Setting the Foundation

The Michigan cannabis industry is in a state of flux. In between the state’s transition into a new realm of regulation is the uncertainty of what’s to come. Fortunately, even in the absence of solid regulation, the state government is working to at least get a head start. While a new Bureau of Medical Marihuana Regulation (BMMR) has been established, and the state’s situation on the validity of caregivers is up in the air, the state is seeking suggestions regarding future regulations.

Currently, the state continues to wait for the Gov. Rick Snyder, who is expected to appoint the five-member Medical Marihuana Facilities Licensing Board and the 17-member medical cannabis advisory committee. The Department of Licensing and Regulatory Affairs (LARA) is the agency responsible for administering the program and has established the BMMR. As part of the implementation of the statutory requirements, BMMR has selected the technology company Franwell, Inc. to administer the state’s monitoring and tracking system.

“In addition, the BMMR is moving forward to draft proposed rules. As part of that process, so far three questionnaires have been circulated seeking suggestions regarding rules about the following issues.”

In addition, the BMMR is moving forward to draft proposed rules. As part of that process, so far three questionnaires have been circulated seeking public input regarding rules about the following issues. The first addresses the “License Stacking and Co-locations,” which identifies eight questions on how to obtain multiple grow licenses, possible pre-requisites that cannabis businesses must meet in order to qualify for a license, or whether or not growers, processors and provisioning centers are allowed to operate at the same location.

The second questionnaire offers additional questions about “Inventory Startup,” which inquires about the operating duties of LARA in regards to how cannabis-related inventory should be regulated on the first day of licenses issuance, or if there should be an established inventory startup period. The third touches about the rules surrounding “Safety Testing” and determines which rules are essential to establish when it comes to safety compliance for cannabis testing and the facilities where testing takes place. There is much yet to be determined, and not knowing the exact regulations makes preparation much more difficult, but these questionnaires are evidence that the state wants to establish its regulatory framework quickly and efficiently.

Meanwhile, the caregiver system continues to have unresolved issues. One of those issues is whether city ordinances, such as those in the city of Warren, which require caregivers to register with the city and be subject to inspection and other local regulation, are valid. For instance, when the city of Wyoming attempted to prohibit growing, possession and use by a patient in that patient’s own residence, the Supreme Court of Michigan shot that down, holding that a city may not prohibit what the state allows. That case, however, was not a zoning case, and the Supreme Court noted that it left a large issue undecided. In footnote 9, at the very end of the “Opinion,” the court stated: “Contrary to the city’s concern, this outcome does not ‘create a situation in the State of Michigan where a person, caregiver or a group of caregivers would be able to operate with no local regulation of their cultivation and distribution of marijuana.’ Ter Beek [Vs. City of Wyoming] does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana; nor does this case require us to reach whether and to what extent the MMMA might occupy the field of medical marijuana regulation.”

It is likely that the court will eventually have to reach those issues, and determine whether a city may regulate the time, place and manner of a caregiver’s activities. In the meantime, caregivers who are in full compliance with the Michigan Medical Marihuana Act remain subject to having the act used as a sword against them, rather than the shield as which it was designed.