Protecting Your Medical Marijuana Business Against Civil and Criminal Liability
As a medical marijuana business owner, you may be concerned about potential liability–both civil and criminal–for yourself and your employees or contractors. You may also have concerns about protecting your property rights against forfeiture by local law enforcement authorities, or whether the new medical marijuana law will help you protect your customers’ privacy. Minnesota’s medical marijuana law contemplates these issues and offers some answers to these legitimate concerns.
What Business Activity is Protected under Minnesota’s Medical Marijuana Law?
Minnesota’s medical marijuana law provides that certain business activities are permissible notwithstanding Minnesota’s criminal statutes that criminalize the possession and sale of marijuana (Chapter 152: Drugs & Controlled Substances). The statute indicates that “possession, dosage determination, or sale of medical cannabis or medical cannabis products by a manufacturer” is not a violation of Chapter 152. Minn. Stat. § 152.33, subd. 2(2). Because Minnesota requires that a medical marijuana manufacturer also serve as the distributor, the manufacturer would receive the benefit of the statute while acting in that capacity.
Because the statute identifies “medical cannabis” only, it is unclear whether the same protection applies to the possession of marijuana during the cultivating, harvesting, and processing phases that occur before a manufacturer’s product takes its final form, i.e. liquid, pill, or vapor. The statute compels registered manufacturers to produce medical cannabis, however, and it follows that possession consistent with the statute should not constitute criminal activity.
The statute imposes a $1,000 fine on manufacturers (if no other penalty is specified) for any violations of the medical marijuana statute or regulations issued by the Commissioner of Health. Minn. Stat. § 152.33, subd. 6. The statute does not preclude the imposition of other penalties available at law.
In addition to civil penalties, the medical marijuana law also describes what specific activities amount to a crime. For example, any person who knowingly submits false records to the Commissioner of Health while registering to become a medical cannabis manufacturer is guilty of a felony, Minn. Stat. § 152.33, subd. 4; and a manufacturer or an agent of a manufacturer who intentionally transfers medical cannabis to a person who is not a patient, designated caregiver, or parent or legal guardian of a patient, is guilty of a felony, Minn. Stat. § 152.33, subd. 1.
Are My Employees Protected from Local Prosecution?
A manufacturer’s employees and laboratory contractor are shielded from prosecution for conduct that would otherwise qualify as illegal activity under Chapter 152. Similar to the shield provided manufacturer, a manufacturer’s employees are expressly protected for the act of possessing, determining dosage, or selling medical cannabis or medical cannabis products; the same rule applies to the contracting laboratory and its employees. The statute further specifies that any person possessing medical cannabis or medical cannabis products while carrying out duties required under the medical marijuana statute is protected from prosecution. As stated above, however, it is unclear whether the same protection applies to the possession of marijuana as a precursor to medical cannabis, but the same rationale against criminalization applies.
Is My Business Property Protected Against Forfeiture?
Medical cannabis lawfully produced and distributed per the medical marijuana statute is not subject to civil forfeiture. Minn. Stat. § 152.32, subd. 2(b). Similarly any “associated property” is protected. Id. While the term associated property is not defined, associated property is addressed elsewhere in the forfeiture law and encompasses “All property, real and personal, that has been used, or is intended for use, or has in any way facilitated in whole or in part, the manufacturing, compounding, processing, delivering, importing, cultivating, exporting, transporting, or exchanging of controlled substance […] that has not been lawfully manufactured, distributed […].” Minn. Stat. § 609.5311. Moreover, the term property (for purposes of forfeiture law) includes “all forms of tangible property, whether real or personal[.]” Minn. Stat. §§ 609.531; 609.52, subd. 1(1). One may reasonably conclude, therefore, that the provision against forfeitures may be construed to include any property owned medical marijuana businesses, examples including marijuana plants, medical cannabis, facilities, equipment, etc.
Will My Customers’ Data Remain Private?
Medical marijuana manufacturers are required to make certain disclosures and reports to the Minnesota Commissioner of Health, including monthly reports on each patient detailing the amount and dosages of medical cannabis distributed, the chemical composition of the medical cannabis, and the tracking number assigned to the medical cannabis. Addressing privacy concerns, the statute provides that government data in patient files maintained by the Commissioner, along with data submitted to or by a medical cannabis manufacturer, are private data or non-public data, consistent with the Minnesota Government Data Practices Act.
For more information regarding your business and Minnesota’s medical marijuana law, please contact one of our business attorneys who will be able to address your specific questions.