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WINTER LLP UPDATE: California Cannabis Ballot Measure Results Are Now Available!

The following local jurisdiction ballot measures authorizing cannabis taxes were approved by the voters on the November 6, 2018 election:

City/County

Passed Cannabis Tax Measure

Comments

City of Atascadero

(San Luis Obispo County)

Measure E-18 passed with 73% of the vote. Only testing and delivery has been previously allowed. The new tax measure taxes cannabis businesses, but no ordinances have been drafted. The passage of the ballot measure authorizing taxes for cultivation, retail, testing, distribution and all other cannabis businesses may indicate forthcoming commercial cannabis ordinances and a newly permitted area.

City of Atwater

(County of Merced)

Ballot measure A passed with 64.75% of the vote. Cannabis regulated since May 2018 under a Cannabis Business Pilot Program. Requires a CUP. This is a newer market for cannabis businesses.

City of Banning

(County of Riverside)

Measure N passed with 60.64% of the vote: imposes maximum tax rates on cannabis cultivation, manufacturing, and testing.

Measure O passed with 61.22% of the vote: imposes a 10% tax on gross receipts on cannabis dispensaries.

All commercial cannabis activities are currently banned and declared a nuisance. However, cannabis ordinances have been adopted by the city council but have not been codified and will take effect January 1, 2019. All commercial cannabis activities require a CUP. No certificate of occupancy will be issued prior to receiving a state license. Ordinance No. 1523 allows, regulates, and zones for cannabis cultivation (indoor cultivation Type 3A only (10,001-22,000 s.f.) in a fully enclosed and secure structure, only in industrial zones), manufacturing (nonvolatile only), and testing. Ordinance No. 1524 establishes application procedures and requirements for Cannabis Regulatory Permits. The ordinances will only take effect if the voters approve Measure N on November 6, 2018.

City of Capitola

(Santa Cruz County)

Measure I – Cannabis Business Tax (Passed with 75.45% of the vote). Cannabis currently banned except for testing. New tax measures passed the ballot, but no ordinances have been drafted. The passage of a ballot measure authorizing taxes on cannabis businesses is indicative of ordinances that may be forthcoming.

City of Ceres

(County of Stanislaus)

Measure W — The measure PASSED with 66.03% of the vote. Currently, commercial cannabis activities limited to a case-by-case basis. Ordinances are not drafted. Established a Cannabis Business Pilot Program since May, 2018. Current ordinances are silent as to commercial cannabis activities; however, the passage of a ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

City of Chula Vista

(County of San Diego)

Measure Q – PASSED WITH 63.46% OF THE VOTE Cannabis currently banned. The city anticipates that it will be accepting applications for cannabis business licenses sometime on or after January 1, 2019.

A Commercial Cannabis Regulations Application Forum will be held December 13, 2018, from 4 to 6 p.m., to provide information on cannabis regulations and the implementation of recreational sales, manufacturing, cultivation and delivery services in Chula Vista. The forum will be held at Chula Vista City Hall, Council Chambers, 276 Fourth Ave., Chula Vista, 91910.

Cannabis Business License Types

Storefront and Non-Storefront Retailers: Up to three (3) Retailer licenses per Council District. Of the three (3) Retailer licenses per District, no more than two (2) may be Storefront Retailer Licenses. Storefront Retailers are open to the public; they are prohibited from providing delivery services. Non-Storefront Retailers are closed to the public; they are prohibited from making on-site sales and can only conduct deliveries.

Cultivation: Up to ten (10) Indoor Cultivation licenses city-wide. Indoor cultivation sites are limited to twenty thousand (20,000) square feet.

Distribution, Manufacturing, and Testing Laboratories: There are no limits on the number of licenses.

City of Colfax

(Placer County)

Measure C PASSED with 65.78% of the vote. Cannabis regulated since February, 2018. Indoor and outdoor cultivation are codified. Manufacturing and dispensaries are prohibited. Current regulations authorize only 4 retail commercial cannabis businesses (2 M-type and 2 A-type). The passage of a ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

County of Contra Costa

Measure R PASSED with 71.7% of the vote. Cannabis currently banned. Cannabis taxes for cultivation, manufacturing, distribution, testing, retail and microbusinesses codified on November 6, 2018. Permit application requirements are codified. The passage of a ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

City of Daly City

(San Mateo County)

Measure UU PASSED with 76.8% of the vote. All cannabis activities currently banned. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on all cannabis businesses is indicative of ordinances that may be forthcoming.

County of Del Norte

Measure B PASSED with 62.75% of the vote. All medical cannabis activities currently banned. All commercial cannabis activities currently silent. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on adult use indoor and outdoor cultivation, manufacturing and retail is indicative of ordinances that may be forthcoming.

City of Dunsmuir

(Siskyou County)

Ballot measure “T” passed with 71.34% of the vote. Past ordinances silent as to cannabis, except for medical co-ops. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes for cultivation, processing and other cannabis businesses is indicative of ordinances that may be forthcoming.

