Compassionate Use Act


Two decades ago, California was on the leading edge of medical marijuana policy in the United States. California was the first state in the nation to adopt a voter-approved law permitting the use of cannabis for medical purposes. The ballot measure then known as Proposition 215 has been codified into California law as the Compassionate Use Act since 1996 and continues to provide certain legal protections to patients, caregivers, and physicians to this day.

In 2016, a new series of laws went into effect that are collectively known as the Medical Cannabis Regulation and Safety Act (MCRSA). The act creates a new licensing and regulatory framework for California’s medical marijuana industry. Owing to the passage of Proposition 64 in November of 2016, MCRSA will probably also govern the cultivation, transport, testing, distribution and resale of cannabis intended for recreational use.

Cannabis attorney Jessica McElfresh is knowledgeable about California’s Compassionate Use Act and the Medical Cannabis Regulation and Safety Act. If you have been charged with a marijuana-related crime, contact her at (858) 756-7107 to find out how she can help you.

Free consultation for criminal defense cases only. Cannabis business consultation requires a fee.

The Compassionate Use Act Still Defines Medical Cannabis

The Compassionate Use Act no longer provides the legal framework for the commercial cultivation, distribution, and sale of medical marijuana. In this respect it has been replaced by the MCRSA. The Compassionate Use Act and its amendments are still relevant, however, as they still provide the legal basis for:

  • Qualified patients to possess or cultivate medical marijuana (although under Proposition 64, anyone over 21 can now cultivate marijuana for personal recreational use)
  • Patients’ primary caregivers to possess or cultivate medical marijuana
  • Cooperatives or collectives to cultivate, distribute, or sell medical marijuana as not-for-profit organizations (although the MCRSA will phase out collectives by the end of 2018)
  • Licensed physicians, osteopaths, and surgeons to recommend marijuana as a medical treatment for certain ailments (the MCRSA provides further regulations for medical professionals who recommend cannabis to their patients)

California’s medical marijuana laws can be confusing to the average person despite being in place for nearly 20 years. Now, even legal and policy experts are unable to predict exactly how Proposition 64 (MCRSA) and its implementing regulations will affect the average cannabis business or consumer. There also are ongoing discussions about how to implement medical marijuana laws and policies on the local level in cities and counties across the state, such as the appropriate zoning and location of medical marijuana businesses.

Medical Conditions Covered by the Compassionate Use Act

California’s medical marijuana law was intended to provide people suffering from serious, debilitating, or terminal illnesses with relief through the use of medicinal cannabis. Research exists that indicates marijuana can alleviate chronic pain and nausea associated with some serious illnesses or their treatments. Marijuana also may alleviate psychological symptoms such as anxiety.

Section 11362.5 of the California Health and Safety Code lists eight specific medical conditions for which medical marijuana can be recommended as a treatment. Those include:

  • Cancer
  • Anorexia
  • AIDS
  • Chronic pain
  • Spasticity
  • Glaucoma
  • Arthritis
  • Migraine

The statute also permits the use of medical marijuana for “any other illness for which marijuana provides relief” upon recommendation from a physician.

Although the Compassionate Use Act gives physicians some leeway to recommend marijuana use, there are still questions surrounding what is allowed. Even police officers can be confused and make arrests and charges based on inaccurate information. If you have been arrested for or charged with a marijuana-related offense, contact a San Diego medical marijuana attorney today to protect your rights.

Compassionate Use Act Protections for Patients, Physicians, and Caregivers

Under Section 11362.5(B), qualified patients with medical marijuana authorizations and their designated primary caregivers are supposed to be protected from criminal prosecution or penalties when they obtain or use medical marijuana upon the recommendation of a physician.

Rules are in place that allow for:

  • Possession of up to 8 ounces of marijuana
  • Cultivation of up to 6 mature or 12 immature cannabis plants
  • Local city and county governments may authorize the possession or cultivation of larger amounts through their own regulations. For example, the city of San Diego allows possession of up to 1 pound of medical marijuana and cultivation of up to 24 plants in 64 square feet of indoor space.
  • Patients and caregivers also are allowed under Section 11362.775 of the Health and Safety Code to grow plants together in a collective or cooperative without facing prosecution.

Similar to provisions designed to protect patients and caregivers from criminal prosecution, physicians also have protections under the Compassionate Use Act. Physicians, osteopaths, and surgeons who are licensed in California may approve or recommend the use of medical marijuana for a patient with one of the listed conditions without being denied rights or privileges in the state. In other words, a physician shouldn’t lose their license for recommending medical marijuana as a treatment for any condition for which marijuana might provide relief.

If you have questions regarding your professional license and the recommendation of marijuana for medical use, contact an attorney to learn more about how the Compassionate Use Act applies to you.

Impact of the Medical Cannabis Regulation and Safety Act

The Medical Cannabis Regulation and Safety Act (MCRSA) is composed of three California laws: Assembly Bill 243, Assembly Bill 266, and Senate Bill 643. The only aspects of California’s medical marijuana system that the MCRSA doesn’t affect are the health issues that can qualify you for a recommendation, the legal protections afforded to unlicensed individuals and caregivers, and the amount of marijuana you can grow or possess for your own use. Otherwise, the MCRSA changes the following:

  • New Agencies – AB 266 calls on the California Department of Consumer Affairs to establish the Bureau of Medical Cannabis Regulation (also known as the Bureau of Marijuana Control), which will oversee the licensing and regulation of cannabis transportation, distribution, and sale. SB 643 and AB 243 task the Department of Food and Agriculture with regulating cannabis cultivation, and the Department of Health with overseeing the manufacture, testing, and production of marijuana edibles. Finally, the Department of Fish and Wildlife and the State Water Board will regulate growers to keep cannabis cultivation from affecting water pollution.
  • New Licenses – AB 266 and SB 643 create a total of 17 licenses relating to the cultivation, transport, distribution, testing, and manufacture of cannabis and cannabis-derived products.
  • Organic Certification – The Department of Food and Agriculture will put in place standards for certifying organic cannabis by 2020 (federal law permitting).
  • Pesticide Standards – The Department of Food and Agriculture will soon release its requirements on the use of pesticides in marijuana cultivation.
  • Appellations of Origin – The Department of Food and Agriculture may establish appellations of origin, similar to wine. Growers may not misrepresent the provenance of their buds.
  • Limiting Vertical Integration – A business is vertically integrated when it produces, distributes, and retails its own products. The MCRSA limits the ability of California marijuana businesses to vertically integrate by limiting every business to two licenses. Testing facilities and distributors cannot hold any other license. In some California jurisdictions, however, cannabis businesses are required to integrate their cultivation, manufacturing, and distribution. In such places, businesses can stay vertically integrated until the end of 2025.
  • Controlling Distribution and Testing – Anyone with a cultivation or manufacturing license must send their products to a distributor holding a Type 11 License, who will inspect and perform quality control before passing the products on to a retailer or another manufacturer. The distributor also passes samples to the testing laboratory, for a fee charged to the licensee who is using the distributor’s services.
  • Transportation – Only a licensed transporter can move cannabis or cannabis products from one licensed business to another. It’s unclear whether cultivators, manufacturers, and retailers will be able to apply for transport licenses.
  • Packaging – Cannabis products must be clearly labeled with warnings and information. The packages must be tamper-evident.
  • Requiring Local Permission – To engage in a commercial cannabis activity, a business must have a state license and a license, permit, or other form of authorization from the local jurisdiction. Additionally, all cultivation activities are subject to local land use regulations and permits.
  • Protection from Prosecution – Any license holder that operates within the bounds of state and local law is protected from arrest, prosecution, or other adverse legal action by the state and local authorities.
  • License Application Process – No licenses will be issued until the first quarter of 2018 at the earliest. Prospective licensees must show proof of local approval and the legal right to occupy the business’s proposed premises. Cultivators must declare themselves as agricultural employers under the Agricultural Labor Relations Act. All applicants must submit to a Department of Justice background check. Anyone who has been convicted of a felony drug offense, a violent or serious felony, a fraud felony or any other offense that is related to the qualifications necessary to run a cannabis business may have their application denied.
  • License Fees – The fees for licenses are yet to be determined. The MCRSA requires that they be commensurate with the costs of enforcing cannabis regulations.
  • Shift Away from Collectives – Under the Compassionate Use Act, for-profit cannabis businesses were not authorized. Now any individual, partnership, corporation, or business trust may obtain a license. Collectives that are permitted through the end of 2017 will need to obtain a license under the MCRSA by the end of 2018, unless they serve five patients or less. During that transition period, they will still benefit from immunity from criminal prosecution. Individuals and primary caregivers with less than five patients may continue to grow small amounts of marijuana (100 square feet and 500 square feet, respectively) without obtaining a license.
  • Track and Trace Program – The Department of Food and Agriculture will develop by 2018 a system to attach a unique identifier to every plant and marijuana product that passes through California’s cannabis industry. A failure to comply with the track and trace program will result in civil fines of up to twice your licensing fees, and you may also be exposed to criminal prosecution.
  • Deliveries – Only licensed dispensaries may deliver cannabis to patients, and only in jurisdictions that have not outlawed cannabis deliveries.
  • Protecting Children – Grow and retail operations must be located at least 600 feet away from schools.
  • Labor Peace Agreements – Any business with 20 or more employees must negotiate a labor peace agreement with the appropriate union.
  • Privacy – The identities of patients, caregivers, and medical conditions must be kept confidential.
  • Physician Recommendations – Doctors who commit “Repeated acts of clearly excessive recommending of cannabis for medical purposes, or repeated acts of recommending without a good faith prior exam” may face disciplinary action. Additionally, it is illegal for physicians who recommend cannabis to their patients to also accept or solicit money from a licensed marijuana business in which they or a family member have a financial interest. Cannabis doctor advertisements must include a warning that marijuana is still an illegal substance at the federal level.
  • Local Taxes – Counties may place additional taxes on businesses that cultivate, sell, produce, process, or distribute cannabis.

Criminal Marijuana Charges

Despite the provisions intended to protect medical marijuana patients, caregivers, and licensed cannabis businesses from prosecution, people continue to be arrested for offenses involving medical marijuana. Individuals exercising their right to grow and use cannabis for recreational purposes may also find themselves on the wrong side of the law. People may receive state or federal charges associated with marijuana. These charges can result in serious penalties, including:

  • Incarceration
  • Large monetary fines
  • Confiscation of marijuana and other property
  • A criminal record
  • Negative social and professional consequences

If you’re charged with possession, cultivation, or transportation of marijuana and you are a qualified patient or licensed business, your status as patient or a permitted business is a defense to the charges. You may be able to get the charge dismissed early in the process with the help of an experienced marijuana lawyer.

Federal Charges for Marijuana Crimes

It also remains illegal under federal law to possess, sell, transport, or cultivate marijuana. There is no federal exemption for medical marijuana. That means that even an authorized California medical marijuana patient or a licensed cannabis business could be prosecuted federally for possession, cultivation, sales, or transportation of marijuana on federal lands. Being a medical marijuana patient or licensed business is not a defense to federal drug charges.

If you’ve been charged with a marijuana offense in a federal court, it’s important that you obtain representation by a skilled criminal defense lawyer who can explain your options and help you fight the charge.

How a California Medical Marijuana Lawyer Can Help

If you have questions about the Compassionate Use Act, the Medical Cannabis Regulation and Safety Act, or Proposition 64, a California medical marijuana attorney can help. At McElfresh Law, we have the experienced to explain the intricacies of California’s cannabis laws and what protections may be provided to you.

If you’ve been charged with the possession, cultivation, sale, or transportation of marijuana, a San Diego criminal defense lawyer can discuss whether your status as a medical marijuana patient, caregiver, or licensed cannabis business might provide a defense to the charge and work to get your charges dismissed or your penalties reduced. Call San Diego medical marijuana attorney Jessica McElfresh today at (858) 756-7107 to receive your consultation.

This website is intended for informational purposes only. Use of this website does not create an attorney-client relationship. Free consultation for criminal defense cases only. Cannabis business consultation requires a fee.