Patient Collectives and Cooperatives
Health and Safety Code §11362.775 under Senate Bill 420
On November 8th 2016, Prop 64 authorized sale of marijuana to paitient and adults over 21, by adults over 21 for profit coupled with taxation. Licensing laws will replace Senate Bill 420 on January 9th 2019, and will be regulated under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), subject to local regulations by cities and counties aurorizing their right to ban licensing and cultivation. See pages 29-34.
The legislature had intended to “enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”
SB 420 did NOT DEFINE collectives and cooperatives. Collectives and cooperatives that abide by local laws and guidelines exist throughout the state and can legally grow and provide marijuana/cannabis to its members, until licensing is provided by the state of California beginning in 2018. When that happens Senate Bill 420 will sunset, however Prop 215 The Compassionate Use Act will remain in effect. Any individual responsible for assisting others in administrating marijuana/cannabis to patients and educating them about cultivation is also protected. Refer to Health and Safety Code §11362.765 (b)(3). See Page 17 regarding caregivers.
In August 2008, the California Attorney General’s office published the “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use.” These Guidelines are to provide a comprehensive understanding of collectives and cooperatives. They are NOT binding in court; instead, they are intended to guide cooperatives and collectives and to indicate various important factors necessary to take into account when operating a collective/cooperative. Courts are to refer to these guidelines before determining if the collective/co-op is operating legally. See Attorney General Kamala Harris’ letter to the legislature on my website for more information regarding the uncertainty of the meaning of H&S §11362.775 and information on dispensaries, the term “non profit” and edibles.
Collectives and cooperatives are two distinct groups of qualified patients that may cultivate marijuana and provide it to their members. Cooperatives must follow the California Cooperative Laws requirement that includes guidelines for setting up their group, maintaining records etc. Meanwhile, the law does not define collectives; however, they are usually more informal patients groups who organize themselves to cultivate medical marijuana and to provide assistance to patients with medical needs.
The Attorney General’s guidelines have concluded that both collectives and cooperatives are legal under the law.
Note From Bruce:
Since medical marijuana is not recognized, pursuant to U.S Congress, federal laws do not protect patients or members of collectives and cooperatives from prosecution. However, see U.S v. McIntosh 833 F.3d 1163, 1168 (9th Cir. 2016) , which provides for the opportunity for a hearing to determine if the defendants actions are in compliance with the State Medical Marijuana Laws .In addition, the latest omnibus budget bill passed on March 23, 2018. Contained in that bill is a cannabis provision called the Leahy amendment (formally the Rohrabacher-Blumenauer Amendment) prohibits the Department of Justice and the Drug Enforcement Agency from using tax dollars to interfere with medical marijuana/cannabis businesses and patients in states where medical marijuana/cannabis is legal.
Pursuant to the California Attorney General’s Guidelines Opinion, collectives and cooperatives should be organized with sufficient structure to ensure security, non-diversion of marijuana to illicit markets, and compliance with all state and local laws: (1) collectives and cooperatives must be democratically operated by their members; (2) marijuana must not be diverted for non-medical purposes or diverted to individuals outside the operation; and, (3) none of the activities may be carried out for profit.
Note from Bruce: The law does not define the term “profit.”
In appellate cases, issues of profit have not been directly defined by the law or in the Attorney General’s guidelines. However, the direct expenses of cultivating and distributing medical marijuana can be reimbursed. Court rulings do not exclude possible compensation for an individual’s work and effort; court rulings have held that the meaning of profit is a question subject to the jury. Profit is defined by Merriam-Webster as “the excess of returns over expenditures in a transaction or series of transactions.” Any money in excess of the expenses should be returned to members, used to reduce the cost of medicine, or used to provide other medically related services to the members.
Note from Bruce: I founded and I am the director of the National Institute of Court Qualified Cannabis Experts. Faculty members of the institute and myself provide education to students who want to become a court certified expert. Expert testimony has often been the turning point in obtaining a dismissal or not guilty verdict. Faculty members have included court-qualified experts Chris Conrad and Bill Britt . Those interested in becoming an expert, or needing one, may contact Bruce.