Cannabis, via a wide variety of consumption methods and in a myriad of forms, has a long history of use as a pain reliever. In this post, our los angeles cannabis lawyers tackle the topicals and Type 6 non-volatile cannabis manufacturing licenses.
Yesterday the City of Los Angeles released new zoning for cannabis businesses. The blue and pink maps released in June have been updated. We now have zoning for volatile manufacturing and mixed light cultivation, which is a departure from the prior draft ordinance released in June. We predicted the City was leaning towards volatile manufacturing after they released a letter earlier this month, which you can read about here. Additional areas have been added to the permitted zones for commercial cannabis activity.
Our marijuana lawyers are frequently being asked about one particular cannabis derivative: cannabidiol, also known as CBD. The popularity of cannabidiol as used in CBD-only products, which do not contain THC and are non-intoxicating by design, has surged in recent years in the wellness community. In Los Angeles, CBD products aren't just found at dispensaries, but can be bought over the counter at health shops and even a few high-end grocery stores. Given this wide acceptance, our clients often ask: “Do I need a license to sell CBD?” The answer may surprise you.
CBD can be derived from hemp as well as cannabis plants. It is a common misconception that because hemp is non-psychoactive, its derivatives are therefore non-regulated, or that because CBD isn't an intoxicant, its sale isn't subject to existing marijuana laws. In fact, both of these assumptions are wrong: Hemp and CBD are regulated by federal, state, and local law (though few local jurisdictions are currently regulating hemp). In California, the SB-94 bill does not cover hemp; instead, it's regulated by the Food and Agriculture Code, which defers to federal law under the 2014 Farm Bill. For now, the Farm Bill only allows for the cultivation of hemp for research, and also requires registration with the state.
Under federal law, the DEA has issued multiple statements to clarify that, as a cannabis derivative, CBD qualifies as a Schedule I controlled substance, the same as cannabis itself. However, this doesn't mean that CBD is without advocates beyond the state level: the FDA has determined that CBD has beneficial effects, and the World Health Organization is also evaluating the potential health benefits of CBD. You can play a role in shaping CBD policy by participating in the FDA and World Health Organization’s request for comment on CBD by September 13, 2017.
This request was made in the hopes of gaining information on the “abuse liability and diversion” of a number of drugs – in other words, how easy it is for the use of these substances to become dangerous. The official notice listed 17 drugs, with a breakdown of their specific effects and uses. Of those substances, only CBD was deemed by the FDA to have positive qualities. The WHO’s judgment about the potential benefits of this marijuana derivative, informed by the FDA's text and submitted comments, will inform the organization’s recommendations about whether CBD should have international restrictions placed on its use.
In its own way, though, the FDA’s statement may inform drug policy and cannabis law here in America. Stay tuned for part 2 of our Regulating CBD series next week.
Los Angeles cannabis lawyer Allison Margolin spoke at the State of Marijuana conference this past weekend. In this video clip, she gives an overview of the cannabis licensing process in California. If you haven't heard, you need to get local authorization (which can mean a license or something less official like local government officials signing off on your project to the state) in order to apply for a California cannabis license when it becomes available January 1, 2018. Our cannabis attorneys are familiar with local jurisdictions statewide and are actively advising our clients on the nuances and complexities of zoning, the application process, and compliance with local ordinances.
In a letter published today, the Los Angeles City Council’s Rules, Elections, and Intergovernmental Relations Committee (Rules Committee) advised the City Planning Department that they support the allowance of Type 7 (so called "volatile") manufacturing within the City of LA. The letter represents a signficant policy shift on the City's part, since the Draft Operating Requirements released in June only allowed for non-volatile. Our Los Angeles cannabis attorneys are often asked what the difference is - any extraction process that uses flammable substances (including CO2) is considered "volatile" and would require a Type 7 license from the state. These labs are also subject to stringent safety requirements, which are discussed further in our prior post on volatile manufacturing.
One of the most frequent questions our cannabis lawyers get from savvy business owners is: How can I legally market my cannabis products? As with many branches of marijuana law, cannabis business advertising regulations are complex because they fall under an overlapping set of legal regimes, some of which are in conflict with each other. When considering advertising cannabis four bodies of law apply: Federal, State, Local, and Internet TOS (the terms of service and operating contracts that govern your relationships with digital advertising hosts). Cannabis marketers must navigate all four sets of regulations here.
Federal Law places an absolute ban on cannabis advertising under the Controlled Substances Act of 1970. The Act stipulates: “It shall be unlawful for any person to place in any newspaper, magazine, handbill, or other publications, any written advertisement knowing that it has the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule 1 controlled substance.” Further, “It shall be unlawful for any person to knowingly or intentionally use the Internet, or cause the Internet to be used, to advertise the sale of, or to offer to sell, distribute, or dispense, a controlled substance where such sale, distribution, or dispensing is not authorized by this subchapter or by the Controlled Substances Import and Export Act.” In other words, as far as federal law is concerned, there's no such thing as a legal marijuana advertisement.
