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

Missouri begins medical marijuana sales.  Opponents of legalization in Montana speak up.  The 9th Circuit releases an immigration opinion involving marijuana.  Asylum seekers are disqualified by most cannabis offenses.  And finally, medical marijuana is free in France.

missouri

Almost two years after voters legalized medical cannabis, dispensaries opened last weekend in Missouri.  Consumers saw long lines and high prices, due to limited supplies.  The state expects more dispensaries to be open by the end of the year.

montana

A new poll shows Montana voters poised to legalize marijuana by a 10-point margin.  The state’s top federal prosecutor, however, is opposed to legalization and wrote an op-ed urging voters to consider all the potential downsides to allowing cannabis consumption.  Meanwhile, the anti-legalization group Wrong for Montana has filed suit to block the initiative, saying it is unconstitutional.

immigration

The 9th Circuit ruled late last week that Oregon’s former marijuana delivery statute is not an illicit trafficking of a controlled substance offense.  This means that an alien convicted under that statute is not removable as an aggravated felon.

asylum

However, the Trump administration has just finalized a proposed rule that would ban most people with misdemeanor drug offenses from seeking asylum.  The rule does offer an exception for those who have been convicted of a a single offense involving possession for one’s own use of 30 grams or less of marijuana.

and finally

High prices for medical marijuana are no concern in France.  The government has just announced a pilot program in which companies will be allowed to supply up to 3,000 patients with medical cannabis at no charge.  The companies will have to foot the bill for the product and meet pharmaceutical standards.  The government has also stated that participating companies should expect no benefits from their participation in the program.  One wonders how many companies will sign up for this opportunity.

Stay safe and be well everyone – we’ll see you next week!

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

Maine began sales of adult-use cannabis.  The Supreme Court declined to hear a case concerning marijuana rescheduling.  New Zealand will vote on recreational cannabis on Saturday.  Hemp growers are unhappy over the DEA’s hemp rule.  And finally, marijuana made an appearance on The Family Feud.

maine

Maine legalized recreational cannabis in 2016.  The roller coaster ride to selling cannabis ended last Friday.  Sales have been brisk, to say the least.   The six stores open for business brought in almost $100,000 the first day.  Sales for the long weekend were over $250,000. Clearly, there was a lot of pent-up demand.

supreme court

The nation’s highest court (no pun intended) refused to hear a case on cannabis scheduling.  The case challenged marijuana’s Schedule I designation, arguing that medical marijuana’s widespread use proves it does have a medical purpose.

new zealand

Saturday‘s the big day for cannabis in New Zealand.  Voters will head to the polls to decide if those 20 and older can purchase and consume marijuana.  The Cannabis Legalisation and Control Bill would require the legislature to enact rules for sales, allow adults to buy up to 14 grams of marijuana per day and permit home cultivation of up to four plants per household.

dea hemp rule

The Hemp Industries Association and RE Botanicals are back in court, still unhappy over the DEA’s interim final rule on hemp.  Regular readers will doubtless recall that they petitioned the DC Circuit Court for review last month.  That case is still on-going.  Now they’re suing the agency in DC District Court, citing regulatory overreach.  Further bulletins as events warrant in both cases.

and finally

Yet more proof that cannabis consumption is getting more and more mainstream.  Marijuana recently appeared as a question on The Family Feud.

Stay safe and be well everyone – we’ll see you next week!

As you might recall from our previous post, The 10th Circuit Grants Re-leaf to Workers Seeking Overtime Under the FLSA, the 10th Circuit held that cannabis employers are not immune from federal overtime laws even though the cannabis sector is illegal under federal law.

The employer in Robert Kenney v. Helix TCS, Inc., sought to clear the haze that the 10th Circuit’s ruling created with respect to the “confusion, conflict, and lack of uniformity between state and federal law regarding federal rights and protections accorded” to employees in the cannabis industry by filing a petition for writ of certiorari with the United States Supreme Court.

While the Appellate court found that cannabis employees can bring suit under the Federal Labor Standards Act (FLSA) because employers are not excused from complying with federal law just because their business practices are federally prohibited, in its petition, Helix argued that this notion seemed at odds with the principle that the federal government does not “extend federal benefits to those associated with the marijuana industry.”

The High court denied review. For now, it appears that cannabis employees can seek redress for federal labor law violations under the FLSA. But even if the court had ruled that the FLSA did not apply, cannabis employers still need to comply with state labor laws. Thus, employers must ensure their practices are compliant in their relevant jurisdictions. Otherwise, they might find themselves involved in high stakes litigation.

