As the first state (in 1966) to legalize medical marijuana, California’s cannabis laws have undergone various incarnations since. Other than the legalized medical use of marijuana, California cultivation laws have expanded since 1996 to include growing plants for personal use as well as for commercial production. The specificity of California cultivation laws in 2019 for personal-use growers addresses the number of plants allowed for cultivation as well as other requirements such as the age of the grower, the size of the growing area and the areas that are allowed (and prohibited) for growing plants. Separate code sections outline the detailed constraints for commercial manufacturers.
Cannabis Plant Species
Cannabis, hemp and marijuana are often used as interchangeable terms, but there are some distinct differences. The botanical name for both the hemp and marijuana plant is “Cannabis sativa.” So although hemp and marijuana are both cannabis plants, they are different varieties within the cannabis species. Botanically, the plants share similarities because they’re in the same plant species, but they also have some different characteristics.
Although they look similar, hemp and marijuana plants have some morphological differences, which are often imperceptible to the layperson. But obviously, their appearance is not the reason for their cultivation. Each plant has different phytochemical attributes, which simply means that each one produces different plant chemical compounds.
Cannabis phytochemicals are called phytocannabinoids. The marijuana plant produces Delta-9-tetrahydrocannabinol, which is more recognizable by its acronym – THC. And the hemp plant produces cannabidiol, which is more recognizable by its acronym – CBD. It’s the difference between THC, a psychoactive, and CBD, a non-psychoactive, that mandates the legality of growing these two plants.
Properties of THC and CBD
Understanding the difference between THC (produced by the marijuana plant) and CBD (produced by the hemp plant) also helps to understand the California laws that regulate cannabis cultivation and manufacturing guidelines. As a psychoactive chemical, THC produces the “high” that accompanies marijuana consumption, which may also have addictive qualities.
On the flip side, Harvard Medical School notes that CBD is not a psychoactive chemical, it doesn’t produce a “high,” and it’s not addictive. Because THC can affect driving, as well as other physical tasks, its cultivation and use are legally controlled.
Personal vs. Commercial Cannabis Cultivation
Personal, or “recreational,” adult-use marijuana, as well as personal cultivation of the plants, are both allowed in California, according to legal guidelines. These guidelines do not allow personal-use growers to sell the marijuana they grow, however, which is legal only for state-licensed commercial growers. According to California Code Section 26001, “cultivation” includes planting, growing, harvesting, drying and curing cannabis plants.
California Medicinal-Use Cannabis Cultivation
The California code also outlines guidelines for medicinal-use marijuana, which are slightly different from the regulations for personal use. Because of the Compassionate Use Act of 1996 (California Code Section 11362.5), enacted after passage of Proposition 215, marijuana became a physician-approved treatment for many patients with serious medical conditions. Some of these conditions include AIDS, cancer, glaucoma and migraine.
California law allows, not only patients over the age of 21, but also their primary caregivers to grow marijuana for physician-approved medical reasons. Code section 11362.5 defines “primary caregiver” as the person designated by the patient “who has consistently assumed responsibility for the housing, health, or safety of that person.”
Patients under the age of 21 can also use medical marijuana, as long as it’s at a doctor’s recommendation. Patients under the age of 18 must get a parent’s consent to use medical marijuana.
California Commercial Cannabis Industry
Division 10 of the California Business and Professions Code (BPC) outlines the guidelines for regulating and controlling the commercial cannabis industry. Other than the sale of cannabis, commercial cannabis activity also includes “cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery, or sale of cannabis and cannabis products.” Delivery of cannabis not only includes the commercial transfer to a customer, but also its delivery by a technology platform.
Commercial manufacturers must be licensed by a credentialed licensing agency that’s authorized by the State of California. State agencies issue, renew and reinstate licenses, and they’re also authorized to take disciplinary action against licensees.
California Commercial Cannabis Licenses
California issues three types of licenses for commercial growers and manufacturers. An A-license allows the licensee to cultivate, manufacture, and sell cannabis or cannabis products to adults 21 years of age or older who do not have physician-approved medical reasons. An M-license legalizes commercial cannabis activity for medicinal cannabis.
A testing laboratory license authorizes the licensee to offer or perform tests on cannabis and cannabis products for commercial use. A “testing laboratory” may be a laboratory, facility or other state entity that’s licensed and accredited by an agency that’s independent of the commercial cannabis industry.
California Commercial Cannabis Manufacturing
Under California law, “manufacture” of cannabis includes compounding, blending, extracting, infusing or otherwise making or preparing cannabis products. A “manufacturer” is a licensed commercial entity that produces, prepares, propagates or compounds cannabis or cannabis products. These activities may be direct or indirect, and they can involve extraction or chemical synthesis methods or a combination of the two methods. A manufacturer must operate from a fixed location that packages or repackages cannabis or cannabis products or labels or relabels the containers in which cannabis is packaged.
