Two years ago, California voters amended state law to legalize access to cannabis. And yet cities and counties throughout the state have banned its sale.
Delivery services have stepped in to fill the void between retailer and consumer, but that may soon change.
California’s cannabis regulator, the Bureau of Cannabis Control, may adopt permanent rules this fall allowing legal cannabis deliveries to continue to any municipality throughout the state. Opponents of those rules, though, are working hard to change them—and institute a regulatory scheme that would allow local towns and counties to stop legal cannabis delivery at their borders.
What’s the State of Delivery Now?
Right now, you can get recreational and medical cannabis delivery pretty much anywhere in the state. But choices and quality vary. There are multiple markets: licensed recreational or medical cannabis deliverers, unlicensed medical deliverers, and a thriving illicit market. Many consumers are confused.
Recreational Deliveries
You can go on Leafly, for example, search for recreational cannabis delivery services in your area, and order from them. Some deliver same-day. Others offer next-day, or two-day delivery, depending on the area.
Many licensed brick-and-mortar stores that sell recreational marijuana will also deliver it to you. They advertise delivery on their websites and elsewhere.
Medical Cannabis Deliveries
Beyond the recreational market, there are the licensed and unlicensed medical markets.
Licensed Medical
Licensed medical-only dispensaries and delivery services will deliver to you if you have a California ID and a valid doctor’s recommendation for medical cannabis.
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Unlicensed medical marijuana collectives are also popular. The state has given them until Jan. 2019 to either obtain state and local licenses or cease commercial operations.
Illicit Market Deliveries
Beyond licensed recreational deliveries, and licensed or unlicensed medical deliveries, there is also the wide-open illicit market.
Anyone with cannabis, a car, and a smartphone can enter the illicit cannabis delivery business, and business is popping. Delivery services are very hard to interdict. Police report it’s like playing a game of whack-a-mole. There are thousands of them in California.
Illicit market couriers don’t follow any rules. Some couriers get robbed, police reports show. And the products they sell have not been tested for pesticides or mold.
How Is Delivery Changing?
California’s recreational and medical cannabis regulations are currently in flux.
Right now, licensees operate under so-called emergency rules, which remain in place while the state’s final rules are being written. Therein lies the kerfuffle. State regulators at the Bureau of Cannabis Control proposed a rule this summer clarifying that licensed recreational cannabis delivery services may deliver to any city or county in the state. Opposition interests want to prevent that rule from taking effect.
(Full Disclosure: Leafly as a company has commented publicly in support of the California Bureau of Cannabis Control proposed rule No. 5416(d) Delivery Freedom.)
A Battle Over Local Control
On Aug. 31, the lobbying arm of California police chiefs, as well as city governments, and a cannabis-affiliated union, the United Food and Commercial Workers Union, started a campaign to drum up support for banning recreational cannabis delivery in California. The New York Times and other media outlets picked it up. They’ve started a petition called Stop Wandering Weed.
Public Safety
Police say it’s a public safety issue. “The proposed regulations … open the floodgates to a number of public safety risks,” California Police Chiefs Association President David Swing said in a prepared media release.
That argument, delivery proponents say, assumes that California does not already have untaxed and unregulated marijuana deliveries. Which it does—pretty much everywhere. “It’s not a question of whether you’re banning delivery or not,” said Max Mikalonis, a Sacramento lobbyist for licensed delivery services. “It’s whether you’re banning legal delivery. The only way to combat unlicensed delivery is by giving consumers a legal choice.”
“It’s everywhere,” added Hezekiah Allen, a regulatory expert and longtime lobbyist for the California Growers Association. “It’s frustrating that police would try to perpetuate the lawlessness they say they hate.”
Licensed delivery services must follow three pages of state regulations and all local rules on time, place, and manner of delivery.
Cannabis couriers have stricter rules on storing cannabis in a car (in a locked box welded to the vehicle frame) than police officers do with their guns (which get stolen from glove compartments, under car seats, and trunks fairly regularly in California).
Local Control
Part of this battle is about local control. The League of California Cities, one of the state’s most powerful lobbying groups, rejects any infringement on what they consider police powers properly vested with cities and counties, not the state.
“By allowing delivery to any jurisdiction, the Bureau’s proposed regulations eviscerate many cities’ local decisions on commercial cannabis,” the organization said in a release.
Delivery proponents argue that local control has gotten out of control in California. More than 57% of statewide voters approved of Proposition 64, which legalized the adult use of cannabis. Yet only 25% of California’s cities and counties allow legal cannabis deliveries.
Individuals also have a right to possess, purchase and consume cannabis under Proposition 64. If a person has to drive 100 miles to access cannabis, said delivery lobbyist Mikalonis, those rights seem meaningless.
Decreased Competition
Leaders at UFCW, the cannabis union, said they signed on to ban deliveries out of a concern for public safety.
“If marijuana can be delivered anywhere with virtually no regulation, California will lose these safeguards that protect communities and children,” said James Araby, executive director of the UFCW Western States Council.
The idea that licensed delivery companies operate “with virtually no regulation” doesn’t exactly ring true, though. Licensed deliveries are highly regulated under current BCC rules, and that wouldn’t change under the proposed final rules.
What a delivery ban really seems designed to do is not increase public safety but decrease competition to brick-and-mortar stores, a number of which have aligned themselves with the UFCW, some experts said.
“It’s the same group of business that killed a cannabis farmer’s market bill and tried to kill a bill allowing more cannabis events with sales,” said Allen. “Look at enough of their letters and watch enough of their public statements. It’s really clear. They think this market is rightfully theirs and only they should get to do this activity.”
UFCW director Araby called Allen’s charge unfair. “We don’t just represent brick-and-mortar retail,” he said. UFCW also represents some delivery services who want access to the state market.
“We sort of walk them through it until they get it,” Araby said. He tells deliverers: “You don’t want to compete against someone coming into your neck of the woods who isn’t professional.”
Araby said forcing all cities and counties to accept legal deliveries could result in a backlash and ultimately slow local efforts to end bans.
How Will This Fight Play Out?
The BCC rule allowing deliveries in all jurisdictions is likely to become final this fall. The public comment period will re-open in the coming weeks.
Once it becomes final, opponents could sue to stop the rule.
According to some experts, existing legal precedent may support delivery bans, but the law is not settled. Cities and counties have extremely wide latitude to determine local types of business activity. “It appears as though cities and counties have a heck of a lot of authority,” said Allen.
One major issue is the legal definition of the “place of transaction.” Under previous tax law rulings pertaining to Amazon.com sales, courts have found that the “place of transaction” is the residence to which the product is delivered.
