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  • City of Santa Rosa Releases Draft Comprehensive Cannabis Policy

    Santa Rosa released their draft comprehensive cannabis ordinance on June 30, 2017. The draft is more permissive than most in the North Coast area, and indicates Santa Rosa’s desire to become a hub for Northern California cannabis activity. (See here for a draft land use policy chart.)

    The draft ordinance would allow for all license types under MAUCRSA except for “microbusiness.” There is no separate Processor, Packaging & Labeling, or Infused Product Manufacturing permits, which will likely be types of state licenses based on the draft regulations that were proposed earlier this year. Adult use cannabis businesses would still be prohibited within the city of Santa Rosa. There would be standards imposed on all types of medical cannabis businesses related to security, inventory and tracking, building and fire permits, odor control, lighting, and noise.

    The ordinance would allow both volatile (“Level 1”) and non-volatile (“Level 2”) manufacturing. Level 1 manufacturing would be permitted with a Zoning Clearance in the BP, IL, and IG industrial zones, and Level 2 manufacturing would be permitted with a Conditional Use Permit in the IL and IG industrial zones. Manufacturers of edible cannabis products must obtain state certification as a food handler and a Sonoma County Health Permit.

    Testing laboratories would be permitted in the CO commercial zone with a Minor Conditional Use Permit, and in the BP, IL and IG industrial zones with a Zoning Clearance. Commercial cannabis cultivation would only be permitted in indoor or mixed-light environments, in a fully-enclosed space. Depending on the size of the facility, either a Conditional Use Permit (for sites 5,001 square feet and larger) or a Minor Conditional Use Permit (for sites up to 5,000 square feet) would be required.

    Medical cannabis retail facilities will be allowed in most commercial and industrial zones, and will require a Conditional Use Permit. Only medical cannabis retail facilities with a storefront that is open to the public would be able to conduct deliveries. Sales cannot be conducted exclusively by delivery under the draft ordinance. (This is in contrast with MAUCRSA, which states that medical cannabis retail licensees may conduct sales exclusively by delivery and do not have to have their storefront open to the public.) Drive-through or walk-up sales would also be prohibited. Medical cannabis retail facilities must be at least 600 feet from schools, at least 1000 feet from another medical cannabis retail facility, and can stay open between 9AM and 9PM seven days a week unless the review authority imposes more restrictive hours.

    On-site consumption would be allowed under certain circumstances if permitted by both local and state law. The Conditional Use Permit application for the cannabis business must state whether the use will include on-site consumption by patients, in addition to including other information. Employees of a medical cannabis retail facility who are qualified patients would also be able to consume on-site within designated spaces, provided it is in accordance with the local smoking ordinance and state law.

    Under the draft ordinance, commercial medical cannabis cultivation cannot take place outdoors, but rather must occur in a fully enclosed space. Depending on the size of the facility, either a Conditional Use Permit or a Minor Conditional Use Permit would be required. Commercial medical cannabis cultivators will have to abide by all applicable regulations governing the use of pesticides.

    Personal cultivation of both medical and adult-use cannabis would be permitted in all residential districts, but a Zoning Clearance would be required. For medical cannabis, a maximum of 100 square feet of cultivation space per patient would be allowed per residence, regardless of the number of patients living at the residence. For caregivers, a maximum of 500 square feet of cultivation space would be allowed (which shall correspond to no more than five qualified patients, who each get 100 square feet). Based on the California Supreme Court’s holding in People v. Kelly (2010) 47 Cal. 4th 1008, these limits are subject to challenge, since patients are legally permitted to cultivate and possess as much as their medical needs require. For adult use cannabis, no more than 6 plants may be grown per residence regardless of the number of adults living there. A number of other requirements also apply to personal cultivation including adherence to the Best Management Practices for Cannabis Cultivation issued by the County Agricultural Commissioner.

    The draft ordinance would require permittees to pursue state licenses and comply with state licensing requirements. There would then be a distinction created between “operators in good standing,” who receive land use permit approval within 10 months of the date the state begins issuing licenses; and “new operators,” who receive land use permits after the 10-month transition period.

    The ordinance would allow multiple permits per site if this was allowed by both local and state law. Operators issued licenses for the same physical address shall maintain a clear separation between license types unless otherwise authorized by local and state law. Transfer of ownership or operational control of a permitted cannabis business would be possible with a zoning clearance. Special event permits would also be possible.

    The City of Santa Rosa will hold a community meeting on the draft ordinance on July 17 from 6-8PM at the City Hall Council Chamber (100 Santa Rosa Ave., Santa Rosa, CA). For more information, visit www.srcity.org/404/Cannabis-Program.

  • Bank of America Named as Defendant in Oregon Civil RICO Litigation

    Bank of America has been named as a defendant in the civil RICO (“Racketeer Influenced and Corrupt Organizations Act”) lawsuit filed in federal court in Oregon in June of 2017. This will send shock waves through the financial and insurance industries:

    “Defendant Bank of America, N.A. (“Defendant Bank of America”) is a nationally chartered banking association with its principal place of business in North Carolina. Defendant Bank of America does business in Oregon and holds a mortgage on the Beddow Property. As further described herein, Defendant Bank of America knowingly allowed the Beddow Property to be used for the production and processing of marijuana, and profited from such use.”

     

     

    The complaint goes on to state:

    “Defendant Bank of America holds the mortgage on the Beddow Property. As the mortgagee of the Beddow Property, Defendant Bank of America controls the Beddow Property. In November 2015, Bank of America received written notice that the Beddow Defendants, the mortgagors, were leasing the Beddow Property to Defendant Hidden Acres for the purpose of producing and processing marijuana, that marijuana was being produced and processed on the Beddow Property, and that the Beddow Defendants were investors in the marijuana production and processing operation. In violation of 18 U.S.C. § 856(a)(2), since November 2015, Defendant Bank of America has knowingly permitted the production and processing of marijuana to continue on the Beddow Property, and derived a profit from such activity via the monthly mortgage payments it received. Since November 2015, in violation of 21 U.S.C. § 843(b), Defendant Bank of America has communicated via mail with the Beddow Defendants to facilitate use of the Beddow Property in violation of 18 U.S.C. § 856(a)(2).”

    The plaintiffs are seeking treble damages, costs, and “other and further relief as the Court shall deem equitable.”  Interestingly, one of the two plaintiffs, Rachel McCart, is a lawyer and is representing herself and her sister.  There is no request for attorney’s fees.

    Oregon RICO complaint

    Oregon RICO docket

  • Governor Brown Signs SB-94; MAUCRSA Becomes California Law

    On June 27, 2017, Governor Brown signed SB-94, a budget trailer bill that makes significant changes to California’s commercial cannabis regulatory scheme. The new law, called the
    combines the medical and adult-use cannabis systems into one licensing structure with the same regulatory framework governing medical and adult use facilities.

    The license types for both medical and adult-use cannabis businesses will be as follows:

    1. Type 1 – Cultivation; Specialty outdoor; Small.
    2. Type 1A – Cultivation; Specialty indoor; Small
    3. Type 1B – Cultivation; Specialty mixed-light; Small
    4. Type 1C – Cultivation; Specialty cottage; Small
    5. Type 2 – Cultivation; Outdoor; Small
    6. Type 2A – Cultivation; Indoor; Small
    7. Type 2B – Cultivation; Mixed-light; Small
    8. Type 3 – Cultivation; Outdoor; Medium
    9. Type 3A – Cultivation; Indoor; Medium
    10. Type 3B – Cultivation; Mixed-light; Medium
    11. Type 4 – Cultivation; Nursery
    12. Type 5 – Cultivation; Outdoor; Large
    13. Type 5A – Cultivation; Indoor; Large
    14. Type 5B – Cultivation; Mixed-light; Large
    15. Type 6 – Manufacturer Level 1 [non-volatile solvents]
    16. Type 7 – Manufacturer Level 2 [volatile solvents]
    17. Type 8 – Testing Laboratory
    18. Type 10 – Retailer
    19. Type 11 – Distributor
    20. Type 12 – Microbusiness

    Licenses will be designated as either “M” (medical) or “A” (adult-use), except for testing laboratories which will be able to test both medical and adult-use cannabis products. The requirements for “M” and “A” licenses are the same unless otherwise specified. As currently written, the cross-licensure restrictions from MCRSA were mostly removed, so a person or entity can hold two or more licenses in different categories except for testing laboratories, which must be totally independent. Also, large cultivators, which will not be allowed until 2023, cannot hold distribution or testing licenses but can hold all other license types. Additionally, the premises of each license must be separate and distinct. A person can also hold both “M” and “A” licenses, but it is unclear at this point whether co-location of M and A licensees will be allowed.

    A big victory for small farmers is the removal of an independent distributor requirement. Distribution is still a required process, but now any license holder (except testing labs and large cultivators) can apply for a distributor license.

    One of the most significant changes relates to local control. Under MCRSA, an applicant was not eligible for a state license until they had a local permit or approval. Under AUMA, an applicant did not have to first obtain a local permit, but could not be in violation of any local ordinances or regulations. MAUCRSA adopts a method similar to AUMA, where an applicant may voluntarily provide proof of a license, permit, or other authorization from their local jurisdiction, but this is not required. Instead, the burden is on the local jurisdiction to provide the state with its ordinances and regulations related to commercial cannabis and to designate a contact person who will contact the state if local ordinances or regulations change, and on the state licensing agency to check with the local jurisdiction to see whether an applicant is in violation of local law. If the local jurisdiction does not respond within 60 days saying the applicant is violating local law, then the licensing agency will presume the applicant is in compliance.

