by David L. Pollack, Of Counsel
NOTHING IN THIS DOCUMENT IS INTENDED OR SHALL BE CONSTRUED AS ADVICE TO PARTICIPATE IN, OR COUNSEL WITH RESPECT TO, CRIMINAL OR FRAUDULENT ACTIVITIES. POSSESSION, DISTRIBUTION AND SALE OF MARIJUANA IS A SERIOUS CRIME UNDER FEDERAL LAW, AND ENGAGING IN THOSE ACTIVITIES WITHOUT REGISTRATION UNDER THE PENNSYLVANIA MEDICAL MARIJUANA ACT, 35 P.S. §§ 10231.106 ET SEQ., IS A SERIOUS CRIME UNDER PENNSYLVANIA LAW. NOTHING HEREIN SHALL BE CONSTRUED AS ADVICE TO VIOLATE ANY SUCH LAW.
On December 10, 2016 the Pennsylvania Department of Health (the “Department”) published temporary regulations (the “Regulations”) under the Pennsylvania Medical Marijuana Act (the “Act”), which specify certain operating requirements for holders of medical marijuana dispensary permits under the Act. These regulations supplement the Department’s October 29, 2016 Temporary Regulations covering the permit application process. In particular, these new regulations specify requirements for dispensary security (including security requirements for the security system), inventory control, sanitation and medical marijuana transport that are relevant to the planning of dispensary facilities. Persons who are contemplating entering this business should be advised of the following:
I. The Department of Health continues to strongly regulate the actual handover of Medical Marijuana
How are the dispensaries expected to distribute medical marijuana?
A dispensary will only be permitted to dispense medical marijuana to a patient or caregiver who presents a valid identification card to an employee who is authorized to dispense medical marijuana at the facility. The dispensary must also verify the validity of the patient or caregiver identification card using a prescribed electronic tracking system to access the Department’s database.
Additionally, relating to the facility itself, the dispensary may only dispense medical marijuana to a patient or caregiver in an indoor, enclosed, secure facility as approved by the Department. The dispensary must not be located within 1,000 feet of any property line of a school or day-care center.
A dispensary may not be located at the same site used for growing and processing medical marijuana.
What records must a medical marijuana dispensary keep when it dispenses medical marijuana?
Medical marijuana dispensaries are required to log the following information into the Department’s electronic tracking system:
Medical marijuana dispensaries are also required to provide the aforementioned information to the patient or caregiver in the form of a receipt.
Dispensaries are required to destroy and erase any copies of a patient’s certificate after generating the receipt.
Will patients be able to self-administer medical marijuana at the facility at which they acquire medical marijuana?
Generally, patients will not be permitted to self-administer medical marijuana at the facility where they acquire medical marijuana. However, it is at the facility’s discretion whether they permit their own employees, who are also patients, to self-administer medical marijuana while at the facility.
What are the limitations on dispensing medical marijuana?
A dispensary is not permitted to dispense an amount of medical marijuana greater than a 30-day supply to a patient or caregiver until the patient has exhausted all but a 7-day supply provided pursuant to the certification currently on file with the Department. A dispensary is also not permitted to provide a quantity or form of medical marijuana that is different than indicated on the patient’s certification.
As a dispensary permit holder, am I allowed to advertise medical marijuana at a discounted rate or as part of a giveaway?
No, a dispensary may not advertise medical marijuana as a promotional item, as a part of a giveaway, or as part of a coupon program. A dispensary is also not permitted to offer medical marijuana to a patient or caregiver free of cost unless the patient is approved for financial assistance by the Department. Additionally, a dispensary is not permitted to offer the delivery of or deliver medical marijuana to a patient’s or caregiver’s home or any other location.
II. Medical marijuana dispensary operations will require certain expensive items and/or relationships as detailed in the regulations.
What type of licensed medical professionals are required to work at the dispensary facility?
Either a physician or a pharmacist must be present at a dispensary facility at all times during the hours the facility is open to dispense medical marijuana to patients and caregivers. If a dispensary is authorized to operate more than one facility under its permit, a physician assistant or a certified nurse practitioner may be present onsite at each of the other locations instead of a physician or pharmacist. As provided by the Act, each of the health professionals shall, prior to assuming any duties at the facility, successfully complete a 4-hour training course developed by the Department.
What types of security and surveillance are required for a medical marijuana dispensary permit holder?
A dispensary must have security systems that utilize commercial-grade equipment to prevent unauthorized entry and to prevent and detect an adverse loss. The security and surveillance systems must include a professionally monitored security alarm system that includes:
Dispensaries are also required to have a professionally-monitored security and surveillance system that is operational 24 hours a day, 7 days a week and records all activity in images capable of clearly revealing facial detail. The security and surveillance system must be equipped with fixed camera placement that allows for a clear image of all individuals and activities in and around the following:
The cameras in the medical marijuana dispensary facilities must also be able to take clear and still photographs and be able to display the correct date and time. The dispensaries must also be able to record all images captured by each surveillance camera for a minimum for 4 years. The recordings must be stored in a secure place and protected with a separate security system.
The temporary regulations further explains that medical marijuana dispensaries must designate an employee to continuously monitor the security and surveillance systems of the facility.
Medical marijuana dispensaries are also required to install commercial-grade, nonresidential doors and door locks on each external door of the facility.
What sanitation and safety requirements are required by the Department for a medical marijuana dispensary facility?
A dispensary shall provide its employees and visitors with adequate and convenient handwashing facilities furnished with running water at a temperature that is suitable for sanitizing hands. The following apply:
What are requirements surrounding the transportation of medical marijuana?
Medical marijuana may be transported and delivered by a dispensary to a medical marijuana organization in the following circumstances:
Dispensaries will are not permitted to transport medical marijuana to any location outside of Pennsylvania. The dispensary must use a global positioning system to ensure safe, efficient delivery of the medical marijuana to a medical marijuana organization.
Vehicles permitted to transport medical marijuana must:
Each transport vehicle must be staffed with a delivery team consisting of at least two individuals. The dispensary is also required to notify the Department daily of its delivery schedule, including routes and delivery times.
How will the Department know whether I am in compliance with all these requirements?
At the time the Department determines a dispensary to be operational, the dispensary is required provide the Department with a full and complete plan of operation consistent with regulatory requirements for a review that includes the following:
SMGG intends to stay at the forefront of legal developments in this area. For questions, please contact Erica L. Laughlin or David L. Pollack of Strassburger McKenna Gutnick & Gefsky at firstname.lastname@example.org; email@example.com or (412) 281-5423.
 The author would like to recognize the significant contributions of John Scialabba, University of Pittsburgh Law School class of 2017, to this post.
 Codified at 28 Pa. Code §§1161 et seq.
 Codified at 35 P.S. §§ 10231.106 et seq.
 The new rules and regulations define a dispensary as a person who holds a permit issued by the Department to dispense medical marijuana.
 As described in SMGG’s November 3 Blog.