that the following include offenses that are
substantially related:
i) A felony conviction for the illegal possession for
sale, illegal sale, manufacture, transportation, or
cultivation of a controlled substance;
ii) A violent felony conviction, as specified;
iii) A serious felony conviction, as specified; and,
iv) A felony conviction involving fraud, deceit, or
embezzlement.
g) The applicant, or any of its officers, directors, or
owners:
i) Is a licensed physician making patient
recommendations for medical cannabis;
ii) Has been subject to fines or penalties for
cultivation or production of a controlled substance on
public or private lands; or,
iii) Has been sanctioned by a licensing authority or a
city, county, or city and county for unlicensed
commercial medical cannabis activities or has had a
license revoked according to this bill in the three
years immediately preceding the date the application is
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filed with the licensing authority.
h) Failure to obtain and maintain a valid seller's
permit.
16)Requires the licensing authority to notify the applicant in
writing upon denial of any application. Within 30 days of
service of the notice, the applicant may file a written
petition for a license, and upon receipt, the licensing
authority shall set the petition for hearing, as specified.
17)Prohibits the denial of a state license if the denial is
based solely on any of the following:
a) A conviction or act that is substantially related to
the qualifications, functions, or duties of the business
or profession for which the application is made for which
the applicant or licensee has obtained a certificate of
rehabilitation, as specified.
b) A conviction that was subsequently dismissed.
18)Requires local authorities to notify the Bureau upon
revocation of a local license, and requires the Bureau to
inform relevant licensing authorities upon the revocation of
a license.
19)States that revocation of the state license shall terminate
the ability of a medical cannabis license to operate within
California until the licensing authority reinstates or
reissues the state license.
20)Requires each license to obtain a separate license for each
location where it engages in commercial medical cannabis
activity, except that transporters only need to obtain
licenses for each physical location where the licensee
conducts business while not in transport, or any equipment
that is not currently transporting medical cannabis or
medical cannabis products permanently resides.
21)Exempts a qualified patient from the requirements of this
bill who cultivates, possesses, stores, manufactures, or
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transports cannabis exclusively for his or her personal
medical use but who does not provide, donate, sell, or
distribute cannabis to any other person and is thereby not
engaged in commercial cannabis activity.
22)Exempts a primary caregiver from the provisions of this bill
who cultivates, possesses, stores, manufactures, transports,
donates, or provides cannabis exclusively for the personal
medical purposes of no more than five specified qualified
patients for whom her or she is the primary caregiver, as
specified, but who does not receive remuneration for those
activities except for specified compensation.
Provisions related to administration by the Department of Food
and Agriculture:
23)Authorizes the Department of Food and Agriculture (DFA) to
administer the provisions of this bill related to and
associated with the cultivation of medical cannabis.
Authorizes the DFA to create, issue, and suspend or revoke
cultivation licenses for violations of this bill.
24)Requires DFA to promulgate regulations governing the
licensing of indoor and outdoor cultivation sites.
25)Requires DFA, in consultation with the Department of Fish and
Wildlife and the State Water Resources Control Board, to
ensure that individual and cumulative effects of water
diversion and discharge associated with cultivation do not
affect the instream flows needed for fish spawning,
migration, and rearing, and the flows needed to maintain
natural flow variability.
26)Deems the DFA to have the authority necessary to implement
regulations necessary for this bill. The regulations shall
do all the following:
a) Require that weighing and measuring devices used in
the sale or distribution of medical cannabis meet
specified standards;
b) Require that licensees' cannabis cultivation is
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conducted in accordance with state and local laws related
to land conversion, grading, electricity usage, water
usage, agricultural discharges, and similar matters.
Specifies that nothing in this bill or in subsequent
regulations shall be construed to supersede or limit the
authority of the State Water Resources Control Board,
regional water quality control boards, or DFW to implement
and enforce their statutory obligations or to adopt
regulations to protect water quality, water supply, and
natural resources;
c) Establish procedures for the issuance and revocation
of unique identifiers for activities associated with a
cannabis cultivation license, which shall be included on
all cannabis labels; and,
d) Prescribe standards, in consultation with the Bureau,
for the reporting of information as necessary related to
unique identifiers.
27)Describes state cultivator license types issued by the DFA.
