On September 10, 2019, the Federal Trade Commission (FTC) sent warning letters to three companies that sold cannabidiol (CBD) products marketed with misleading claims that they could treat serious diseases. The FTC aims to “protect consumers from unfair and deceptive practices in the marketplace,” and accordingly has the responsibility of jointly overseeing marketing and advertising of products that fall under the U.S. Food & Drug Administration’s control.  (In 2019, the FDA issued four warning letters, and publicly disclosed the names of the companies in question. We previously discussed these letters in an earlier article.) According to its press release, the FTC warned three companies that it is illegal to market cures or preventative features of a product without supporting “competent and reliable scientific evidence.” The FTC has not publicly identified the recipients of the letters. Continue Reading FTC Issues Additional Three Warning Letters to CBD Companies

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

Sadly, the big news this week is vaping.  Hundreds are sick and several have died, apparently as a result of using e-cigarettes and other vaping products.  As a result, the cannabis industry expects fallout from this situation, as states are issuing warnings against using vape products.

In federal news, the Food and Drug Administration seeks comments on the international rescheduling of cannabis.  Meanwhile, the Federal Trade Commission sent warning letters to companies who are marketing CBD-infused products as cure-alls.

As usual, there was lots of action on the state level.  In Massachusetts, Real Action for Cannabis Equity (RACE) launched with the goal of bringing more minorities into the cannabis industry.  And Falls River mayor Jasiel Correia has been charged with extorting businesses to obtain licenses to sell cannabis.

Speaking of licenses, Oklahoma has issued over 7,000 of them for its medical marijuana program.  Utah, meanwhile, may eliminate its state-run medical cannabis program in favor of private dispensaries.  And Mississippi may have medical marijuana on the 2020 ballot; Mississippians for Compassionate Care has turned in more than enough signatures to make that happen.

If you think that’s impressive, note that 2019 hemp production has increased over 455% over 2018.  That’s a lot of hemp.  Remember, you probably don’t want to bring your hemp to Idaho, where there is no official distinction between hemp and marijuana.

And if all this expansion has you thinking, “Who will be working in this industry?” have no fear.  Several schools are educating the next generation of marijuana entrepreneurs.  The University of Guelph in Ontario is the most recent Canadian college to offer a program in cannabis cultivation.  Oakton Community College in Des Plaines, IL has a cannabis certificate course.  And 150 students are currently enrolled in the University of Maryland‘s masters’ program in medical marijuana.

See you next week!

Following last year’s passage of the 2018 Farm Bill, the National Credit Union Administration (NCUA) issued a regulatory update in August of 2019 to federally insured credit unions.  Citing growth in hemp-related commerce, the NCUA emphasized the need for credit unions to understand the gamut of regulation across jurisdictions in order to lend lawfully to hemp-related businesses.  Within its memorandum to members, the NCUA provided: 1) a summary of repercussions generated by the 2018 Farm Bill, 2) specific compliance program concerns with regard to the Bank Secrecy Act (BSA) and Anti-Money Laundering Act (AML), and 3) considerations under existing NCUA regulations for lending.

Continue Reading National Credit Union Administration Issues Statement About Serving Hemp Businesses

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

Let’s start this week with hemp, marijuana’s straight arrow cousin.  The United States Department of Agriculture recently announced that it is now eligible for crop insurance.  Farmers must be compliant with state and federal law and can insure crops with revenue up to $8.5 million.

But not everyone is “high” on hemp.  The governor of South Dakota takes a dim view of hemp, as explained in her recent “Governor’s Column.”  She’s not wrong about the difficulty in telling the difference between hemp and marijuana.

One state moving in the opposite direction is South Dakota’s neighbor to the east, Minnesota.  State agency staff has been studying how recreational cannabis works in other states.  House Democrats have been touring the state to drum up support for legalization.  Senate Republicans, however, are still opposed to the idea.

Washington is undoubtedly one of the states Minnesota is studying.  The state is considering revamping its cannabis regulations and may allow home delivery for small growers.

In other state news, Oklahoma‘s new rules for medical marijuana are now in effect.  New York‘s new expungement law went into effect last week.  New Jersey‘s governor vetoed an expungement bill, stating that it didn’t go far enough.

And in California, a “cannabis for pets” bill will have to wait until 2020 for a chance at passage.  Veterinarians in the state may discuss marijuana treatments, but they may not recommend them.