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

Vermont’s governor allowed marijuana sales.  Illinois faces another lawsuit over its licensing program.  Colorado’s governor expunged criminal records.  The Supreme Court denied cert in a cannabis  pay case.  The 9th Circuit may hear a challenge to the DEA’s marijuana scheduling.  And finally, Silent Bob has his say on cannabis in New Jersey.

vermont

The big news this week is Vermont’s legalization of retail sales of marijuana.  Governor Scott (R) allowed the bill to become law without his signature on Wednesday.  Commercial sales will begin in 2022.

illinois

As we’ve reported in the past, Illinois’ cannabis licensing program has had some problems.  First, the state faced a lawsuit by unsuccessful applicants.  That suit was dropped after the governor announced changes to the process.  Now, it’s the finalists who are suing, saying the changes are not allowed by law.  Further bulletins as events warrant!

colorado

This has been a big week for state governors.  Colorado’s Gov. Polis (D) issued an executive order pardoning over 2,700 people with low-level marijuana offenses. The pardons are automatic, and individuals can check a new state website to see if they’ve been pardoned.

supreme court

The United States Supreme Court declined to hear a case involving overtime pay for cannabis security workers.  The employees alleged violations of the Fair Labor Standards Act (FLSA).  The company argued that since marijuana is illegal under federal law, the FLSA does not apply.  The case will return to federal district court. That court will decide whether the company’s action constitutes an FLSA violation.  For more on this case, see our take in this space on Monday.

ninth circuit

In other federal court news, scientists and veterans’ groups filed a brief to the 9th Circuit. They challenge the Drug Enforcement Administration’s (DEA) classification of cannabis as a Schedule I drug. The groups argue that state legalization of medical marijuana invalidates the idea that cannabis has no therapeutic value.  The DEA’s brief in response is due late next month.

and finally

Filmmaker Kevin Smith, best known for his portrayal of Silent Bob in the 1994 movie “Clerks,” is speaking out on New Jersey’s ballot question.  Urging a YES vote, he says, “Only you can make the Garden State truly green!”

Stay safe and be well everyone – we’ll see you next week!

Trademark owners in the cannabis field keep trying new ways to register their marks, and who can blame them? Branding is everything in an increasingly online world, and protecting your brand’s reputation is paramount to staying in business, especially when you operate in an industry mired in legal grey areas. The cannabis industry is growing and the laws are constantly evolving, seemingly more quickly in recent years.

Nevertheless, as the late great RBG said in her confirmation hearing (https://www.loc.gov/law/find/nominations/ginsburg/hearing.pdf), “Real change, enduring change, happens one step at a time.” The Trademark Trial and Appeal Board is happy to flow with this slow pace of change, as seen in the latest CBD-related decision (https://ttabvue.uspto.gov/ttabvue/ttabvue-87864999-EXA-8.pdf), in which the Board affirmed long-standing precedent that “use in commerce” necessarily means “lawful” use.

The Applicant in In re NL LLC applied to register its mark in connection with supplements containing CBD, and the USPTO issued a refusal. The Applicant appealed, arguing that the Lanham Act does not specify the use in commerce must be “lawful.” According to the Board’s written opinion, the Applicant did not cite any authority for its position. The Board affirmed the USPTO’s decision, explaining that, despite the absence of “lawful” in the statutory language of the Lanham Act, there is longstanding precedent in federal courts to support its position. Courts have reasoned in part that, to register marks in connection with unlawful goods and services under federal law would, “as a logical matter…put the government in the ‘anomalous position’ of extending the benefits of trademark protection to a seller based upon the actions the seller took in violation of that government’s own laws.”

The Court also threw in some constitutional law for good measure, reminding us all that the Supremacy Clause “unambiguously provides” that if there are conflicts between federal and state law, federal law prevails. In plain language, this means if the goods are lawful under state law (in this case Colorado) but not federal, applicants still cannot get a federal trademark registration. We touched on this and different options available to trademark owners in this position in a prior post (https://www.blunttruthlaw.com/2019/03/likely-to-be-dazed-and-confused-the-hazy-future-of-cannabis-related-trademarks/).

Change is coming, though, and all signs point to supplements one day being approved by the FDA, so hopefully soon, business owners offering CBD-related products and services will enjoy the benefits of a federal trademark registration.

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

We have an update on the Vermont situation.  Four members of Congress introduced a bill allowing the marijuana industry to access relief funds.  Cannabis banking appears in the Democrats’ new stimulus bill.  The Nebraska Supreme Court ruled in favor of CBD sellers in the state.  New Jersey may decriminalize cannabis.  Marijuana is off the ballot in Oklahoma.  And finally, marijuana makes a great gift in Mexico.

vermont

As we reported last week, the Vermont legislature passed a bill allowing for retail sale of cannabis.  Gov. Scott (R) has not yet acted.  He recently indicated he might veto the legislation due to racial equity concerns.  Once again, further bulletins as events warrant.