Personal Adult-Use Cannabis Cultivation Specifics
Individual growers who cultivate marijuana plants must be 21 years of age or older, and they cannot grow more than six living cannabis plants. The six-plant maximum applies to a single private place of residence. In other words, regardless of the number of people who live at a private residence, they’re allowed to grow a total collective amount of six marijuana plants – not six plants for each person. Individual growers must conform to local ordinances, which vary across the state of California. Unless a local law prohibits it, individuals must grow plants indoors or on the grounds of their private property in a locked area that is not visible from a public place.
Medicinal Cannabis Cultivation Specifics
In addition to the six allowable marijuana plants for individual growers, qualified patients and their primary caregivers can also grow 12 immature plants, as cited in California Code Section 11362.77. If a patient has a physician-recommended medical need for growing more than 12 plants, he may grow and possess an amount according to his needs. Each qualified patient and eligible caregiver may also possess no more than 8 ounces of dried cannabis, which consists of the dried mature processed flowers of female cannabis plants.
Variances in Local Ordinances
Local ordinances for growing personal- and medicinal-use marijuana vary, so individual growers must familiarize themselves with these local laws to ensure their compliance.
For example, in Sonoma County, individual growers are limited to the state requirement of no more than six plants. But Sonoma County varies from the state allotment of 12 plants for medicinal-use growers by not placing a limit on how many plants an individual medicinal-use grower can cultivate, as long as the growing area does not exceed 100 square feet.
Plants cannot be grown in front or side yard setback areas in Sonoma County, and they cannot be visible from public walkways or streets. Even if plants are grown in a greenhouse, the greenhouse must be screened from the view of public walkways and streets. Indoor growth operations must take place in a greenhouse or garage and not in a residence, unless there’s not a viable alternative. Individual growers cannot cultivate marijuana in Sonoma County multi-family housing units or in medium- and high-density residential zones of R2 and R3.
Cannabis Personal-Use Cultivation Penalties
Most adults 21 years of age and older who cultivate more than six plants of marijuana for personal (not medicinal) use will face a misdemeanor charge, which is punishable by up to six months in county jail and/or a fine up to $500. First- or second-time non-violent offenders may be able to petition for drug treatment instead of jail time if the charges against them include personal-use cultivation only of more than six plants. A misdemeanor charge gets upgraded to a felony charge, however, for registered sex offenders, defendants with two or more prior convictions for cultivating more than six plants, defendants with violent felony convictions, and defendants who violate California environmental laws in their cultivation practices.
Persons older than age 18 but younger than age 21 who plant, cultivate, harvest, dry or process no more than six cannabis plants are guilty of an infraction and fined not more than $100. Cultivation of more than six plants is punishable by up to six months in county jail and/or a fine up to $500.
Persons younger than age 18 are guilty of an infraction for a first offense, which is punishable by eight hours of drug education or counseling and up to 40 hours of community service over a period not to exceed 90 days. If a person younger than 18 commits a second offense, she faces a penalty of 10 hours of drug education or counseling and up to 60 hours of community service over a period not to exceed 120 days.
Medical Marijuana ID Cards
Under California Code Section 11362.5 (the Compassionate Use Act), eligible patients do not need a medical marijuana identification card (MMIC) for legal marijuana use. But if a patient does have an MMIC card, it provides verification to law enforcement of authorized medical marijuana use. Patients can apply for MMIC cards in person at their county health department, with the exception of Colusa and Sutter counties, which do not issue cards. MMIC cards are valid throughout the State of California.
Likewise, eligible caregivers are not required to have a primary caregiver MMIC, although this card may prevent their arrest. Patients must apply for primary caregiver MMIC cards, and the caregiver must accompany the patient to the county health department to be photographed.
Legal Defenses to Cultivation Charges
Unlawful cultivation charges may be addressed by a number of legal defenses, including:
- The cultivated marijuana didn’t belong to a defendant. As an example, a defendant may live in multi-unit housing, such as a condominium with 12 units, which has a community garden. The defendant’s 1/12 interest in the garden does not necessarily mean she is guilty of cultivating the plants.
- A defendant didn’t know the marijuana plants were on his property. A defendant may own vacation property, which he rarely visits. While he’s away, someone else plants marijuana on his property. The presence of the plants alone is not enough to convict him. Successful prosecution typically includes a two-pronged stance: proving that the property owner knew about the plants and also that he did nothing about them.
- Business Insider: States Where Marijuana is Legal
- Harvard Health Publishing, Harvard Medical School: Answers to the Top Questions About Cannabis Extract
- Atlas of Florida Plants: Cannabis Sativa
- University of Vermont: Cannabis as a Plant - Taxonomy and Chemistry
- Shouse California Law Group: Health & Safety Code Section 11358 HS - Cultivation of Marijuana in California
- California Legislative Information: Code Sections 26000-26002
- California Legislative Information: Code Sections 11357-11362.9
- California Legislative Information: Code Sections 11362.7-11362.85
- County of Sonoma California: Sonoma County Cannabis
- Shouse California Law Group: Is There Still Medical Marijuana in California After Legalization?