Published on: 2021-09-20

California voters adopted the Compassionate Use Act (CUA), known as Proposition 215, in 1996. That landmark voter initiative removed criminal penalties for most cannabis crimes for patients with a doctor’s recommendation for medical cannabis use and their designated primary caregiver. The CUA protects patients and caregivers from criminal prosecution for growing and using medical cannabis, but the law did not answer many questions about medical cannabis in California.

How will law enforcement know who is legal? What makes someone a bona fide caregiver under the law? Is there any limit on how many plants a patient can grow or how much medicine a patient can possess? Where do patients who cannot or will not grow cannabis get the medicine they need? What exactly is legal under state law?

The CUA calls on lawmakers “to implement a plan to provide for the safe and affordable distribution” of medical cannabis. However, state lawmakers were initially reluctant to adopt statewide regulations for medical cannabis. In that vacuum, some cities and counties began to experiment with regulations for local access program to meet the needs of legal patients. ASA help create and adopt some of the earliest local medical cannabis ordinances in the San Francisco Bay Area and other places.

Most of the early local ordinances regulating medical cannabis focused on safety, preventing diversion of medicine, and land use issues around local access points (often called dispensaries). Local lawmakers did not address issues regarding cultivation, manufacturing, or laboratory testing in these early ordinances. Many cities and counties remained ambivalent about licensing or regulating medical cannabis activity in the absence of clear guidance from the state.

The state legislature adopted the Medical Marijuana Program Act (MMPA), known as SB 420 (Vasconcellos), in 2003. This bill provided some clarity as to what was legal in California, but there was not sufficient political will to include comprehensive regulations for the medical cannabis industry that was already emerging in the state. Among other provisions, the MMPA required each county to issue voluntary medical cannabis identification cards, set numeric limits on cultivation and possession, authorized primary caregivers to receive compensation for providing medicine to patients, and recognized the right of patients and caregivers to “associate… collectively or cooperatively to cultivate marijuana for medical purposes.”

The California Attorney General published guidelines for interpreting the MMPA in 2008. ASA was deeply involved in the development of the document. The final version recognized that legally organized and operated cooperative or collective patients’ association could maintain a storefront for distributing the medical cannabis they cultivated to legal patient and caregiver members. The Attorney General’s guidelines and subsequent case law helped to solidify the definition of a member-supplied medical cannabis cooperative or collective association. Members grow and consume medicine in a cooperative or collective in a closed loop system, isolated from the illicit market in non-medical cannabis.

The California Supreme Court ruled in People v. Kelly (2010) that the numeric limits on cultivating cannabis plants and possessing medical cannabis in the MMPA were unconstitutional amendments to the voter-approved CUA. The California constitution prohibits the state legislature from amending voter initiatives. However, the restrictions on cultivation and possession still apply to individual patients and caregivers who choose to obtain a voluntary medical cannabis identification card authorized under the MMPA.

While the MMPA was step in the right direction, it offered little guidance to local lawmakers regarding commercial medical cannabis activity. ASA continued to work with lawmakers and organizers statewide to adopt local ordinances after the MMPA was adopted. We had many big wins. ASA was part of a coalition that overturned a ban on medical cannabis facilities in Los Angeles and subsequently adopted Measure D, a voter initiative that allowed for qualified patients' associations to remain open in that city.

Since the CUA was adopted, cities and counties in California have adopted a patchwork of local ordinances to regulate or ban medial cannabis activity. Cities like San Francisco, Oakland, Berkeley, Sebastopol, Sacramento, West Hollywood, Palm Springs, San Diego, and more give licenses to dispensaries. In Los Angeles, dispensaries that meet certain criteria have “limited immunity” from prosecution. Other cites and counties ban dispensaries outright, while many jurisdictions have simply done nothing about medical cannabis.

Inconsistency and uncertainty about the law have stymied further progress at the local level. City Councils and County Boards of Supervisors are often unwilling to move forward with local ordinances without direction form the state. In the meantime, patients and provides must cope with rules that change from one jurisdiction to another.  Worse still, some local governments have banned medical cannabis activity altogether. Efforts to stop local bans in the courts have been unsuccessful so far.

In response to growing political and public pressure, The California legislature adopted three bills, known collectively as the Medical Marijuana Regulation and Safety Act (MMRSA), to license and regulate commercial medical cannabis activity in 2015. When fully implemented, the bills will license and regulate the lawful cultivation, manufacturing, distribution, transportation, sales, and testing of medical cannabis in the state.

ASA supported this effort and worked closely with lawmakers and other stakeholders to make important improvements to the MMRSA. ASA successfully advocated to exempt medical cannabis patients’ personal cultivation rights from commercial regulatory rules and to move regulatory oversight from the Department of Alcoholic Beverage Control to the newly created Bureau of Medical Marijuana Regulation, within the Department of Consumer Affairs.  ASA also successfully opposed a state-wide production tax on commercial cannabis cultivation.

ASA objected to the requirement in the MMRSA that applicants for a state medical cannabis license also obtain a license, permit, or authorization from the city or county in which they operate or propose to operate. We failed to remove that requirement in its entirety. However, we did persuade the Authors to make two important concessions: (1) lawmakers added the word “authorization” to expand the types of local approval beyond actual local licenses or permits, and (2) lawmakers agreed that the state could license cultivation in any city that does not ban or authorize cultivation before March 1, 2016.

ASA launched the Local Access Project to help support community organizers who want to adopt local licensing, permitting, or other authorization required for applicants seeking a state medical cannabis licensee under the MMRSA. Our goal is to help community organizers create opportunities for licensing in cities and counties where it is possible to adopt or amend medical cannabis laws or repeal local bans.