cannabis relief

Four members of Oregon’s Congressional delegation recently introduced a bill to allow those in the marijuana industry to access federal relief funds.  Hit hard by both the pandemic and the wildfires, cannabis businesses have so far been deemed ineligible for federal aid.  The Small Business Disaster Relief Equity Act seeks to change that.  We’ll follow the bill’s progress with interest.

cannabanking

In other federal news, Democrats included the SAFE Banking Act in its latest stimulus bill.  Could this be a bargaining chip that doesn’t appear in any final legislation?  Only time will tell.

nebraska

Marijuana is off the November ballot, but the Cornhusker State continues to make cannabis news.  The state’s Supreme Court recently ruled in favor of CBD sellers facing criminal charges.  The state initially filed charges against the owners of DJ’s Vapes after a 2017 raid, and refiled them twice in 2018.  A 2019 law legalized products below 0.3% THC, and the Supreme Court ruled 7-0 that the items in question did not violate state law.

new jersey

Adult-use legalization is on the ballot in New Jersey, but should decriminalization happen before the election?  Advocates say it will prevent people from being arrested on pot charges even after a “yes” vote.  Detractors voice concerns that it will distract from the push to legalize.  Yet another continuing saga.

oklahoma

Cannabis will not appear on the 2020 ballot in Oklahoma.  The state’s Supreme Court ruled that the question was invalid, as the gist of it is misleading.  Look for this initiative to resurface in 2022.

and finally

Nothing says “Thanks for being such a great wo-worker” like marijuana.  Just look at the boom in cannabis gifts in the Mexican Congress.

Stay safe and be well everyone – we’ll see you next week!

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

Vermont moves closer to legalized cannabis sales.  The House delayed a vote on the MORE Act.  The DEA faces a lawsuit over their hemp rule.  Plaintiffs dropped a suit over Illinois’ marijuana licensing.  Will descheduling appear on the Supreme Court’s docket?  The USDA’s relief aid program opens to hemp growers.  The Alliance for Sensible Markets wants to set up interstate commerce for cannabis.  And finally, Martha Stewart has a new CBD product.

vermont

It’s all up to the governor now.  The Vermont Senate passed a bill allowing sales of cannabis in the state.  As we reported last week, the governor could go either way on this legislation.  Once again, further bulletins as events warrant.

more act

We have another update on a story from last week.  House Majority Leader Steny Hoyer (D-MD) removed the MORE Act from this weeks’ House floor schedule, and a vote may have to wait until after the election.  Marijuana Business Daily has a look at what the future may hold for the legislation.

dea regulations

We reported last month that the hemp industry is less than delighted at the DEA’s new rule.  Now, they’re suing.  Late last week, the Hemp Industries Association and a South Carolina CBD manufacturer filed suit in DC federal court.  They want the court to throw out the rule, claiming that it criminalizes a part of the extraction process.  We’ll be keeping an eye on this.

illinois

The road to social equity in cannabis may run a bit smoother in future.  Several unsuccessful business license applicants filed suit in federal court, claiming the state’s system discriminated against minority applicants.  They’ve now dropped that suit after Governor J.B. Pritzker (D) announced changes to the system this week.

supreme court

Will marijuana appear on the high court docket this term?  The National Cannabis Industry Association and the Arcview Group hope that it will.  They’ve filed an amicus brief, asking the court to hear Marvin Washington, et al., Petitioners v. William P. Barr, Attorney General, et al.  Follow the action on the case at the court’s website.

relief for hemp farmers

The USDA expanded its virus relief program for farmers, and hemp growers are now eligible for funds.  They were initially deemed ineligible, as prices did not decline sufficiently between January and April.  Now, they can apply for relief under a new “flat-rate” crop category.

alliance for sensible markets

A new group is calling on governors of states where cannabis is legal or “soon to be” legal to join a group establishing interstate commerce.  This would allow states with excess marijuana to export to states that don’t have enough to meet demand.  The group’s organizers also believe it would increase investment in the industry and spur legalization in other states.

and finally

Martha Stewart has come out with a new line of CBD pâte de fruit (fruit-flavored gummies) under the Canopy Growth Corporation line.

Stay safe and be well everyone – we’ll see you next week!