County of El Dorado

Measure P – Outdoor and Mixed Light Cultivation (Medical) PASSED

Measure Q – Outdoor and Mixed Light Cultivation (Recreational) PASSED

Measure R – Indoor Medical Cannabis Activities Measure PASSED

Measure S – Indoor Recreational Commercial Cannabis Measure PASSED

Cannabis currently banned under a temporary moratorium for two years to December 12, 2019, except for medical distribution. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes for cultivation and other cannabis activities is indicative of ordinances that may be forthcoming.

City of Goleta

(Santa Barbara County)

Measure Z – PASSED WITH 81.92% OF THE VOTE Cannabis regulated since approximately June, 2018, including nursery, cultivation, manufacturing, testing, distribution and delivery. The passage of a ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

City of Half Moon Bay

(San Mateo County)

The Measure GG PASSED with 51.2% of the vote. Currently, all cannabis activity prohibited.

Measure passed allowing greenhouse nursery cultivation of immature cannabis plants on existing greenhouse sites in the City’s A-1 (Agricultural/Exclusive Floriculture) Zoning District for cannabis nurseries that receive a license from the City Council and comply with specified standards.

Measure authorizing tax on all cannabis activities passed. The passage of a ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

City of Hesperia

(San Bernardino County)

Measure T – PASSED WITH 60.83% OF THE VOTE All non-medical cannabis activities currently banned. However, cannabis tax measure passed. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes for cultivation and other cannabis businesses is indicative of cultivation ordinances that may be forthcoming.

City of Imperial

(Imperial County)

The measure PASSED with 74.7% of the vote. Adult use cannabis currently banned. January 17, 2018 – With a 3-2 vote the City Council approved Ordinance No. 795, allowing for some medical cannabis businesses, and banning all other commercial cannabis businesses, including all adult use businesses. Ordinances have not been drafted regarding licensure, and zoning ordinances are unavailable. The passage of a ballot measure authorizing taxes for cultivation, retail and other cannabis businesses is indicative of ordinances that may be forthcoming.

City of Jurupa Valley

(Riverside County)

Measure L – PASSED WITH 51.94% OF THE VOTE Cannabis currently banned except for delivery. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on adult use indoor cultivation, nursery, manufacturing, testing, distribution, microbusinesses and retail is indicative of ordinances that may be forthcoming.

City of La Mesa

(San Diego County)

Measure V – PASSED WITH 72.52% OF THE VOTE Adult use cannabis currently banned. Only medical cultivation and manufacturing currently allowed. Ordinances for adult use have not been drafted. The passage of a ballot measure authorizing taxes on cultivation and other cannabis businesses is indicative of ordinances that may be forthcoming.

County of Lake

Measure K PASSED with 69.4% of the vote. Cannabis cultivation regulated since March, 2018, but all other activities are silent in ordinance code. On March 20, 2018, the Board passed an ordinance regulating commercial and personal use cultivation. However, current ordinances only address cannabis cultivation taxation and no ordinances are codified. The passage of a ballot measure authorizing taxes for activities other than cultivation is indicative of ordinances that may be forthcoming.

County of Lassen

MEASURE M – CANNABIS TAX BALLOT MEASURE (PASSED) All cannabis currently banned and declared a public nuisance. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on cultivation and other cannabis businesses is indicative of ordinances that may be forthcoming.

City of Lindsay

(Tulare County)

Measure G – PASSED WITH 66.80% OF THE VOTE All cannabis currently banned. Municipal code not available. The passage of a ballot measure authorizing taxes on cannabis businesses is indicative of ordinances that may be forthcoming.

City of Malibu

(County of Los Angeles)

This measure PASSED with 68.54% of the vote. Cannabis currently banned except for medical dispensaries. Ordinances for adult use cannabis have not been drafted. The passage of a ballot measure authorizing taxes on adult use cannabis businesses is indicative of ordinances that may be forthcoming.

City of Marina

(Monterey County)

Measure V passed with 64.10% of the vote. Cannabis currently banned. The Mayor of Marina (Bruce Delgado) led the petition drive and citizen ballot initiative that passed. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on medical and adult use cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of Morgan Hill

(Santa Clara County)

Measure I passed with 78.58% of the vote. All cannabis activities currently banned and declared a public nuisance. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on cultivation, manufacturing, testing, distribution, and retail is indicative of ordinances that may be forthcoming.

City of Moreno Valley

(Riverside County)

Measure M – PASSED WITH 72.56% OF THE VOTE Cannabis regulated since April, 2018. Current code prohibits all adult use cannabis. City council has authorized the total number of cannabis businesses is limited to 27. The maximum number of dispensaries is 8, the maximum number of testing facilities is 2, the maximum number of cultivation facilities is 8, the maximum number of manufacturing facilities is 5, the maximum number of microbusinesses is 2, and the maximum number of distribution centers is 2.

