The Washington State Liquor and Cannabis Board (LCB) published an interesting bulletin this Tuesday, June 16th. The bulletin finds that DEA’s final rule on medical marijuana rescheduling “does not appear to apply to Washington’s cannabis licensees, due to the statutory framework predominantly regulating recreational cannabis.”
The word “predominantly” is doing a lot of work in that sentence; and LCB qualified its findings, stating: “this may not be our final interpretation as information is evolving and the determination may not rest with the state.” That’s fair enough—I tend to agree with the final clause.
Washington may be the first state to publish an opinion of sorts on how rescheduling may affect its licensees. It’s a very important issue, which we began tracking prior to April 28th, when DEA’s final rule took effect. As a refresher, the final rule orders that 1) state-legal, medical marijuana, and 2) FDA-approved marijuana drugs, both be moved from schedule I to schedule III of the federal Controlled Substances Act.
Whether rescheduling applies to businesses that operate in a unified, recreational and medical marijuana market, and make both adult-use and medical marijuana sales, is a crucial and far-reaching question. In most (all?) states with adult-use cannabis programs, medical cannabis regulation and sales have been absorbed into the adult-use regime.
If—and it’s a big if—the final rule survives litigation, operators who are entitled to leverage medical marijuana’s schedule III status will have significant advantages. These advantages include potential export rights and income tax relief, to start.
In a blog post titled “Marijuana and Income Tax”, published April 27th, I hashed out the issue addressed by the bulletin:
在设有成人娱乐用大麻项目的州，情况可能较为复杂。所有设有成人娱乐用大麻项目的州也都设有医用大麻项目。其中大多数州已将这两个项目在不同程度上进行了整合。 在某些州，一株大麻可能最初是在成人娱乐用CTS（控制种植系统）中由非医疗许可持有人种植，但在供应链的某个环节演变为医疗用大麻产品。最终产品可能效力更强，也可能不强；包装方式很可能不同；是否征税也各不相同。但无论如何，它最终都会被转让或出售给医疗用大麻持卡人。即便其物理形态未发生改变，其定义也已发生了转变。
在这些混合供应链中，持牌人可能是成人娱乐用大麻持牌人，但持有“附加许可”、“注册”或其他许可，从而能够生产或处理医用大麻产品。在种植环节，这种区分实际上毫无意义——毕竟，大麻植株终究就是大麻植株。 但是，这些混合经营者是否属于该命令所指的“州持牌人”？他们既经营医用大麻，也经营非医用大麻。他们可能将原料分隔开来，也可能不分隔；可能将成品分隔开来，也可能不分隔。我想表达的意思，各位应该能明白。
Washington certainly saw where I (or probably this) was going, and published its bulletin. Before doing so, LCB advises that it spoke with “state agency partners as well as other states via the Cannabis Regulators Association (CANNRA) and the National Governors Association.” Assuming the LCB’s interlocutors reached a similar conclusion to the bulletin, there may be something of a consensus forming here.
If the final rule holds, and the LCB analysis is correct, we may see more states follow in the path of California, another unified market which has undertaken reforms to help its licensees take advantage of the final rule. It is likely that CANNRA and others are also working on this issue, although the topic was not squarely addressed in CANNRA’s April 27 overview of the final order.
We’ll continue to update on state action in response to the final rule, along with relevant litigation and other federal developments. Stay tuned! In the meantime, check out the following, related posts:
