Legal Status: California Hemp Cannabis Products

Legal Status: California Hemp Cannabis Products

California's Prop 215 law hasn't gone away, and it isn't expected to go anywhere soon.

Passed by voter referendum in 1996, the Compassionate Use Act is still in effect in California. The passage of Prop 64 and subsequently SB 94 (MAUCRSA) has little ostensible impact on the original law that legalized medical marijuana in the Golden State, according to legal experts.

"Prop 64 in no way alters Prop 215," asserts Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), as reported by Madison Margolin. "Medical patients have a broader right to grow and possess than adult users. They are theoretically permitted as much as they need for their personal medical use, consistent with local ordinances."

Hemp was legalized across the nation by Congress' Farm Bill of 2014 in Sec. 7606 and it was codified in California's Food & Agriculture Code, Div 24: Industrial Hemp, but California's designated hemp regulator has been relatively hands-off. In the absence of industrial hemp permits or acknowledgements from the California Department of Food and Agriculture (CDFA), it is necessary to look at the laws on the books.

On their website, the CDFA says: "Can I bring processed hemp products into California? Many processed hemp materials may move freely per the federal Controlled Substances Act."

MAUCRSA Exemption. Law firm Harris Bricken reports that "although MAUCRSA expressly exempts qualified patients and caregivers from licensure requirements, it does not allow qualified patients, their caregivers, or cannabis businesses to conduct commercial cannabis activity without a license. Any collective currently engaging in commercial cannabis activity that exceeds the strict qualified patient and primary caregiver limits is in violation of MAUCRSA and is operating illegally."

Prop 215 after 2017. To remain immune from potential legal trouble, caregivers and patients must follow these requirements (courtesy of Alison Malsbury):

  • Cultivation, possession, storage, manufacture, transportation, donation, or provision of cannabis must be exclusively for the personal medical purposes of no more than five specified qualified patients for whom the caregiver is the primary caregiver. (BPC Section 26033(b));
  • The caregiver cannot receive remuneration for these activities other than for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use cannabis, or for payment for out-of-pocket expenses incurred in providing those services. (BPC Section 26033(b), H&S Code section 11362.765(c));
  • The caregiver cannot possess more than eight ounces of dried cannabis per qualified patient unless a physician’s recommendation or local guidelines allow amounts in excess of this limit. (HSC Section 11362.77(a)-(c)); and
  • The caregiver cannot maintain more than six mature or twelve immature cannabis plants per qualified patient unless a physician’s recommendation or local guidelines allow amounts in excess of this limit. (HSC Section 11362.77(a)-(c)).

Primary Caregiver. “Primary caregiver” means the individual, designated by a qualified patient, who has consistently assumed responsibility for the housing, health, or safety of that patient, and may include any of the following...

(3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card.

(e) A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Section 6922, 7002, 7050, or 7120 of the Family Code.

Research Exemption. California's MAUCRSA also says "It shall not be a violation of state or local law for a business engaged in the manufacture of cannabis accessories to possess, transport, purchase, or otherwise obtain small amounts of cannabis or cannabis products as necessary to conduct research and development related to the cannabis accessories, provided the cannabis and cannabis products are obtained from a person licensed under this division permitted to provide or deliver the cannabis or cannabis products."

Interstate Hemp. The national hemp program allows cannabis products with less than 0.3% THC to be shipped across state lines. Once a product has shipped from its origin, it is subject to the laws of its destination.

Steps to Take. If you plan on obtaining or working with hemp or hemp products in California, it is important that you take several steps to limit your potential liability (in addition to the requirements shared above):

  1. Get a medical card. If someone mistakenly thinks your hemp products are marijuana, it doesn't hurt to have this Prop 215 MMJ certification. Many doctors offer these to qualified patients, including people with chronic pain; one provider, NuggMD, offers medical recommendations for $40.
  2. Consider setting up a California mutual benefit nonprofit corporation to stay in line with the norm for Prop 215 businesses. Only one quick form is required, and the cost is only $30. Or join an existing mutual benefit corporation, such as Northspur.
  3. Know and understand the law. Be ready to explain it to others who are seeking to wade through the legal abyss. Be smart about internet and smartphone usage because surveillance agencies automate many tasks and they often make mistakes when monitoring your digital activities.
  4. Engage in research of your processing equipment and results to ensure that you are constantly improving your methods. You might even have a shot at improving the underlying technology for use in other sectors. This research is sanctioned by MAUCRSA without a license.
  5. In accordance with the Compassionate Use Act, do not overcharge for your products, and do not serve more than five patients. You are required to keep payments equal to expenses incurred, and you must not provide your products to more than five patients.

This is not professional legal advice, but it is based on advice from lawyers, and you need to do your own research and consultations if you want to participate in the hemp cannabis industry in a meaningful way.

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