Is it legal to sell medical marijuana in California?
The California Medical Marijuana Program Act states that “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
The sections of the Health and Safety Code listed include sanctions for possession (11357), cultivation (11358), possession for sale (11359), transportation or furnishing marijuana (11360), maintaining a location for unlawfully selling, giving away, or using controlled substances (11366), managing a location for the storage or distribution of any controlled substance for sale (11366.5), and nuisance caused by selling, storing, manufacturing, and distributing a controlled substance (11570).
In People v. Urziceanu (2005), the California Court of Appeal said that this section of the MMPA “indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.”
But is this the same thing as selling?
Los Angeles City Atty. Carmen Trutanich has said that state law authorizes collectives only to grow marijuana and recover their actual costs, not to sell it.
This sounds like splitting hairs to me – what is the difference between selling and recovering costs when it is clear in the MMPA that this all needs to be done without profit?
One thing that further muddies the water is that the Attorney General’s medical marijuana guidelines seem to urge collectives to pay sales tax. But if they are not selling and just recovering their costs, why do they have to pay sales tax? This puts collectives in a difficult position – if they pay sales tax, are they admitting they are selling which is not clearly legal? And if they don’t pay sales tax, will the Board of Equalization come after them?
One possible solution is to pay sales tax but submit a letter to the BOE stating that the collective is paying under protest because it does not believe that a collective set up by patients to share marijuana is selling anything.
