California Sales and Use Tax Law to transactions involving the growth and distribution of medical marijuana

The following is an email sent to the State of California Board of Equalization requesting advice regarding the proper application of the California Sales and Use Tax Law:

A group of people who are all authorized medical cannabis patients organize to cultivate cannabis collectively using multiple communal gardens throughout California. Though some actively participate in the actual gardening more then others, every member of the group agrees that the cannabis cultivated is owned by all members of the group collectively. At times some members of the group choose to contribute more labor or resources then others to ensure all members of the group have adequate medication to sufficiently fulfill each members medical needs. The group keeps records of all the expenses incurred in producing and providing cannabis to the members and each member contributes to the costs and expense incurred, and shares in the cannabis produced. Thus the group produces the cannabis together, and none of the cannabis will change ownership from the group to anyone outside the group.

In a scenario such as that described above, in the opinion of the California State Board of equalization, has a ‘sale’ taken place that would require the collection of sales tax?

Here is the reply from the State of California Board of Equalization:

Thank you for your electronic correspondence (e-mail) requesting our advice regarding the proper application of the California Sales and Use Tax Law.

 As a preliminary matter, section 6596, “Excusable Delay–Reliance on Advice,” of the California Sales and Use Tax Law grants taxpayer’s relief from future liabilities if the underreported tax is based on incorrect written advice provided by a Board representative.  The answer given is intended to provide general information regarding the application of tax based on the information provided and will not serve as a basis for relief of liability under Revenue and Taxation Code (RTC) section 6596.

 For your general information, the RTC imposes a sales tax upon retailers for the privilege of selling tangible personal property at retail in the State ofCaliforniaand is measured by gross receipts from retail sales.  The use tax is complementary (and mutually exclusive) to the sales tax and is imposed upon the storage, use, or other consumption in this state of tangible personal property, not subject to the sales tax.  Either the sales or the use tax applies to all retail sales of tangible personal property to consumers inCalifornia, unless otherwise exempted by statute or type of transaction.  The retailer (seller) is liable for sales tax.  The obligation to pay the use tax is on the consumer.

 In your e-mail you requested guidance on the proper application of California’s Sales and Use Tax Law to transactions involving the growth and distribution of “medical marijuana.”  You explained that a group of people who are all authorized medical cannabis patients organize to cultivate cannabis collectively in multiple communal gardens throughoutCalifornia.  Though some actively participate in the actual gardening more than others, every member agrees that the cannabis cultivated belongs to all of them collectively.  The group keeps records of all the expenses incurred in producing and providing cannabis to the members, and each member contributes [his or her] equitable share of the costs and expense incurred, and shares in the cannabis produced.  Thus the group produces the cannabis together, and none of the cannabis will change ownership from the group to anyone outside the group.

Specifically, you asked whether a “sale” has taken place.  In order to provide you with a response, I have made several assumptions.  Please be aware that if the factual scenarios and the assumptions upon which I base my response differ from your actual circumstances, my analysis would be different and the application of tax may be different. 

RTC section 6006, in pertinent part, defines a “Sale” to mean and include: 

  • Any transfer of title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration. “Transfer of possession” includes only transactions found by the board to be in lieu of a transfer of title, exchange, or barter.

 If a transaction does not involve any transfer of tangible personal property for consideration, then the transaction is not subject to sales or use tax inCalifornia.  Your e-mail states and we assume that each member contributes an equitable share of the costs and expenses incurred.  We assume this means that the contribution to costs and expenses is in proportion to the share of the cannabis that is received.  Furthermore, we assume that all members participate in the cultivation, although you point out that some may participate more than others.  We assume that no one pays any amount above and beyond his or her equitable share of the costs and expenses.

We further assume that any tools, consumables, or other supplies are not purchased for resale, by the collective or any individual, and that tax or tax reimbursement is paid at the time of purchase. Finally, you state that only those involved in sharing the expenses and cultivation will receive cannabis in a proportionate share, and no one outside the group will receive any cannabis.

 You do not explain the ownership interest each member of the collective has to the cannabis while it is being cultivated.  We assume that each member of the collective has an ownership interest in the cannabis, prior to its harvest, proportionate to his or her contribution.  Consequently, we understand that the member has title to cannabis he or she harvests prior to harvest.  As such, there is no transfer of title and no sale occurs.

Under the scenario described above, since there has been no “sale” of cannabis, there is no sales or use tax liability that occurs in connection with the growth and harvest of the cannabis by the medical cannabis collective.  However, if the collective changes the way it operates, the application of tax may also change. 

 On the other hand, sales of medical marijuana in California are subject to tax.  The BOE’s Legal Division determined that marijuana furnished in compliance with the Compassionate Use Act of 1966 and the Medical Marijuana Program, qualifies as  “medicine” within the meaning of Sales and Use Tax Regulation 1591, Medicines and Medical Devices, subdivision (a)(9)(B).  However, qualifying as a medicine is only one of the requirements for the sale to be exempt.  To qualify for exemption from tax under Regulation 1591, the sale of the medical marijuana must also be sold or furnished in accordance with Regulation 1591(d)(1)–(6).  Thus, even though medical marijuana qualifies as a medicine, sales by marijuana cooperatives, cannabis clubs, and other sellers of marijuana are subject to tax even if the marijuana is sold to qualified patients and caregivers unless the sale otherwise qualifies for exemption from tax.  Therefore, if the cooperative makes any sales of medical marijuana separate from the scenario described above, those sales would be subject to tax.    

 I hope this information is helpful.  If you have any further questions regarding this or any other issue, please write or call our Taxpayer Information Section at (800) 400-7115.  You may also visit our website at www.boe.ca.gov.

To assist with sales and use tax return filing, the Board of Equalization offers a free, web-based, electronic filing service.  It is easy to use and will provide an online record of all of your returns.  To learn more and to register for BOE-file, please visit our Sales and Use Tax E-File Information Center.

Medical Cannabis Dispensary (MCD) Regulations for Preparation of Edible Cannabis Products

City and County of San Francisco

DEPARTMENT OF PUBLIC HEALTH

1. No edible cannabis products requiring refrigeration or hot-holding shall be manufactured for sale or distribution at an MCD, due to the potential for food-borne illness. Exemptions may be granted by the San Francisco Department of Public Health on a case-by-case basis. For such exempted edible cannabis products, DPH may require a HACCP (Hazard Analysis and Critical Control Points) plan before approving the distribution of such medical cannabis products at MCDs. Such products requiring a HACCP plan may include ice cream and other dairy products.

2. Baked medicinal products (i.e. brownies, bars, cookies, cakes), tinctures and other non-refrigerated type items are acceptable for manufacture and sale at MCDs.

 3. (Items noted in this section are advisory only, as DPH does not intend to regulate edible cannabis production occurring in one’s home.) Preparation may be completed in a home-type kitchen equipped with a sink available for hand washing (this sink may be a dishwash sink), liquid soap, and paper towels. No other food preparation should take place during the production of edible cannabis products, in order to avoid cross-contamination. During preparation, children and pets should not be in the kitchen/preparation area. Clean and sanitize all utensils, equipment, and food contact surfaces before and after preparation. Equipment and food contact surfaces should be in good, cleanable condition. Ingredient storage areas should be kept clean and vermin-free.

4. All items shall be individually wrapped at the original point of preparation. Labeling must include a warning if nuts or other known allergens are used, and must include the total weight (in ounces or grams) of cannabis in the package. A warning that the item is a medication and not a food must be distinctly and clearly legible on the front of the package. The package label must have a warning clearly legible emphasizing that the product is to be kept away from children. The label must also state that the product contains medical cannabis, and must specify the date of manufacture.

 5. Packaging that makes the product attractive to children or imitates candy is not allowed. Any edible cannabis product that is made to resemble a typical food product (i.e. brownie, cake) must be in a properly labeled opaque (non see-through) package before it leaves the dispensary. Deliveries must be in properly labeled opaque packages when delivered to the patient.

6. Individuals conducting the manufacturing or sale of products shall thoroughly wash their hands before commencing production and before handling the finished product. Gloves must be worn when packaging edible cannabis products.

7. In order to reduce the likelihood of foodborne disease transmission, individuals who are suffering from symptoms associated with acute gastrointestinal illness or are known to be infected with a communicable disease that is transmissible through foodstuffs are prohibited from preparing edible cannabis products until they are free of that illness or disease, or are incapable of transmitting the illness or disease through foodstuffs. Anyone who has sores or cuts on their hands must use gloves when preparing and handling edible cannabis products.

8. Edible cannabis products for sale or distribution at an MCD must have been prepared by a member of that MCD. No non-member edible cannabis products are allowed for sale or distribution at an MCD.

A patient/caregiver who produces edible cannabis products that are sold at more than one MCD in San Francisco must become a State certified food handler. If more than one person is involved in producing edible cannabis products at one home or facility, only one person needs to be certified. The valid certificate number of the member who has prepared the edible cannabis product must be on record at the MCD where the product is sold or distributed, and a copy of the certificate kept either on-site, or made available during inspections if kept off-site.

 
* ADDENDUM ADDED MAY 4, 2011

 In light of recent observations during routine inspections at San Francisco Medical Cannabis Dispensaries (MCDs), the Dept of Public Health has established the following policies that expand and clarify existing regulations regarding edible medical cannabis products. These policies specifically seek to clarify what is meant by prohibiting packaging that is attractive to children, as required in MCD Regulations for Preparation of Edible Cannabis Products, item 5.

 A.  Photos or images of food are not allowed on edible medical cannabis product labels.

B.  If the edible medical cannabis product is identified on the label using a common food name (i.e. Brownie, Honey, Chocolate, Chocolate Chip Cookie, or Green Tea), the phrase “MEDICAL CANNABIS” must be written before the common food name. This phrase must be as easy to read as the common food name (i.e. same font size).

 C.  Only generic food names may be used to describe the product. As an example, using “Snickerdoodle” to describe a cinnamon cookie is prohibited.

 As you know, only medical cannabis is allowed to be distributed at MCDs in San Francisco. With this in mind, this new policy seeks to make it clear that the edible cannabis products you distribute are solely for medical cannabis patients, and the marketing of these products should NOT be a factor in the labeling of the products.

DPH realizes that this will cause a change in the labeling for most edible cannabis products currently distributed at MCDs in San Francisco. For this reason, we are allowing a 60 day transition to the new requirements. In the meantime, currently available edible medical cannabis products may continue to be distributed with their current labels if the package includes “MEDICAL CANNABIS” before the common food name, either pre-printed, or on a sticker. In addition, all such products must also state, as is now required, the following information:

Manufacture date 

The statement “Keep Out Of Reach Of Children” 

The statement “For Medical Use Only” 

Net weight of cannabis in package 

Thank you for your cooperation in this matter. If you have any questions, please contact Larry Kessler at 415-252-3841. 

Sincerely yours, 

Richard Lee, Director of Environmental Health Regulatory Programs
Department of Public Health, Environmental Health Services