Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

First, recreational marijuana is now legal in the state of Michigan.  Of course, as we have discussed before, making marijuana legal is only the first step in setting up stores to purchase marijuana.  In fact, the Chicago Tribune wonders if Illinois could legalize marijuana and set up commercial outlets more quickly.

Meanwhile, in Utah, another state that voted on marijuana in the recent election, the legislature has crafted a compromise law.  Not everyone is happy about it, but with the approval of the governor, it’s now the law of the land.

Speaking of the delay between legalization and availability, Arkansas voted to legalize medical marijuana in 2016.  Growers are hoping to have product available this spring.

In foreign news, Mexico has approved over the counter cannabis products, while Luxembourg has released a proposal to legalize recreational marijuana.

A major tobacco company is looking to invest in Canadian marijuana.  The stock of Cronos Group, the company that could be acquired, rose on the news.

Finally, not everyone in Canada is happy about legalization.   Just because you can do something, doesn’t mean you should.

See you next Friday!

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

The big news this week, at least on the federal level, is that hemp legalization appears to be coming sooner rather than later.  Nothing like having an important Senator on your side to smooth the way.

In state news, marijuana stores in Massachusetts opened last week (after WIW went to press) with many customers eager to purchase their wares.  Remember, Massachusetts voters opted to legalize cannabis in 2016.  Voters in Michigan may want to keep that timeframe for stores to open in mind, as legalization takes effect there December 6.  Possession and home cultivation will be legal next week, but it will probably be a while before shops open.

Remember when it seemed as if New Jersey was the last place you thought would legalize cannabis?  Times have changed!  Granted, this newest proposal may not go anywhere, but these bills are no longer dead on arrival.

And add North Carolina to the list of states considering legalization.  Theirs is an interesting idea, that I’ve not seen before, where each county would be able to decide to legalize or not.  Like wet and dry counties, but with cannabis rather than alcohol.

And in our continuing series on politicians who have changed their mind on marijuana, Joe Kennedy III has now joined this club.

In international news,  South Korea has legalized medical marijuana, the first country in East Asia to do so.

And finally, for our Chicagoland readers, please join us at our Chicago Willis Tower office on Thursday, December 6th, for breakfast along with a Seyfarth Legal Forum and Continuing Legal Education (CLE): 2018 Highlights and a Look Ahead to 2019.  Among the topics under discussion is cannabis in Illinois.

While there is no cost to attend, registration is required and space is limited.  If you have any questions, please contact Fiona Carlon at fcarlon@seyfarth.com and reference this event.

See you next week!

Georgia workers want to know if they can get fired for legally using cannabis oil.

In Georgia, employees risk being penalized by their employers for their legal use of Cannabidiol (CBD) oil while performing their jobs.  Employers wishing to maintain a drug-free workplace are concerned about employees performing their duties impaired if they use CBD oil, even when CBD oil contains low levels of Tetrahydrocannabinol (THC) and has proven to be safer and more effective than opioids.

The lack of clear guidelines is frustrating workers. State law allows employees to use CBD oil, while other laws allow employers to fire workers for using it. Georgia lawmakers are looking to move the ball forward on harmonizing the employer’s goal of prohibiting working under the influence on the one hand with the patient’s goal of legally treating health conditions on the other.

Legislators will have to categorize CBD oil.

Did the CBD oil come from marijuana or hemp?

Both marijuana and hemp are plants that come from the “cannabis” family. The primary difference between the two plants is the level of THC present. Marijuana plants can have THC levels of up to 30%, whereas there is usually less than .3% of THC in hemp (you can’t get high from .3%).

After the Agricultural Act and Farm Bill in 2014 drew some attention to hemp, the Industrial Hemp Farming Act of 2015 removed hemp from the controlled substance schedule so long as there was no more than .3% THC. Therefore, hemp derived CBD oil is legal; but under federal law, CBD oil derived from marijuana is illegal.  The legality of marijuana derived CBD oil at the state level depends on how individual states treat marijuana.

But what if we remove the THC from marijuana derived CBD oil?

18 states, including Georgia, are in the process of passing legislation to specifically address this issue and resolve the relationship between THC threshold and CBD oil categorization.

Georgia should have clearer answers after the 2019 legislative session.

Currently, Georgia allows for the use of low-THC CBD oil, but the lack of clarity requires forward-thinking legislation to satisfy employers concerned about impaired workers while protecting patients who are following state law while performing their jobs.

Back in March, 2016, House Bill 722 was introduced to allow Georgia manufacturers to grow and cultivate medical marijuana in-state under strict controls. While this early legislation left pro-cannabis legislators wanting more, it allowed for the limited use of CBD oil to treat severe illnesses. By the conclusion of the 2017 legislative session, SB 16 and HB 65 broadened the conditions eligible for treatment from low THC CBD oil (including PTSD, intractable pain, and Alzheimer’s).

Earlier this year, a resolution was passed to study industrial hemp production.  This optimistically signals that much needed clarity should result from the upcoming legislative session in 2019.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Most of the international news lately has focused on Canada, and with good reason.  But it’s not only our neighbors to the north who are making news in the cannabis space.

Israel is looking to export medical marijuana while Germany is facing a lawsuit over its medical cannabis plan.  And in New Zealand, the people of Ruatoria are hoping medical marijuana can save the town.

We talked last week about the prospects for Illinois following Michigan’s lead to legalize recreational marijuana.  Now, it seems that, following Missouri and Oklahoma, Kansas might venture into the medical cannabis industry.

Several of us who bring you The Blunt Truth call the DC area home, so we follow the developments in our nation’s capital with particular interest.  Last Friday, the D.C. Department of Health published proposed rules allowing the sale of chocolate medical marijuana-infused products.  Unlike statutes, the District’s regulations are not subject to Congressional oversight, so most likely, in 30 days, these items will be available.  So soon, you’ll be able to get your cannabis, and the munchies you’ll need afterwards, all in one package.

A Word version of the new rule is available here:  Health Department of 22C DCMR Ch. 56 Ingestible Items

See you next week!

Seyfarth Synopsis: The Tenth Circuit is set to decide whether workers in Colorado’s legalized marijuana industry are entitled to wage and hour protections under the FLSA. 

The Fair Labor Standards Act (FLSA) is the federal statute that provides wage and hour benefits to certain employees.  On the other hand, the Controlled Substances Act (CSA) is a federal statutes that categorizes marijuana as a Schedule I drug, meaning it is illegal under federal law.  Simple possession (let alone participating in its manufacture and distribution) is illegal, irrespective of state law to the contrary.  In the wake of widespread legalization of recreational marijuana in states across the country, a questions has arisen as to whether the FLSA was meant to provide wage and hour protections to employees of businesses engaged in the manufacture or distribution of Schedule I drugs under the CSA.

Background

This question has been put to the test in Kenney v. Helix TCS, Inc..  In Kenney, an employee of Helix, which provides armed security and transport services for businesses that grow and distribute marijuana, filed a putative collective action against Helix under the FLSA.  Kenney claims that Helix misclassified him, and similarly situated employees, as exempt and owes them overtime wages.  In response, Helix moved to dismiss the action, arguing that Kenney is not entitled to the protections of the FLSA because he is employed in the marijuana industry, which is entirely forbidden under the CSA.

The District Court denied Helix’s motion to dismiss.  The Court observed that Helix did not cite any cases in support of its theory, while Kenney relied on Greenwood v. Green Leave Lab LLC, which held that a plaintiff employed in a marijuana-testing laboratory under Oregon’s recreational marijuana law was entitled to protections under the FLSA, notwithstanding the CSA’s prohibition on marijuana.  Further, the Court held that businesses are not precluded from complying with federal laws because their business practices may violate other federal laws.  Nonetheless, the Court certified the ruling for immediate appeal to the Tenth Circuit with respect to the issue of whether Kenney is a covered employee under the FLSA.  Continue Reading DIRTY WAGES: TENTH CIRCUIT TO DECIDE WHETHER EMPLOYEES IN THE MARIJUANA INDUSTRY ARE COVERED UNDER THE FLSA

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

After last week’s dizzying amount of news, it’s nice to settle down a bit and have more of a “regular” news flow.  Not that things haven’t been happening; the elections have led to new initiatives surrounding marijuana.

For instance, there’s some speculation that the new governor of Illinois will seek to follow Michigan’s example and legalize cannabis.

And speaking of Michigan, politicians there are talking about expungement of criminal records related to marijuana use.

In Texas meanwhile,  there’s discussion of legalizing medical marijuana and decriminalizing possession of small amounts of cannabis.

But the news isn’t all with the states; things are happening on the federal level as well.  Senate Majority Leader Mitch McConnell is promising that industrial hemp will appear in the farm bill.  And veterans interested in medical marijuana will be happy to know that proposed legislation to loosen restrictions at the Veterans Administration has been announced.

And for those of you thinking about changing careers, the National Institute on Drug Abuse is looking for some professional joint rollers.

See you next week!

Michigan becomes the tenth state to legalize cannabis on a recreational level, and Missouri and Utah now join thirty-one other states who have legalized medical marijuana. But what’s next and how will this affect employers?

Here is a quick summary of some of the major issues employers may face now that cannabis is legal in Michigan, Missouri, and Utah.

Michigan. Employers can rejoice in that the recreational bill leaves their right to refuse to hire or to discharge an employee intact. The act “does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marijuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

Compared to some of the other recreational bills that have been passed, this one gives employers some leeway in allowing them to refuse to hire, refuse to accommodate, or discharge an employee simply for violating their drug policies. In order to obtain the protections afforded by this bill, employers that operate in Michigan must confirm that they have adequate anti-drug policies prohibiting the use of marijuana in the workplace.

Missouri. Amendment Two passed by a margin of 66 percent to 34 percent. What this means is that qualified patients who have approval from their physicians will receive identification cards from the State that will allow them to consume marijuana.

The bill affords some level of protection to employers. The bill states that a person cannot bring a claim “against any employer, former employer, or prospective employer for wrongful discharge, discrimination or any similar cause of action or remedy” based on the employer “prohibiting the employee, former employee, or prospective employee from being under the influence of marijuana at work … or for attempting to work while under the influence of marijuana.”

While this bill in theory provides employers some protections, the difficulty employers face is testing for intoxication and determining if the employee is under the influence at work. THC accumulates and slowly releases overtime, such that chronic users may test positive even after many days of abstinence. Further, the way the body metabolizes THC makes it possible that the effects of marijuana continue long after the drug ceases to be detectible via blood tests. Thus, employers need to make sure they train their supervisors on how to properly detect cannabis use. Examples include looking for visible signs of cannabis use, such as, slowed productivity, weed odor, and blood shot eyes.

Utah. Interestingly, the Utah Medical Cannabis Act is silent as to what protections employers are afforded. While current law allows employers to drug screen applicants and allows existing employees to engage in drug testing for investigative purposes, the bill seems to imply that it may allow medical card users more protections in the employment context. Under the “Nondiscrimination” section, the bill states that cannabis use does “not constitute an illegal substance.” That section also prevents landlords from refusing to lease or from penalizing a person simply for being a marijuana card holder. Oklahoma had a similar landlord provision, and there, employers could not discriminate against a person in “hiring or termination or from imposing any term or condition of employment or other penalize a person based upon their status as a medical marijuana card holder or the results of a positive drug test.” Thus, it’s likely that Utah may adopt a similar provision. However, until Utah clears the smoke, employers remain in a haze as to what protections they have. Stay tuned for growing developments.

 

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.  And what a week it was!

Michigan legalized recreational cannabis, Utah and Missouri voted yes on medical marijuana, and several pro-legalization candidates were elected as governors.  Meanwhile, North Dakota voted against legalization and Rep. Dana Rohrabacher (sponsor of the legislation to prevent the DOJ from enforcing federal law against medical marijuana dispensaries) lost his seat.

And Attorney General Jeff Sessions, who made no secret of his opposition to cannabis for any purpose, was forced out of the administration.  So yeah, a lot’s been going on.

For our round-up of marijuana-related election results, see yesterday’s post.  For more analysis, see articles from the National Cannabis Industry Association, Ganjapreneur, and Marijuana Business Daily.

For Sessions news, see here, here and here.

But, has anything else important happened lately?  I’m glad you asked, because the answer is yes.

It’s not just Canada that’s legalized marijuana.  The Mexican Supreme Court has just ruled that the nation’s ban on cannabis is unconstitutional.

Speaking of Canada, they’ve got a pot shortage.  Apparently, you need to stock up more than you think when you legalize.  Mexico: take note.

Back in the U.S., the first cannabis-based drug approved by the FDA is now available by prescription.

See you again next Friday!

Welcome to a special post-Election Day edition of The Blunt Truth.  Marijuana was on the ballot last night, and just like the other races, the final result was a mixed decision.

Four states were deciding whether to allow recreational or medical marijuana.  Three of them voted yes. Continue Reading Weeding Out the Results–How Did Cannabis Fare in the Election?

A Colorado federal jury sided with the owner of a state-licensed cannabis cultivation business last Wednesday in a federal Racketeer Influenced and Corrupt Organizations Act (RICO) suit brought against him by his neighbors.

In 2015, Michael and Hope Reilly brought a federal RICO lawsuit in Colorado against Parker Walton and his cannabis cultivation operation that neighbored their property. The Reillys claimed that the smells and sounds from the cannabis facility caused damage to their property. The trial court dismissed their complaint on the grounds that they failed to prove any cognizable injury stemming from the RICO violation. The Reillys appealed to the Tenth Circuit.

The Tenth Circuit reversed the dismissal in 2017, reasoning that a cannabis cultivation operation, which is illegal under federal law, amounted to racketeering activity in violation of RICO section 1962 and that the Reillys had made legally sufficient allegations in their complaint. The suit went to trial last Monday and the jurors heard from various experts on whether the cannabis cultivation operation was releasing a smell and if so, how such smell impacts the value of a neighboring property. Ultimately, the jurors rendered a verdict in Walton’s favor, unconvinced that the cannabis cultivation operation had diminished the value of the Reillys’ land.

Industry players have been paying close attention to this case as the revival of the suit by the Tenth Circuit has spurred other RICO suits against cannabis operations. Because cannabis cultivation is still illegal at the federal level, the Reillys were able to transform their state law nuisance cause of action into a federal RICO action. However, this jury verdict highlights the difficulty for plaintiffs in a RICO action to not only allege but prove an injury to their business or property. This verdict, along with the high costs to litigate such racketeering lawsuits, will likely curb the eagerness to bring these lawsuits in the future.