Adult-use marijuana implementation bill passes, while two bills that would have drastically expanded

The legislature overrode the governor’s veto of the adult-use marijuana implementation bill on Wednesday, May 2, paving the way for an eventual roll-out of the adult-use cannabis program, with applications likely available in spring 2019 at the earliest.

Meanwhile, two medical marijuana bills, LD 1539 and LD 238, that would have significantly expanded patient and caregiver rights by eliminating patient and employee caps for caregivers and allowing for bulk cannabis sales and processing services between caregivers, among other changes, have not passed. The medical marijuana bills have been held over, likely until the next legislative session starting in December.

As discussed in previous posts, the adult-use implementation bill, LD 1719, makes a number of changes to the original Marijuana Legalization Act passed by citizen initiative. Changes to the adult-use program include:

• Eliminates internet, drive through, and delivery sales;

• Eliminates social clubs;

• Lowers the number of flowering plants for personal use from six to three, and allows municipalities to pass ordinances imposing a limit of no more than three flowering plants per parcel of land;

• Prohibits a municipality from banning home cultivation completely, restricting home cultivation to certain zoning districts, or charging a licensing fee for home-based personal use cultivation;

• Requires municipalities that wish to permit adult-use facilities within their borders to “opt in” by actively voting to permit them;

• Allows municipalities to pass ordinances permitting some specific types or all types of adult-use marijuana facilities, and limiting the number of facilities;

• Prohibits adult-use facilities sited closer than 1,000 feet to the property line of an existing school, unless the municipality has passed an ordinance allowing adult-use facilities sited less than 1,000 feet, but no closer than 500 feet from a school;

• Brings the Medical Marijuana Program under the administration of the Department of Administrative and Financial Services (DAFS), prevents the Bureau of Alcoholic Beverages and Lottery Operations from administering or enforcing the Medical Marijuana Program rules, keeping DHHS’ medical marijuana department intact;

• Removes discrimination protections for employees, students, and tenants who use adult-use marijuana outside

• Leaves medical marijuana discrimination protections for employees, students, and tenants intact;

• Removes 800,000 square foot statewide canopy cap for adult-use cultivation licenses;

• Removes adult-use licensing preference for caregivers and dispensaries;

• Introduces a four-year Maine residency requirement for adult-use cultivation, retail, and manufacturing license applicants, which applies to every officer, director, manager and general partner of a business entity applicant, and requires a majority of the business equity to be held by Maine residents.This residency requirement will be repealed on June 1, 2021;

• Disqualifies adult-use license applicants who have had a Maine caregiver or dispensary license – or a marijuana cultivation, manufacture, testing, or retail license from another state – revoked;

• Allows for cultivation licenses at the following tiers after rulemaking:

• Tier 1: Up to 335 square feet flowering plant canopy ($100 application fee and an annual licensing fee of $270 for outdoor and $510 for indoor);

• Tier 2: Up to 2,000 square feet ($500 application fee and an annual licensing fee of $1,500 for outdoor and $3,000 for indoor);

• Tier 3: Up to 7,000 square feet ($500 application fee and an annual licensing fee of $5,000 for outdoor and $10,000 for indoor);

• Tier 4: Up to 20,000 square feet ($500 application fee, and an annual licensing fee of $15,000 for outdoor and $30,000 for indoor);

• : Up to 1,000 square feet canopy ($350 annual licensing fee). Nurseries may sell up to 12 immature cannabis plants to Maine residents over 21.

• Adult-use edibles may not contain more than 10 mg THC per serving, and no more than 100 mg per package;

• Requires an adult-use manufacturing facility license for processors using an extraction process involving an “inherently hazardous substance” (i.e., a liquid chemical, compressed gas or commercial product that has a flash point at or lower than 100 degrees Fahrenheit, including butane, hexane and propane. Alcohol is not considered an “inherently hazardous substance”);

• Effectively prohibits “gifting” and “donation”-based sales and delivery services by clarifying that adult-use marijuana may only be exchanged for remuneration if the seller holds an adult-use marijuana license.Defines “remuneration” as “a donation or any other monetary payment received directly or indirectly by a person in exchange for goods or services as part of a transaction in which marijuana, marijuana products or marijuana plants are transferred”;

• and many more.

The road to adult-use implementation will be lengthy, as the Department of Administrative and Financial Services (DAFS) must first initiate and complete the rulemaking process. The rulemaking process is involved, and provides opportunity for written public comments and testimony at public hearings.

In the meantime, the Medical Marijuana Program will continue to be administered by DHHS and will operate under the current legal regime until DHHS and DAFS coordinate to complete a rulemaking to update the Medical Marijuana Program Rules. This rulemaking process will likely take at least 6 months, and possibly well over a year to complete.

In sum, the adult-use implementation bill has finally passed with a substantial number of changes, and applications will likely be available in spring 2019 at the earliest. The medical marijuana bills that would have expanded patient and caregiver rights have been held indefinitely, and at least until next legislative session. The Medical Marijuana Program, while eventually moving under the oversight of DAFS, effectively remains under oversight of DHHS under the current rules, until DHHS and DAFS complete a major substantive rulemaking. Maine will continue to have two separate marijuana programs for the foreseeable future.