Provisions related to DFA's track and trace program:
28)Requires the DFA, in consultation with the Bureau, to
establish a track and trace program for reporting the
movement of medical marijuana items throughout the
distribution chain that utilizes a unique identifier and
secure packaging and is capable of providing information that
captures, at a minimum, all of the following:
a) The licensee receiving the product;
b) The transaction date; and,
c) The cultivator from which the product originates,
including the unique identifier.
29)Requires the DFA to create an electronic database containing
the electronic shipping manifests which shall include, but
not be limited to, specified information.
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30)Requires the database to be designed to flag irregularities
for all licensing authorities in this bill to investigate.
All licensing authorities in this bill may access the
database and share information related to licensees under
this bill, including the social security and individual
taxpayer identification, as specified.
31)Requires the DFA to inform the Bureau upon the finding of an
irregularity or suspicious finding related to a licensee,
applicant, or commercial cannabis activity for investigatory
purposes.
32)Authorizes licensing authorities and state and local agencies
to inspect shipments and request documentation for current
inventory at any time.
33)Requires the Bureau to have 24-hour access to the electronic
database administered by the DFA.
34)Authorizes the DFA to enter into memoranda of understandings
with licensing authorities for data sharing purposes, as
deemed necessary by the DFA.
35)Deems confidential information received and contained in
records kept by the DFA or licensing authorities for purposes
of administering this bill, and shall not be disclosed
pursuant to the California Public Records Act, except as
necessary for authorized state or local employees to perform
official duties pursuant to this bill or a local ordinance.
36)Requires licensing authorities, upon request of a state or
local law enforcement agency, to allow access to or provide
information contained within the database to assist law
enforcement in their duties and responsibilities required by
this bill.
37)Subjects information disclosure to specified current laws.
Provisions related to fees and taxation:
38)States that nothing in this bill shall be construed to
superseded or limit state agencies, including the State Water
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Resources Control Board and the Department of Fish and
Wildlife, from establishing fees to support their medical
cannabis regulatory programs.
39)States that local jurisdictions retain the power to assess
fees and taxes, as applicable, on facilities that are
licensed pursuant to this bill and the business activities of
those licensees.
40)Authorizes a county to impose a tax on the privilege of
cultivating, dispensing, producing, processing, preparing,
storing, providing, donating, selling, or distributing
medical cannabis or medical cannabis products by a licensee
operating in accordance with this bill.
41)Requires a board of supervisors to specify in the ordinance
proposing the tax the activities subject to the tax, the
applicable tax rate or rates, the method of apportionment, if
necessary, and the manner of tax collection. States that the
tax may be imposed for general governmental purposes or for
purposes specified in the ordinance.
42)Authorizes the board of supervisors to provide for the
collection of the tax and any penalties and lien priorities
in the same manner as other charges and taxes fixed and
collected by the county.
43)States that a tax imposed by this bill is a tax and not a fee
or special assessment.
44)Requires the board of supervisors to specify whether the tax
applies throughout the entire county or within the
unincorporated areas.
45)Authorizes the tax to be imposed upon any or all of the
activities specified in # 40, above, as specified in the
ordinance, regardless of whether the activity is undertaken
individually, collectively, or cooperatively, and regardless
of whether the activity is for compensation or gratuitous, as
determined by the board of supervisors.
46)Requires that a tax imposed pursuant to this bill be subject
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to applicable voter approval requirements imposed by law.
47)States that specified provisions are declaratory of existing
law and do not limit or prohibit the levy or collection of
any other fee, charge, or tax, or a license or service fee or
charge upon, or related to, the activities described as
otherwise provided by law. States that this bill shall not
be construed as a limitation upon the taxing authority of a
county as provided by law.
48)States that provisions of this bill shall not be construed to
authorize a county to impose a sales or use tax in addition
to the sales and use taxes imposed under an ordinance
conforming with specified existing state law.
Provisions related to pesticides:
49)Makes the following Legislative findings and declarations:
a) The United States Environmental Protection Agency has
not established appropriate pesticide tolerances for, or
permitted the registration and lawful use of, pesticides
on cannabis crops intended for human consumption pursuant
to the Federal Insecticide, Fungicide, and Rodenticide
Act;
b) The use of pesticides is not adequately regulated due
to the omissions in federal law, and cannabis cultivated
in California for California patients can and often does
contain pesticide residues; and,
c) Lawful California medical cannabis growers and
caregivers urge the Department of Pesticide Regulation
(DPR) to provide guidance, in absence of federal guidance,
on whether the pesticides currently used at most cannabis
cultivation sites are actually safe for use on cannabis
intended for human consumption.
