Yesterday California Attorney General
Kamala Harris
urged state legislators to clarify the rules for growing
and distributing medical marijuana. In a letter
(PDF) to the leaders of the state Assembly and Senate, she notes
that California law exempts patients and their primary caregivers
from criminal penalties when they “associate…collectively or
cooperatively to cultivate marijuana for medical purposes.” While
“strict constructionists” argue that “any interpretation under
which group members are not physically involved in cultivation is
too broad,” she says, others read this provision “expansively” to
allow “large-scale cultivation and transportation of marijuana,
memberships in multiple collectives, and the sale of marijuana
through dispensaries.” Harris says she planned to revise the
medical marijuana
guidelines (PDF) that her predecessor, Jerry Brown (now
the governor), issued in 2008 but concluded that new legislation
was necessary to clarify the law. “Without a substantive change to
exiting law,” she writes, “these irreconcilable interpretations of
the law, and the resulting uncertainty for law enforcement and
seriously ill patients, will persist.”

Harris says the legislature also should address the issue of
medical marijuana profits. “Nothing in Proposition 215 or the
Medical Marijuana Program Act authorizes any individual or group to
cultivate or distribute marijuana for profit,” she writes. “Thus,
distribution and sales for profit of marijuana—medical or
otherwise—are criminal under California law.” Brown took
a similar position, but I don’t see how this follows. Current law
may or may not authorize dispensaries, but either way it says
nothing about the relationship between a dispensary’s revenue and
its expenses. In any case, a “nonprofit” dispensary that pays
salaries to its operators is hard to distinguish from a for-profit
store, as Harris implicitly concedes:

It would be helpful if the Legislature could clarify what it
means for a collective or cooperative to operate as a “nonprofit.”
The issues here are defining the term “profit” and determining what
costs are reasonable for a collective or cooperative to incur. This
is linked to the issue of what compensation paid by a collective or
cooperative to members who perform work for the enterprise is
reasonable.

A.P.
reports that Harris also sent a letter to California’s
U.S. attorneys, who recently launched a conspicuous crackdown
on dispensaries, informing them of her support for new
legislation. “The federal government is ill-equipped to be the
sole arbiter of whether an individual or group is acting within the
bounds of California’s medical marijuana laws when cultivating
marijuana for medical purposes,” she wrote. Harris has previously

criticized the federal crackdown, saying “an overly broad
federal enforcement campaign will make it more difficult for
legitimate patients to access physician-recommended
medicine.” Reflecting the Obama administration’s inconsistent,
shifting, self-contradictory, and deliberately ambiguous policy
in this area, the version of Harris’ letter to legislators that she
posted on her website includes this sentence: “The California-based
United States Attorneys have stated (parphrase Cole memo re: hands
off approach to those clearly complying with relevant state medical
marijuana laws).” Someone in Harris’ office clearly was supposed to
summarize the Justice Department’s position on medical marijuana,
but I guess that proved to be too big a challenge. I
sympathize.

Meanwhile, Americans for Safe Access and other medical marijuana
supporters are backing a ballot initiative that aims to do what
Harris says she wants: specify where the marijuana that patients
are allowed to use is supposed to come from. A.P.
reports that the initiative, which was submitted to
California’s secretary of state last week for approval prior to
signature collection, “would create an appointed Board of Medical
Marijuana Enforcement charged with overseeing businesses and
nonprofits that grow, distribute, sell and test pot both in its raw
state and in finished products like food items.” A.P. says “the
envisioned regulatory scheme would be financed through application
and registration fees, as well as through a 2.5 percent retail
sales tax on marijuana and pot-infused products.”

Depending on the details, this approach might conflict with an
October 4 state appeals court ruling
that said Long Beach’s dispensary licensing system conflicted with
the federal Controlled Substances Act (CSA) because it went “beyond
decriminalization into authorization.” In her letter to
legislators, Harris says that decision could still be overturned by
the California Supreme Court, but “for now it is binding law” and
“may limit the ways in which the State can regulate dispensaries
and related activities.” Specifically, the decision suggests that
the CSA bars state or local governments from issuing dispensary
permits, requiring license or registration fees, or mandating
testing of marijuana. 

[Thanks to Richard Cowan for the tip.]