Last month, my Portland colleague and cannabis business litigator extraordinaire Jesse Mondry authored a post titled Oregon Cannabis: Drive-Thru Marijuana Sales Ending? On Friday, December 16, we got an answer to that question. The answer, I’m glad to report, is “not at this time.” That determination came via the Oregon Liquor and Cannabis Commission’s (OLCC) recent, partial adoption of certain proposed rule amendments.
The changes at issue are summarized in Bulletin CE2022-04 (the “Bulletin”). Please note that the Bulletin does not just address drive-up or drive-thru sales. It addresses the critical topic of on-site delivery, as well.
On drive-thru, Jesse wrote:
OAR-025-1300(g) prohibits licensees from selling marijuana items through a drive-up or walk-up window. But in December 2021 the COVID-19 pandemic caused the OLCC to adopt temporary rules that permitted delivering marijuana items to a person in the parking lot of the store, a person at the front entrance of the store, or a person at a walk-up or drive-thru window of the store. So for nearly two years, retailers, patients, and customers have become accustomed to having the option of using a drive-thru to deliver marijuana (where not otherwise prohibited by a local ordinance).
Now that the pandemic appears to be winding down, the OLCC appears poised to reinstate the former rule, in part, by forbidding drive-thru delivery and allowing walk-up window delivery. Here’s what the new rule may say: A license may not sell any marijuana item through a drive-up or walk-up window. Proposed OAR 845-025-1300.
People had a lot to say about this one, as we can attest from last month’s hearings. Safety and accessibility concerns were at the fore. It seems OLCC took that feedback seriously, concluding:
During the rules advisory committee meetings and the rule public comment period, it became obvious… that a separate rulemaking process focusing solely on drive-up and on-site delivery rules is needed. We will be scheduling that in the coming New Year.
Power to the people! If you’re still here and haven’t clicked over to the Bulletin, I’ll make your life even easier. Here is the key cut and paste:
What remains the same?
OLCC will continue to NOT enforce the prohibition on drive-up windows. Local jurisdictions (cities and counties) can still prohibit drive through activity through time, place and manner regulations.
Retailers can continue to offer on-site delivery options for consumers (e.g. – order ahead, deliver to vehicle in controlled parking lot.) Delivery through a walk-up window is considered on-site delivery and must comply with OAR 845-025-2885.
This rule package removed the walk-up window prohibition, meaning you can continue to use or add walk-up window options at retail stores.
For on-site delivery or drive-up delivery a new rule has been added that prohibits delivery to a car if minors are present, unless the minors are accompanying a parent or guardian. This only applies to deliveries made to a vehicle; minors are still NOT allowed inside retail stores.
Pretty straightforward and we’ve got no problem with any of it. For anyone who does, or wants to advocate for the ongoing right to offer drive-thru and delivery sales as currently allowed, stay tuned for the separate rulemaking process OLCC now proposes in 2023.
In the meantime, as always, we encourage you to read each and every OLCC Compliance Bulletin carefully, and to sign up for OLCC email alerts. Maybe even follow the Commission on any of its social media. They aren’t the worst accounts.
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