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State-by-State COVID-19 Announcements Impacting Marijuana Businesses

 

Published:

April 23, 2020

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Disclaimer: Below is a state-wide analysis of the current legal environment for the cannabis industry in light of the recent COVID-19 pandemic. This analysis highlights the ability of both medical and retail marijuana businesses to continue operating in a majority of states pursuant to various emergency orders and regulatory guidance. This summary is not a legal opinion, but rather, a perspective of how different jurisdictions have responded to changing patient and consumer needs during the coronavirus crisis. The content provided herein was first gathered on April 22, 2020, and is subject to change as the laws and interpretation of such laws change. Be sure to bookmark this page as we will be making regular updates.

Overview

The circumstances surrounding the COVID-19 pandemic have required all but a handful of states and municipalities to perform an analysis of which businesses provide an “essential” service to communities and which do not. This pandemic has further required jurisdictions to consider modifying their regulations to ensure that these essential businesses can continue operations while complying with social-distancing requirements.

While the handling of medical and adult-use marijuana businesses across the country is a patchwork of state regulations, certain trends have emerged in response to the COVID-19 pandemic.

A State-by-State COVID-19 Resource

Please click the table of contents below to view state-specific information:

Alabama

While the state’s limited medical marijuana law decriminalized possession of CBD for residents with qualifying conditions, and provided an affirmative defense to patients and caregivers for the use and possession of marijuana extracts with less than 0.3% THC, there is no regulatory framework for marijuana businesses to operate. Consequently, the Governor’s executive order does not impact the marijuana industry.

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Alaska

Marijuana establishments were not explicitly included in the list of essential businesses designated by the Governor as permitted to remain open; however, the list included categories that could potentially encompass the industry. Additionally, the state’s Health Mandate confirmed that dispensaries are allowed to operate so long as they are able to comply with strict social-distancing requirements, including prohibiting congregations of more than 10 people in the business at a time (counting employees).[1] On April 17, 2020, regulators adopted emergency regulations allowing for curbside pickups and loosening transportation restrictions.


[1] See Alaska Essential Services and Critical Workforce Infrastructure Order II(b)(vi)(20).

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Arizona

Medical marijuana establishments were not explicitly included in the list of essential businesses designated by the Governor as permitted to remain open; however, the list includes categories that could potentially encompass the industry. Media sources and business websites confirmed that dispensaries have been ruled essential services that can remain open. However, dispensaries must adjust operations to promote physical distancing, including curbside delivery. Arizona law already allows for home delivery to medical patients. Pursuant to an executive order on March 25, 2020, telemedicine may also be used for medical patient renewal consultations.

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Arkansas

Medical marijuana dispensaries have not been subject to any state-mandated closures, as no stay-at-home statewide order has been implemented. The Department of Finance and Administration also confirmed that medical dispensaries do not need additional approval from the state Alcoholic Beverage Control Board or the Medical Marijuana Commission to deliver medical marijuana products to patients.

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California

The Governor’s stay-at-home order explicitly included cannabis retailers as part of the essential workforce. Regulators at the Bureau of Cannabis Control (BCC), Department of Public Health, and California Department of Food and Agriculture have also confirmed that state-licensed marijuana businesses are allowed to continue operations so long as they adopt social-distancing and anti-congregating measures. Local jurisdictions that have implemented enhanced restrictions, such as Los Angeles County and San Francisco, have also deemed dispensaries essential businesses that may remain open. To facilitate social distancing, the BCC, the regulatory arm governing retail operations, issued emergency rules suspending the ban on drive-through capabilities and allowing curbside delivery for dispensaries statewide, absent stricter locally imposed requirements. Dispensaries wishing to deviate from usual operations must apply for a waiver from specific regulatory provisions. Delivery is permitted as a part of the regulations in California and those already licensed to conduct deliveries may continue to do so.

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Colorado

Both medical and retail marijuana stores have been designated as critical businesses permitted to continue operations so long as they comply with social-distancing requirements. While medical and retail cultivation and manufacturing facilities are not specifically designated as critical businesses in the state’s public health order, cultivators and manufacturers are likely considered critical businesses under the definition of “critical manufacturing” because they provide necessary support to medical and retail marijuana stores expressly considered critical businesses. Medical and retail marijuana stores and dispensaries may conduct in-person purchases within the restricted access areas, receive online and phone orders, expand their licensed premises to facilitate in-person pickups, and offer curbside services, subject to local restrictions. HB19-1234, which provides for delivery to medical marijuana patients, went into effect in January; however, the legislation required local jurisdictions to opt-in. The first delivery license was issued in Boulder at the end of March.

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Connecticut

Pursuant to guidance from the Governor’s office issued on April 11, 2020, medical marijuana dispensaries are considered essential businesses permitted to remain open. Patients are permitted to renew credentials via telemedicine and expirations of medical cards have been extended by 90 days. News sources have confirmed that delivery is available for hospice patients. Please note that all previously enacted executive orders on all closures, distancing, and safety measures have been extended through at least May 20, 2020.

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Delaware

Medical marijuana establishments were not explicitly included in the list of essential businesses designated by the Governor as permitted to remain open; however, the list included categories that could potentially encompass the industry. News sources have also confirmed dispensaries have been permitted to remain open. Additionally, state regulators have approved home delivery for patients.

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District of Columbia

The Mayor for the District of Columbia issued a stay-at-home order on March 24, 2020, including medical marijuana dispensaries and medical marijuana cultivation centers as essential businesses. On April 14, 2020, the Mayor announced emergency rules to allow for curbside pickup and delivery. The Mayor recently extended the order through May 15, 2020.

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Florida

Medical marijuana establishments were not explicitly included in the list of essential businesses designated by the Governor as permitted to remain open; however, the list included categories that could potentially encompass the industry. News sources have confirmed that medical marijuana dispensaries have been permitted to remain open because they are considered pharmacies falling under the state’s healthcare sector. Some dispensaries are currently offering online ordering and curbside pickup services. Delivery was previously permitted as a part of the regulatory framework for dispensaries. Medical patients may also conduct recertifications via telemedicine.

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Georgia

The COVID-19 outbreak does not impact Georgia’s low-THC medical marijuana law. The law allows certain qualified persons to legally possess up to 20 fl oz of low-THC oil. However, the law does not authorize the production or sale of food products infused with low-THC oil. The Georgia Access to Medical Cannabis Commission is authorized to issue a limited number of licenses for the growing, manufacturing and dispensing of low-THC oil; however, no dispensaries have opened in the state. As such, the Governor’s April 2, 2020, executive order does not impact the marijuana industry.

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Hawaii

Medical marijuana dispensaries were explicitly included in the list of essential businesses designated by the Governor in the Third Supplementary Proclamation. Additionally, the City and County of Honolulu’s emergency order expressly includes licensed medical marijuana dispensaries and licensed medical marijuana production centers in its definition of necessary “healthcare operations.” According to the State of Hawaii, Department of Health, Medical Cannabis Program, all eight dispensaries are open and operating. Delivery and curbside pickup are not permitted.

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Idaho

The state prohibits use of medical or recreational marijuana. Thus, the Governor’s March 25, 2020, order does not impact the marijuana industry.

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Illinois

On March 20, 2020, the Governor issued an executive order explicitly identifying licensed medical and adult-use cannabis dispensaries and licensed cannabis cultivation centers as essential businesses. The order also allows individuals to leave their residence to obtain services from healthcare and public health operations including licensed medical cannabis dispensaries and licensed cannabis cultivation centers. The state issued guidance that allows for curbside pickup, for medical patients only, until April 30, 2020. In line with this guidance, dispensaries must take steps to ensure patients, caregivers and purchasers do not come within 6 ft of other patrons at the dispensary, and ensure patients and caregivers remain in separate lines from adult-use purchasers. Such efforts may include moving lines outside the dispensary, closing down some point-of-sale systems, distancing patient/caregiver lines within larger dispensaries, and minimizing the time a patient/caregiver stands near agents. Home delivery is not available.

Finally, regulators are permitting dispensaries to temporarily accept expired driver’s licenses and state IDs as proof of age or identity, or as a second ID for medical cannabis patients and caregivers.

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Indiana

The state’s limited medical marijuana law decriminalized possession of low-THC hemp extracts (including CBD). As such, because there are no licensed dispensaries, the Governor’s March 6, 2020, executive order does not impact the marijuana industry.