50)Requires DPR, in consultation with DFA, to develop standards
for the use of pesticides in cultivation and maximum
tolerances for pesticides and other foreign object residue in
harvested cannabis.
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51)Requires DPR, in consultation with the State Water Resources
Control Board, to promulgate regulations that require that
the application of pesticides or other pest control in
connection with the indoor or outdoor cultivation of medical
cannabis meets specified standards.
Provisions related to labeling:
52)Requires the Department of Public Health (DPH) to develop
standards for the production and labeling of all edible
medical cannabis products.
53)Authorizes the Bureau to establish appelations of origin for
marijuana grown in California.
54)States that it is unlawful for medical marijuana to be
marketed, labeled, or sold as grown in a California county if
it was not.
55)States that it is unlawful to use the name of a California
county in the labeling, marketing, or packaging of medical
marijuana products unless the product was grown in that
county.
56)Requires the DFA, in conjunction with the Bureau, to make
available a certified organic designation and organic
certification program for medical marijuana by January 1,
2020, if permitted under state and federal law and the
National Organic Program.
Provisions related to transportation:
57)Requires a licensee authorized to transport medical cannabis
and medical cannabis products between licensees to do so only
as permitted in this bill.
58)Requires a licensed transporter to do both of the following
prior to transporting cannabis or cannabis products:
a) Complete an electronic shipping manifest, as
specified; and,
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b) Securely transmit the manifest to the Bureau and the
licensee that will receive the medical cannabis product.
The Bureau must inform the DFA of information pertaining
to commercial cannabis activity for purpose of the track
and trace program.
59)Requires a transporter to maintain a physical copy of the
shipping manifest during transportation and make it available
upon request to agents of the DCA and law enforcement
officers.
60)Requires the licensee receiving the shipment to maintain each
electronic shipping manifest and make it available upon
request to the DCA and any law enforcement officers.
61)Requires the licensee receiving the shipment to submit to the
licensing agency a record verifying receipt and details of
the shipment upon receipt of the shipment.
62)States that transporting, arranging for, or facilitating the
transport of medical cannabis or medical cannabis products in
violation of this bill is grounds for disciplinary action
against the license.
63)States that this bill shall not be construed to authorize or
permit a licensee to transport or cause to be transported
cannabis or cannabis products outside the state, unless
authorized by federal law.
64)Prohibits a local jurisdiction from preventing transportation
of medical cannabis or medical cannabis products on public
roads by a licensee in compliance with this bill.
Provisions related to prescribing by a physician and surgeon:
65)Declares that repeated acts of clearly excessive recommending
of cannabis to patients for medical purposes, or repeated
acts of recommending cannabis to patients for medical
purposes without a good faith prior examination of the
patient and a medical reason for the recommendation is number
four on the list of priorities for MBC's investigative and
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prosecutorial resources.
66)Authorizes a physician to prescribe for, or dispense or
administer to, a person under his or her treatment dangerous
drugs or prescription controlled substances for the treatment
of pain, but states that a physician shall still be subject
to MBC discipline if he or she violates laws related to
performing an appropriate prior examination and determining
the existence of a medical indication prior to recommending
medical cannabis.
67)States that it is unlawful for a physician who recommends
cannabis to a patient for a medical purpose to accept,
solicit, or offer any form of remuneration from or to a
licensed cannabis facility, as specified, if the physician or
his or her immediate family have a financial interest in the
facility. A violation is misdemeanor punishable by up to one
year in county jail and a fine of up to $5,000, or by civil
penalties of up to $5,000 and shall constitute unprofessional
conduct.
68)Requires the MBC to consult with the Program on developing
and adopting medical guidelines for the appropriate
administration and use of medical cannabis.
69)Prohibits the recommendation of medical cannabis to a patient
unless the physician is the patient's attending physician, as
specified.
70)Declares that recommending medical cannabis to a patient for
a medical purpose without an appropriate prior examination
and a medical indication constitutes unprofessional conduct.
