California Health and Safety Code Presents Thorny Issues for Medicinal Cannabis Distributors and Patients

California Health and Safety Code Presents Thorny Issues for Medicinal Cannabis Distributors and Patients

Although medicinal and recreational cannabis are now legal in California, the plant is still highly regulated. Licensed businesses and qualified patients who use the plant medicinally can face serious drug charges if they are found out of compliance, and, this being California, the law can get pretty tangled and confusing for the average citizen.

One example is California Health and Safety Code § 11362.77, which limits a qualified patient’s possession to eight ounces of cannabis flower and cultivation to six mature or 12 immature plants, unless the patient has a physician recommendation specifically stating they need more. Unfortunately, if you are a patient looking to § 11362.77 for guidance, you would be very misinformed as to your rights. The truth is, § 11362.77 does not strictly limit a patient’s possession or cultivation amounts. So why is it still on the books?

The answer lies in the particular way California grinds its sausage, that is, passes its laws. Medical marijuana was legalized by referendum — Prop 215, the Compassionate Use Act — which was criticized for being drafted somewhat simplistically. Health and Safety Code § 11362.77, passed in 2003 as part of the Medical Marijuana Program Act, was the state legislature’s attempt to organize rights a little more clearly. But under California’s Constitution, the legislature can’t tinker with a law passed by referendum of the people.

So naturally, there was a challenge, which went to the state Supreme Court. In that case, People v. Kelly (2010) 47 Cal.4th 1008, the Court held that “insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid …. We also conclude… that the Court of Appeal erred in concluding that section 11362.77 must be severed from the MMP and hence voided.” That is because the possession limits are applicable insofar as possession and cultivation within those limits gets extra protection for individuals with state-issued Medical Marijuana Identification Cards. So, § 11362.77 is not void, it just doesn’t apply to the average patient.

If you are a medicinal cannabis user, here’s the bottom line: you are permitted to possess and cultivate amounts which you can prove are reasonably necessary for your medical condition. If you only have the amounts cited in § 11362.77, you have nothing to prove. If you have greater amounts, you can defend yourself based on a doctor’s recommendation. However, your local jurisdiction can limit cultivation through ordinances. If you want to cultivate, consulting with an attorney is a good way to stay safe.

Another problem with §11362.77 is that the law does not mention cannabis concentrates at all. Because the amount of cannabis and cannabis concentrate that a Dispensary can provide to a patient per day is based on this code section, both patients purchasing and Dispensaries selling are left without guidance. The Bureau of Cannabis Control has indicated that they consider the lack of any guidance to leave a Dispensary only able to provide a patient with the amount of cannabis concentrate equivalent to the “plant conversion” value of eight ounces of cannabis flower. The issue is, there is no definition of what “plant conversion” is, and this information is not present on any cannabis product labels. It does not even have to be collected by manufacturers. In some situations, where concentrates are made from any part of the cannabis plant that is not pure flower, it is impossible to determine.

So, if there is nowhere this information is readily available, how is a Dispensary operator or a patient supposed to know how much cannabis concentrate is allowed? Despite this gap in the regulatory framework, Dispensers are still prohibited from providing patients with products that exceed the equivalent of eight ounces of cannabis flower per day. This leaves Dispensaries with only adult-use concentrate limits to turn to, which is 8 grams per day. Fortunately, if you are a medicinal cannabis patient, you can possess more than the daily purchase limit if you have a reasonable need for more.  

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Joseph Tully

Joseph Tully is a certified specialist in criminal law by the California state bar and has been recognized as a Top 10 Criminal Defense Attorney by Attorney and Practice Magazine. He is also one of an elite few having earned the designation of The Nation's Top 1% by the National Association of Distinguished Counsel.

To connect with Joseph: [hidden email]
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