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Iowa

The state’s limited medical marijuana law decriminalized possession and use of CBD. The law also provides an affirmative defense to patients and caregivers for the use and possession of CBD. No statewide shelter-in-place order has been issued. However, even if the Governor issued such an order, it would have no impact on the limited medical marijuana industry.

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Kansas

The state prohibits the use of medical or recreational marijuana. Thus, the Governor’s March 28, 2020, order does not impact the marijuana industry.

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Kentucky

The state’s limited medical marijuana law protects patients who use CBD pursuant to a written order of a physician. No dispensaries are authorized under the current law. Additionally, if HB 136 is in fact passed by the Senate during this legislative session, it would set up the most restrictive medical marijuana law in the country, allowing doctors to prescribe cannabis and patients to obtain it at approved dispensaries under state regulations. However, because HB 136 has not yet passed and no licensed medical marijuana businesses exist, the Governor’s March 25, 2020, executive order does not impact the marijuana industry.

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Louisiana

Medical marijuana establishments were not explicitly included in the list of essential businesses designated by the Governor as permitted to remain open; however, the list included categories that could potentially encompass the industry. News sources have confirmed dispensaries have been permitted to remain open. Additionally, the Louisiana Board of Pharmacy issued a memorandum permitting delivery “where ever that patient is located” including “at home, hospital, or any other location” for the duration of the public health emergency.

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Maine

Following an executive order from the Governor, Maine’s Office of Marijuana Policy issued a statement on March 24, 2020, clarifying that medical marijuana caregivers and dispensaries were considered exempt from mandatory emergency measures due to their classification as other medical facilities. Subsequently, the Governor issued an order with additional directives for all essential stores that were restated in an industry directive. Such measures included:

  • Implementing and actively enforcing social-distancing requirements in and around facilities.
  • Prominent posting of signage at all public entrances instructing customers to remain 6 ft away from other people inside and outside the store.
  • Marking every customer line with signage and designating floor lines to impose social distancing.
  • Disinfecting handles of every used cart and basket prior to customer reuse.
  • Taking all reasonable steps to minimize customer handling of unpurchased merchandise.
  • Offering separate operating hours for persons over the age of 60 and/or those with medical conditions.

News sources have confirmed that the opening of adult-use stores, which was expected in June, has been delayed due to COVID-19.

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Maryland

On March 23, 2020, the Governor issued interpretive guidance placing medical marijuana businesses in a category not required to close. The Maryland Medical Cannabis Commission provided an industry bulletin on March 16, 2020, with provisions for businesses to process onsite or curbside deliveries. Orders may be placed online, up to a 30-day supply is permitted and deliveries may be made to a vehicle parked in the dispensary parking lot.

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Massachusetts

On March 10, 2020, the Governor declared a state of emergency to respond to COVID-19. On March 23, 2020, the Administrant announced a further order directing all non-essential businesses to temporarily close. The order permits licensed medical marijuana retailers to continue to dispense medical marijuana and to engage in curbside delivery, if desired. Marijuana treatment centers (MTC) and independent testing laboratories may continue to operate as essential businesses under the order.

The Governor’s order has been subject to scrutiny by the adult-use industry operators who sought an injunction barring enforcement of the order. Although the Court denied the advocates motion, it noted that the plaintiffs made “a convincing showing that there may be other ways to address these concerns that would allow adult-use marijuana establishments to restart their businesses without harming public health or safety – for example, by temporarily limiting non-medical marijuana sales to Massachusetts residents who have ordered in advance and arrive during an assigned time-slot, authorizing adult-use retail stores to make curbside deliveries of their products just like medical marijuana treatment centers, and requiring other measures to ensure that customers and workers keep a safe physical distance apart.”

Importantly, adult-use marijuana establishments may be permitted to reopen upon the lifting of the order which is currently set to expire on May 4, 2020.

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Michigan

On March 23, 2020, the Governor signed an executive order directing all Michigan businesses and operations to temporarily suspend in-person operations not necessary to sustain or protect life. Medical marijuana establishments were not explicitly included in the list of businesses permitted to continue operations; however, the list includes categories that could potentially encompass the industry.

Concurrent with the order, the Michigan Marijuana Regulatory Agency issued an advisory bulletin providing that “licensed medical marijuana facilities and licensed adult-use marijuana establishments are permitted to engage in regulated activities.” However, retailers may only engage in sales through curbside service or delivery; in-person transactions are prohibited. An April 10, 2020, advisory bulletin further provided that retailers are permitted to sell or transfer marijuana to a patient, caregiver or customer who has an expired driver’s license or other government-issued identification card during home delivery and curbside service.

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Minnesota

The executive order issued by the Governor on March 25, 2020, classified licensed medical cannabis dispensaries as essential businesses permitted to remain open. On March 31, 2020, the Governor also signed an executive order to ensure “continuing operations of the medical cannabis program” during the COVID-19 epidemic. The order allows patients to appoint a temporary caregiver to get their medicine for them, and allows providers to do curbside delivery in order to maintain social distancing.

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Mississippi

The state prohibits the sale of medical or recreational marijuana

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Missouri

Missouri recently issued provisional licenses for the state’s medical marijuana program; however, medical marijuana businesses are not yet operational. Regulators continue to work with licensees, pursuing the licensing verification process remotely. Delivery was previously integrated into the regulatory framework for dispensaries once operational. Facility Agent ID applications are being accepted electronically.

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Montana

The executive order issued by the Governor on March 26, 2020, classified medical marijuana dispensaries and cultivation centers as essential businesses. Pursuant to the order, businesses must follow social-distancing measures.

On April 1, 2020, the Governor issued a directive specific to medical marijuana businesses in Montana providing:

  • Daily purchase limits are no longer in effect; however, monthly purchases are; patients may purchase and possess their entire monthly purchase limit in one transaction.
  • Current registered cardholder renewals will not require an updated physician statement.
  • Patients not currently registered may receive a physician statement via telemedicine.
  • Business licenses may be renewed and receive provisional approval without an in-person inspection.
  • Medical marijuana providers may hand-deliver medical marijuana products to patients in a vehicle parked immediately outside the dispensary without performing a Marijuana Enforcement Tracking Reporting & Compliance (METRC) transfer.

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Nebraska

The state prohibits the sale and use of medical and adult-use marijuana.

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Nevada

On March 20, 2020, the Governor classified state-licensed marijuana businesses as essential, permitting them to continue operations. However, all public storefronts are required to close. Both medical and retail marijuana sales are limited to delivery only. To meet increased demand, the Department of Taxation is authorized to conduct virtual inspections of vehicles. On April 21, 2020 the Governor held a press conference revealing a frame work for a phased reopening of the economy. It is unclear whether dispensaries will be in first phase of retail businesses to resume store front operations.

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New Hampshire

Medical marijuana dispensaries were not explicitly included in the list of essential businesses designated by the Governor as permitted to remain open. However, the New Hampshire Department of Health and Human Services issued guidance designating dispensaries as essential businesses that may stay open, subject to certain limitations. These limitations include reducing hours of operation, requiring patients to preorder, implementing curbside pickup and requiring pickup by appointment. As such, some businesses have been permitted to implement curbside delivery. Medical marijuana patients may also engage with physicians for consultation via telemedicine.

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New Jersey

On March 23, 2020, the Governor issued a waiver permitting medical marijuana dispensaries to remain open during the pendency of the stay-at-home order. Medical marijuana dispensaries are limited to curbside pickup and must submit standard operating procedures for approval prior to dispensing via curbside delivery.

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New Mexico

While the Governor did not specifically include medical marijuana establishments in the list of essential business in either the March 19, 2020, or March 23, 2020, executive orders, the Medical Cannabis Program has provided assurances that the medical cannabis licensed non-profit producers qualify as essential services under Secretary of Health’s most recent public health order. The Medical Cannabis Program is recommending curbside or delivery services. Licensed operators do not require an amendment for curbside processes; however, an amendment must be submitted for delivery service plans. Dispensaries that remain open must limit the number of individuals within the store to fewer than 10 individuals.

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New York

On March 17, 2020, the New York Department of Health issued guidance confirming medical marijuana dispensaries (referred to as “registered organizations”) would be classified as essential businesses should non-essential businesses be ordered to close. The guidance permits registered organizations to deliver product at the door of the facility and provides for temporary expansion of statewide delivery for those already approved to engage in delivery services. On April 16, 2020 Governor Cuomo extended the statewide stay-at-home order until May 15, 2020.

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North Carolina

The state prohibits the sale and use of medical and adult-use marijuana. There is a narrow exception for the medical use of low-THC products sourced from outside of North Carolina.

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North Dakota

North Dakota remains one of the few states that have not issued a mandatory stay-at-home order. However, the Governor did issue an order and accompanying amendment that closed all schools, bars, restaurants, health clubs, movie theaters and beauty salons. Medical marijuana dispensaries have been permitted to remain open, though some have opted to close.

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Ohio

On March 22, 2020, the Ohio Department of Health issued a stay-at-home order, which was later amended on April 2, 2020. The order classifies medical marijuana dispensaries, manufacturers and cultivators as essential businesses permitted to continue operations. The Ohio Medical Marijuana Control Program has issued additional guidance as well, which streamlines the registration process and allows for patients to have up to three caregivers. Dispensaries may also temporarily conduct sales outside of the dispensary department as long as they adhere to additional restrictions, including:

  • All monetary transactions must take place on the dispensary’s property.
  • Cash must be taken into the dispensary department after each transaction.
  • All medical marijuana products must remain in the dispensary department until the patient arrives.
  • Security personnel must be present for outdoor sales.
  • The purchase must be captured by one of the required security cameras.
  • Outdoor sales may only occur between 8 am and 7 pm.
  • The dispensary must notify its assigned compliance agent by email prior to offering sales outside of the dispensary department.
  • The implementation may not cause a disruption to any neighboring business or the streets surrounding the dispensary.
  • The use of gloves is recommended.

Orders may be placed by phone. Additionally, physicians may conduct visits with patients via telemedicine.

The stay-at-home order is set to expire on May 1, 2020. The Governor of Ohio announced on April 16, 2020 that a plan was in progress to begin opening some businesses on May 1, 2020 with restrictions.

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Oklahoma

The state’s Medical Marijuana Authority (MMA) clarified that the Governor’s safer-at-home order considers medical marijuana businesses essential services permitted to remain open. The MMA also advised that state law does not prohibit curbside pickup, provided all of the applicable rules are followed. Delivery is not currently permitted, however, legislation is pending that could allow for delivery services.

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Oregon

The Governor of Oregon issued Executive Order 20-06 on March 17, 2020 which was extended on April 7, 2020 to be in place until lifted by the Governor. The Governor’s Executive Order 20-06 did not specifically mention cannabis or marijuana. However, the state Liquor Control Commission issued a temporary rule allowing licensed retail businesses to provide curbside pickup for customers who submit orders online. The product must be delivered within 150 ft of the licensed premises and must be captured by security surveillance. Additionally, the temporary rules increase the amount of flower cardholders may purchase to match their monthly limits. Pursuant to rules already in place, some dispensary licensees are permitted for home delivery to patients within their jurisdiction.

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Pennsylvania

On April 1, 2020, the Governor issued a stay-at-home order. The state had previously classified medical marijuana dispensaries as life-sustaining businesses and authorized for the regulatory modifications in response to the COVID-19 crisis. During the pendency of the stay-at-home order the Department of Health 1) permitted outdoor delivery to patient vehicles on the facility’s property site; 2) lifted the limitation of five patients per caregiver to allow for more caregivers to patients in need; 3) permitted remote physician consultations for patient renewals; and 4) provided for an allowance for patients to receive a 90-day supply rather than the usual 30-day limit. The statewide stay-at-home order was set to expire on April 30, 2020 and has now been extended through May 8, 2020. As of April 19, 2020 the Secretary of the Pennsylvania Department of Health issued additional requirements for businesses permitted to continue operations such as temperature screening of employees and staggered work hours.

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Rhode Island

The Governor’s March 28, 2020, stay-at-home order (extended on April 10, 2020) specifically included compassion centers (dispensaries) as critical retail. Pursuant to state regulations, home delivery is permitted as part of usual business. In addition, the Office of Cannabis Regulation issued an industry bulletin requiring compassion centers to submit proposed curbside pickup plans which, once approved, would allow dispensaries to provide curbside delivery services.

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South Carolina

The state prohibits the sale and use of medical and adult-use marijuana.