    You can read the full text of the new law here: Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA)

    For more details about the changes in MAUCRSA, check out our previous post, “Legislature Consolidates MCRSA and AUMA into MAUCRSA”: http://www.omarfigueroa.com/posts/

     

  • Legislature consolidates MCRSA and AUMA into MAUCRSA


    On Thursday June 15, the California Senate and Assembly passed two bills, SB-94 and AB-110, which are the state legislature’s versions of Governor Brown’s Trailer Bill. The Trailer Bill is the administration’s effort to reconcile the medical and adult use cannabis systems in California. Now that these bills have passed, Governor Brown has until July 1 to sign them into law, which he is expected to do. The law would then go into effect immediately once signed.

    We contacted the Bureau of Medical Cannabis Regulation to ask what would happen next. Their official response was:

    “The bureau will withdraw the proposed MCRSA regulations and propose a new set of regulations consistent with the changes in the law. However, public comments on the proposed MCRSA regulations are still very important. Many of the provisions in the MCRSA proposed regulations will carry over to the new regulations. Public comment from the MCRSA proposed regulations will provide information for the bureau to use when crafting any new regulations.”

    The emergency rule-making process will most likely be used for the next round of proposed regulations.

    Below are some of the main changes coming soon to California cannabis.

     

    Name of the Law and Rebranding of Regulatory Agency

    The new name for the combined medical and adult use cannabis regulatory systems is the “Medicinal and Adult Use Cannabis Regulation and Safety Act” (MAUCRSA–we think this would be pronounced MAO-KUR-SA) (BPC §26000). The Bureau of Medical Cannabis Regulation will be renamed the “Bureau of Cannabis Control” (BPC §26001(e)).

     

    License Types and Combinations

    The license types for medical and adult use cannabis operations will be the same. There will be no transporter or producing dispensary licenses. Licenses will be identified as medical or adult use with an “M” or “A,” respectively, except for testing laboratories which shall not be designated as either. The requirements for M-licenses and A-licenses shall be the same, unless otherwise specified (BPC §26050(b)). Regarding which combinations of licenses a person may hold, the law removes MCRSA’s limitation on holding licenses in more than two separate categories. Large cultivators, which will not be allowed until 2023, cannot hold distribution or testing licenses but can hold all other license types.

     

    Definition of “Owner”

    The new law eliminates the distinction between public and private companies; the threshold is 20% interest in the company to be an owner; and the CEO of a company (if applicable) ; and all members of the Board of Directors of a nonprofit (if applicable); and anyone who exercises direction, management or control of the company (if applicable) (BPC §26001(al)).

     

    Delivery

    Deliveries may only be made by a licensed retailer or microbusiness (BPC §26090). However, retailers are allowed to conduct business exclusively by delivery. Such a retailer must still have a licensed premises, but the premises may be closed to the public (BPC §26070). Deliveries includes the use of technology platforms that are either independently licensed or owned and controlled by another licensee (BPC §26001(p)).

     

    Volatile Solvents

    The definition of “volatile solvents” has been completely changed, and no longer includes references to specific compounds. Instead, a volatile chemical is defined by MAUCRSA as “a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures.” (HSC §11362.3(b)(3)).

     

    Lab Testing

    The bureau will issue testing laboratory licenses, but these licenses will not be designated as “M” or “A” (BPC §26050(b)). Holders of a testing laboratory license may not hold a license in any other category (BPC §26053(b)). Testing laboratories are responsible for obtaining samples and transporting them back to the laboratory

     

    Distribution

    Transportation of cannabis can only be done by licensed distributors (BPC §26070(a)(2)), but anyone, except testing laboratory license holders, can apply for a distributor license (BPC §26110).

     

    No More Prohibition on ABC Licensees Holding Cannabis Licenses

    MCRSA and AUMA prohibited a holder of an alcohol license from obtaining a license for commercial cannabis. The new legislation does away with that prohibition. Instead, the law would prohibit any cannabis licensee from serving alcoholic beverages or tobacco on the licensed premises (BPC §26054).

     

    Special Events

    Temporary event licenses that would allow on-site consumption may be available, if all participants are licensed and the local jurisdiction allows it (BPC §26200(e)).

     

     

  • Cannabis Codes of California: An Instant Classic!

    North Bay Bohemian

    (Original article here) When I worked in New Orleans as an online reporter most of my work was in the criminal justice arena—police, the courts, the notorious Orleans Parish Prison. It was intense and difficult work at times and as a newcomer to that city around 2009 I arrived in the aftermath of Hurricane Katrina, and all the horrible police-related stuff that went on after the storm. There was a built-in bloc of institutional and historical knowledge that I had to get up to speed on, and quick. The work was intense and difficult but it was never intimidating.