The federal government issued a warning about the dangers of using cannabis during adolescence and during pregnancy.  The Surgeon General’s advisory is available here.

And finally, let’s end as we began, with hemp.  Specifically with cars made out of hemp.  Yes, that’s now a thing.

See you next week!

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

Who says you can’t fight city hall?  A researcher filed suit against the DEA, claiming the cannabis she was required to use in her work was “sub-par.”  But don’t expect lengthy litigation, because the agency just announced that they will allow other organizations to grow marijuana for research.

In other federal news, the DEA confirmed that “hemp plants and cannabidiol (CBD) preparations at or below the 0.3 percent delta-9 THC threshold” are not controlled substances.

Turning our attention to election matters, we continue with our series “Where Do the Candidates Stand on Marijuana?”  Today’s entry is Mayor Pete Buttigieg, who favors the decriminalization of all drugs as a way to combat the opioid crisis.  He also favors legalizing cannabis.

Need more info on candidates and not just those running for President?  Check out the Cannabis Voter Project website.  It has info on elected officials and the status of cannabis in each state.

Speaking of states, Florida and Minnesota are both considering legalizing recreational marijuana.  Florida’s move would come via the ballot box; Minnesota’s would be through legislation.

In California, Weedmaps has announced they will no longer permit unlicensed listings on their site.  They now require a state-issued license number in order to appear in the database.

In Utah, the state-run medical marijuana system may be on its way out.  Legislators are considering turning to private dispensaries instead.  You’ll doubtless recall that the state has already had its share of problems with the program.

Finally, sometimes you just need a little help from your friends.  In this case, a fine feathered friend.

See you next week!

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

We’ll start with New Jersey, which you will doubtless recall failed to legalize marijuana earlier this year.  They are now expanding hemp production.  The new law will allow CBD in food (both human and animal) and cosmetics.

Washington, however, is headed in a different direction.  The state’s Agriculture Department just clarified that hemp and CBD in food or cosmetics is illegal under both state and federal law.

Speaking of hemp and CBD, how’s the FDA coming along with those regulations, you ask?  According to a former U.S. Surgeon General, it’s tricky.

In South Dakota news, the states’s Attorney General has released an explanation of the legalization proposal that proponents hope to see on the 2020 ballot.  Meanwhile, a hemp delivery truck driver was arrested for possession with intent to distribute.  Moral of the story: obey the speed limits in South Dakota if you’re hauling hemp through the state.

In other hemp news, the National Credit Union Administration released guidance stating that credit unions are permitted to serve hemp businesses.  The guidelines advised institutions to ensure that companies are state-legal.  (See South Dakota above.)

Social equity as applied to cannabis businesses is a big issue.  Each state has a different track record as this chart shows.

One of the arguments in favor of marijuana legalization is that legal sales will bring in tax revenue.  Is that actually true?  A brief from the Pew Charitable Trusts says it’s hard to tell.

Andrew Yang is the latest entry in our “Where Do The Candidates Stand on Marijuana?” series. He has said that he would issue a mass pardon for all federal prisoners convicted of non-violent marijuana-related offenses.

And finally, we here at The Week in Weed do not claim to be intellectual property experts, but we’re pretty sure this U.K. business is in some hot water.

In a time where marijuana legalization is rapidly expanding, all employers should reassess their workplace drug testing policies to be sure they are in compliance with existing and soon to be effective state and local laws.  Currently, thirty-three states, the District of Columbia, and Puerto Rico have passed laws broadly legalizing marijuana in some form.  Eleven of those states — Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington — and the District of Columbia have adopted laws legalizing marijuana for recreational use.  The Illinois law, which will become effective January 1, 2020, is the most expansive recreational law to date and has created a lot of uncertainty with respect to the risk assessment for drug testing of employees for marijuana.  Nevada will prohibit employers from taking adverse action against applicants who test positive for marijuana, with exceptions for, among other jobs, safety-sensitive positions and motor vehicle drivers who are subject to testing under state or federal law.  New York City, with some similar exceptions, will bar employers from requiring applicants to submit to testing for marijuana on May 10, 2020.  This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers.  Employers must balance complying with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and other legal rights.