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

It’s the end of the road for Nebraska’s medical marijuana ballot initiative.  Vermont seems likely to legalize cannabis sales.  The MORE Act vote may be postponed.  The IRS issued tax guidance for marijuana companies.  The EU may classify CBD as a narcotic – an industry group is not happy.  The wildfires are consuming cannabis farms, and many farmers lack insurance.  And finally, marijuana legislation appeared in an answer on Jeopardy.

nebraska

It was a roller coaster for Nebraskans for Medical Marijuana, but the state’s Supreme Court has stopped the ride.  The court ruled late last week that the measure was unconstitutional, thus it will not appear on the November 2020 ballot.  The initiative would have both legalized medical marijuana and set up a system to manage it, and the justices decided that this violates the state’s single subject rule.  Advocates announced that they will craft a new initiative for the 2022 ballot.

vermont

In other state news, Vermont looks likely to legalize marijuana sales.  Home use and cultivation of cannabis became legal in 2018, but the law established no system for sales.  Legislation currently moving through the legislature would set up such a system.  Although the bill is expected to pass, the governor’s views on the subject are unknown at present.  Further bulletins as events warrant.

more act

Turning our attention to the federal government, supporters of the MORE Act anticipated no problem in voting to remove federal penalties for marijuana just a short time ago.  Now, however, that vote may be delayed.  Senator Mitch McConnell (R-KY), long an opponent of hemp’s “illicit cousin,” has effectively tied the vote to virus relief legislation, saying that supporters of the bill are more interested in marijuana than aid to those suffering during the pandemic.  The Act remains on the September schedule, but House Majority Leader Steny Hoyer (D-MD) says legislation to keep the government open and deal with COVID are more important.

tax guidance

For those in the cannabis industry, paying taxes can be quite a hassle.  Now, the IRS has released guidance to make those payments less difficult.  Topics covered include income reporting, cash payments, estimated tax and record keeping.

cbd and the eu

As we’ve reported before, a European Union Commission has reached a “preliminary conclusion” that CBD and other hemp extracts are narcotics.  The European Industrial Hemp Association is now fighting that conclusion, writing letters to the EU’s commissioner for health and food safety and to the European Parliament.

wildfires

We’ve all seen the devastation facing Western states as wildfires rage out of control.  Cannabis farmers have not escaped; even if they are spared the flames, the smoke in the air can ruin marijuana crops.  To add insult to injury, many are uninsured, as cannabis is still illegal under federal law, regardless of the fact that it’s legal in Washington, Oregon and California.

and finally

You know you’ve hit the mainstream when your product appears on Jeopardy!

Stay safe and be well everyone – we’ll see you next week!

For those interested in cannabis industry events, Seyfarth attorneys will be participating in the following webinar programs and we invite you to join.

Thursday, October 1 – “CBD News You Can Use: FDA’s Progress and Other Updates” hosted by Seyfarth

This program offers an overview of the distinction between cannabis, hemp, marijuana, and CBD; a look at FDA’s regulatory activity over the past year; the FDA and FTC’s 2020 enforcement activity and consumer driven litigation; status of states’ regulation of CBD; CBD products in the marketplace; and Federal legislation and lobbying activity related to CBD.

Find more information and register for the webinar here.

 

Wednesday, October 21 ­– “Trade Secrets in Cannabis” hosted by the California Lawyer’s Association

The program aims to help cannabusinesses and their counsel identify the potential trade secrets in this industry and learn how to protect them, including in these COVID-19 times. Speakers will also discuss some of the more recent and significant trade secrets cases involving the cannabis industry to illustrate key takeaways.

Find more information and register for the webinar here.

 

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

The USDA is allowing more comments on its new hemp rule.  The House voted to allow marijuana research.  We have an update on the Nebraska situation.  Illinois’ social equity program comes under fire, while Maryland’s program is cleared of bias.  And cannabis is falling from the sky in Israel.

usda hemp rule

Regular readers will doubtless recall the general unhappiness over the USDA’s hemp rule, published in October 2019.  The agency responded this week by reopening the comment period.  It now runs until October 8, 2020.

marijuana research

In other federal news, the Medical Marijuana Research Act of 2019 advanced out of the House Energy and Commerce Committee by unanimous voice vote this week.  The bill would facilitate production of marijuana for use by researchers and expressly forbids interference by the Department of Justice or the Attorney General.

nebraska

As we’ve reported before, Nebraska’s medical marijuana initiative has had a rocky road to the ballot.  The state’s Supreme Court heard oral arguments late last week on whether to allow the measure to proceed to the voters.  The court could rule any day, so look for more on this subject next week.

illinois

In other state news, Illinois’ social equity program faces accusations that it shut out the very people it exists to help.  The program grants those who live in an area disproportionately affected by cannabis laws in the past or have past convictions additional points on applications for business licenses.  Now a lawsuit has been filed that claims places in the lottery system that will distribute licenses have gone to well-connected insiders.

maryland

Illinois isn’t the only state answering questions about its licensing process.  Unsuccessful applicants in Maryland claimed the state’s process lacked transparency and was subject to undue influence.  An investigation recently found “no evidence of bias.”

and finally

Call it manna from heaven.  Bags of cannabis fell from a drone over Rabin Square in Tel Aviv last week.  Sponsored by a group supporting the legalization of recreational marijuana, this may be the first of many “deliveries,” as COVID limits in-person contact.  Keep watching the skies!

Stay safe and be well everyone – we’ll see you next week!