A Classic Example of Why Regulating Marijuana in California Is So Tricky

If there is one thing cannabis activists, cannabis opponents, legislators, police and the cannabis industry in California can agree on, it’s that adult-use pot legalization (similar to Colorado and Washington) is coming. But, legalization is a complicated term in California. Although the state’s voters were the first in the nation to pass medical cannabis legislation via ballot initiative in 1996 (Prop 215), the state did not set guidelines for the massive industry expanding within its borders. And, for the first time this year medical cannabis advocates, police and municipal organizations came to the table to work on regulations together resulting in two bills. The second, and only remaining bill, SB 1262, died in committee this August amidst contentious debate from all sides.

California still has no centrally-run state program to license and regulate medical marijuana cultivation and facilities, even 18 years after the passage of Prop 215. What's resulted is a patchwork of bans and regulations that vary throughout the state. Despite bans, federal raids and asset seizures (since marijuana, medicine or not, remains illegal federally), medical marijuana sales in the state have continued to grow at rates seen in almost no other industry in America.

By 2010, California became the first state to put a viable full-blown legalization initiative on the state ballot, called Prop. 19. After Prop 19 failed to pass—largely due to criticisms from within the cannabis industry—legislators, advocacy groups and the statewide industry have been working out exactly what adult use legalization should look like (in a state that still hasn’t established what its existing medical marijuana legalization officially looks like). 

This February, Democratic Sen. Lou Correa introduced S.B. 1262, a bill designed to regulate the medical marijuana industry. The bill was initially sponsored by the League of California Cities and the California Police Chiefs Association and supported by a diverse set of industry stakeholders—from marijuana advocacy groups like California NORML, Americans for Safe Access, Drug Policy Alliance and Law Enforcement Against Prohibition; to Project SAM (an anti-marijuana group led by reformed addict Patrick Kennedy) and various cities and police organizations.

S.B. 1262 would have established a state-run organization, the Bureau of Medical Marijuana Regulation, within the Department of Consumer Affairs. The Bureau would be responsible for licensing dispensing facilities, cultivation sites and manufacturers and, "among other things, provide, process and grow medical marijuana." Cities and counties would still have the ability to opt out of licensing facilities and to create their own local regulations.

The Single Pro-Pot Proponent

As the bill went through various revisions marijuana advocacy groups withdrew, reinstated and then withdrawn support again from the bill. By the end, all pro-marijuana groups had withdrawn their support with the exception of Americans for Safe Access (ASA). Among the most heated issues are amendments to the legislation excluding persons with prior felony convictions from obtaining licenses, and caps on licenses.

Despite opposition over language in the bill, all pro-marijuana advocacy groups agree that reform is necessary as the state prepares to move into adult-use marijuana regulation. But it's looking unlikely that the groups will come to a consensus anytime soon.

“Right now in California, medical cannabis is only regulated at the city and county level,” said Don Duncan, California Director of Americans for Safe Access (ASA). “There is a very unequal application of Prop 215 throughout the state. Some patients have it really good, some patients have it not so good and some patients don’t have access at all. For some patients, it’s like Prop 215 never happened.”

Some pro-cannabis groups say the wording in the bill harms patients and the livelihood of farmers in the northern part of the state in favor of profiteering big business and law enforcement; these are ideological points of contention the groups say they will continue to oppose with any new proposed legislation.

Before S.B. 1262 was dropped, Duncan said ASA supported S.B. 1262 because it would have created regulations that California patients desperately need.

“I really want people to consider for a moment what the bill means for patients," he said. "We have heard a lot of hyperbole about this bill, suggestions that this bill throws patients under the bus. It’s not true. This bill is actually much better for patients, I think, than for industry. The primary way it helps patients is by requiring that people in the medical cannabis industry adhere to safety procedures and operational procedures that are typical of businesses in California that sell products or medicine to the public.”

