PART 1 of 6: Legal Issues, Operational Challenges and Regulatory Hurdles That Marijuana-Related Businesses Frequently Encounter
Cannabis plants contain more than 100 different chemicals called cannabinoids,[1]Each having a different effect on the body.[2]Delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD) are the cannabis-based chemicals that are most commonly used to treat diseases or conditions.[3]For purposes of this article, the term “medical marijuana” will be confined to products that contain THC.
This article is the first part of a six-part series that focuses on the legal issues, operational challenges, and regulatory hurdles that marijuana-related businesses (MRBs) frequently encounter in the medical marijuana industry, and will focus on the various fire, health, and safety risks associated with growing and cultivating marijuana plants inside large, indoor, commercial spaces.
1. Medical Marijuana Has Numerous Potential Health Benefits
Research studies demonstrate that medical marijuana can be used in the treatment of a variety of different diseases and conditions. For example, it increases appetite and reduces nausea.[4]It can treat symptoms of glaucoma, post-traumatic stress syndrome, depression, anxiety, pain and inflammation, irritable bowel syndrome, Crohn’s disease and muscle spasms.[5]
While medical marijuana clearly possesses numerous, potential health benefits, MRBs have encountered and likely will continue to encounter a number of legal issues, operational challenges, and regulatory hurdles in the industry as the result of one or more of the following: (1) the conflict between federal and state law regarding marijuana; (2) the federal government’s failure and refusal to establish a uniform set of national standards that govern growing and cultivating marijuana plants for medicinal purposes; (3) the ability to quantify, control, and duplicate the quality, efficacy, and potency of the marijuana plants that are processed to extract the THC that is used to manufacture medical marijuana products; and (4) the ability to obtain adequate insurance coverage to cover the replacement cost of all of their property, equipment, and inventory in the event of accidental loss or damage.
2. Despite the Numerous Potential Health Benefits, Marijuana is Still Considered an Illegal Narcotic Under Federal Law
Currently, 33 states, the District of Columbia, Guam and Puerto Rico have passed legislation legalizing medical marijuana.[6]Despite the widespread legalization of marijuana by state governments for medicinal purposes and the ever-increasing acceptance and use of the drug to treat a wide variety of diseases and conditions, the federal government still classifies it as a Schedule 1 narcotic under the Controlled Substances Act (CSA).[7]
Under this classification, the federal government views and treats marijuana as an illegal drug with no currently accepted medical use, a high potential for abuse, and a lack of accepted safety for use even under medical supervision.[8]
3. Since There is No National Standard, State Governments Create and Implement Their Own Rules and Regulations For Growing and Cultivating Marijuana
As a result of the federal government’s prohibition against the growth and sale of marijuana, there is no federal standard concerning growing and cultivating marijuana. To address this lack of a national standard, individual state governments have promulgated, implemented, and enforced their own rules and regulations concerning the growth and cultivation of marijuana within their state.
With respect to grow facilities, state, county, and city governments typically rely on the requirements set forth in the state’s existing building, fire, plumbing and electrical codes to establish specific rules and regulations concerning growing and cultivating marijuana in large, indoor, commercial spaces. For instance, in most states, building permits and inspections by local building officials are required for all legal, commercial marijuana operations regardless of whether the facility is new construction or a remodel of an existing building.[9]
Also, in most states, grow facilities are required to comply with all applicable fire and safety codes, including the International Building Code (IBC).[10]Under the IBC, if the floor area of the facility exceeds 12,000 sq. ft., then a fire sprinkler system must be installed in the building, if one is not already present.[11]The IBC also requires fire walls with a one-hour separation between the facility and any adjacent occupancy as well as wall and ceiling finishes with a flame spread index within the limits specified in the code.[12]Finally, as required in Chapter 10 of the IBC, the grow facilities must ensure that their ingress and egress paths are clear and that they do not become blocked by equipment or storage containers.[13]
In most states, grow facilities are also subject to the International Plumbing Code (IPC). Under the IPC, grow rooms must contain floor drains to remove spilled water and nutrient solutions, and the drains must be trapped and equipped with screens to catch any plant material or other debris.[14]The IPC also requires that any water supply lines that grow facilities use for irrigation purposes contain back-flow preventers to protect the domestic water supply from contamination.[15]
Finally, in most states, grow facilities are required to comply with the National Electric Code (NEC).[16]The facilities’ electrical systems must be sized and installed in accordance with the NEC as they use grow lights, air conditioning units, and other equipment that require large amounts of electricity.[17]
The NEC and applicable fire codes also prohibit the use of extension cords or power strips as permanent wiring for equipment, lighting, fans, etc. located inside the facilities because over-loaded electrical wiring can cause fires.[18]In addition to ensuring that the electrical system is designed and installed properly, the NEC also requires evaluation of the electric service entry equipment and conductors for the building.[19]If the facility was created as a remodel to an existing building, the electric utility company may need to upgrade the conductors and/or the transformer serving the building.[20]
In most states, grow facilities that violate any of these regulatory codes could be cited for the code violations by the regulatory agency responsible for enforcing the code potentially resulting in substantial monetary fines, and in the most egregious cases, the enforcement agency could even close the facility until it becomes compliant with the applicable code. Moreover, if someone suffers a personal injury while in a grow facility that is in violation of one or more of these regulatory codes, the owner could be held liable for any such injury under a negligence per sestandard potentially resulting in costly litigation and the payment of monetary damages.