    That was not the case when I was doing some freelance work down in New Orleans for the local daily, and got assigned to cover the annual Satchmo Festival in the French Quarter, the celebration of Louis Armstrong.

    And let me tell you that I never felt, as a reporter, anything approaching the angst I felt when I sat down to write the fateful words, “Louis Armstrong” for publication for the first time, in a town where every other person is an armchair Armstrong scholar ready to pounce on any mis-reported fact about the jazz great. And the other person is a trumpet player or some other jazzbo steeped in the living history of New Orleans jazz.

    I confess that I feel the same way any time I sit down to write a story in the Bohemian about cannabis in California (despite the fact that it’s a fact that Satchmo was a total pothead): I feel totally intimidated. I am going to screw this up.

    Why this horrible feeling? Same reason: There are thousands upon thousands of people in the state, many in the North Bay, with lots of deep history and knowledge in this area, and given the complicated and intersecting medical- and recreational-use laws now on the books—it’s hard to keep up! With so many moving parts and competing and/or complementary cannabis constituencies, it can be hard to get out of the weeds to see the weeds for the trees for the forest, to figure out what the news hook is—or something like that.

    As with the Satchmo scholars, people in the North Bay are invested, and often heavily so, and for decades, in their chosen field of study and celebration. Every time I report one of these pot stories, I feel that same terror of being exposed as a canna-fraud should I misrepresent some crucial fact or bollix some niggling detail about a particular strain and who is responsible for it.

    But not anymore! Enter Omar Figueora, Sebastopol cannabis lawyer and the recent author of the hardcover instant classic, Cannabis Codes of California.

    With this handy, exhaustive and essential guide to cannabis-related law in the state, I’m no longer intimidated at the thought of reporting on the latest update on cannabis taxation, or distribution, or the black market, or the medical-community’s concerns, the mom-and-pop growers, the Big Cannabis operators—etc. I’ve got Omar’s comprehensive Codes to see me through.

    Cannabis Codes of California isn’t a novel but it does have a built-in plot-line that lays out the law at various junctures in California social and political history. Omar gives a brief upfront history of cannabis in the state and the various moments where legislators weighed in on some aspect or another of the industry: For example, the 1996 landmark medical-use act, is reprinted in its (short but revolutionary) entirety, along with relevant penal codes, fish and wildlife code, health and safety, taxation—et al.

    This is a dense and delightful legal-reference book whose content is delivered in a nice, big fat font size for ease of reading among elders of the cannabis community. It’s a timely and useful guide, a greatly informative cover-to-cover read (or casual flip-through) for anyone, myself included, who is intent on having a working, if not expert, knowledge of this fascinating and ground-breaking American experiment in cannabis freedom—and without fear of hearing from some know-it-all canna-crank from NORML if I screw something up in reporting on the latest twist and turn in the law. I got the law, or at least this estimable legal guide, on my side now—and you can, too. Cannabis Codes of California is available on Amazon.com.

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  • Pot-sniffing dogs’ jobs haven’t gone up in smoke

    San Francisco Chronicle

    Legal marijuana is in the air across California, but local and state law enforcement agencies say they won’t retire their pot-sniffing narcotics dogs anytime soon.

    At first, it might seem like California’s legalization of recreational pot would render canine units’ weed-sensitive noses obsolete. Indeed, some dogs are being pulled from routine patrols, and new ones are sometimes not trained on pot. But police agencies say their drug-trained dogs still have plenty of value, especially when it comes to taking down large-scale drug operations.

     “While laws regarding marijuana have changed, certain activities are still considered crimes,” said Giselle Talkoff, spokeswoman for the San Francisco Police Department. “Laws and regulations still govern sales, possession and transport, (and) there are times when the illegal possession of marijuana can coincide with other crimes.”

    Most of California’s drug-trained police dogs go through an intensive training program where they learn to bark or sit when they smell heroin, cocaine, methamphetamine or marijuana. The California Highway Patrol, which employs 42 drug-sniffing dogs, trains them for 440 hours before they go out into the field, according to CHP spokesman Mike Martis Jr.

    When Colorado legalized recreational marijuana in 2012, police departments there began talking about what to do with their narcotics canines. Some agencies were worried that the dogs would wind up calling unnecessary attention to legal weed, but Denver’s four police dogs have continued to be a key part of the force, said Denver Police Capt. James Henning.

    Rather than retire expensive animals, “we decided to keep them — and it was a good thing, because the illegal marijuana trade is booming in Colorado,” Henning said. “Legalization has almost made it more necessary to have good marijuana dogs, which is something nobody ever expected.”

