What Does California Law Say About Non-Profit Sales of Medical Cannabis to Qualified Patients?
How can we account for what is perhaps one of the most dramatic legal disparities in medical cannabis to date? The issue of non-profit “sale” of medical cannabis to qualified patients via collectives and cooperatives. There’s nothing else like this dispute. What do the experts say about this anyway?
Steve Cooley, The Los Angeles District Attorney, disagrees with Jerry Brown, the California State Attorney General.
How could two prominent state-employed attorneys come to wholly different conclusions on the answer? First the Los Angeles District Attorney claims “all sales are illegal”. The California State Attorney General was sure enough to write in his guidelines that “storefront collectives may be legal under state law”. How could this be? After all, each attorney is looking at the same thing, right?
So what is the answer? What does the law say?
COMPASSIONATE-USE ACT 1996
Proposition 215 which was approved by a majority of Californians in 1996 and it became known as the Compassionate-Use Act. The statute itself does not say anything about “sales” but it does talk about “possession”, “cultivating”, obtaining medical cannabis, about affordability and “distribution”.
It does say that qualified patients and their primary caregivers will not be victim to criminal issues:
“(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.”
And it also pushes governments to help ensure “safe and affordable access” to medical cannabis for “all qualified patients”.
“(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”
The Los Angeles District Attorney, Steve Cooley, had State and Federal law enforcement agents raid a medical cannabis collective and arrest at least 3 people, the week before Christmas. He insists “all sales are illegal”. This seems to be against the letter and spirit of the law, not the mention the spirit of the season.
Also if all “sales” are illegal, why does the Compassionate-Use Act say “affordable”? If the patients are financially responsible for the cannabis, how does Cooley expect the currency to be exchanged? What’s wrong with incremental reimbursements?
MEDICAL MARIJUANA PROGRAM OF 2004
The Medical Marijuana Program (MMP) came into law in 2004 through the legislative approval of Senate Bill 420. It was the state’s attempt “to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana,” as the Compassionate-Use Act of 1996 (Prop 215) encourages the State and Federal government to do.
The MMP improves access to medical cannabis for qualified patients by approving collectives and cooperatives.
“(3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”
What Steve Cooley doesn’t seem to understand is non-profit storefront Medical Cannabis Dispensing Collectives/Cooperatives are the distribution aspect of “cultivation projects”. Just like a collective cultivation farm wouldn’t have customers come to the farm to get their tomatoes, they would have to get their collective tomatoes at a farmer’s market or distribution location– that’s how medical cannabis collective cultivations occur. Grown in one location for safety and other reasons, then distributed at another location.
The MMP goes on to talk about all the criminal statutes that qualified patients and primary caregivers are exempt from. In section 11362.765, it says: “shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
Let’s look at each of these one by one:
11359: [possession for sale],
11360: [“transports, imports into this state, sells, furnishes, administers, or gives away”- or offers to or attempts to do any of those],
11366: [Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance]
11366.5 [Managing a place for manufacture, storage and/or the distribution of a controlled substance]
11570 [Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.]
The Health and Safety Code section 11360 specifically says “sells”. Not only that, it also says: “gives away” and “furnishes”. How come the LA District Attorney’s office says “all sales are illegal” and non-profit storefront medical cannabis dispensing collectives/cooperatives are banned?
In that same bill,
“11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients
and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
Again, it says that patients can collectively cultivate cannabis and distribute it amongst themselves for non-profit. Again, the distribution of medical cannabis is separate from the cultivation just like the manufacturing of my vicodin is located separate from my pharmacy.
The Medical Marijuana Act also calls on the State Attorney General to provide guidelines related to medical cannabis:
“The bill would require the Attorney General to develop and adopt guidelines to ensure the security and non-diversion of marijuana grown for medical use, as specified.”
And that exactly what State Attorney General, Jerry Brown did in the late summer of 2008.
GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE August 2008
To fulfill his mandate, the State Attorney General release these guidelines to help law enforcements do their jobs according to State law and to help patients understand those laws.
The guidelines state non-profit storefront Medical Cannabis Dispensing Collectives and Cooperatives could be legal under state law if they followed the guidelines and the above laws.
“It is the opinion of this Office that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law”
The State Attorney General confirms what the law says. The Attorney General is the highest-ranking legal employee of the State of California. His office also responded to the issues raised in Los Angeles by City Attorney’s office.
According to the New York Times on October 17: Christine Gasparac, a spokeswoman for State Attorney General Jerry Brown, said that after Mr. Trutanich’s comments in Los Angeles, law enforcement officials and advocates from around the state had called seeking clarity on medical marijuana laws.
Mr. Brown has issued legal guidelines that allow for nonprofit sales of medical marijuana, she said. But, she added, with laws being interpreted differently, “the final answer will eventually come from the courts.”
So what do the courts say?
PEOPLE v. MENTCH
The District Attorney’s office would have you believe that the Mentch decision outlaws non-profit storefront Medical Cannabis Dispensing Collectives/Cooperatives and makes “all sales illegal” but that decision has to do with the definition of “primary caregiver” not sales.
Mentch had 82 marijuana plants growing in his home and he sold the medicine to 5 people who came to his home with the primary purpose of buying cannabis. The majority of the plants in Mentch’s home belonged to him as he testified. Their operations was not a collective or a cooperative nor a storefront. Mentch owned Hemporium, a for-profit care giving and consultancy business, not a non-profit collective or a cooperative.
Based off the evidence the courts concluded that Mentch’s operation was primarily a for-profit commercial venture and that he was not a primary caregiver for those he supplied medical cannabis to from his home business. I’ve written about this in depth here.
So there you have what the courts say, what the State Attorney says, and what the laws say; all confirm non-profit storefront dispensing of medical cannabis can be legal under State law.
Now the Los Angeles District Attorney must obey the law and the will of the people and stop wasting time and resources to hurt medical cannabis patients especially just before Christmas. Especially when there are over 7,000 untested rape kits that the District Attorney claims to not have the resources to handle.