71)Declares that it is unprofessional conduct for an attending
physician recommending medical cannabis to be employed by, or
enter into any other agreement with, any person or entity
dispensing medical cannabis.
72)Requires any distribution of any form of advertising for
physician recommendation for medical cannabis in California
to include a consumer notice, as specified.
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73)Requires advertising for attending physician recommendations
for medical cannabis to meet all the requirements of existing
law related to medical advertising, and states that price
advertising shall not be fraudulent, deceitful, or
misleading, including statements or advertisements of bait,
discounts, premiums, gifts, or statements of a similar
nature.
Other provisions:
74)Authorizes the DPH to administer the provisions of this bill
related to and associated with the manufacturing and testing
of medical cannabis.
75)Requires that an employee engaged in commercial cannabis
cultivation be subject to Wage Order 4-1001 of the Industrial
Welfare Commission.
76)States that provisions of this bill are severable, and if any
provision of this bill or its application is held invalid,
that invalidity shall not affect other provisions or
applications that can be given effect without the invalid
provision or application.
77)States that this bill shall become operative only if AB 266
and AB 243 of the 2015-16 Session are enacted and take effect
on or before January 1, 2016.
Background
Compassionate Use Act of 1996 (CUA). The Compassionate Use Act,
enacted in 1996 by Proposition 215, established the right of
patients to obtain and use marijuana to treat specified
illnesses for which marijuana provides relief. CUA protects
physicians who recommend the use of marijuana for medical
purposes and exempts qualified patients and their primary
caregivers from California drug laws prohibiting possession and
cultivation of marijuana.
Although CUA encouraged the development of a comprehensive
regulatory framework by the state and federal government,
resulting guidelines have been established by a patchwork of
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uncoordinated bills and legal advisories.
Medical Marijuana Program. The Medical Marijuana Program (MMP)
was established by SB 420 (Vasconcellos, Chapter 875, Statutes
of 2003) in an effort to clarify and expand on CUA. The MMP
created a voluntary state medical marijuana identification card
(MMP Card) and a registry database. Under the MMP, a patient or
qualified caregiver with a recommendation for medical marijuana
from a licensed California physician can apply for MMP Card
through a local county public health department. The MMP
web-based registry allows law enforcement and the public to
verify the validity of a qualified patient or primary
caregiver's MMP Card as authorization to possess, grow,
transport, and/or use medical marijuana within California.
California Attorney General's Compassionate Use Guidelines. SB
420 additionally required the California Attorney General to
adopt "guidelines to ensure the security and non-diversion of
marijuana grown for medical use." To fulfill this mandate, the
Attorney General published Guidelines for the Security and
Non-Diversion of Marijuana Grown for Medical Use in August of
2008. The Guidelines were intended to:
Ensure that marijuana grown for medical purposes remains
secure and does not find its way to non-patients or illicit
markets;
Help law enforcement agencies perform their duties effectively
and in accordance with California law; and,
Help patients and primary caregivers understand how they may
cultivate, transport, possess, and use medical marijuana under
California law.
Federal concerns. Despite CUA and MMP, possession of marijuana
under federal law, even by medical users, continues to be a
crime. In August of 2013, the U.S. Department of Justice
(USDOJ) issued a memorandum titled "Guidance Regarding Marijuana
Enforcement" to all U.S. Attorneys. While affirming that
marijuana is still considered a dangerous drug and that the
illegal distribution and sale of marijuana is a serious crime,
the memorandum outlines the following enforcement priorities:
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Preventing distribution to minors;
Preventing revenue from marijuana from going to criminal
enterprises;
Preventing diversion to other states where marijuana is not
legal under state law;
Preventing state-authorized marijuana from being a cover for
trafficking in other illegal drugs or illegal activity;
Preventing violence in cultivating and distributing marijuana;
Preventing drugged driving and other public health problems
from marijuana use; and,
Preventing growing, possessing or using marijuana on public
lands or on federal property.
The document lays out the federal expectation for states with
legalized marijuana laws that the states develop a robust system
of regulation and enforcement so as to reduce the likelihood of
federal enforcement activity.
Medical Marijuana Regulation in Other States. Currently, 23
states and the District of Columbia currently have laws allowing
the use of medical marijuana. 12 additional states have laws
providing for limited access to medical marijuana products
strictly for medical purposes, and four states authorize the
recreational use of marijuana.