Currently, because there are no statewide regulations, many cannabis products that make it to sale on the legal market are untested or produced in facilities that likely wouldn’t pass regulatory standards. In certain locales, usually only in the bigger pot-friendly regions like the San Francisco Bay Area, lab testing for quality and safety regulations are the industry standard, at the discretion of business owners. But not everywhere. 

Duncan said no matter how legislation is worded certain groups will continue to oppose it or other legislation aimed at reform.

“I am sorry to say wherever we draw the line someone will be on the wrong side of it,” Duncan said. “It’s not really a question of ‘are we’ or ‘aren’t we’ going to regulate medical cannabis, it’s how. … The bill is a really good compromise, it’s politically achievable and it protects patients’ interest and it does a pretty good job at licensing commercial activity.”

Police and Municipal Support 

Duncan said that protecting the ability of localities to create their own zoning and local regulations is essential, a provision that had been key to S.B. 1262. But other pro-marijuana advocates have criticized amendments with local regulations, which they say would create a “patchwork” of laws throughout the state that are confusing, unenforceable and harmful to the industry and patients.

Lt. Diane Wattles-Goldstein (ret.), speaker and executive board member for Law Enforcement Against Prohibition (LEAP), said this sort of legislation will not be effective. She said local advocates were concerned S.B. 1262 was not written with the interest of patients or the industry in mind, but instead to get ahead of adult use legalization.

“[The Police Chiefs and League of Cities] want to undermine 2016 adult consumption," she said. "They have designed this bill not to be effective and not to work. It is a system set up to fail. Making laws is complicated and nobody ever gets what they want 100 percent, but this regulation [would do] more to criminalize people and to enact barriers to an effective regulatory system.”

Goldstein notes that the League of California Cities (LCC) and California Police Chiefs Association (CPCA), who were opposed to legalization in 2010, cited a provision in Prop 19 that allowed localities to opt-out of legalization or add their own taxes and regulations to the bill. This would have made compliance and law enforcement throughout the state more complicated. In the case of S.B. 1262, those same organizations were suddenly backing the same thing they once opposed.

The LCC had cemented their support for S.B. 1262, saying local governments should have “a prominent role in any regulatory process for medical marijuana.”

Restricting Patient Access

Earlier revisions to the SB126 included restrictions on strains and specific restrictions on who could recommend cannabis for medical uses. 

Dale Gieringer, Director of California NORML, wrote about the restrictions in the CA NORML blog in May:

"In particular, the bill was amended to drop provisions restricting the practice of cannabis medicine, which had been strongly opposed by [medical marijuana advocates], including Cal NORML. Among them were provisions codifying the practice of cannabis medicine, requiring doctors to specify what kind of marijuana to recommend, requiring pediatricians to make recommendations for minors, and banning the use of butane hash oil. Cal NORML joined other opponents in dropping its opposition to the bill in response to the amendments.”

Cal NORML, Drug Policy Alliance (DPA) and LEAP had each withdrawn their support for the bill since May, in response to new revisions they said are designed to shrink the amount of people qualifying for medical access under Prop 215. 

Advocates say the over-concern about who is using cannabis for what reason should not trump the needs of medical cannabis patients anywhere in the state.

According to Amanda Reiman, California Policy Director of DPA, S.B. 1262 was an attempt to slow progress as California prepares to enter into adult use legalization.

“The whole point [of the bill] was to restrict the number of people who could get recommendations, that was their first plan,” said Reiman. “They then decided to try to go after [medical marijuana] by overburdening localities so [those localities] will just ban everything.”

She says that cannabis should be regulated like any other agricultural product in the state, especially considering the massive cultivation industry ingrained in the state for generations.

“We don’t have to reinvent the wheel, but what we don’t want to do is create a situation where people who have been cultivating for decades are shut out of the system just because we don’t have local regulations [that include them] for cultivation," she said. 

Industry Discrimination

Reiman said DPA's biggest issue with the bill and legislation like it is that it would prevent people with prior drug convictions from getting licenses. The CPCA is also holding firm that those convicted of a felony should not be eligible for licenses in a regulated market.

“We believe that folks who have served their time should not be punished, again, by being barred from joining the legitimate market,” Reiman said.

She said that due to the nature of the law, many people within the cannabis industry would be excluded by this inclusion and that their past convictions should not prevent them from joining the legal industry.

“As we know, marijuana arrests are highly racially discriminatory and economically discriminatory,” she said. “You don’t want to disenfranchise a good number of people working in the illicit industry and prevent them from joining the legal industry. That’s not helpful, it forces them to continue working on the illicit market and keeps them vulnerable to law enforcement interference.”

Northern California cannabis farmers, who supply a significant share of the nation’s cannabis supply, have been subject to changing legislation for years and are no stranger to air raids, felonies and harsh criticism in the media. During both the Prop 19 campaign and the current campaign, the cultivation community has been highly critical of legislation that would threaten their way of life.

“[Cannabis cultivation] is the local economy,” said Kristen Nevedal of the Emerald Grower’s Association (EGA). EGA is a non-profit organization of growers in Northern California that works with other advocacy groups to ensure that the cannabis farming industry is represented in pro-cannabis lobbying efforts.

Nevedal cited a study by then-Humboldt State student Jennifer Budwig, which conservatively estimated $1 billion in annual revenues in legal and illegal cannabis cultivation in just Humboldt County. (The county has a total population of just around 130,000.)

The EGA is opposes licensing requirements they say would shut them out of the legal industry through licensing caps and cost-prohibitive start up fees for licensing. Nevedal said legislators should look to California’s existing and lucrative agricultural industries when creating cultivation and production regulations.

“What we are dealing with in Northern California is that marijuana is an agricultural component that we aren’t regulating as an agricultural component,” she said. “Alternately, if we look at the crop and we call it a crop and we realize it is a crop produced for consumption, then we can simply apply other agricultural regulations to the production of this crop.”

She notes that growers aren’t opposed to regulation; in fact, most of them would welcome it. In recent years, since the industry is forced to operate underground, many illegal growers have fled to the hills of sparsely-populated Northern California, illegally cut down redwood forests, diverted water from streams and polluted some of the pristine natural reserves with nutrients and pesticides.  Nevedal said the negative coverage of these new growers has cast a bad light on cannabis farming that isn’t representative of most of the industry, which comprises a lot of these communities.

“When we talk about outdoor cultivation we are talking about generations of famers working the same piece of land,” she said.  “One of the most important things for people to understand about the farming that is happening in these counties throughout California is that these farmers are school teachers, mothers, fathers, baseball coaches, business owners—they love the land they live on and they take care of the watershed. We don’t see that understanding in the media, what we see is what is easy to see in the media. The [illegal growers in the hills] don’t care, but they aren’t the people this regulation would eliminate.”

Restricting Existing Dispensaries

Another issue is the regulation and licensing of dispensaries in regards to the thousands already operating across the state. S.B. 1262 would have potentially shuttered many already operating businesses. Similar language in Washinton’s I-502 was central to the debate against it. I-502 essentially rebuilt the existing industry in the state from the ground up, some businesses were forced to close in favor of an expensive and criticized lottery-licensing system.

Cody Bass, founder and Executive Director of Tahoe Wellness Center said he opposed the legalization for a handful of reasons, and will continue to oppose legalization that threatens Prop 215. He says S.B. 1262 would have preserved the right of municipalities to opt out, or ban, medical cannabis collectives outright.

“This bill would only allow licensed cultivators, which they want to put a cap on, to provide [medicine to] dispensaries,” said Bass. “There are lots of other issues and we must oppose this bill as a movement. It is so important that we allow [California‘s medical marijuana law] to remain intact and that we regulate through legalization."

The bill died in the  committee of appropriations. And, although a consensus hasn’t been reached at this time, all involved parties conclude that regulation is long overdue, and it would be best handled before legalization.