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By Griffen Thorne, Attorney at Harris Sliwoski
Cannabis M&A (short for mergers and acquisitions) in California is much more complicated and problematic than in other states. The biggest reason for this is that licenses are not transferrable, which all but eliminates the possibility of asset sales. In turn, this means that deals are much more complicated for both buyer and seller, and probably kills a lot of potential deals before they start. That might change soon, as the state is considering a bill that would allow license transfers.
Why are asset sales so important in cannabis M&A?
I recently wrote a post for one of our firm’s sister blogs on the top 5 issues buyers face when buying businesses in regulated industries. Here is what I wrote about the difference between “asset sales” and “business sales” in the M&A context:
[W]hen people talk about M&A, they often think of buying the entity (a “business sale”). However, it’s usually better practice to simply buy the assets of a business with a brand new entity (an “asset sale”). In an asset sale, the buyer will generally get all the assets, and not just the physical ones – IP, name, leases, etc. The advantage to doing it this way is that the buyer gets to continue operating the business but doesn’t inherit liabilities associated with the actual entity that sold the assets.
Let me flesh this out a little bit more. A business – say a corporation or LLC – has liabilities. Those liabilities may include taxes, debt, litigation, accounts payable, and so on. Those liabilities are “personal” to the business, meaning they are obligations of the business. If the business itself is purchased, the prior owner (seller) does not magically retain those liabilities and hand over the business free and clear. Even if the seller would agree to that, the buyer would have to get the creditors of the business to agree. And good luck with that.
There are some tools that business sale buyers have, such as making the sellers represent that there are no liabilities, requiring the seller to indemnify the buyer against disclosed or undisclosed liabilities, or even holding back some of the purchase price for a period of time after closing to deal with potential liabilities. To be clear though, these are not perfect solutions and we’ve seen cases where six- or even seven-figure liabilities come to light after the closing, with the seller nowhere to be found.
In asset sales, on the other hand, the buyer will buy some or all of the assets of the original business, including the license (more on that below). This means that the liabilities that are “personal” to the original business won’t follow it and the seller will have to deal with those on their own. This is hugely advantageous for buyers for obvious reasons.
Ok, asset sales are important…why not use them as a default?
The answer is pretty simple – regulation. Here’s what I wrote in that post linked above:
When it comes to regulated businesses, asset sales may not be an option. Regulated businesses may have licenses, permits, or other assets that cannot be sold to an unregulated entity. For example, in California’s cannabis industry, licenses are “personal” to the licensed business and can’t be sold. And the products that business owns can’t be transferred to an unlicensed buyer. In these kinds of regulated industries, asset sales are off the table.
In states like Oregon, where our corporate team has closed countless M&A deals, sales tend to be structured as asset sales. That’s because those states have processes in place to allow licenses to essentially move to different businesses and even possibly different locations.
California, on the other hand, doesn’t do that. For whatever reason, drafters of the state’s cannabis laws chose not to create processes for the transfer of licenses. And neither did state regulators at the Department of Cannabis Control (DCC). In fact, DCC regulations don’t even create an easy pathway for business sales – regulations regarding changes of ownership mandate that an original owner stay with the business for a time post-closing.
This same regulation makes clear that “Licenses are not transferrable or assignable to another person or owner” and, except in one very specific instance, “licensees may not be transferred from one premises to another.” This means that assets sales are off the table.
I should also mention here that California is a dual-licensing jurisdiction, which means that licensees must also have local licenses. Some (not many) localities have provisions in place to allow for license or location transfers, but doing so is difficult if not impossible given the DCC’s rules.
Will license transfers be allowed?
Earlier this week, California Assembly Member Phillip Chen proposed AB 2540. The proposed bill is very short, and the substantive change is to add the blue and italicized phrase to the following existing law:
“It being a matter of statewide concern, except as otherwise authorized in this division, the department shall have the sole authority to create, issue, deny, renew, discipline, condition, suspend, transfer, assign, reassign, or revoke licenses for commercial cannabis activity.”
This is literally all the bill in its current form states, and if the bill progresses through the legislature it is almost certain to be supplemented. While we don’t have a ton of information on AB 2540 just yet, we do have some information about what the purpose is from a 2023 effort by Chen to propose a substantially identical bill, AB 351, which died in committee. A committee analysis of the substantially identical bill from April 18, 2023 states:
Under existing law, DCC does not have explicit authorization to transfer, assign, or reassign a state-issued license. Currently, in order to acquire a license, one would have to acquire the entire company that holds the license (e.g., an LLC) and assume all of its liability. Subsequently, the owner of the company being bought would have to add the purchaser to the license. Once approved and added to the license, the purchaser could then offload the seller from the license. The author and sponsor contend that this process is overly burdensome and having the ability to transfer a license would improve continuity of operations.
I will just assume that this is the same logic behind AB 2540. If so, it hits the nail on the head. Business sales are problematic both because (1) they require the assumption of liabilities (many of which may be undisclosed by the seller or even unknown to the seller), and (2) the DCC has an irrational and unnecessarily complicated ownership change process, which requires at least one original owner to remain associated with a business for a length of time after it is sold.
What the future may hold
Given that Chen’s attempt to pass a similar bill failed last year, I think AB 2450 has a relatively rough ride going forward. That said, if the bill passes, it could open the state up for a host of cannabis M&A transactions that could completely change the industry. Cannabis M&A transactions will probably increase substantially if asset sales are permitted. This would be a huge relief for smaller business owners looking to offload licenses, retire, or just exit the industry.
As mentioned, the bill is in its infancy and has a long road ahead of it, during which time it could be modified or supplemented to the point where it is nearly a different bill. Whether or not that happens, if the bill passes, there is still the issue of local law, which the bill currently does not address. Unless cities or counties decided to follow suit, the state’s changes would be of minimal utility.
No matter what happens with AB 2450, it’s clear that the legislature is beginning to wake up to the fact that the industry is clearly broken and in need of major regulatory overhauls. For just one example, a few days ago, I published a post on an effort to allow integration of the hemp and cannabis industries, which would be an immense change to the status quo. Stay tuned to the Canna Law Blog for more updates on changes to California’s cannabis industry.
Republished with the permission of Harris Sliwoski
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