The experiences of other states have helped to inform the
current conversation in California. Notably, this bill
establishes standards for cultivation, transport, testing, and
labeling of edible medical marijuana products.
Trespass Grows and Environmental Concerns. California land,
watersheds and some species, particularly Northern California,
have been significantly damaged as a result of certain marijuana
cultivation efforts. "Trespass grows", cultivating marijuana
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without permission on public, tribal or privately owned land,
have been associated with wildlife poisoning, use and dumping of
fertilizers and pesticides, illegal water diversions and water
pollution, logging and land disturbance, and severe problems
with garbage and human waste. These industrial-size marijuana
grows, taking place in the national forests and on private
timberland in some of the state's most remote and ecologically
sensitive areas, are the subject of a recent study by the
California Department of Fish and Wildlife, Impacts of Surface
Water Diversions for Marijuana Cultivation on Aquatic Habitat in
Four Northwestern California Watershed. This report showed that
during drought conditions, water demand for marijuana
cultivation is likely to have extraordinarily detrimental
effects on state and federally listed salmon and steelhead trout
and will cause further decline of sensitive amphibian species.
This bill requires that multiple state agencies guard against
illegal marijuana growing and requires the development of
standards for cultivation, fertilization, and impacts on
surrounding lands.
Related Legislation
AB 243 (Wood) and AB 266 (Bonta) are joint bills with this bill.
(Status: These bills are currently pending Senate Rules
Committee.)
Prior Legislation
SB 1262 (Correa, 2014) is also very similar to this bill and
would have created a Bureau of Medical Marijuana Regulation
within DCA. (Status: The bill was held under submission in the
Assembly Committee on Appropriations.)
AB 1894 (Ammiano, 2014), AB 473 (Ammiano, 2013) and AB 604
(Ammiano, 2013) would have established an Act to license and
regulate the cultivation, manufacture, testing, transportation,
storage, distribution, and sale of medical cannabis within the
Department of Alcoholic Beverage Control. (Status: AB 1894 and
AB 473 both failed passage on the Assembly Floor. AB 604 was
referred to the Senate Committee on Public Safety but was not
set for hearing in enough time for consideration before the
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Legislature adjourned.)
AB 2312 (Ammiano, 2012) established a nine-member Board of
Medical Marijuana Enforcement within the DCA to regulate the
medical marijuana industry and to collect fees from medical
marijuana businesses to be deposited into a new Medical
Marijuana Fund. The bill would have authorized local taxes on
medical marijuana up to 5%. (Status: The bill failed passage
in this Committee.)
AB 1300 (Blumenfield, Chapter, 196, Statutes of 2011) provided
that a local government may enact an ordinance regulating the
location, operation or establishment of a medical marijuana
cooperative or collective. The bill also authorized a local
government to enforce such ordinances through civil or criminal
remedies and actions and authorized the local government to
enact any ordinance that is consistent with the MMP, which is
intended to implement the CUA.
SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) established
the Medical Marijuana Program Act, a statewide, voluntary
program for the issuance of identification cards to identify
persons authorized to engage in the medical use of marijuana
under the CUA.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified9/11/15)
California Association of Code Enforcement Officers
California College & University Police Chiefs Association
California League of Conservation Voters
California Native Plant Society
California Police Chiefs Association
California State Association of Counties
California State Parks Foundation
California Teamsters Public Affairs Council
California Trout
California Urban Streams Partnership
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Clean Water Action
Defenders of Wildlife
League of California Cities
Pacific Forest Trust
Rural County Representatives of California
Trout Unlimited
The Nature Conservancy
The Trust for Public Land
UFCW Western States Council
Urban Counties Caucus
OPPOSITION: (Verified9/11/15)
None received
ARGUMENTS IN SUPPORT: Supporters of the bill write that as the
scale and volume of individual grow sites has enlarged, an
appropriate statewide licensing and regulatory framework is
necessary to address the wide range of environmental, land-use,
and health and safety issues that many counties are currently
experiencing. Supporters also write that this piece of
legislation will provide the necessary framework for protecting
the environment from medical marijuana production and clean up
the impact of past illegal operations.
Prepared by:Sarah Huchel / B., P. & E.D. / (916) 651-4104
9/11/15 21:22:50
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