What is the Difference Between Proposed and Binding Regulations

One issue that I think keeps everyone concerned is what is the story about these new cannabis regulations?  Are they binding or not?  Some Regulations, unlike laws, can merely be issued by a regulatory body and have the force of law although they have never gone through the legislative process.  As most people are aware, on November 19, 2017 three California regulatory bodies came out with three sets of regulations concerning cannabis that are scheduled to go into effect on January 1, 2018.  Here they are:

Bureau of Cannabis Control regulations

CA Department of Food and Agriculture regulations

CA Department of Public Health regulations

What people should keep in mind is that these regulations are binding in that they will have the full effect of law come January 1, 2018.  In other words, if you don’t comply with them, such non-compliance will have the same repercussions as violating the law.

Lori Ajax, the Chief of the BCC, says that these regulations will be reviewed and adjusted depending on how the regulations fair through the licensing scramble and legalization of recreational cannabis that the whole state is about to face.  If all goes smoothly, she may adjust them slightly and if the next month proves totally disastrous there will probably be major changes to the regulations.

But don’t let this discussion make you think that these regulations are not binding.  Even though they can be changed rather quickly, don’t think they are not binding.  These are not proposed regulations as many in the press have called them.  The people in the press and on the blogs referred to them as “proposed regulations” because they can be changed rather easily.  However, most of these bloggers, reporters and even lawyers are wrong because the November 19, 2017 regulations delineated above are binding regulations.  Proposed regulations are regulations that have been proposed for further discussion but are NOT BINDING.  Therefore, unless a regulatory body that has issued a “proposed regulation” turns such regulation into a binding regulation, the proposed regulation will never have the force of law.  To be clear, as stated, the regulations issued on November 19, 2017 by the three agencies of the state of California are binding regulations.

Much of the confusion surrounding this issue is that most of us were taught in civics class that in order for a bill to become a law, at the federal level at least,  the bill would have to pass the U.S. House of Representatives, the U.S. Senate and then be signed by the President.  On the state level, for a bill to become a law, it would have to pass the California State Assembly, the California State Senate and then be signed into law by the Governor.  Those statements are true but there is another way for a proposed rule to become an enforceable rule.  That is when the State legislature creates a law that has vague portions and then the legislature delegates their law making power to a state regulatory agency to clear up the vague sections of the state law.  In these situations a law is passed and then the regulatory agencies must pass regulations that fill in the parts left vacant or vague by the original law.

As an example, if under state law it states that cannabis products are not to be enticing to children, then it is up to a regulatory agency to decide what enticing really means: does it have to look like candy, does it have to have a name similar to a piece of candy already on the market etc. etc. etc.

The most important point to remember here is that these state regulatory agencies can never pass a regulations that violates state law.  The people of California have already decided that cannabis should be legal.  Therefore no regulatory body can ever overturn that law.

The bottom line is that even though Lori Ajax says these current regulations will be discussed and changed in the upcoming months; don’t forget that these regulations issued by the three state agencies delineated above will be binding and enforceable come January 1, 2018.