One Acre Cap… or Not?

California’s three state cannabis licensing authorities announced today that proposed emergency licensing regulations for commercial medicinal and adult-use cannabis have been posted online and are available to the public for review.

The Department of Consumer Affairs’ Bureau of Cannabis Control, Department of Public Health’s Manufactured Cannabis Safety Branch, and Department of Food and Agriculture’s CalCannabis Cultivation Licensing Division each developed the new regulations to reflect the law defined in California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA).

The regulations and their summaries can be viewed by clicking here.

The most confusing aspect of the new emergency regulations is the 1-acre limit on cultivation. In that, it does not appear that such a limit was included in the actually proposed emergency regulations! Rather, the state, ultimately, is deferring to local government on determining whether limitations on size within municipalities should be imposed and the extent of those size limitations. 

As one can guess, the emergency regulations had been in development for many months and in some cases covered and re-established familiar ground. At first, the state will issue only temporary licenses to growers and retailers, provided they have a local permit to open for business. The problem with imposing a size cap with such a temporary roll-out based upon existing licensure is that all of the municipalities have different restrictions for properly awarded licenses. Under state law, local jurisdictions can still craft policies that further limit the local marketplace, such as the size of farms and the types of businesses allowed, but it cannot increase any size limitation imposed by the state.

Despite this concern, on Monday, the state Department of Food and Agriculture issued an environmental impact report that ultimately proposed a 1-acre cap on cannabis farms and nurseries. But by Thursday, the same agency issued rules that put no limit on farms, apparently opening the door for large-scale cultivation in California. And to add to the confusion, this change in position had not been entirely communicated to their other partner agencies, who were still answering inquiries as to size as of Friday morning as being limited to 1-acre. 

Late Thursday, Steve Lyle, spokesman with the department, said in an email the 1-acre limit “was left out following evaluation of the emergency regulations, including input from stakeholders, that went on right up until the regulations were finalized.”

"Essentially this means that mega grows, the ones that Prop. 64 promised to delay for five years and that the Environmental Impact Report did not analyze, may be possible in early 2018," explained Hezekiah D. Allen, California Growers Association.