    The San Francisco and San Jose police departments have no plans to retire or retrain their dogs. The Alameda County Sheriff’s Office, which uses narcotics canines on patrol and at Oakland International Airport and lends pooches to Oakland on occasion, is also hanging onto its current contingent, said its spokesman and former dog trainer, Ray Kelly.

    Those decisions could pose legal problems, both for police and for anyone these dogs call out, according to Lauren Mendelsohn, a criminal defense attorney who specializes in cannabis law.

    “Drug dogs are trained to smell four different drugs. They’re not taught to differentiate between them,” Mendelsohn said. “Having a dog indicate they smell something gives an officer probable cause to obtain a warrant.”

    However, Prop. 64, which made it legal for individuals to use marijuana and grow it for personal use, specifically states that legal amounts of marijuana and cannabis products don’t create the basis for a search, detention or arrest. A dog that alerts on marijuana could taint an otherwise lawful search that turns up illegal guns or other contraband. “There’s a strong argument that if one of these four-odor dogs smells something, it violates the statute,” she said. “It will be interesting to see how it plays out in court.”

    The Law Enforcement Action Partnership, a national group of current and former police officers who support an end to the War on Drugs, agrees that the use of drug-trained dogs can create legal problems. Rusty White, a spokesman for the partnership and a former canine trainer, said some police departments cut corners by training their own dogs, and those dogs’ noses might not meet legal standards.

    “If anyone is stopped, the first thing you ask is: Is the dog proven; is the handler proven in a court of law?” White said.

    The U.S. Police Canine Association — a national organization for police departments that work with these dogs — isn’t offering guidance on what to do when states legalize pot. “It will be up to those agencies to develop a policy that’s best for their community,” said David Ferland, the association’s executive director.

    Seattle Police Department spokesman Sean Whitcomb said it is possible to retrain drug-sensitive dogs to ignore marijuana. That’s what his agency did when Washington legalized pot in 2013. Officers have retrained the dogs by not rewarding them for finding pot. “Imagine you’re in an orchestra and you can play the violin, viola and cello. Now imagine you stop playing cello — you’re going to lose your skill,” Whitcomb said.

    Most trainers agree that the dogs can be retrained, said Bill Lewis II, a spokesman for the California Narcotics Canine Association. However, many say it’s too expensive and time-consuming to bother, he said.

    Local and state police agencies say they’ll work around the legal issues by leaving behind narcotics dogs when out on patrol. Instead, they’ll be brought out once a large-scale grow or trafficking operation is suspected.

    “Think of the dog as a specialized unit or investigator,” Talkoff said.

    And, even though canines cost plenty to train, Kelly of the Alameda County Sheriff’s office says they save about 1,000 officer hours each year searching for drugs, weapons and other contraband, and good ones wind up paying for themselves many times over, because of asset forfeiture in drug cases. One retired canine found $70 million in drugs, he said.

    The use of these dogs is evolving as drug laws change, but the dogs are irreplaceable, Kelly said. “There’s no technology yet developed that can replace the nose and ability of a dog. The need for dogs is more and more every year, and the work they do is tremendous.”

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  • Santa Rosa Approves Cannabis Business Tax

    Last week, Santa Rosa voters approved a cannabis business tax (“Measure D”) that applies to commercial medical cannabis businesses within the city. The measure received nearly 78% of the vote, indicating that Santa Rosa residents see the value that the cannabis industry brings to the city. Santa Rosa officials cited a need to offset the cost of regulating the cannabis industry, which has been growing steadily in the city over the past few years, as the need for the tax. The City does not yet have an estimate of how much revenue the tax will generate.

    The tax ordinance imposes taxes on the following commercial medical cannabis activities: cultivation (including nurseries), manufacturing, distribution and dispensaries. The tax is a general tax, meaning the city can use it for any purpose, as opposed to dedicating the revenue to specific items like cannabis enforcement. Cannabis businesses paying the special cannabis tax would be exempt from the city’s general business tax, which costs up to $3,000 per year.

    For commercial cultivation, the maximum rate is $25 per square foot (the initial rate will likely be much lower), adjusted annually by CPI, or 8% of gross receipts. For commercial manufacturers, distributors, and dispensaries, the maximum rate is 8% of gross receipts. The City Council may increase or decrease the current rates by resolution, provided that the cap is not exceeded. Rates shall be set for a minimum of two years. The initial rates will be set by resolution by the City Council, at which time the tax will go into effect.

    Under the tax ordinance, cannabis businesses must register each year and pay a $100 annual registration fee. Tax payments are due each quarter, and there are penalties for failure to pay. Additionally, violation of the tax ordinance can be deemed a misdemeanor. Finally, simply paying the cannabis business tax will not authorize an unlawful business.