Around 15 states — including Arizona, Connecticut, Illinois, Massachusetts, Minnesota, New York, and Pennsylvania — have employment protections for medical marijuana users.  Generally, off-duty medical marijuana use is protected in these states and applicants and employees cannot be discriminated against for being a registered medical marijuana cardholder or because they test positive for marijuana on a drug test.  As a result, many employers have implemented various reasonable accommodation processes when applicants and employees test positive for marijuana and proffer lawful marijuana use as a legitimate medical explanation for their test results.  However, employers may fire employees for being under the influence of or impaired by marijuana while they are at work or during work hours, which may — to many employers’ surprise —  present a separate challenge if an employer relies exclusively on drug test results.

It is well-known that urine testing, the most common form of drug testing used by employers, does not provide conclusive evidence of current impairment.  This difficulty in establishing what constitutes evidence of impairment creates potential liability for employers that take adverse action against employees based solely on positive test results for marijuana.  As an Arizona federal district court stated earlier in the year, “it is clear to the Court that proving impairment based on the results of a drug screen is a scientific matter which requires expert testimony.”  In addition, employees will increasingly try to make the case that their employers were mistaken in  assessing their behavior or conduct and whether they have a good faith belief to require employees to submit to testing in the first instance and then take employment action on positive test results.  As states continue to legalize marijuana use, what type of facts or evidence constitutes proof of marijuana impairment will be a key concern and ripe for litigation.  For many companies, regardless of the ultimate outcome, the prospect of litigating such issues (and retaining expensive experts) is a “loss.”

Companies that are regulated by or do business with the federal government must test certain employees.  Safety-sensitive positions, such as CMV drivers and pipeline employees, are subject to alcohol and drug screening.   However, DOT-regulated employers may still face risk under some state laws because the DOT regulations do not mandate any form of discipline for employees who test positive.

Some employers have eliminated pre-employment testing of applicants for marijuana or marijuana testing altogether, while maintaining other drug testing requirements, because of the changing laws and social norms and the resulting consequence that testing for marijuana automatically excludes too many otherwise qualified employees in a challenging hiring environment.

Developing a well-defined employment policy on marijuana use can minimize the risk of harm from a workplace safety perspective and decrease the likelihood that drug testing and disciplinary action based on marijuana use will open the door to liability for adverse employment decisions.  For example, a policy that simply prohibits the use of illegal drugs can create uncertainty because of marijuana’s legal status in various jurisdictions.  If medical and recreational marijuana use is allowed in states where your employees work, it’s time to take a fresh look at your drug testing policy. As more states legalize marijuana use, employers should prepare for increased use of marijuana by their workforces, a rise in positive test results, and challenges from applicants and employees who have failed drug tests and/or who claim they were not impaired while working.  To ensure your organization is in compliance, consult employment counsel who can provide guidance and help navigate through the maze of federal, state, and local statutes.

 

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

From the “if at first you don’t succeed” files, New Jersey Governor Phil Murphy stated recently that he would support a bill to legalize marijuana, rather than awaiting a ballot initiative in 2020.  States that may see ballot initiatives include: Arizona, and Idaho.

Meanwhile, a commission appointed by New Mexico‘s governor to look into legalizing recreational cannabis will hold two meetings this month.  And in Alabama, a commission is studying a medical marijuana proposal.

Turning our attention to the Presidential candidates, our gaze falls upon Sen. Bernie Sanders (I-VT), who says he would legalize marijuana by executive order if elected.

Two jurisdictions are allowing those from other states to obtain medical marijuana: New Mexico (it’s a big week for New Mexico news, obviously) and the District of Columbia.

The American Bar Association weighed in this week on the question of cannabis.  The group believes the federal government should allow the states to operate without fear of interference.

And finally, a pot grower sentenced to five years in prison, where he’s planning to work on a new career – developing a new online legal research platform.  Look out Lexis and Westlaw!

See you next week!

 

CBD is “thriving” in the current regulatory environment, but is it doing so illegally?

As former U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb opined last  week, “the CBD craze is getting out of hand. The FDA needs to act.”  Since the passage of the Farm Bill in December of 2018, there has been a marked uptick in interest in the cannabidiol (CBD) space from businesses and users alike.  Congress explicitly preserved the FDA’s authority to regulate CBD-containing products to ensure that they are safe and that their claims are valid.  Current federal law expressly allows for the distribution of hemp-derived CBD products that contain 0.3% tetrahydrocannabidiol (THC) or less to be sold, with certain caveats.  The FDA has provided clarity that hulled hemp seed, hemp protein powder, and hemp seed oil can be legally used in foods.  Other CBD products, however, are still subject to various state law regulations as well as the U.S. