By Bart Schaneman
The absence of statewide medical marijuana regulations following passage of California’s recreational cannabis ballot measure has put existing MJ business owners in legal limbo, making it tougher for them to operate their companies and plan for the future.
Some of these businesses, for example, are finding it difficult to determine what’s legal and what’s not.
Entrepreneurs also are unsure how to properly structure their businesses to comply with Proposition 64 (the measure that legalized recreational cannabis) and how to label and package their products correctly. At the same time, they’re waiting for California officials to finalize medical marijuana rules, adding to the uncertainty.
Before the legal fog can clear, California must draft statewide rules governing both the new adult-use industry and the existing MMJ sector as well.
The new regulatory scheme for both recreational and medical cannabis isn’t expected to be implemented until January 2018, at the earliest. Last week, two top state cannabis regulators promised to have a formal state permitting system up and running by that time.
“It’s not a lot of fun right now,” said Greta Carter, a cannabis business owner who is launching cultivation operations in California.
Before the November election, she noted, many marijuana business owners in California worked in a so-called “gray market” that she defined as operating in a “defendable position” amid limited laws and regulatory support.
“I don’t do anything illegal and I’ve never done anything in the black market. I have operated quite a bit of my time in the gray market,” Carter said. “But, as the gray market is now gone, you’re either in the black market or in the legitimate market. So it’s pretty scary right now for the industry.”
Carter said that without a viable gray market she’s had trouble sourcing plants for her grow operation in the southern California town of Desert Hot Springs, which hopes to become a major cultivation hub.
“What I’ve found in California is that the gray market has almost been completely eliminated,” she said. “So where does that put the transition?”
Carter worries that this period is exposing marijuana business owners to legal liability. While many had felt comfortable with the gray market, they’re now unsure whether they’re operating according to the law.
“I’m trying to figure it out,” she admitted.
Amanda Conley, an Oakland-based cannabis attorney, said some of her business clients also are struggling. In the absence of statewide regulations for the next year or more, they’re unclear how to structure their companies from a legal standpoint.
According to Conley, these MJ industry officials are wondering: “Am I complying with basic operational structure?”
Packaging and labeling is another area where the regulatory uncertainty has created problems.
Conley is a co-founder of the National Cannabis Bar Association, and members of that group have been putting their heads together to decide what advice to give their clients in the absence of legal clarity.
While businesses don’t yet have licenses under the 2015 Medical Cannabis Regulation and Safety Act (MCRSA), which will govern California’s medical cannabis industry, it’s her group’s understanding that parts of the law covering packaging and labeling are already being enforced and companies must comply.
“But we don’t have the detailed regulations that will provide really helpful guidance about what the packaging needs to say,” Conley said.
Her group does its best to help clients comply with MCRSA labeling requirements regarding dosage, warnings, serving sizes, etc.
“The problem is, we don’t have the regulations yet,” Conley said. “And the MCRSA isn’t very clear, and in some cases it’s almost internally contradictory. When you start to apply it, you realize: ‘Gosh, we really need some more guidance on this.'”
For now, she and her legal colleagues are advocating a “best practices” approach in the hope their clients are in compliance.
“Cannabis companies have to accept a certain amount of risk, and that’s always been true,” Conley said, adding that companies have to be risk-tolerant and nimble.
She also noted that businesses could be operating in compliance with local rules this year. But, come 2018, “you should assume that you’ll have to adjust things.”
Consequently, Conley is telling clients to create packaging that can be easily changed.
“Order packaging that has a lot of space and use stickers so that you don’t have to scrap all that packaging,” she advises. “But expect that you’ll have to make changes.”
Laws won’t stop the industry
According to Santa Ana-based cannabis attorney Aaron Herzberg, 99.95% of California’s marketplace is either quasi-legal or illegal. In fact, numerous California MMJ dispensaries are jumping the gun on adult-use sales by at least a year and selling recreational cannabis to non-medical customers.
“A vast majority of folks are operating without a true defensibility,” he said. “But it’s very difficult for the state or the county or the city to put them out of business.”
He estimates there are up to 200 legally licensed businesses in California.
“And that’s just dwarfed by the tens of thousands of unlicensed businesses out there that operate not just in the gray area but are absolutely in violation of the local ordinance that bans marijuana,” Herzberg said.
He cited rumors that as many as 2,000 dispensaries operate illegally in Los Angeles, “to give you an example of what a mess it is.”
But Conley doesn’t see this as a major roadblock for the growth of the market in the state.
“Obviously we have a robust industry that’s going to keep existing,” Conley said. “It’s not going to pause for two years.”
Bart Schaneman can be reached at firstname.lastname@example.org