Amid a sea of regulatory changes occurring in response to the novel coronavirus (COVID-19) pandemic, several states have temporarily suspended cannabis regulation to enhance consumer access to cannabis products during the crisis. States have declared various motivations for such temporary suspensions, including ensuring minimal interruption in medical marijuana distribution for holders of medical marijuana cards and enhancing social distancing guidelines to allow for remote, contactless cannabis transactions. Below are examples of the different approaches states are taking to regulatory suspensions.
Colorado
The governor of Colorado issued an executive order temporarily suspending regulations around the legal sale of marijuana. This included a temporary suspension of the requirement that a patient undergo an in-person physical examination before the issuance of a medical marijuana card. Furthermore, the executive order suspended the prohibition of online store sales of retail marijuana and marijuana products to facilitate curbside pickup by consumers. Colorado’s Department of Revenue Marijuana Enforcement Division issued emergency rules clarifying that medical marijuana stores and retail marijuana stores may accept orders for regulated marijuana or industrial hemp products over the internet or phone. Importantly, only medical marijuana stores may accept payment for marijuana transactions over the internet. Retail marijuana stores must complete the transaction when the consumer is physically present. These suspensions will be in effect for 30 days, or until April 18, 2020, unless further extended by executive order.
California
The governor of California designated workers supporting cannabis retail businesses as part of the state’s “essential workforce,” but specific regulation of transactions varies by county. Local governments have issued various orders drilling down on the specifics of cannabis transactions during the pandemic, but have largely followed the lead of other states in loosening regulations for curbside pickup, home delivery and other rules to encourage social distancing. For instance, Santa Clara County issued a public health order that prohibits licensed medical cannabis dispensary purchases on a “takeout” basis but allows for medical dispensaries to perform home deliveries during the public health crisis. San Francisco’s public health order permits cannabis dispensaries to remain open only for delivery or takeout purposes, and encourages at-home delivery of prescriptions and cannabis products.
Illinois
Illinois is allowing similar regulatory exceptions for medical cannabis users to facilitate cannabis transactions beyond certain prior limited access areas, permitting curbside pickup for medical cannabis cardholders. Payment must still be made on the dispensary property and, therefore, home delivery and online sales are still prohibited. The order imposes additional requirements on medical cannabis dispensaries that require them to follow specific protocols for curbside transactions, follow certain disinfectant and sanitary practices, and enforce social distancing requirements by moving lines outside, closing down some point-of-sale systems, and policing distancing in lines.
District of Columbia
The District of Columbia health department issued guidance that will temporarily allow healthcare practitioners to utilize online consultations and/or telemedicine to make medical marijuana recommendations. Providers must be “authorized practitioners” in the District of Columbia with “bona fide relationships” with “qualifying patients,” and are prohibited from making telemedicine recommendations for medical marijuana when they otherwise hold an interest in a dispensary, cultivation center or testing lab, pursuant to existing regulations.
Massachusetts and Ohio have issued similar directives allowing providers to use telehealth, rather than in-person consultations, for the prescription of medical use of marijuana.
These temporary modifications to cannabis regulations are intended as a response to the pandemic; however, such changes may have long-term impacts on cannabis policy going forward as the pandemic’s effects are prolonged and dispensaries operationalize practices such as curbside pickup and home delivery. Industry members should continue to monitor state and local regulations allowing the sale of medical and recreational cannabis products during the pandemic.
McGuireWoods is a full-service law firm with experience assisting clients in cannabis-related businesses. For questions about this alert, please reach out to industry team members Kate Hardey, Tim Loveland or Royce DuBiner.
McGuireWoods has a dedicated team of lawyers who will continue to monitor state and federal responses to COVID-19. McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.
Cannabis is still classified as a Schedule I controlled substance by the U.S. Drug Enforcement Agency, and, as such, it remains a federal crime to grow, sell, and/or use cannabis. Any content contained herein is not intended to provide legal advice to assist with the violation of any state or federal law.
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