Cohen Law Maine breaks down how recent legislative changes could affect you! Keep in mind, all Cohen Law Maine blog posts are not legal advice and do not establish an attorney-client relationship.
You may have seen in our last legislative update that some substantial legislation was recently passed. LD 1928 became law, and creates the following major changes in the cannabis industry here in Maine:
- 3. 22 MRSA §2422, sub-§4-T is enacted to read:
4-T. Immature plant canopy. “Immature plant canopy” means the total surface area within a cultivation area where immature marijuana plants are growing. The surface area of the immature plant canopy must be calculated in square feet and measured using the outside boundaries of the area and must include all of the area within the boundaries. If the surface area of the immature plant canopy consists of noncontiguous areas, each component area must be separated by identifiable boundaries. If a tiered or shelving system is used in the cultivation area, the surface area of each tier or shelf must be included in calculating the area of the immature plant canopy. Calculation of the surface area of the immature plant canopy may not include the areas within the cultivation area that are not used at any time to cultivate immature marijuana plants.
The legislature helps to clearly define what the inputs are to the immature plant canopy equation. If you are growing immature plants on a table, use the dimensions of the table as your canopy square footage. If you are growing on two tables that are separate from each other, you must clearly separate each with identifiable boundaries so that they are each their own area for growing. If you utilize a shelving system to house your immature plants, you must add each tier’s square footage of its shelving unit to the total canopy, and not just the square footage of the footprint of the shelving unit on the floor. For an example – if you have a shelf that takes up a footprint on the ground of 12 square feet (2 feet by 6 feet) that has 3 shelf tiers holding immature cannabis plants, your total immature plant canopy would be the 3 shelf tiers x 12 square feet, or, 36 square feet of canopy. Although the footprint of the shelving unit is 12 square feet, the immature plant canopy must factor in all three tiers. It goes on to state that areas in the cultivation area such as walkways or safety areas needed to keep clear, that are not used at any time to cultivate immature cannabis plants, do not get included in the immature plant canopy calculation.
- 10. 22 MRSA §2423-A, sub-§2, ¶B, as amended by PL 2019, c. 256, §2, is further amended to read:
- Cultivate up to 30 mature marijuana plants or 500 square feet of plant canopy, up to 60 immature marijuana plants and unlimited seedlings or cultivate up to 500 square feet of mature plant canopy, up to 1,000 square feet of immature plant canopy and unlimited seedlings. A caregiver may not cultivate immature plants by canopy if cultivating mature plants by plant count and may not cultivate immature plants by plant count if cultivating mature plants by canopy;
The legislature cleaned up the immature plant consideration and adopted the ability for caregivers who already choose to grow 500 square feet of mature plant growth area to utilize 1000 square feet of canopy (as defined above) for immature plants, instead of the 60 allowed previously.
- 11. 22 MRSA §2423-A, sub-§2, ¶K, as amended by PL 2017, c. 452, §4, is further amended to read:
K. Transfer marijuana plants immature marijuana plants, seedlings, seeds and harvested marijuana to a qualifying patient, another caregiver or a registered dispensary for reasonable compensation or for no remuneration;
In the past, this section, when discussing what is considered “Authorized Conduct” for Caregivers read: “Transfer marijuana plants and harvested marijuana to a qualifying patient, another caregiver or a registered dispensary for no remuneration;” We think this change is a good step forward for providing additional explicit clarity on the ability for caregivers to be fairly compensated for their work.
- 15. 22 MRSA §2423-A, sub-§3, ¶B, as amended by PL 2017, c. 452, §4, is further amended to read:
B. A caregiver cultivating marijuana plants for a patient’s medical use must keep all plants in a cultivation area unless the plants are being transported pursuant to subsection 2, paragraph O. Access to a cultivation area is limited to the caregiver, except that an elected official invited by the caregiver for the purpose of providing education to the elected official on cultivation by the caregiver, emergency services personnel, an assistant of a caregiver or a marijuana testing facility or a person who needs to gain access to a cultivation area in order to perform repairs or maintenance or Page 5 – 130LR2424(03) to do construction may access a cultivation area to provide those professional services while under the direct supervision of the caregiver. (1) The caregiver shall ensure that the mature marijuana plants, immature marijuana plants and seedlings cultivated by the caregiver are kept in separate cultivation areas. The cultivation area for mature marijuana plants and the cultivation area for immature marijuana plants and seedlings may be located on separate parcels or tracts of land, whether the parcels or tracts of land are contiguous or noncontiguous, as long as the caregiver discloses the locations of all cultivation areas to the department. The caregiver may not maintain more than 2 cultivation areas. The caregiver shall ensure that the cultivation area for mature marijuana plants and the cultivation area for immature marijuana plants comply with the plant count or plant canopy limitations of subsection 2, paragraph B. (2) Access to cultivation areas is limited to the caregiver, except that an elected official invited by the caregiver for the purpose of providing education to the elected official on cultivation by the caregiver, emergency services personnel, an assistant of a caregiver or a marijuana testing facility or a person who needs to gain access to a cultivation area in order to perform repairs or maintenance or to do construction may access a cultivation area to provide those professional services while under the direct supervision of the caregiver. - 2. 22 MRSA §2422, sub-§3, as amended by PL 2017, c. 452, §3, is further amended to read:
“A cultivation area may include multiple indoor or outdoor areas, whether contiguous or noncontiguous, on the same parcel or tract of land.”
With these two changes, a few things happen. Notice in the second bullet point that a cultivation area may include multiple indoor or outdoor areas, whether contiguous or noncontiguous, on the same parcel or tract of land. Now jump to the first bullet point, a caregiver may not maintain more than 2 cultivation areas – but the statute is clear earlier that the caregiver shall ensure that the mature cannabis plants, immature cannabis plants and seedlings cultivated by the caregiver are kept in separate cultivation areas. The statute does create some need for compliance considerations in setting up a specific multiple-location growing operation.
