Understanding Marijuana Law.
The Federal Government versus California Voters, the California State Legislature, and the California Constitution.
As part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Congress fancifully declared Cannabis to be a Schedule 1 Controlled Substance, making it legally impermissible to manufacture, distribute or possess it. No prescriptions may be made for Schedule 1 substances. That is because they have a high potential for abuse, no currently accepted medical use, and lack accepted safety standards under medical supervision (despite this being a dishonest application to Cannabis).
Notwithstanding this absolute federal prohibition on Cannabis, California Voters amended the California Constitution with the Compassionate Use Act of 1996 (“CUA”). In only a few short paragraphs, California changed the legal landscape of the America. No longer would there be an automatic statewide prohibition of drug possession or cultivation of Marijuana, provided it is for personal medical use, as applied to caregivers and patients with oral or written recommendations from physicians.
Medical Marijuana Program Act
The California Legislature went further with SB420, otherwise known as the Medical Marijuana Protection Act in 2004 (“MMPA”), which added needed clarity and guidance regarding, among other things, primary caregivers, the act not authorizing a profit, etc., including adding further criminal protections for sales and transportation. Please see below for an often sited section of the statute:
California Health & Safety Code Section 11362.775
Qualified patients, persons with valid identifications cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.
Marijuana Guidelines
Afterwards, in 2008 the California Attorney General developed a set of guidelines to “(1) ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or illicit markets, (2) help law enforcement agencies perform their duties effectively and in accordance with California law, and (3) help patients and primary caregivers understand how they may cultivate, transport, possess, and use medical marijuana under California law.”
Specifically, the Guidelines provide that medical marijuana is a “Non-Profit Operation: Nothing in Proposition 215 or the MMP authorizes collectives, cooperatives, or individuals to profit from the sale or distribution of marijuana. (See, e.g., § 11362.765(a) [“nothing in this section shall authorize any individual or group to cultivate or distribute marijuana for profit”].”
Accordingly, the Attorney General Guidelines should be the starting point for any person interested in setting up a collective or cooperative (Also, please keep your eyes peeled for a new possible set of Attorney Guidelines in the coming months to follow.).
Enter Industry at Your Own Risk
That said, there have been a number of Cannabis related cases since the passage of the CUA and the MMPA, and it is imperative that those entering this field also take their respective court rulings to heart. The latest setbacks to dispensaries and cooperatives involve numerical prohibitions and other functional limitations on under local zoning regulations, which seem to grow in popularity by the day.
Please understand that what has been written thus far is only a rudimentary summary of Cannabis law in California. That being said, we emphatically do not advise you to form a collective or a cooperative in California, neither do we advise that you become a medical marijuana patient, primary caregiver, grower, deliverer, or take part in any other aspect of this growth industry. Please see my blog article on the recent Pack v. City of Long Beach decision, and you will find that although permit based lottery systems are held to be unlawful, it is anyone’s guess just how harmful that decision may end up being in the hands of the Los Angeles City Attorney’s Office.
If you have any questions at all, please do not hesitate to contact Sostrin Law Offices.