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South Dakota

The state prohibits the sale and use of medical and adult-use marijuana.

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Tennessee

The state prohibits the sale and use of medical and adult-use marijuana.

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Texas

The state’s low-THC Compassionate Use Program permits delivery. Texas dispensaries have remained open and are continuing to monitor the situation.

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Utah

Utah is one of a handful of states without a stay-at-home order. However, the Governor has issued a stay safe, stay home directive and many local cities and counties have implemented orders. This includes Salt Lake County where one of the two operational dispensaries in the state is located. In Utah, dispensaries are classified as pharmacies and have been permitted to remain open. The Utah Department of Health Medical Cannabis Program has relaxed requirements for medical patients and has allowed qualifying patients who do not have a medical cannabis card but have a recommendation letter to purchase medical cannabis.

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Vermont

The Governor’s March 24, 2020, stay-at-home order has been extended through May 15, 2020. This order did not explicitly mention marijuana businesses; however, news sources have indicated that dispensaries have remained open and guidance for curbside delivery options has been given. Pursuant to an addendum to Executive Order 01-20 issued on April 17, 2020, a phased restart to the reopening of businesses shall begin on April 20, 2020. Pursuant to this addendum businesses deemed critical shall be permitted to continue operating, however, with additional requirements such as mandatory cloth coverings for all employees and shields for retail cashiers.

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Virginia

The state prohibits the sale and use of medical and adult-use marijuana.

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Washington

The Governor’s March 23, 2020, stay-at-home order included an appendix classifying cannabis retailers and workers supporting cannabis businesses as essential businesses. On April 2, 2020 the stay-at-home order was extended through May 4, 2020. While the staty-at-home order is in place, the Washington State Liquor and Cannabis Board (LCB) released temporary guidance allowing retailers to continue sales through curbside pickup. Sales areas for curbside pickups must be stationary and physically on the property of the facilities. Initially, curbside delivery was only available to medical patients; however, it was later extended to adult-use customers as well. Walk-up-window sales are temporarily permitted.

Due to widespread school closures, the LCB temporarily relaxed the prohibition of minors being present on premises of licensed marijuana producers/processors in limited circumstances. Persons under the age of 16 are permitted on the licensed premises as long as they are the child or grandchild of the licensee, are not engaged in any work or act of employment of the licensed business, and do not possess any products associated with the production, processing or sales of marijuana.

Due to requests for dispensaries to give away free hand sanitizer, the LCB has temporarily agreed to relax the prohibition on giveaways as long as the only giveaway is hand sanitizer, it does not contain THC-/CBD-/hemp-derived products, it was made with a Food and Drug Administration (FDA)-approved recipe, the container was not provided by another industry member, it does not contain any brand advertising for any cannabis/CBD/hemp product, and it is not advertised in connection with a promotion.

The Governor’s Order will expire on May 4, 2020, however, on April 21, 2020 the Governor issued a policy statement outlining his plan for recovery which includes many of the social distancing measures in places as well as additional employee screening measures as businesses are slowly allowed to reopen. More updates are expected prior to the expiration of the stay-at-home order.

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West Virginia

The Medical Cannabis Act was signed into law on April 19, 2017. The Office of Medical Cannabis closed the application period for medical cannabis business applications on March 3, 2020. Currently, the state has not licensed any medical cannabis business that would be impacted by COVID-19 measures. Delivery to patients is prohibited under the current regulatory framework.

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Wisconsin

The state currently offers some narrow protection for use of low-THC cannabis for medical reasons. However, the state does not have licensed medical or adult-use marijuana businesses and would be unaffected by COVID-19 measures.

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Wyoming

The state prohibits the sale and use of medical and adult-use marijuana.

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Comprehensive CARES Act and COVID-19 guidance

Husch Blackwell’s CARES Act resource team helps clients identify available assistance using industry-specific updates on changing agency rulemakings. Our COVID-19 response team provides clients with an online legal Toolkit to address challenges presented by the coronavirus outbreak, including rapidly changing orders on a state-by-state basis. Contact these legal teams, Steve Levine, Alyssa Samuel, Megan Herr or your Husch Blackwell attorney to plan a way through and beyond the pandemic.

Professionals:

Alyssa B. Samuel

Associate

Megan E. Herr

Associate
 

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