City of Morro Bay

(San Luis Obispo County)

Measure D-18 – PASSED WITH 73.27% OF THE VOTE. All adult use cannabis activities currently banned. Only medical distribution and retail are currently allowed. Current application process allows medical distribution and 2 retail licenses. Ordinances have not been drafted. The passage of a ballot measure authorizing taxes on cultivation is indicative of ordinances that may be forthcoming.

City of Mountain View

(Santa Clara County)

Measure Q passed with 80.70% of the vote. Cannabis currently banned except for retail and deliveries. Currently, Mountain View does not allow commercial cannabis activity except medical and adult-use deliveries into the city. City Council has stated that if the measure is successful then the City will begin allowing commercial cannabis businesses in 2019.

County of Nevada

Measure G PASSED with 75.9% of the vote Cannabis currently banned. Cultivation declared a public nuisance. Ordinances have not been drafted. The passage of ballot measure authorizing taxes on nursery, cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of Oakdale

(County of Stanislaus)

The Measure PASSED with 70% of the vote. Cannabis regulated since February 2018. Cultivation, manufacturing, testing, and distribution permitted with a development agreement and CUP. This is a new market for cannabis activities.

City of Oroville

(Butte County)

RESULTS: Measure T PASSED with 60% of the vote. Cannabis regulated since August, 2018. On August 7, 2018, the City Council adopted an ordinance allowing for commercial cannabis activities. Tax measure includes nursery, cultivation, manufacturing, testing, distribution and retail. This is a new commercial cannabis area.

City of Oxnard

(Ventura County)

Results – The Measure PASSED with 78.63% of the vote. Cannabis currently banned except for medical delivery. Ordinances have not been drafted. The passage of ballot measure authorizing taxes for cultivation, manufacturing, distribution, testing, retail sales and all other cannabis businesses is indicative of ordinances that may be forthcoming.

City of Paso Robles

(San Luis Obispo County)

Measure I -18 PASSED WITH 67.5% OF THE VOTE. All cannabis currently banned except for medical delivery. Tax measure passed is for cultivation, manufacturing, testing, distribution and retail. Ordinances have not been drafted. The passage of ballot measure authorizing taxes on cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of Perris

(County of Riverside)

Measure G – PASSED WITH 71.05% OF THE VOTE. Indoor and mixed-light cultivation regulated since November, 2017. January 30, 2018 – The City Council ADOPTED an ordinance that would allow medical and adult-use cannabis limited to manufacturing and distribution. This is a new area for cannabis.

City of Placerville

(El Dorado County)

Results – The Measure PASSED with 67.17% of the vote. Cannabis currently banned by code, but accepting applications and city council will decide after the elections. Ordinances have not been drafted. The passage of ballot measure authorizing taxes for cultivation, retail and all other cannabis businesses is indicative of ordinances that may be forthcoming.

City of Pomona

(Los Angeles County)

RESULTS: This measure PASSED with 70.44% of the vote. Cannabis currently banned. The City Council is currently discussing terms and provisions for incorporation into a draft ordinance regulating commercial cannabis activities and businesses. There is a consensus to allow both medicinal and adult-use. Ordinances have not been drafted. The passage of ballot measure authorizing taxes for cultivation and all other cannabis businesses is indicative of ordinances that may be forthcoming.

City of Redding

(Shasta County)

RESULTS: Measure C PASSED with 73.94% of the vote. Cannabis regulated since March, 2018. On March 20, 2018, the City of Redding adopted an ordinance allowing for and regulating medical and adult use commercial cannabis activities. New taxes for cultivation, manufacturing, testing, distribution and retail now authorized. This is a new commercial cannabis area.

City of Redwood City

(San Mateo County)

Results – The Measure PASSED with 77.6% of the vote. Cannabis regulated since May, 2018. Only indoor medical cultivation and delivery currently allowed. Commercial cannabis activity is prohibited in all zoning districts.

The passage of ballot measure authorizing taxes for cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of San Juan Bautista

(San Benito County)

A marijuana tax was on the ballot for San Juan Bautista voters in San Benito County, California, on November 6, 2018. It was approved. Cannabis regulated since June, 2018. June 19, 2018 – The City Council adopted Ordinance No. 2018-05, establishing regulations pertaining to recreational and medical cannabis dispensaries, cultivation, testing, distribution, and manufacturing facilities. This is a new cannabis area.

City of San Luis Obispo

(San Luis Obispo County)

Measure F – PASSED WITH 79.57% OF THE VOTE. The City currently is NOT accepting Cannabis Commercial Business Operator Permit applications at this time. Ordinances have been adopted in May, 2018 but not codified.

On October 16, 2018 the City Council reviewed the Cannabis Operator Permit Draft Evaluation Criteria and provided comments to staff. As a result of these comments, as well as public feedback, the Evaluation Criteria is being revised and will be reviewed on November 27, 2018 by Council.

City of Santa Ana

(Orange County)

The measure PASSED with 69% of the vote. Cannabis regulated since May, 2018.

May 1, 2018 – The City Council adopted Ordinance NS-2944, which allows commercial cannabis cultivation, manufacturing, and distribution. New taxes passed for cultivation, manufacturing, testing, distribution, and retail. This is a new cannabis area.

City of Santa Clara

(Santa Clara County)

Results – Measure M PASSED with 75.36% of the vote. All cannabis activities currently banned.

Ordinances have not been drafted. The passage of ballot measure authorizing taxes on nursery, cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of Santa Paula

(Ventura County)

Results – Measure N PASSED with 70.98% of the vote. All commercial cannabis activities currently banned.

Ordinances have not been drafted. The passage of ballot measure authorizing taxes on cultivation and other cannabis businesses is indicative of ordinances that may be forthcoming.

City of Simi Valley

(Ventura County)

Results – Measure Q PASSED with 65.5% of the vote. All cannabis activities currently banned.

Ordinances have not been drafted. The passage of ballot measure authorizing taxes on cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of Solvang

(Santa Barbara County)

Measure F – PASSED WITH 80.32% OF THE VOTE. Currently, only medical cannabis activities allowed. City Council adopted an ordinance that allows medical cannabis dispensaries, delivery, cultivation (indoor and mixed-light only), manufacturing (volatile and non-volatile), testing, distribution, and transportation facilities that are owned and operated by bona fide nonprofit organizations in the C-3 zoning district. City Council may limit the number of each type of medical cannabis facility by resolution. Adult-use commercial cannabis activities remain prohibited in the City.

City of Sonora

(County of Tuolumne)

Measure N PASSED with 68.30% of the vote. There are currently no cannabis businesses allowed to operate in the three-square-mile city limits, but the council approved an ordinance earlier this year that could provide an opening for some medical-only cannabis dispensaries, manufacturing facilities and testing laboratories. The passage of ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

City of South San Francisco

(San Mateo County)

Measure LL PASSED with 74.4% of the vote. In 2018, the Council ADOPTED an ordinance that allows for indoor commercial cultivation and an ordinance that bans dispensaries and microbusinesses and allows for manufacturing, testing, distribution, and delivery only businesses. Outdoor cultivation and retail remain prohibited.

This is a new cannabis area.

City of Suisun City

(Solano County)

Measure C passed with 74.78% of the vote. Cannabis regulated since May, 2018.

The City Council adopted Ordinance No. 750 permitting indoor cultivation, mixed-light cultivation, retailers, non-storefront retailers (i.e., sale by delivery of medicinal cannabis and/or medicinal cannabis products to a qualified patient), manufacturers, testing laboratories and distribution. Outdoor cultivation and microbusinesses prohibited.

This is a new cannabis area.

City of Thousand Oaks

(Ventura County)

The Measure PASSED with 75.88% of the vote. Cannabis currently banned except for testing. Ordinances have not been drafted. The passage of ballot measure authorizing taxes on cultivation and all other cannabis businesses is indicative of cultivation and other cannabis activity ordinances that may be forthcoming.

Tuolumne County

The measure PASSED with 62.61% of the vote. All cannabis activities currently banned and cultivation declared a public nuisance. Ordinances have not been drafted. The passage of ballot measure authorizing taxes is indicative of ordinances that may be forthcoming.

City of Vista

(County of San Diego)

MEASURE AA – PASSED WITH 51.52% OF THE VOTE Cannabis currently banned.

2018 – The City Council adopted Resolutions that place a medicinal cannabis business ordinance and a commercial cannabis tax on the November 6, 2018 ballot, which passed.

Ordinances have not been drafted. The passage of ballot measure authorizing taxes on cultivation, manufacturing, testing, distribution and retail is indicative of ordinances that may be forthcoming.

City of Willits

(Mendocino County)

RESULTS: Measure I PASSED with 74.9% of the vote. Recreational cannabis currently banned. Ordinances have not been drafted. The passage of ballot measure authorizing taxes on cultivation, retail and all other cannabis businesses is indicative of ordinances that may be forthcoming.

WINTER LLP UPDATE: Coastal Zone Ordinance – Effective Date TBD (Not Yet)

Hello All,

As I am sure you are all aware by now, last week the Coastal Commission approved Monterey County’s Coastal Ordinance. This is obviously extremely good news. However, there are still a few more steps that need to be taken by the County before the Ordinance goes into effect. Note, some lobbyists are telling clients the Coastal Ordinance is in effect now. That is NOT accurate.

The County still needs to go through the formal adoption process to approve the ordinance, including a formal hearing and vote by the Board of Supervisors. This hearing is currently scheduled for the March 13th Board of Supervisors meeting. After the Board formally adopts the Coastal Ordinance, it must then go back to the Coastal Commission for final certification.

Based on this timeline, it appears as if the Coastal Ordinance may go into effect sometime in April at the earliest, depending on how long it takes for the Coastal Commission to conduct their final review/approval. Once that is completed, the County can accept your full permit applications.

So, we recommend starting on those now with our office so we are as far along as possible (hopefully complete) by the time April/May rolls around.

As always, we will continue to keep you posted with any new developments, and please feel free to reach out to us with any questions.

Thank you. Todd Winter, WINTER LLP.

WINTER LLP UPDATE: California Trademarks (Success); and CBD Trademarks Federally

Hello everyone,

As a follow up to our warning email below regarding cannabis trademarks in California, we would like to report that, thanks to the trust of couple of our clients, and with some painful conversations and written arguments with the California Secretary of State, we have now successfully prosecuted a few California state level trademarks for clients.

We still maintain the analysis below w/re to the enforcement and value of state vs. federal trademarks. But I wanted to assure any of you that may be on the fence about filing for California state level trademarks, we believe we have educated the Secretary of State’s office sufficiently to provide you with a positive path forward for In Use Cannabis-specific Trademarks, if you wish to proceed. Please let us know.

Additionally, we are also excited to announce we have overcome the USPTO’s prior objections to clients’ CBD related trademark applications. Previously the USPTO had refused CBD marks based on the FDA/DEA positions. But with only a slight modification to our current filings, we have overcome these objections, and our CBD related trademarks are now moving their way through the USPTO towards full federal registration.

Please let us know if you have any questions. Thank you.

WINTER LLP UPDATE: URGENT – CANNABIS CONSULTANTS / PACKAGING / LOBBYISTS / ETC.

Hello Everyone,

It is becoming painfully obvious to us that the so called cannabis consultants, packaging and design companies, lobbyists, and others target marketing cannabis clients in our industry, do not possess the level of knowledge or expertise necessary to legitimately and correctly advise cannabis companies in California w/re to local permitting, state licensing, real estate compliance, trademarks, and most recently packaging. We, as a firm, are spending a tremendous amount of our time fixing problems for clients who have engaged non-experts in these areas.

PLEASE BE ADVISED, 100% of ALL client PACKAGING that HAS been sent to us for COMPLIANCE review HAS FAILED. Every single package we have reviewed has been non-compliant forcing clients to spend 1,000’s to fix. Don’t let this happen to you.

We understand you are all under severe pressure and time constraints to get licensed and get your products out in the market and flowing again. But in doing so, please don’t rely on these companies for legal compliance, permitting, state licensing, trademarks, or packaging. It will cost you much more time and money in the end. We can literally save you 10’s of thousands in design and packaging costs alone, if you just send us your designs/packaging for review first.

Please let us help you on the front end of your projects to avoid unnecessary delays, costs, and/or worse loss of permits and licensing.

WINTER LLP UPDATE: Transition Period FAQ Update – Clarification for MANUFACTURERS re THC Limits on Products prior to 1/1/18

Hello all,

As you may recall, there was some confusion regarding the applicable THC limits for cannabis products manufactured prior to January 1, 2018. Specifically, the Manufactured Cannabis Safety Branch (MCSB) required cannabis products that were manufactured prior to January 1, 2018 to meet the applicable THC limits (100 mg for edibles, 1000-2000mg for concentrates). However, the Bureau of Cannabis Control also indicated in their Emergency Regulations that products manufactured prior to January 1, 2018 could only enter the market if basic packaging and labeling requirements were met (no THC limits). These two statements were obviously contradictory and caused a lot of confusion in the industry.

Well, we are pleased to announce that, as a likely result of the comments we submitted, the MCSB has released a new FAQ today which clarifies the above as follows:

“During the transition period, which lasts from January 1 until July 1, 2018, cannabis products may enter the commercial cannabis market if they have child-resistant packaging and the label contains the government warning statement and the amount of THC per serving.”

To be completely clear, there is now no mention of meeting the applicable THC limits for products manufactured prior to January 1, 2018 in this newly released update. This should be welcome news to many of you and your distributors.

Please note, however, products manufactured on or after January 1, 2018 still must meet all of the required packaging and applicable THC limits.

We hope the above is helpful. Please feel free to contact us with any questions. Thank you.

Thank you. Todd Winter, WINTER LLP.

WINTER LLP UPDATE: URGENT – CANNABIS CONSULTANTS / PACKAGING / LOBBYISTS / ETC.

Hello Everyone,

It is becoming painfully obvious to us that the so called cannabis consultants, packaging and design companies, lobbyists, and others target marketing cannabis clients in our industry, do not possess the level of knowledge or expertise necessary to legitimately and correctly advise cannabis companies in California w/re to local permitting, state licensing, real estate compliance, trademarks, and most recently packaging. We, as a firm, are spending a tremendous amount of our time fixing problems for clients who have engaged non-experts in these areas.

PLEASE BE ADVISED, 100% of ALL client packaging that HAS been sent to us for COMPLIANCE review HAS FAILED. Every single package we have reviewed has been non-compliant forcing clients to spend 1,000’s to fix. Don’t let this happen to you.

We understand you are all under severe pressure and time constraints to get licensed and get your products out in the market and flowing again. But in doing so, please don’t rely on these companies for legal compliance, permitting, state licensing, trademarks, or packaging. It will cost you much more time and money in the end. We can literally save you 10’s of thousands in design and packaging costs alone, if you just send us your designs/packaging for review first.

Please let us help you on the front end of your projects to avoid unnecessary delays, costs, and/or worse loss of permits and licensing.

For your convenience and reference, I am re-attaching our Packaging and Labeling Compliance Worksheet that we circulated a few weeks ago.

Thank you, stay safe, and good luck out there! Todd Winter, WINTER LLP.

[WINTER LLP WARNING] Breaking News: SOS now accepting trademark applications for cannabis products

Hello all,

As you may have seen announced, California is now (allegedly) accepting trademark applications for cannabis products.

PLEASE BE ADVISED, we have been in constant contact with the CA Secretary of State and it is painfully clear that they have no idea what they are doing. None whatsoever. So, although it may seem tempting to apply for these state based trademarks, we are not recommending clients proceed with the California based trademarks at this time. Rather, we are advising on a wait and see approach. It’s going to be very messy…

However, if you want to proceed, please see the following:

State CA Trademarks:

Through our internal office discussion, we still believe that federal trademarks offer the strongest brand protection for your cannabis-related goods/services. That is because only with federal registration you are allowed to use ® (only can use ™ for State registration), and federal registration preclude later filed state registrations.

If you are still reading, and still want to proceed, we spoke with the Secretary of State’s Office earlier today and they indicated that cannabis-related marks may be registered with the CA Secretary of State so long as (1) the mark is lawfully in use in commerce within California; and (2) matches the classification of goods and services adopted by the United States Patent and Trademark Office. Additionally, only cannabis products that are allowed in CA regulations will be trademarked.

Currently prohibited items include but are not limited to:

  • Products that contain alcohol, nicotine, or added caffeine
  • Products that must be held below 41 degrees Fahrenheit
  • Vacuum packed products
  • Canned cannabis products
  • Cannabis-infused juice
  • Products that are easily confused with non-infused products
  • Edibles in the shape of human, animal, insect, or fruit
  • Most dairy and meat products
  • Cannabis related products that are attractive to children
  • Products that resemble traditionally available food packages
  • Products that exceed the maximum of 10 mg of THC per serving and 100 mg of TCH per package.

PLEASE BE ADVISED, there is NO classification of goods and services for cannabis in the USPTO system!! The State Office said we would have to use the “most appropriate USPTO class” for the cannabis product/service. Our most commonly used trademark classes have historically been in Class 003 (essential oils); Class 005 (herbal supplements) and Class 34 (smoking articles, cartridges, oils), and other food or candy related classes in applying with the USPTO. So our likely strategy with applying with the State will be to add THC/CBD to the description of goods in the aforementioned classes, i.e. “essential oils containing THC; herbal supplements containing THC; cartridges infused with THC/CBD, etc.”

Please contact our office if you are still interested in proceeding, and we will help you as best we can. But please note, we will probably try to convince you to file directly with the USPTO instead.

Thank you. Todd Winter, WINTER LLP.

URGENT – California Cannabis-Related Trademarks (Cannabizfile Online Cannabis Business Portal)

Dear All,

Many of you have contacted us regarding California Cannabis-Related Trademarks. As you know, California Secretary of State’s Office released a press statement this month containing information about registering a cannabis-related trademark or service mark with the Secretary of State’s Office.

The State Trademark Unit has confirmed with us that the CA State Legislature will be voting on the State Classification Code for cannabis-related trademarks as early as January 2, 2018. Once the cannabis Classification Code is released, we will be able to assist you with applications for registration of a cannabis-related trademark with the State.

The basic requirements to file a Trademark or Service Mark in CA are as follows:

  • The mark must be available on the USPTO trademark database and in California (for all similar or related goods and services). This means YOU CANNOT INFRINGE ON AN EXISTING FEDERAL OR STATE (COMMON LAW OR REGISTERED) TRADEMARK.
  • You must be using the mark in commerce in California. Please note that for State Trademarks/Service Marks, you cannot file based on “Intent-to-Use” (Future Use).
  • If the mark is merely descriptive (i.e. the mark describes an ingredient, quality, characteristic, function, feature, purpose or use of the goods or services), it may not be registrable.
  • You must have a drawing of your mark on an 8 ½” x 11” sheet of paper.
  • If any part of your mark is not in English, you must submit a certified translation in English.
  • You must submit Three (3) Identical (three of the same) Specimens that show the mark in use in commerce. If the Application is signed by an individual on behalf of the Owner (Registrant), you must include a copy of the agreement signed by the Owner (Registrant) authorizing the individual to sign the Application on behalf of the Owner (Registrant).

PLEASE BE ADVISED, FEDERAL TRADEMARKS (REGISTRATIONS) ARE SUPERIOR TO STATE REGISTRATIONS. If a federally registered trademark was in use before a State registered trademark, the federal registrant can stop the State trademark owner from using the mark. Moreover, State trademark registration does not give you the right to use the symbol ®. You may use either TM for a State trademark or SM for a State service mark.