California has recently placed regulations on marketing under the MAUCRSA (aka SB-94). This means that, if the regulations are followed, an advertisement can be in compliance with California law. Among its requirements are that advertisements must identify the license number of the advertiser, must not be targeted at individuals younger than 21, and must not contain false or misleading information about the products advertised. While these standards are relatively straightforward, figuring out how to advertise within the existing marijuana laws can be tricky even for California-based businesses. Local laws may differ from the state regulations, and a host of pending legislation like AB-175 (Marijuana: county of origin: marketing and advertising) and AB-76 (Adult-use marijuana: marketing) may change the state’s standards even further.
On top of that, the terms of service of online sites which host advertisements, such as Google and Facebook, often ban any mention of marijuana, on the basis that federal law still forbids it – since, of course, any online advertisement can be seen outside of California. This rapidly evolving area of law will be discussed at the State of Marijuana Conference this weekend in downtown Los Angeles, where attorney Allison Margolin will be leading a panel on Next-Gen Cannabusiness Marketing. For more information, check our guide to California cannabis business law or contact us at firstname.lastname@example.org to speak with one of our Los Angeles cannabis lawyers.
In addition to the City of Los Angeles Public Comment hearing on Measure M last night, Bellflower's City Council held a meeting this week. On Monday night, the main room where the night's public discussion was scheduled was filled to capacity. The crowd was drawn to the meeting by one of the subjects on the city council's agenda for that night: Bellflower's approach to cannabis. As one of only three cities in LA county (along with Long Beach and Maywood) that have passed a cannabis ordinance and are either issuing licensing or about to, there's clearly no shortage of interest in Bellflower's path toward legalization. We were among the many cannabis lawyers, entrepreneurs, and business owners, in attendance, and we left the meeting with the new information you need about Bellflower.
Bellflower’s mayor made it clear that the city will only be issuing 12 permits for cannabis-related business activities. The mayor did not specify exactly how many of these permits will be allotted to each type of activity. However, it's clear that applications will be made available for dispensary, cultivation, distribution, and manufacturing. The application fee is a whopping, non-refundable $25,000. Furthermore, this fee will be levied annually in addition to standard business taxes. The application will open September 27, 2017, and applicants will be required to submit both a Conditional Use Permit Application and a Cannabis Business Permit Application.
Each application will be evaluated on its merits, and the strongest applications will receive licenses. The City made it clear that there is not an explicit criteria or point system to rate each application. However, in order to be considered for a license, companies must have at least $400,000 in liquid funds, as well as either ownership of the property they are operating out of or a long-term lease of at least 10 years. The City made it clear that businesses which have operated continuously are preferred, and that companies may not submit one application for multiple types of business activities. (For example, a company interested in both cultivation and distribution must apply for the two licenses separately.)
One additonal bright spot of the meeting was the city’s promise to grandfather in all compliant medicinal license holders once recreational sales licenses become available.
Check back with us for regular updates - this is a fast-moving time for cannabis licensing in Los Angeles County.
One of the questions any Los Angeles cannabis lawyer encounters most frequently is: what about the banking issue? Cannabis remains a largely unbanked industry. And while you are still required to pay all of your federal, state, and local taxes, that often means dealing with large amounts of cash, which creates security and accounting risks for legal cannabis businesses. A stateside bank that services legal cannabis businesses could close some of these gaps, but still faces the risk of federal asset forfeiture.
On August 10th, the Cannabis Banking Working Group (CBWG) and California State Treasurer John Chiang held the last of six meetings in Los Angeles to address these concerns, as well as how a public bank that services legal cannabis businesses could generate revenue for the state. Since California is the world’s sixth largest economy, the way the state implements a banking system will be a bellwether for other states that have implemented medical marijuana regulations, as well as a game changer for legal cannabis operators in general.
Kevin Klowden, economist and Executive Director of the Milken Institute, stated that in order for public banks to operate, they would need to generate a depository system that is specifically designated to cannabis businesses, creating a “safe alternative to an all-catch operation” which would be separate from the federal government. This public bank model would allow for small- and medium-sized deposits, turning them into targeted loans which could be used to make money. In order to do so, a public bank would require a master account number, similar to a routing number, which would assist in identifying the sources of funds and entities. This master account number would also allow for basic bank services, such as check deposits and transferring of funds. With federal oversight, the government would have the ability to oversee and approve such transactions. If money is coming from an institution that they have flagged as suspicious, e.g. cannabis businesses, they have the ability to block such transactions. To avoid this, the state would need to create a situation where the federal government cannot interfere with small deposits. The structure of such deposits must be separated and clearly distinct between any chartered public bank.
The Bank of North Dakota (BND), the only public state-owned bank in the country, has created a similar business loan program. The deposits made into BND are insured by the state, as opposed to the FDIC. Because BND has control over their institution, their default rate has been extremely low. As such, BND’s public bank model has proven to be effective and profitable. A program fitting this model, if adopted in Californiam could provide services to legal cannabis businesses. That said, as long as cannabis is classified as a Schedule I drug, the federal government can still intervene at any time. Nevertheless, implementing an alternative route for cannabis businesses to deposit their funds creates a “safe haven” for these businesses.