     

    Resources:

    http://srcity.org/2511/Cannabis-Business-Tax

    http://srcity.org/DocumentCenter/View/14264

    http://srcity.org/DocumentCenter/View/14390

  • Proposition 65’s Warning Requirements and Cannabis Businesses

     

    WARNING: New Proposition 65 Notice Requirements Coming Soon!

    OVERVIEW

    California’s Proposition 65, a voter initiative passed in 1986, created the Safe Drinking Water and Toxic Enforcement Act (Health & Safety Code § 25249.5 et seq.), which requires that the seller of a product that contains chemical(s) known by the State of California to cause cancer or reproductive harm must provide a warning to anyone who buys the product, unless there is already a clear and sufficient warning printed on the label or package. Warnings must also be given if there is a possibility of environmental exposure to a chemical on the list of substances that cause cancer or reproductive harm. Penalties for violating Proposition 65’s warning requirement can be as high as $2,500 per day.

    The Proposition 65 list can be found at https://oehha.ca.gov/proposition-65/proposition-65-list.

    Proposition 65 is enforced by the California Attorney General’s office; however, the law also gives a private right of action to individuals acting in the public interest, who may file a lawsuit alleging that a business is in violation of the law. Many private attorneys are involved in filing these notices, and the attorney fees awarded are usually significant.

    The warning required under Proposition 65 must be “reasonably calculated” to be available to an individual prior to exposure, and must clearly communicate that the chemical in question is known to cause cancer or reproductive harm. “Exposure” in this context is defined as: “to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a listed chemical,” and can occur through use of consumer products as well as through the environment.

    For products, the warning must be “prominently placed upon a product’s label or other labeling or displayed at the retail outlet with such conspicuousness, as compared with other words, statements, designs, or devices in the label, labeling or display as to render it likely to be read and understood by an ordinary individual under customary conditions of purchase or use.” A system of signs, a public advertising system, or any other system that provides clear and reasonable warnings is also sufficient. This could include a warning printed on each customer receipt, or included as part of a membership agreement, if one exists, depending on the circumstances. For environmental exposure, in addition to the warning methods mentioned above, warnings can also be provided by a mailed or delivered notice to each occupant of the affected area at least once every three months, or via public media announcements targeted to the affected area at least once every three months.

    Currently, the consumer product warning for a carcinogen must include the following language:

    “WARNING: This product contains a chemical known to the State of California to cause cancer.”

    The current environmental exposure warning for a carcinogen must include the following language:

    “WARNING: This area contains a chemical known to the State of California to cause cancer.”

    The required warnings for chemicals known to cause reproductive harm are identical, except the word “cancer” is replaced with “birth defects or other reproductive harm.”

     

    NEW RULES COMING

    California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency that oversees Proposition 65 enforcement, issued new warning regulations in late 2016 that will go into effect on August 30, 2018. The new regulations are designed to provide consumers with more specific notice of the chemicals contained in products sold within the state. Between now and August 30, 2018, businesses can choose to continue following the existing regulations or to begin following the new regulations immediately. (For a side-by-side comparison of the current and new reasonable warning regulations, go to https://oehha.ca.gov/media/downloads/crnr/side-sidearticle6090116.pdf.)

    The new regulations place the burden to warn on manufacturers and distributors rather than on retailers, though there are instances when a warning by the retail seller is required. Additionally, as long as the consumer ultimately receives an adequate warning, an arrangement may be reached between a retail seller and a manufacturer, producer, packager, importer, supplier, or distributor to allocate legal responsibility for providing the warning.

    Warnings under the new regulations must be provided via signs and/or product labeling as applicable. For warning signs in retail establishments, the new regulations still require the warnings to be prominently displayed with conspicuous signage, so as to render them likely to be read and understood by an ordinary customer. Regarding additions to the warning, the warning may contain supplemental information “only to the extent that it identifies the source of the exposure or provides information on how to avoid or reduce exposure to the identified chemical or chemicals,” and any such supplemental information is not a substitute for the required warning.

    The new exposure warning messages must include the following:

    (1) A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”.

    (2) The word “WARNING” in all capital letters and bold print, and:

    (A) For exposures to listed carcinogens, the words, “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.”

    Additionally, on-product warnings for products containing a known cancer-causing agent require the symbol required in §25603(a)(1), the word “WARNING” in bold capital letters, and the following words: “Cancer – www.P65Warnings.ca.gov.” The name of the listed chemical is not required to be printed on a product warning label.

    The major differences between the current and the new “clear and reasonable” warning regulations are: (i) that the current regulations do not require that the specific listed chemical be identified, whereas the new regulations do; (ii) a change in the appearance of the warning sign, which will now require a yellow (or black-and-white) triangle with an exclamation point; and (iii) a clear preference for placing the burden to warn on manufacturers and packagers rather than retail sellers where possible, while also providing a mechanism to allocate legal responsibility for providing such warnings.

