Frequently Asked Recreational Cannabis Questions

Can I just walk in with my ID and get marijuana?

If you’re over 21, yup. That’s the law now.

Do you have to be 21 to use it in public?

There is absolutely no Prop 64 provision that allows you to light up in general public areas. If you can’t smoke a cigarette there, you can’t smoke cannabis either. There are going to be lounges where consumption will be allowed, but that’s up to local ordinances. These businesses will not allow anyone under 21 per state law.

Do I have to register with the state of California?

Not for recreational use or even cultivation of up to six plants indoors. Some counties like Monterey are trying to require registration for the small amounts of indoor recreational cultivation allowed by Prop 64. It’s a new thing and hasn’t been challenged in court yet–so it’s almost guaranteed it will be.

Are records of my recreational marijuana purchases kept?

Yes, the details of each recreational purchase are recorded. These include your first name, your customer number, what you bought, how many, when you bought it/them, and for how much.

Do I need a California ID or something to show my residence? Are out-of-state individuals allowed to access recreational cannabis with a 21+ out-of-state ID?

Yes. It looks like, from the language here, all they’re required to show is a government-issued identification saying they’re 21 or older. It doesn’t say it has to be a California ID. There are some cities in California that are looking forward to becoming cannabis tourism destinations.

Are foreign individuals allowed to access recreational cannabis with a 21+ foreign ID?

The general consensus is that Prop 64 never specifies residency for recreational users. If you’re visiting California and staying in a hotel, remember that many hotels ban smoking.

Will recreational grade cannabis lack the quality or control of medical grade?

There’s a little known provision that the legislature added to the MAUCRSA this session. Business & Professions Code 26070 (l) says, “beginning January 1, 2018, a licensee may sell cannabis or cannabis products that have not been tested for a limited and finite time as determined by the bureau.”

It’s likely they did this to prevent a complete collapse of the supply chain during these first few days of legalization (like what happened in some other states). It has to say on the label that it hasn’t been tested. So, technically, none of them are required to be tested–yet. Look very carefully for that label until the legislature changes its rules.

How much are recreational cannabis taxes going to be? Does it vary by county?

Heck, there’s a massive spread on tax rates by different municipalities in the same counties. They’re basically testing the limits of what they think producers and consumers will accept. Some of the local tax rates seem wildly unrealistic.

Farmersville is imposing a tax on marijuana businesses at a maximum rate of 10% of gross receipts or $25 per square foot. This is in addition to the state’s mandated taxes, though they don’t seem to have any takers yet.

We’ve included speculations to this point in a separate article because it deserves more than a short answer. Some are estimating that the cumulative taxes will double or even triple current market prices, but not until the initial supply run is over and demand outstrips current supplies. For the sort of short answer, you’ll find the applicable taxes in Revenue and Taxation Code Part 14.5.

Can I fly with it in California?

Even if all travel is in the same legal state, it’s still a bad idea. There is a pretty succinct answer from the TSA, who apparently doesn’t care one whit about Constitutional rights if you’ve been watching the news for the past few years:

Possession of marijuana is illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana. TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but in the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer.

In other words, it may be legal to possess cannabis in the state, but it’s still gonna be a pain in the butt to get it past the TSA (literally, they give rectal exams for less.)

Could I buy it in the mail?

No. Well, you probably could, but it’s not legal. Postal inspectors have to obtain a search warrant before they can open your package, but if they suspect there are drugs in the package, they can and will obtain it. They intercept tons of cannabis every year and even post the statistics. And the private couriers are even worse, as shipping with companies like DHL or FedEx carries fewer privacy rights.

Can I give cannabis away to my friends?

You can legally give away cannabis to anyone 21 or over, as long as the amount is under 28.5 grams. If you give away more than 28.5 grams or give cannabis to anyone under 21, you’ll face fines and possibly even criminal charges.

Can I still get my favorite brands?

Mostly likely not. The Manufactured Cannabis Safety Branch created their own rules that demand specific limits on cannabis product concentrations and shapes. Some food products are strictly prohibited, such as edibles that look appealing and indistinguishable from normal kids’ candy. The licensing requirements can be so detailed that some companies are realizing they just don’t have the means to adapt and survive.

Can I attend cannabis events?

Trade shows like the High Times Cannabis Cup will still be active, but they’ll now be strictly limited to adults 21 and up. Even a medical patient under 21 isn’t allowed, nor is alcohol and tobacco use. Another downer? Free samples are a thing of the past.

I heard California just changed Prop 64 to allow large cultivators to take over.

That’s actually fairly true. Section 26061(d) of Prop 64 (you’ll find it here on page 28) says “No Type 5, Type 5A, or Type 5B cultivation licenses may be issued before January 1, 2023.” (That’s the huge cultivation licenses that are larger than 22,000 feet indoors and one acre outdoors). The law was written this way to let everyone get the same chance for a foothold in the market before big producers could try to cut out competition.

The state legislature suddenly changed this just a few weeks ago to the absolute outrage of the cannabis community. After all, the state isn’t supposed to be able to change a ballot initiative like this.

Unfortunately, the language of Prop 64 allows wide latitude to the legislature to amend the initiative (Section 10, page 64 of the same link). They’re using that wide latitude, and their decision is likely going to be challenged in court along with some other changes.

I thought it was legal, then found out I have even more restrictions than before. Can Prop 64 be repealed?

Some Californians are definitely feeling a little buyer’s remorse in the more restrictive municipalities. Others are considering filing lawsuits to fight for the rights that they thought would be guaranteed by Prop 64.

There are also some activists in the medical movement that are considering a statewide constitutional amendment to help protect access for medical patients no matter what changes are made to recreational regulations. Prop 64 was originally supported by these influencers. Contact them and ask for additional efforts to improve the law, or just thank them for their support if you’re happy with how Prop 64 is panning out:

• Sean Parker of Facebook.
• Justin Hartfield of Weedmaps.
• The Marijuana Policy Project.
• Hezekia Allen of the California Growers Association.
• Steve DeAngelo of Harborside Health and Wellness.
• Gubernatorial candidate Gavin Newsom.
• Investor/magnate George Soros.

If they get enough comments from the citizens who voted for the initiative but are unsatisfied with its results, perhaps they can be convinced to fund a repeal or constitutional amendment. 

How will recreational cannabis influence the medical cannabis movement?

Great question. As it turns out, many medical cannabis patients are very concerned that prices will go up and quality will go down very fast. Others think that access will be greatly improved since most patients find six plants to be sufficient.

Unfortunately, many local governments are making it very hard to grow even though it’s legal. Some are even trying to apply registration fees for the state’s allowable personal cultivation of six plants. There are so many moving pieces to the equation that it’s literally impossible to tell. However, the current actions of the legislature to eliminate the cap size restrictions on cultivation don’t bode well.

Are CBD-only products (less than 0.3% THC) considered herbal supplements or cannabis?

The answer to this is complicated. The DEA is making it very clear that they consider even non-psychoactive CBD oil illegal because it comes from a plant that is listed on Schedule 1 under the Controlled Substances Act. But the states have different laws.

In California, industrial hemp is not considered cannabis by legal definition, but it must be a very specific type of plant to qualify as industrial hemp. It must be Cannabis sativa L. with no more than .03% THC in the dried flowering tops.

This law also says that hemp can only be grown if it comes from an approved list of hemp seed cultivars, but the lists are scattered across several different regulatory agencies, so before one begins to cultivate, it would be best to check with the Department of Food and Agriculture.

Are CBD-only businesses and products subject to the new laws, or do they only apply to cannabis based businesses?

Hemp is regulated by the Department of Food and Agriculture, but whether the CBD business falls into the hemp category or the cannabis category under Division 10 depends on the type of product they are producing and the type of cannabis they use. If they qualify as government-approved hemp crops, they will be regulated by these rules with the Department of Food and Agriculture.

Any other cannabis, even if it’s non-psychoactive Cannabis sativa L. with a THC content of .04%, will be subject to the general cannabis regulations in Division 10 of the Health and Safety Code.

Frequently Asked Medical Cannabis Questions

Will registering with the state affect any potential government jobs?

There are privacy provisions in Prop 64 (Sec. 52.) that have been codified into Health & Safety 11362.713. MMID information is deemed medical information and afforded serious protections. Among those privacy restrictions are instructions that MMID numbers are all that can be verified by the state. Names and medical conditions aren’t allowed for disclosure.

They go to a lot of trouble to keep that medical info from being hacked or abused by those who have access to it, legally or not. But there are also provisions in the same section that allow this private medical information to be revealed after the patient has been notified in certain cases.

But there are caveats. From the Privacy Rights Clearinghouse regarding questions of background checks, “It depends. In general, consumer reporting agencies that perform background checks cannot include medical information in your background check unless you consent and the information is relevant to the job you are seeking.” See FCRA § 604(g) [9] and Cal.Civ. Code §§ 1786–1786.30 [10]

For more information on employee background checks, see PRC’s guides: Employment Background Checks: A Jobseeker’s Guide [11], and Employment Background Checks in California: A Focus on Accuracy [12]. This one will likely end up in court too.

What Benefits Come with Being a Medical Marijuana Patient?

There are several, but the main pluses are:

What does it mean when they say my rec now has to come from my “attending physician”?

The law now defines “attending physician” as:

“an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient’s medical record the physician’s assessment of whether the patient has a serious medical condition and whether the medical use of cannabis is appropriate.”

If I get the state card, does that require yearly renewal as well??

Yes, definitely. You can find the answers to a lot of the questions about the MMIC program at this site. Regarding expiration, cards for primary caregivers might need to be renewed before one year is up. “The MMIC may be valid up to one year. A primary caregiver card will expire when the patient’s card expires even if it is less than 12 months.”

Being that I’m under 21, my recommendation should still suffice, correct?

You’re allowed to purchase cannabis from a MEDICAL cannabis retailer if you have a valid MMID. There are two types of licenses: Adult Use–designated as license type A, and Medical Use–designated as license type M.

A retailer can have both an M-type license and an A-type license. They’re required to apply for both in order to sell both. If they have the two licenses, then they can sell to those between 18 and 21 years old with an MMIC also.

Come January, will out-of-state patients still be able to use their rec for delivery?

To be honest, they never really could. Prop 215’s stated intent and purpose is to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” If people who genuinely live in other states have been using California physician’s recommendations for delivery, they simply haven’t been challenged on the point yet.

You can find a discussion in this article with one of Prop 215’s original proponents arguing the point. He said that the California Supreme Court ignored Prop 215’s intents and purposes in the Riverside decision. So, he argues this means we can ignore the word “Californian” when considering protections for out-of-state patients under the same reasoning.  

On re-reading the court’s decision, it seems that they were only making a narrow interpretation of Prop 215’s intents and purposes, not discounting them altogether. This logic has likely not yet been addressed by a court. It’d be inadvisable to provide a patient MMJ who says he/she lives out-of-state based on the logic.

Are out-of-state patients able to acquire a MMIC from California?

No. They may be able to get a physician’s recommendation from those willing to challenge the legal point, but that recommendation can’t be used to get a state ID card; they must produce proof of their county of residence in California according to Health & Safety Sec. 11362.715 (a)(1) to get a state-issued MMIC. That ‘s been a requirement for a long time.

Will my passport and rental agreement work?

It doesn’t say in the law that proof of residency has to be a state ID. The law says: “(1) The name of the person and proof of his or her residency within the county” and “(5) A government-issued photo identification card of the person.” So, a utility bill or something similar should do; it’s hard to imagine a scenario where a rental agreement wouldn’t suffice. Of course, it’s up to the county that issues the ID’s.

I hear it’ll be much harder to get a medical recommendation in 2018; is that true?

Maybe a little. There are definitely new restrictions on doctors now, but most of those were actually introduced by the MMRSA in 2015, not Prop 64. One of the things that they disallowed was doctors who receive remunerations or compensation from collectives to provide MMJ recommendations.

Another is that the recommending doctor must be the patient’s attending physician. Prop 64 cemented these new restrictions by including their enforcement in the intents and purposes and body of the initiative.

So if you get a card, what’s the use when cannabis is legal? Is there a discount or something? Is my weed cheaper if I have an MMID in 2018?

Yes and no. Sec. 34011(g) of Part 14.5 of the Revenue and Taxation Code says,

“The sales and use tax imposed by Part 1 of this division shall not apply to retail sales of medical cannabis, […] when a qualified patient (or primary caregiver for a qualified patient) provides his or her card issued under Section 11362.71 of the Health and Safety Code and a valid government- issued identification card.”

But they’ve been attempting to tighten up restrictions for what constitutes a valid recommendation and MMIC. Just showing your doctor’s rec won’t avoid the tax. Only obtaining the state-issued card from your county after getting your doctor’s rec will do it. Counties have specific instructions from the state as to qualifications for the official card.

This leads to another important point. Anyone just acting like a qualified patient, or a patient provider, is still protected from criminal prosecution under Prop 215. However, they aren’t afforded protection from paying the taxes, nor are they protected from charges of tax evasion for selling cannabis without a state license.

It’s extremely likely that THIS is where they’re going to get charges to stick on patient providers that they feel are operating outside the limited protections of Prop 215. It’s another good reason to get a valid physician’s recommendation and the state-issued card.

The state-issued card also adds another layer of protection from arrest. The Medical Marijuana Policy states that an identification card holder won’t be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana within the amounts specified by the statute–except if it’s believed the card is false or invalid or the holder. (§ 11362.71, subd. (e); see § 11362.77, subd. (a).)

What’ll be the difference between a dispensary that has a medicinal license vs recreational?

Price, and who they can sell it to. The taxation rules for recreational cannabis don’t apply to buyers with a state-issued MMID. Medical providers can also sell to those between 18 and 21 years old with an MMID. Adult providers can’t.

There’ll also be more medical cannabis establishments throughout the state because counties are less likely to ban medical dispensaries than recreational.

Where does the 15% excise tax go?

The money collected for this mandatory tax is not part of the general fund. It’s been specifically allocated by Prop 64. Some is going to universities to study the impact of Prop 64’s implementation and assess whether legalization of cannabis affects use of other drugs and/or alcohol. Some is going to the highway department to figure out how to test for impairment.

Funds are also allocated to:

• Administer a community re-investments grants program to local health departments job placement.
• Mental health treatment.
• Substance use disorder treatment.
• System navigation services.
• Legal services to address barriers to reentry.
• Linkages to medical care for communities disproportionately affected by past federal and state drug policies.

Some of the money is even being allocated to advance major research efforts into the efficacy of, and possible adverse effects of cannabis use. The results of these studies will give the federal government the information it needs to address the issue of rescheduling on a nationwide basis.

Can employers still fire me for testing positive for cannabis on drug tests?

Definitely. You have very little in the way of rights as a California MMJ patient. Furthermore, Prop 64 implicitly spells out the right of employers to fire people who don’t comply with their drug use policies–even if it isn’t on the job and the drug use is in their own private time for medicinal reasons.

A Massachusetts MMJ patient who was fired for testing positive for cannabis recently was given the right to proceed with a discrimination claim. The court ruled that “marijuana used for medicinal purposes is just as lawful as other medications used by employees and should be treated as such.”

He or she probably could’ve sued on the point and eventually won too, but not now that Prop 64 has been voted in by the people. The language in Prop 64 protects the rights of companies to ban medical cannabis in the workplace. And since the California Constitution requires courts to consider laws enacted by the people as the highest form of law next to the Constitution itself, it’s going to take a constitutional rights case to correct the situation.

That’s going to be a tough one because California courts have often ruled for private rights of businesses over Constitutional rights whenever they could see the wiggle room to do so.

Does having a card affect gun rights?

In an appeals court decision that reminds most Americans of concepts like pre-crime and movies like Minority Report, the Fourth Circuit argued that “Government need not prove a causal link between drug use and violence,” and the 9th Circuit bought it.

They then concluded that it was not a violation of Constitutional rights to deny the right for marijuana users to bear arms because drug users were more likely to engage in irrational behavior. Seriously. They actually said that. The argument is by no means finished, but for now, guns can be denied to citizens with MMIDs.

Meanwhile, those who have already been issued cards authorizing their use of gun have been issued letters in some states demanding that they voluntarily surrender their firearms. But the attempts to confiscate these firearms have failed. They have also been conducted in such a way that medical privacy rights can easily be violated, with some states sending out easily-recognizable blanket notices to the effect.

Since the cost of a NuggMD card renewal ($49) is the same as a new doctor’s recommendation, what disadvantage would there be in letting my current recommendation lapse, then get a new one in a few months–if I still need one?

Simply having a doctor’s recommendation carries an added layer of protection that recreational users don’t have–Prop 215. And because of the court decision People vs. Kelly, they can possess and cultivate as is medically necessary. Also, if you are a patient under 21 years of age, you’ll be subject to criminal charges for possessing ANY amount of cannabis.

If the amount you need for medical use falls well below what is allowed for adult use, that there isn’t really a disadvantage since the Federal courts don’t allow a medical defense. Most patients, however, do tend to need much more than what is allowed for recreational use because they eat cannabis more often than they smoke it.

So, the answer depends on these questions: Are you a patient under 21 years of age? Does your doctor think you need more than the state-allowed amount for recreational? If your answer is yes to either of these questions, then there is a serious disadvantage to letting your doctor’s recommendation lapse.

Does my state-issued card become inactive once the recommendation expires?

Counties are simply required to ensure that the recommendation is still valid per Business and Professions Code 2525 when they issue an MMID. As for how long a county MMID is good for, you’ll find the answer in Health and Safety Code: 11362.745  

(a)  An identification card shall be valid for a period of one year.

(b)  Upon annual renewal of an identification card, the county health department or its designee shall verify all new information and may verify any other information that has not changed (in other words, that the current rec isn’t expired.

This means that as long as your doctor’s recommendation is good, then when they issue your MMID, it’s good for one year, period.  You’ll need to get it renewed before you go in to renew your MMID next time of course.

I hear the state is not going to allow collectives anymore. Is this true?

On 1/9/18, the one year notice was issued by the Bureau, stating that the clock is ticking on Health and Safety Code 11362.775. This law is written as an exception from prosecution for collectives currently operating under SB 420.  It’s set to expire exactly one year after the notice is issued by the Bureau that they have begun issuing licenses.

However, it’s argued that collectives operate under the constitutional freedom of association, not under a privilege offered by state legal codes. In other words, it’s as if the legislature wrote the law to grant a right that already existed, simply to establish the power to revoke the pre-existing right after the law expired. Therefore, instant litigation is likely once the deadline has expired in January next year.

Further Reading

If you’d like to stay on top of all these head-scratching changes and additions, read the following articles and be prepared for 2018.

1. How to Get a Medical Marijuana Card in 2018
2. The Always Updated Guide to California Cannabis Regulations by County in 2018
3. 2018 Brings New Challenges to the Federal Government’s Cannabis Law
4. Jeff Sessions Rescinds Cole Memo