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Friday
Sep222017

Lighting Up Legislation: Regulating Recreational Marijuana in California

Environmental Litigation AttorneyEnvironmental Litigation Defense Attorney

Stephen T. Holzer

818.907.3299

 

California voters legalizing the use of recreational marijuana under Proposition 64, also known as The Adult Use of Marijuana Act (AUMA) last November is just the beginning. Deciding how cannabis will be grown, sold and consumed involves a lot of deep thinking by state and local legislators.

For one thing, AUMA has been replaced by the Medicinal and Adult-Use Cannabis Regulation and Safety Act, or MAUCRSA. The new law created one system of laws to regulate both medicinal and adult recreational use.

As we near the end of September, we realize two things: 

  1. Retailers are already stocking shelves with decorations for December holidays – it’s called “Christmas Creep” – a phenomenon that seems to arrive earlier and earlier each year.

  2. This year, “Cannabis Creep” is encroaching on the state too, as growers, distributors, potential retailers and consumers all keep their eyes peeled for the latest local and state laws regarding the purchase and sale of marijuana and marijuana-related products. Just think of the state government stocking up the legal shelves with bills and licensing requirements. 

Here’s a look at what’s happening currently in Los Angeles and state laws.

Regulating Marijuana Business Interests

State licenses for marijuana businesses are required, while many cities in California will also require approvals if not their own licensing. Los Angeles for example, requires city approval.

Los Angeles’s Proposition D, approved in 2013, will go up in smoke in January. The old ordinance prohibited sales of pot within the City unless the business dealt in medical marijuana and met certain other guidelines, like registration with the City Clerk. Proposition D will be repealed by Proposition M as of January 1, 2018.

Proposition M gives the L.A. City Council authority to enact and revise regulations regarding medical and recreational marijuana; enforce laws or collect fines; and tax sales.

Los Angeles Zoning: The City Planning Commission passed a Los Angeles ordinance to establish zoning regulations affecting pot growers, distributors and sellers. The primary rule under this ordinance to remember is the 800 ft. rule – no selling within 800 feet of schools, drug or alcohol treatment and rehabilitation centers, public libraries, public parks, or other cannabis retailers and microbusinesses that sell marijuana on site.

There are other zoning rules for Los Angeles: generally speaking, licensed sellers are allowed to sell in retail zones, and licensed cannabis product manufacturers are permitted to make products in manufacturing zones.

Cultivators though, have much more stringent rules pertaining to outdoor growth vs. greenhouse or nursery growth. See the info starting on page 9 of the L.A. ordinance link above for more information.

The California government developed a website to keep everyone straight at the state level: California Cannabis Portal (CCP).

As of now there are three branches of marijuana government: the Bureau of Medical Cannabis Regulation (BMCR, the main regulatory office), CalCannabis Cultivation Licensing (branch of the state’s Department of Food and Agriculture, also referred to as just CalCannabis), and Office of Manufactured Cannabis Safety Branch (MCSB is part of the state’s Department of Public Health), all post updates here.

State Licensing: According to CCP, applications for licensing are coming soon.

Under Senate Bill 94 which was chaptered in June, there will be two types of cannabis sales licenses in the state of California. Retailers selling recreational marijuana to adults should apply for A-licenses. Businesses selling medical marijuana should apply for M-licenses.

As noted, none of the state agencies are issuing licenses yet. The BMCR is the branch responsible for retail, distributor, lab testing and microbusiness licensing; and recommends business owners pursue approvals and licenses from city and county governments while they finalize the state process.

CalCannabis estimates the first cultivation licenses will be issued in January 2018. CalCannabis is working on a track-and-trace system to record supply chain movements.

The MCSB will offer several cannabis licenses, including Type 6 (non-volatile solvent and/or mechanical extractions) and Type 7 (volatile solvent extractions) licenses – neither of which will be available for a while, as the branch expects to be able to receive applications for licenses in January.

Pipe Dreams for Consumers?

Legalizing marijuana whether for medicinal or recreational use is a weighty endeavor – one that should be taken with great deliberation for the protection of all.

But given the fact that none of the state agencies are ready to issue licenses, and realistically, don’t seem to be able to do so until well after the start of the new year, the only lighting up consumers can look forward to in the near future is that of the Christmas and Hanukah lights in December.

At least those retailers are ready to roll.

 

Stephen T. Holzer is a Business Litigation Attorney and the Chair of our Environmental Practice Group. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Sep152017

Pass the Beer: Craft Brew Distribution Law in the U.S.

CalBar Certified Franchise & Distribution Law Specialist

by Barry Kurtz

818-907-3006

 

How do Americans get their stouts, ales, pilsners and porters? Beer distribution, no matter the variety, is funneled through a highly regulated three-tier system: brewers at the top, distributors take their cut in the middle, and retailers sell directly to the consumer.

This system is designed to prevent pre-prohibition style marketing tactics, in which beer makers sold directly to brewer-owned taverns and other retailers, encouraging excessive consumption. The three-tier system also generates revenues for the states, facilitates state and local control over alcoholic beverages, and establishes a bit of temperance.

State statutory and regulatory schemes establishing the three-tier system vary substantially. But states generally fall into one of two categories: license states and control states.

Beer Licensing States

There are 32 license states. Under a typical licensing scheme, brewers who brew beer in another state, but who wish to sell it in the license state, must obtain a manufacture’s license, or register with a regulatory body, in advance of signing a distribution agreement with a distributor to distribute its beer.

While the licensing systems in the license states provide accountability and an additional source of revenue for those states, they are often convoluted and difficult to figure out. Determining which licenses are needed is no easy task.

Beer Control States 

There are 18 control states. These have licensing requirements too. The difference between control states and license states is that at some point in the distribution process, control states obtain a direct interest in the revenues by taking an ownership stake as distributors or retailers of the product. These states are also known to exert greater control over the conditions of sale and promotion of alcohol within their borders.

Source: Alcohol and Tobacco Tax and Trade Bureau

Beer Cyber States 

Naturally, craft breweries are eyeing the internet as an alternative channel of distribution for their products.

Only 16 states allow brewers to distribute their products directly to retailers, with some restrictions and 16 states forbid the direct shipment of beer to their residents. States that do permit the direct shipment of beer to their residents typically require the shipper to be licensed as a brewer, distributor or retailer in its state of origin – and to obtain a direct shipper permit in each state into which the brewer wishes to sell products before shipping into these states.

Further complicating matters, shipping beer through the United States Postal Service is illegal; DHL refuses to ship beer per company policy; and Federal Express and United Parcel Service will typically only ship for properly licensed shippers (those holding a valid brewer, wholesaler, retailer license etc.), on a contract basis.

In a nutshell, while the direct shipment of beer represents a potential innovation for the beer distribution industry, the three-tier system is effectively keeping the beer industry stuck in the 1990’s.

However, beer drinking consumers are beginning to push state legislatures for change, urging them to among other things, provide craft brewers the same direct shipment rights that wine producers enjoy in a majority of the states, and reminding them that restraints on competition rarely benefit consumers.

All-in-all, one can expect that states will begin to open their craft brewers’ taps for the free-flow of beer to their constituents.

Barry Kurtz is the Chair of our Franchise & Distribution Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Apr032013

Franchising: A Big Portion of Today's Economy

Business Litigation Attorney EncinoFranchise & Business Litigation Attorney

by David Gurnick

818.907.3285

 

By year’s end more than 750,000 franchised outlets will be operating in the United States, employing more than 8.2 million people, generating over $800 billion in sales and comprising 3.4 percent of United States Gross Domestic Product, according to the International Franchise Association.

Why is franchising such a huge part of the American economy?  Here are some of the primary reasons:

1. Confidence: People want to own a business, but fear the risk of starting their own business. They feel more confidence in starting a business that is part of an established, successful system.

2. Brand Recognition: Consumers and the public feel more confident buying goods and services from a recognized brand. Franchising creates this brand recognition.

3. Synergy:  A system of franchisor and franchisees can research and develop better products and services, and better operating systems than an equal number of unaffiliated individual businesses.

4. Market Power: Participants in franchise systems can negotiate better supply arrangements, better leases, and in other respects, keep their costs down. This lets them lower prices to the public.

5. Better Advertising: Likewise, a system of franchisor and franchisees can market and advertise more effectively than an equal number of unaffiliated individual businesses.

6. Competition: New franchise concepts and brands, and franchises providing new categories of goods and services are created all the time. Others seek to duplicate and improve on pre-existing successful concepts, offering the public something a little different, a little better. This form of competition results in more variety and options for the public, and more franchised outlets offering goods and services.

7. Seemingly Limitless Growth Potential: A feature of franchising is that it permits seemingly limitless growth. In the large United States economy, and economies of the rest of the world, there is vast room for the establishment of ever more franchised outlets, both within a single brand, and including any number of competitive brands.

8. Multi-brand Channels: Many successful franchisors create or acquire multiple brands.  Think of Yum with its KFC, Pizza Hut and Taco Bell brands. Companies that get a formula right for their franchise program can apply their success to multiple brands and grow them all.            

9. Local Variation: Independent ownership allows businesses with nationwide reach to adjust to local standards. A franchisee in a small town in one part of the country, and another in a big city, can each adjust to the culture and customs of their own geography.

10. Motivation and Hard Work:  Franchisors and franchisees are entrepreneurs, motivated to work hard, deliver quality products and services and generate profit. Each franchise outlet is independently owned and operated. Each owner has an individual profit motive. People in franchising work hard to make their businesses succeed.

 

David Gurnick is a Certified Specialist in Franchising and Distribution Law, (State Bar of California Board of Legal Specialization). Contact him via email: dgurnick@lewitthackman.com.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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