     

    EXCEPTIONS

     Businesses that employ nine or fewer employees are exempt from the reasonable warning requirement. Additionally, only marijuana smoke is included on the Prop. 65 list of cancer-causing substances, so warnings may not be required for edible or topical marijuana products, provided they do not contain another chemical on the Prop. 65 list, such as certain pesticides. A warning still may be required on some marijuana products that can be vaporized, since certain chemicals used in vapor products may be included on this list.

     

    APPLICATION TO CANNABIS BUSINESSES

    Marijuana smoke was added to the list of substances known by the State of California to cause cancer in 2009. Recently, a number of medical cannabis dispensaries throughout the state have received 60-day notices of allegedly violating the clear and reasonable warning requirement. Therefore, medical marijuana dispensary operators should provide a warning, since some products being sold (i.e., any marijuana intended for use by combustion or vaporization) can be used in a way that, according to the State of California, could expose the user to a cancer-causing agent. This is not required if all such products already have clear warnings on their packages or labels. Additionally, dispensaries that permit smoking or vaporizing on-site should provide a warning for environmental exposure. These warnings must be placed in a location where an average customer is likely to see them.

    Under the new regulations, which go into effect in August 2018, the burden placed on retailers will be minimized. Retailers of cannabis will not be responsible for providing the required warnings unless: (i) the retailer is responsible for introducing a listed chemical into a product; (ii) the retailer agrees to take on this responsibility; (iii) the retailer is selling the product under a brand or trademark that is owned or licensed by the retailer or an affiliated agency; (iv) the retailer obscured or did not conspicuously display warning labels or signage that were provided; or (v) the retailer has actual knowledge of potential consumer exposure that would require a warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who is a “person in the course of doing business” and has designated an agent for service of process in California or has a place of business in California.

    Retailers are explicitly authorized to enter into arrangements with providers of packaged smokeable or vaporizable marijuana products to allocate legal responsibility for providing Prop. 65 warnings. However, the providers of the packaged products have the option of including the required warning directly on the product label or providing an accompanying written warning to the retailer along with the product. If the latter method is chosen, then the notice must be renewed every six months and the retailer is responsible for the placement and maintenance of the warning materials.

    Below are examples of warnings that comply with the new regulations, which go into effect on August 30, 2018:

     

    WARNING: This product can expose you to marijuana smoke, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.

     

     

     

    WARNING: Entering this area can expose you to marijuana smoke. Marijuana smoke is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.

     

    As noted, Proposition 65 can be enforced by both a public and private right of action, so individuals can serve businesses who they allege to be in violation of the Act with a 60-Day Notice of Violation and can then file a civil lawsuit against the alleged violator if an agreement to resolve the violation is not reached. A number of medical marijuana dispensaries have been targeted in this manner over the past years. Apparently, all of these cases resulted in either a settlement or a consent judgment.

    Moreover, marijuana smoke is not the only chemical known to the State of California to cause cancer that a dispensary might encounter: pesticides such as myclobutanil and carbaryl are on the Proposition 65 list, and a number of medical cannabis dispensaries throughout California have recently received 60-Day Notices for edible cannabis products allegedly containing myclobutanil or carbaryl.

    To view the Attorney General’s database of marijuana-smoke-related Prop. 65 60-Day Notices, visit https://oag.ca.gov/prop65/60-day-notice-search and search for “Marijuana smoke” in the “Chemical” box.

    Searches for “Marijuana smoke“, “Myclobutanil“, and “Carbaryl” reveal that dozens of 60-Day Notices have been reportedly served on California medical cannabis businesses throughout the state.

    Because marijuana smoke and other pesticides which may be found in cannabis products are currently listed as cancer-causing substances by the OEHHA, and because several dispensaries have been targeted for not providing such warnings, it is advised that medical cannabis dispensaries provide the warnings called for under Proposition 65, despite some evidence suggesting that marijuana may actually help treat cancer. It is also advised that packagers of cannabis products start preparing to include Proposition 65 warnings on their labels or to provide these warnings to retailers, or to make agreements with retailers as to who will take on this responsibility.

    There is nothing that prevents a cannabis dispensary from including additional signage that states the facility disagrees with the required warnings.

    For more information on Proposition 65, go to https://oehha.ca.gov/proposition-65/.

     

    Remember: laws, rules, and regulations are constantly changing.  The above information is not intended as legal advice; please contact the Law Offices of Omar Figueroa for legal advice on how to comply with Proposition 65 at (415) 489-0420 or (707) 829-0215.

  • Message from the State Water Resources Control Board

    State Water Resources Control Board Releases Forms to Comply with CalCannabis Licensing

    If you are planning to obtain a California Department of Food and Agriculture Cannabis Cultivation (CalCannabis) License beginning on January 1, 2018, you must provide documentation of your water supply source with your cultivation license application. Certain water diversion types require completion and submittal of special forms to the State Water Resource Control Board (State Water Board) by June 30, 2017. Some water right types, including Small Irrigation Use Registrations and existing Water Right Permits do not require information to be submitted to the State Water Board by this date. Please review the Cannabis Cultivation licensing requirements for additional information.

    In accordance with the Business and Professions Code Section 19332.2 (b), CalCannabis requires cultivators to provide documentation to the State Water Board – Division of Water Rights by June 30, 2017 for the following situations:

    1. Water is already being diverted under a riparian right. An Initial Statement of Diversion and Use must be on file with the Division of Water Rights.

    2. Pending application to appropriate water.

    3. Water is planned to be diverted and used under a riparian right and no diversion occurred in any calendar year between January 1, 2010 and January 1, 2017; Form 19332.2 (b)(5)

    4. The water diversion is from a spring that does NOT flow off the property on which it is located. The aggregate diversions from this person do not exceed 25 acre-feet in any year; Form 19332.2 (b)(4)

    5. A notice is on file with the State Water Board for the recordation of groundwater extractions and diversion of Los Angeles, Riverside, San Bernardino and Ventura Counties; Form 19332.2 (b)(4)

    6. A diversion is regulated by a Watermaster appointed by the Department of Water Resources and included in annual reports filed with a court or the State Water Board by a Watermaster, which reports identify the persons who divert water and describe the general purposes and the place, the use, and the quantity of water that has been diverted from each source; Form 19332.2 (b)(4)

    7. A diversion is included in annual reports filed with the court or State Water Board by a Watermaster appointed by a court or filed pursuant to statute to administer a final judgment determining rights to water, for which reports identify the persons who have diverted water and give the general place of use and the quantity that has been diverted from each source. Form 19332.2 (b)(4)

    If you are unsure which category your water source belongs, or need further assistance, please visit our Cannabis webpage or contact Division of Water Rights staff at WB-DWR-CannabisReg@waterboards.ca.gov or 916-341-5300.

  • Challenging Proposed Regulations for Lack of Necessity

    One way to challenge California’s proposed medical cannabis regulations is to argue that the record of rule making fails to establish the need for a particular regulation.


    California Government Code § 11349(a) defines necessity in the context of proposed regulations:
    “‘Necessity’ means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record. For purposes of this standard, evidence includes, but is not limited to, facts, studies, and expert opinion.”

    In other words, if the record of the rule making proceeding fails to show, by substantial evidence, the need for a particular regulation, that regulation is susceptible to a necessity challenge.

    For an example of a proposed California medical cannabis regulation which may be susceptible to a necessity challenge, the manufacturing ISOR does little to establish the necessity of the categorical prohibition on cannabis-infused caffeine products set forth in proposed Section 40300. The ISOR states:


    “The recommendation that caffeine not be allowed as an additive comes from the FDA determination that caffeine (stimulant) in certain alcoholic (depressant) beverages is an “unsafe food additive” due to the unpredictable negative effects of the two substances. The mixing of stimulants with depressants may lead to dangerous cardiac events. A similar lack of definitive information exists as well for the safety of caffeine as an additive to cannabis.”

    The ISOR cites no facts, studies, or expert opinions to establish the necessity of the ban on caffeine, and the record of the rule making proceeding at this juncture appears insufficient to establish by substantial evidence the necessity of a categorical prohibition on caffeine.

    You can easily find Section 40300 of the regulations proposed by the Office of Manufactured Cannabis Safety as well as the corresponding ISOR on the Regulations page of the Law Offices of Omar Figueroa web site:
    http://californiacannabisregulations.com
    http://http://www.omarfigueroa.com/wp-content/uploads/2012/07/OMCSCombined.pdf

    The California Office of Administrative Law has a very informative web site collecting written decisions disapproving of agency regulatory actions.  These decision identify proposed regulations which were rejected as defective. An example of a recent Disapproval Decision is the disapproval of the Department of Alcoholic Beverage Control’s proposed regulatory action for “failure to comply with the “necessity” and “clarity” standards of Government Code section 11349.1 and failure to follow all required procedures under the California Administrative Procedure Act (APA).”

    http://www.oal.ca.gov/publications/disapproval_decisions/

    https://oal.blogs.ca.gov/files/2017/04/2017-0213-01S_ABC_Disapproval-Decision.pdf

     

    The above information is provided for informational purposes only and is not intended as legal advice.  Please contact a lawyer for legal counsel.

    If you would like legal assistance in advocating for changes to the proposed regulations, please get in touch with us at (707) 829-0215 or at (415) 489-0420.