Public banking systems would create security plus opportunity, predictability, and sustainability for the primary stakeholders in California’s transition to a “new cannabis economy.” Unless the state of California handles cannabis currency first, private banks will continue to be reluctant to do so. The only “magic bullet” here, as Chiang mentioned in his opening remarks, is to remove cannabis from being classified as a Schedule I drug under the Controlled Substances Act altogther. However, that change seems to be a long way off. In the interim, though it will be complicated, there is growing momentum and consensus behind the need for a public bank that services legal cannabis businesses in California, and we’ve already seen that it is possible to create such a bank in another state.
As of this Monday, the resort community of Palm Springs, California has begun accepting permit applications for a full range of adult-use cannabis businesses. Like several other cities in the Inland Empire and Coachella Valley, Palm Springs already allows for marijuana cultivation and medical marijuana dispensaries. However, the city’s new regulations go a step further toward opening the region up to the full range of the California cannabis industry. In particular, the sections of City Ordinance 1933 which deal with adult-use cannabis suggest that Palm Springs plans on alleviating its restrictions on the type and number of marijuana businesses permitted to operate. This has the potential to significantly expand the region’s marijuana industry.
Until the passage of this ordinance, Palm Springs had firm restrictions on the distribution sector of the cannabis industry: the previous regulations only allowed medical cannabis collectives to operate dispensaries, and, of these collectives, only allowed a maximum of six operations to hold permits at any one time. Though it isn’t clear how many businesses will be granted permits to distribute adult-use cannabis in the future, the new ordinance notably doesn’t include an analogous restriction on the maximum allowable number of adult-use distribution permits, which may indicate that the city won’t extend these limits in its future approach to cannabis licensing.
The other major change introduced in the ordinance is the expansion of licensing to the other sectors of the marijuana industry, as described in our blog post on California's types of cannabis licenses. While marijuana permits were previously limited to distribution and cultivation, the new regulations allow for licenses in manufacturing, testing, and transportation to be granted for both medicinal and adult-use cannabis. This change would allow for the entire cannabis industry to be represented in Palm Springs – not only growing marijuana plants and the sale of the finished product, but also all the steps in between.
Of course, as is often the case in California marijuana law, none of the changes described in the ordinance will take place in the imminent future. The city will have to pass a ballot measure this November establishing the taxation regulations for cannabis businesses before any of these licenses are actually given out, and no adult-use cannabis licenses will go into effect before 2018. Still, these new regulations suggest that Palm Springs is taking an active role in embracing the ongoing process of marijuana legalization.
As California gears up for the full legalization of adult-use commercial cannabis, entrepreneurs across the state are considering breaking into the marijuana industry. However, the entry costs for marijuana businesses can be high, and the exact legal requirements for starting an operation are often confusing. Given this background, a would-be cannabis enterpreneur might wonder: is it worth it for a new marijuana business to hire an attorney?
On this subject, it's fair to take a cannabis law firm's comments with a grain of salt – a little like asking a barber whether you need a haircut. That said, as lawyers with years of experience providing legal support to california's top cannabis businesses, we're familiar with the legal demands of the cannabis industry in California. Given this inside perspective, we will advise you that the state and local laws which marijuana businesses must adhere to are extremely complex and intertwined, with harsh consequences possible for even relatively minor violations. In this context, our view is that it's a dangerous gamble to try to maintain a business in the cannabis industry without a cannabis attorney.
Of course, we can’t advise anyone to enter the industry in the first place – according to federal law, possessing, using, or selling marijuana in any capacity is still entirely illegal. The only thing protecting California marijuana consumers and businesses from federal prosecution is the Department of Justice's decision to allow “state and local authorizes [sic] to address marijuana activity through enforcement of their own narcotics laws.” While this federal deference to state law has been the norm since 2013, there's no guarantee that this won't change in the near future, especially given that Trump administration appointees like Attorney General Jeff Sessions have announced their intent to crack down on marijuana use. To avoid federal prosecution, then, it's crucial to stay within the bounds of state and local law. However, in a state as large as California, this is easier said than done.
While California currently affords limited immunity from prosecution to certain marijuana businesses, many cities and counties don't, which means that even a business which follows state law to the letter could be operating in a manner that violated local regulations. Our Los Angeles cannabis lawyers have advised hundreds of businesses who ran into issues with Prop D and have defended their rights since even before that regulation was passed. With the new cannabis regulations being introduced into the City of LA, it is important to speak to a los angeles cannabis attorney who is familiar with the regulations and can advise you on how to set up your business for success. (For more on these changes, see our recent blog posts on LA marijuana licensing.)
Retaining a cannabis lawyer provides a degree of access and ease in interpretation of these regulations that a private citizen doesn't have. Though it's easy to find information online, but the amount of outdated, contradictory, misleading, or outright false advice on marijuana business on the internet is nothing short of overwhelming.
For these reasons, it's worth considering hiring a california cannabis attorney for your business. Not only does having legal counsel help you stay within the law, it helps offset the financial risk inherent to any new business by ensuring that your organization's paperwork and cannabis licensing applications are in order. For more information or to arrange a consultation with one of our los angeles cannabis lawyers, check our brief overview of California's marijuana laws or email us at email@example.com.