4. There are Numerous Potential Fire, Health, and Safety Hazards Associated with Operating a Large, Commercial Marijuana Grow Facility
As with any large, industrial operation, growing marijuana in massive, indoor, commercial spaces comes with an assortment of potential fire, health, and safety hazards that must be considered and addressed. The potential hazards include the following:
- Egress—With space at a premium, most grow facilities are extremely crowded. With plants being moved often according to their grow cycles, keeping egress paths and exit doors clear can be a problem. Also, because most grow facilities are located in retrofitted buildings, they are often configured like a maze, which could make it easy for a firefighter to get lost during a large-scale fire incident in the building.[21]
- Lights—Grow facilities by necessity utilize a substantial amount of hot, dangling lights, many of which remain on 24-hours a day. If these lamps are located too closely to combustible materials, a fire can occur.[22]
- Plastic dividers/combustible interior finishes—Grow facilities need many separate rooms to segregate plants by growth and light cycles. Some growers erect tents inside of rooms, or cordon off spaces with tarps or other flammable materials, creating potential fire hazards and egress issues.[23]
- High Electrical Loads—Hundreds of high-powered lights, air conditioning, fans, and other systems mean grow facilities use a significant amount of electrical energy. If these components are not NEC-compliant their circuits and/or wiring could over-loaded potentially resulting a fire.[24]
- Fumigation—Molds, mildews and fungi can destroy a crop resulting in millions of dollars in losses. Some grow facilities use sulfur dioxide to fumigate their plants, which can be toxic to their employees and to first responders to a fire at the facility.[25]
- Illegal locks/barriers—To protect their marijuana plants from theft, some grow facilities have placed iron security bars on the doors and windows of their property. Some use non-compliant locks, and some even use guard dogs. These ill-advised security measures can potentially hinder egress and ingress in a fire or other emergency at the facility.[26]
- Carbon dioxide (CO2) enrichment—Many growers claim CO2-enriched environments can increase pot yields by up to 20%. While ideal growing CO2levels remain well below an amount that could asphyxiate someone, failures and leaks in these self-contained CO2-enriched environments have occurred. In most jurisdictions, any such CO2-enriched rooms are required to be monitored and alarmed with automatic shut-off valves in case of a leak.[27]
Conclusion
Given the numerous fire, health and safety hazards associated with growing and cultivating marijuana in a large, indoor, commercial space, growers must create and implement protocols and systems designed to address and/or alleviate these various issues.
They must also purchase sufficient insurance coverage to protect their property, equipment and inventory from loss or damage caused by these types of risks.
[1]Seehttps://www.webmd.com/a-to-z-guides/qa/what-is-medical-marijuana.
[2]Id.
[3]Id.
[4]Id. See also https://www.drugabuse.gov/publications/drugfacts/marijuan-medicaine#.XbHCzPO0aDY.email.The U.S. Food and Drug Administration (“FDA”) approved two THC-based drugs, Dronabinol® and Nabilone®, which are used to treat nausea caused by chemotherapy and increase appetite in patients with extreme weight loss caused by AIDS.
[5]Id. See also https://www.health.harvard.edu/blog/medical-marijuana-2018011513085?utm_campaign=shareaholic&utm_medium=email_this&utm_source=email.
[6]11 of those 33 states, and Washington D.C., have also legalized the drug for recreational use.
[7]See https://www.dea.gov/drug-scheduling. Schedule 1 drugs also include much more dangerous and potent street drugs such as heroin and lysergic acid diethylamide (“LSD”). Oddly, the federal government classifies other equally dangerous and highly addictive drugs such as cocaine, methamphetamine, methadone, fentanyl, and oxycodone as Schedule 2 drugs—a lower drug classification than marijuana.
[8]Seehttps://www.sciencedirect.com/science/article/pii/S1525505016305856.
[9]See https://www.robsonforensic.com/articles/codes-standards-hazards-marijuana-grow-facility-expert-witness.
[10]Id.
[11]Id.
[12]Id.
[13]Id.
[14]Id.
[15]Id.
[16]Id.
[17]Id.
[18]Id.
[19]Id.
[20]Id.
[21]See https://www.nfpa.org/News-and-Research/Publications-and-media/NFPA-Journal/2016/September-October-2016/Features/Growing-Pains/Hazards-of-the-Trade
[22]Id.
[23]Id.
[24]Id.
[25]Id.
[26]Id.
[27]Id.