Let’s say we have a Caregiver who has two cultivation areas. Cultivation Area 1 is on Property 1, and has Gardens A and B, with Garden A being an outdoor grow area of 500 square feet and Garden B being an indoor grow area of 1000 square feet. The caregiver keeps her mother plants and cloning/nursery area in the indoor grow area as well, year-round. Cultivation Area 2 is 14 miles away on Property 2, and has one greenhouse that the caregiver uses to grow cannabis that is 500 square feet.
How can the caregiver utilize her properties?
The statute is clear that the caregiver must maintain a separation between her immature and mature plants at the time of growing and the separation must be done by separating cultivation areas. In our scenario, the Caregiver is not able to maintain 1000 square feet of immature plant canopy indoors while growing 250 square feet of mature plants at Cultivation Area 1 and 250 square feet of mature plants at Cultivation Area 2, 14 miles away. If she wants to bring plants to maturity at Cultivation Area 1 on Property 1, while also maintaining immature plants on that same property, she will need to designate that area of Property 1 with mature plants as Cultivation Area 2. She is now unable to utilize Property 2 as a Cultivation Area because she has hit her maximum number of Cultivation Areas, and cannot have additional grow areas on other properties as part of her mature plant canopy cultivation area.
An alternative could be for her to use Property 1 as a Cultivation Area for her immature plant operations, and use Property 2 as a Cultivation Area for mature plant growing. We are still in communication with the Office of Cannabis Policy to discuss specific scenarios that could arise.
Keep these sorts of scenarios in mind when planning your own cultivation areas. It is always good to check with an attorney if you’re planning to grow cannabis in multiple areas.
- 26. 22 MRSA §2425-A, sub-§5-A is enacted to read:
5-A. Issuance of single registry identification card to caregiver or dispensary assistant. The department shall issue a single registry identification card pursuant to this section authorizing a person to be an assistant of one or more registered caregivers or registered dispensaries and who satisfies all applicable requirements under this section for issuance of a registry identification card. A single registry identification card issued to a person in accordance with this subsection authorizes the person to assist one or more registered caregivers or registered dispensaries in accordance with this chapter and may not associate the person with or restrict the person to assisting a specific caregiver or dispensary
Caregiver Assistants now are registered on their own, are no longer affiliated with a specific caregiver or registered dispensary. They could work for multiple caregivers at a given time if they would like.
- 31. 22 MRSA §2428, sub-§6, ¶I, as amended by PL 2017, c. 452, §16, is further amended to read:
I. All cultivation of marijuana plants must take place in a cultivation area unless the marijuana plants are being transported pursuant to subsection 1‑A, paragraph L. Access to the cultivation area is limited to a cardholder who is an officer or director or assistant of the dispensary when acting in that cardholder’s official capacity, except that an elected official invited by an officer or director or assistant for the purpose of providing education to the elected official on cultivation by the dispensary, emergency services personnel, an assistant of a marijuana testing facility or a person who needs to gain access to the cultivation area in order to perform repairs or maintenance or to do construction may access the cultivation area to provide professional services while under the direct supervision of a cardholder who is an officer or director or assistant of the dispensary.
(1) The dispensary shall ensure that the mature marijuana plants and immature marijuana plants and seedlings cultivated by the dispensary are kept in separate spaces within the same cultivation area. The cultivation area must be located on a single parcel or tract of land, and the dispensary must disclose the location of the cultivation area to the department. The dispensary may not maintain more than one cultivation area.
(2) Access to cultivation areas is limited to a cardholder who is an officer, director or assistant of the dispensary when acting in that cardholder’s official capacity, except that an elected official invited by an officer, director or assistant for the purpose of providing education to the elected official on cultivation by the dispensary, emergency services personnel, an assistant of a marijuana testing facility or a person who needs to gain access to a cultivation area in order to perform repairs or maintenance or to do construction may access the cultivation area to provide professional services while under the direct supervision of a cardholder who is an officer, director or assistant of the dispensary.
While caregivers can now have 2 cultivation areas as mentioned above, dispensaries are limited to one cultivation area that can have multiple separated spaces to accomplish different stages of growth, but must all be located on a single parcel or tract of land, and the dispensary must disclose the location of the cultivation area to the department.
- 32. 22 MRSA §2429-A, sub-§4, as amended by PL 2019, c. 331, §28, is further amended to read:
- Educational materials. A person that provides harvested marijuana to a qualifying patient must shall make educational materials about the use of harvested marijuana available in printed or electronic form to the qualifying patient at the time of the transaction. The department shall develop the minimum content of the educational materials provided under this subsection and make that content available publicly.
- 33. 22 MRSA §2430-C, sub-§6-A is enacted to read:
6-A. Restrictions on law enforcement access. Notwithstanding any provision of law to the contrary, a law enforcement officer may not enter any location in which a qualifying patient, caregiver, registered dispensary, manufacturing facility or marijuana testing facility conducts activities authorized under this chapter or pursuant to a registry identification card or registration certificate issued under this chapter, except where:
- The patient, caregiver, dispensary, manufacturing facility or marijuana testing facility voluntarily allows the law enforcement officer to enter the location;
- The law enforcement officer’s entry is authorized pursuant to a warrant issued by a duly authorized justice, judge or justice of the peace; or
- The law enforcement officer’s entry is authorized in accordance with a recognized exception to the warrant requirement, including, but not limited to, exigent circumstances.
Cannabis owners, patients, and employees are finally beginning to receive the same protections provided to them under the constitution as other industries.