What California’s Legalization Initiative Says About Medical Cannabis

California voters approved Proposition 64, the Adult Use of Marijuana Act, on November 8, 2016. The initiative reduces or eliminates most penalties for the non-medical use, possession and cultivation of cannabis, within certain limits, by adults aged twenty-one and over. It also creates a state licensing and regulation program that is similar to the one that the state legislature adopted for medical cannabis in 2015.

Our mission at Americans for Safe Access (ASA) is focused exclusively on medical cannabis; and therefore, the organization generally does not take positions of support or opposition regarding adult-use cannabis laws. However, Proposition 64 makes beneficial changes to the state’s medical cannabis laws related to personal cultivation, taxation, and patients’ rights. 

1. Personal Cultivation – Proposition 64 prohibits cities and counties from banning personal indoor cultivation of up to six plants. This overrides existing bans on medical cannabis cultivation in many jurisdictions in California. Proposition 64 is the first real check on local authority to ban cultivation in California.
2. Taxation – Proposition 64 exempts medical cannabis patients who have a Medical Marijuana Identification Card (MMIC) issued by a county health department from sales tax. It also caps the cost of those cards at $100. Patients on MediCal can get a card for half price, and cards are for the indigent are free. That is good news for patients. Unlike prescription medicine, medical cannabis is currently subject to sales tax of 7.5% to 10%, depending on where you buy it. Unfortunately, the initiative imposes a new 15% excise tax on cannabis and medical cannabis beginning January 1, 2018. Taxation of medical cannabis will be lower than non-medical cannabis, which will still be subject to sales tax. However, the new excise tax will be an undue burden on some patients.
3. Patient Privacy – Many patients are reluctant to obtain an MMIC because they fear legal, professional or other consequences for being identified as a medical cannabis patient in state records. Preposition 64 says that “No identification card application system or database… shall contain any personal information of any qualified patient, including but not limited to, the patient’s name, address, social security number, medical conditions, or the names of their primary caregivers.” In combination with the sales tax exemption and lower fees, this enhanced privacy will make it possible for many more patients to enjoy the legal protection offered by a MMIC.
4. Parental Rights – The imitative will prevent discrimination in parental rights against patients. Proposition 64 says that no one can “restrict or abridge custodial or parental rights to minor children in any action or proceeding under the jurisdiction of family or juvenile court,” so long as the patient is in compliance with the Compassionate Use Act (Proposition 215). This is a huge step forward in protecting the rights of patients and something for which the state legislature has had no appetite.

Some patients in California are worried about the effects of Proposition 64 on patients. The language of the initiative does not abridge any rights granted under the voter-approved Compassionate Use Act (Proposition 215). Patients and caregivers will still be immune from penalties and entitled to cultivate medicine for their own use, subject to the existing limitations in the Medical Cannabis Regulation and Safety Act (MCRSA). 

Many of the provisions in Proposition 64 related to commercial licensing and regulation of adult use in cannabis are complicated. There is likely to be additional legislation related to the initiative and possible litigation. As always, there is the chance of unexpected and unintended consequences.