As California’s cannabis market continues to develop slower than many anticipated, 24 cities and one county in the state have moved to sue the state’s Bureau of Cannabis Control over new rules that allow cannabis delivery to be conducted anywhere in California, regardless of local rules.
The plaintiffs are attempting to halt a regulation that would allow any legally licensed California cannabis delivery service to serve customers anywhere in the state, regardless if they have received local permitting. This is because the local jurisdictions believe aspects of the state’s cannabis regulations — Adult Use of Marijuana Act — give them the ability to control how cannabis businesses operate in the city.
The League of California Cities is backing the effort, led by Sacramento law firm Churchwell White LLP.
“Californians voted to allow recreational and commercial cannabis with the specific promise that each community would be able to regulate or even ban it within their community,” said Covina City Councilmember Walter Allen III in a statement released by the league. “The BCC’s actions in adopting this regulation burden local governments in jurisdictions that have regulated or banned commercial cannabis deliveries.”
However, advocates for allowing cannabis delivery across the state say that the rule helps ensure people with disabilities have access to medical cannabis — no matter the local rules — and that banning delivery would only further encourage people to turn to the illicit market.
Local Control of Cannabis vs. Medical Marijuana Access Rights
“I met a woman in a wheelchair who eases her chronic pain with cannabis. She lives a 90-minute drive from a dispensary. Her tiny town won’t allow any cannabis businesses,” Justin Hall, the founder of delivery service Bud.com, told Cannabis Now. “She described herself living in a ‘weed desert.’ Anyone in a weed desert where delivery is banned would be served only by something outside the system: ensuring no visibility, no quality testing and no tax revenue.”
Hall went onto say cities shouldn’t be filing lawsuits the BCC to prevent regulation-studying, compliance-practicing cannabis companies from offering delivery of stress reduction and pain relief to anyone over the age of 21 in California.
Hezekiah Allen, who previously led the California Growers Association and still keeps a finger on the pulse of the already-dwindling number of small cultivators in California that have been able to transition to the legal market, said that the removal of the delivery rule could impact producers already fighting for shelf space in California’s big markets.
“The lawsuit is going to hit the entire regulated market hard,” Allen told Cannabis Now in an email. “The only people who will benefit from this lawsuit are unlicensed sellers of cannabis. The regulated market can’t succeed if patients and consumers can’t access regulated cannabis from licensed farms. This lawsuit seeks to restrict access to regulated cannabis and will be a big benefit to unregulated cannabis retailers.”
In a move that suggests they are hoping for a bit more of a conservative bench, the plaintiffs filed the case in Fresno Superior Court, where they allege the rule — BCC Regulation 5416(d) — is invalid. According to them, the promises of cities and counties being able to regulate pot locally was one of the major aspects of Proposition 64.
The specific language the plaintiffs point to is in the “Business and Professions Code,” sections 26090 and 26200, which was the main guarantee for cities and counties when it came to regulating or banning the operation of recreational and commercial cannabis deliveries within their communities. They also pointed to Section 26200, which asserted “nothing shall limit the authority of cities and counties to regulate or completely prohibit commercial cannabis activities within their jurisdiction.”
The Cities Behind the Cannabis Delivery Lawsuit
Despite the case being filed in Fresno, the municipalities taking part in the lawsuit are a cross-section of California, from the Bay Area to Beverly Hills. Most surprisingly to some, Santa Cruz County is the lone county taking part, despite marijuana’s long history of being intertwined with the area. “The BCC is fundamentally changing Proposition 64, eroding local control and harming our local cannabis businesses by allowing commercial cannabis deliveries in every jurisdiction in California. This betrays the promise made to the voters in Proposition 64,” said Supervisor Ryan Coonerty, chair of the Board of Supervisors of Santa Cruz County. Coonerty has also previously served as mayor of Santa Cruz.
Further south in Beverly Hills, Mayor John Mirish was well positioned to make the argument this had nothing to do with being for or against pot in general.
“We are left with no choice but to challenge these regulations because they violate key provisions of local control promised to voters when they passed Proposition 64,” said Mirisch in a statement. “By usurping local ordinances, these regulations interfere with local governments’ ability to enact local regulations that may be necessary to protect the public safety and public health.”
We asked the National Cannabis Industry Association for their take on the kind of impact the law could have on participants in the world’s biggest legal cannabis market in California. They said it isn’t an issue they’re working on directly, given their efforts generally are focused on federal issues — but they said they are keeping an eye on the situation for sure.
“NCIA supports policies that allow for regulated home delivery of cannabis,” NCIA Executive Director Aaron Smith told Cannabis Now. “This is especially important for medical cannabis patients who sometimes have mobility issues that make it difficult to travel to a retail facility, especially if they are living in a city that has banned them. Further, if we can successfully regulate the home delivery of alcohol through apps like Drizly, there’s no reason to prohibit the same type of delivery for cannabis to adults over 21.”
Representatives of the Marijuana Policy Project said Prop. 64 granted local governments the authority to regulate or ban retail cannabis storefronts, but not cannabis deliveries.
“The proposed statewide delivery system would enable more California consumers to access cannabis legally from licensed businesses and reduce their reliance on the illegal market,” said MPP spokesman Mason Tvert. “In some parts of the state, delivery would be the only viable way in which many consumers could legally purchase cannabis products.”
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