The benefit of the CA State trademark or service marks, however, is that it will protect your cannabis-related trademarks in California. Therefore although State registration is not required, we would recommend federal registrants (and non-registrants) to apply for a State trademark/service mark for cannabis-related goods and services.

Our Flat Fees for filing are as follows:

  • $250.00 for Trademark Clearance Search and Report.
  • $500.00 Legal Fees for preparation and filing, plus $70.00 filing fee per classification code. If more than one classification code is listed, then a $70.00 filing fee is required for each classification.

Please also note, along with some of our most entrepreneurial clients, we pioneered cannabis-related trademarks in the United States. There will be many attorneys and consultants with no trademark experience marketing their services to you for these California cannabis trademarks. Do not trust your state level filings with just anyone. Trademarks are much more complex than you realize. And if filed incorrectly, you run the risk of your brands being shut down and you being sued for profits and damages. We are experienced trademark attorneys, and have a state of the art trademark docket system (database) where we track and manage over 300+ trademarks for our clients throughout the world

We will keep you notified of any updates from the State as soon as they are released. Should you have any questions on any of the above, please do not hesitate to contact us.

Thank you. Todd Winter, WINTER LLP.

Winter LLP Update: Temporary Permits Q&A

Greetings!

As many of you may already aware, the Bureau of Cannabis Control (BCC) released the Temporary Applications for Retailers, Distributors, Microbusinesses, and Testing Labs, and the Manufactured Cannabis Safety Branch (MCSB) released their Temporary Applications for Manufacturers today. CalCannabis has not yet released its Temporary Application for Cultivators.

Please note that there are 3 agencies (BCC, MCSB, and CalCannabis) issuing different license types, and each agency has their own website and different application requirements. Below you will find a brief outline of the required documents and submittal processes from the BCC and MCSB.

We strongly recommend that you contact our office to either (1) assist with completing required application forms; and/or (2) review the required application documents before submittal.

  1. What documents do I need to submit to the BCC as a Retailer, Distributor, Microbusiness, or Testing Lab for a Temporary License?
    1. Temporary License Application
    2. Premises Diagram Form

i. Please carefully review the attached Premises Diagram form in each respective License folder. The requirements are very specific and will likely require the assistance of an architect to draft.

    1. Local Authorization Document
    2. Evidence of Legal Right to Occupy

i. Deed or Title; OR

ii. Lease AND Statement from Property Owner authorizing commercial cannabis activities

  1. How do I submit the Temporary License Application for a Retailer, Distributor, Microbusiness, or Testing Lab?

You will need to create an online account with the BCC (https://www.bcc.ca.gov/). Please see attached “BCC Online Licensing Instructions.” Please note that all required information must be submitted via the online licensing system, including uploading any additional required documents (Premises Diagram, Local Authorization, Evidence of Legal Right to Occupy).

If there is more than 1 owner/applicant, only 1 person needs to submit the application. All other owners will be listed on the application.

There is no application or licensing fee.

  1. What Documents do I need to submit to MCSB as a Manufacturer for a Temporary License?
    1. Temporary License Application
    2. Local Authorization Document
  1. Do I need to submit the Premises Diagram Form or Evidence of Legal Right to Occupy for the Temporary Manufacturing License?

It does not appear that you need to submit the Premises Diagram Form or Evidence of Legal Right to Occupy for the Temporary Manufacturing License.

  1. How do I submit the Temporary License Application for a Manufacturer?

You will need to submit the Application Form and Local Authorization Document via Email OR Mail:

Email to: MCLS@cdph.ca.gov OR

Mail to:

CDPH – Manufactured Cannabis Safety Branch Attn: Licensing Unit

PO Box 997377, MS-7606

Sacramento, CA 95899-7377

There is no application or licensing fee.

Thank you, stay safe, and good luck out there! Todd Winter, WINTER LLP.

Please contact us directly with any questions, or if you need assistance.

Winter LLP Update: Transition Period Q&A

Greetings everyone!

Please read the following Q&A prepared exclusively for WINTER LLP clients and friends:

  1. Starting on January 1, 2018, can Retailers sell edible cannabis products with THC levels in excess of 100mg and non-edible cannabis products (flower, tinctures, extracts) with THC levels in excess of 2000mg? Section 5029, BCC Regulations.

Yes, between Jan 1, 2018, and July 1, 2018, M-Licensee Retailers can sell

  • Edible cannabis products with THC levels in excess of 100mg (no maximum limit), so long as they are labeled 10mg THC/serving; and
  • Non-edible cannabis products (flower, tinctures, extracts) with THC levels in excess of 2000mg (no maximum limit), no serving size label required.
  1. Starting on January 1, 2018, Can Retailers sell cannabis goods that do not meet the State Labeling Requirements?

Yes, between Jan 1, 2018, and July 1, 2018, Retailers can sell goods that do not meet State Labeling Requirements as long as the following warnings are affixed prior to sale:

  • For cannabis flower: “GOVERNMENT WARNING: THIS PACKAGE CONTAINS CANNABIS, A SCHEDULE I CONTROLLED SUBSTANCE. KEEP OUT OF REACH OF CHILDREN AND ANIMALS. CANNABIS MAY ONLY BE POSSESSED OR CONSUMED BY PERSONS 21 YEARS OF AGE OR OLDER UNLESS THE PERSON IS A QUALIFIED PATIENT. CANNABIS USE WHILE PREGNANT OR BREASTFEEDING MAY BE HARMFUL. CONSUMPTION OF CANNABIS IMPAIRS YOUR ABILITY TO DRIVE AND OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.”
  • For cannabis products: “GOVERNMENT WARNING: THIS PRODUCT CONTAINS CANNABIS, A SCHEDULE I CONTROLLED SUBSTANCE. KEEP OUT OF REACH OF CHILDREN AND ANIMALS. CANNABIS PRODUCTS MAY ONLY BE POSSESSED OR CONSUMED BY PERSONS 21 YEARS OF AGE OR OLDER UNLESS THE PERSON IS A QUALIFIED PATIENT. THE INTOXICATING EFFECTS OF CANNABIS PRODUCTS MAY BE DELAYED UP TO TWO HOURS. CANNABIS USE WHILE PREGNANT OR BREASTFEEDING MAY BE HARMFUL. CONSUMPTION OF CANNABIS PRODUCTS IMPAIRS YOUR ABILITY TO DRIVE AND OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.”
  • For Untested cannabis products: “This product has not been tested as required by the Medicinal and Adult-Use Cannabis Regulation and Safety Act.”
  1. Starting on January 1, 2018, can Manufacturers sell cannabis products to Distributors/Retailers that do not meet the State Packaging and Labeling Requirements?

Yes, Manufacturers may sell cannabis products that do not meet State Packaging and Labeling Requirements provided:

  • The cannabis product was manufactured prior to January 1, 2018.
  • The cannabis product is packaged in child-resistant packaging. A secondary package shall be sufficient.
  • The cannabis product contains the applicable government warning (above).
  • The cannabis product meets the applicable THC limits (100mg for edibles, 1000-2000mg for concentrates.)
    • Please note, this is inconsistent with the BCC regulations which explicitly allow the transport and sale of medical cannabis products prior to July 1, 2018, regardless of the amount of THC. We have submitted comments to the MCSB discussing this inconsistency.
  • The cannabis products contains a sticker with the amount of THC/CBD content per serving and per package.
  1. Starting on January 1, 2018, can Manufacturers manufacture cannabis products that do not meet State Labeling and Packaging Requirements?

No, all cannabis products manufactured from January 1, 2018 onwards must meet State Labeling and Packaging Requirements.

  1. Starting on January 1, 2018, will all cannabis products need to undergo the full panel of testing prior to sale?

Not exactly. There is a “Phase-In” of Required Testing, so that the full panel of testing will not be required until December 31, 2018. Until then, required testing is as follows.

    1. For untested cannabis products manufactured prior to Jan 1, 2018, the following warning needs to be affixed:

i. “This product has not been tested as required by the Medicinal and Adult-Use Cannabis Regulation and Safety Act.”

    1. All cannabis harvested on or after Jan 1, 2018, and all cannabis products manufactured on or after Jan 1, 2018 shall be tested for the following:

i. Cannabinoids

ii. Moisture content

iii. Category II Residual solvents

iv. Category I Residual pesticides

v. Microbial impurities

vi. Homogeneity

    1. All cannabis harvested on or after July 1, 2018 and products manufactured on or after July 1, 2018 shall be tested for all of the above, plus:

i. Category I Residual Solvents and Processing Chemicals

ii. Category II Residual Pesticides

iii. Foreign Material

    1. All cannabis harvested on or after December 31, 2018 and products manufactured on or after December 1, 2018 shall be tested for all of the above, plus:

i. Terpenoids

ii. Mycotoxins

iii. Heavy metals

iv. Water Activity

  1. Which licensee is responsible for arranging for Testing?

Distributors (full distribution licensees) are responsible for contacting a testing laboratory and arranging for a testing lab employee to come to the distributor’s licensed premises and select a representative sample for laboratory testing. Therefore if you are a manufacturer or cultivator and would like to arrange for lab testing, you must obtain a full Distribution license (cannot be Distributor-Transport Only in order to do so.

  1. Will Temporary Licensees be required to record commercial cannabis activity in the Track and Trace system?

No, temporary licensees will not be required to record commercial cannabis activity in the Track and Trace system. Temporary licensees shall track and record activity on paper receipts, invoices, or manifests.

To avoid confusion, please consider only contacting our office for answers to your questions. Otherwise, strongly consider your source (and their source, and that person’s source) before acting.

Thank you, stay safe, and good luck out there! Todd Winter, WINTER LLP.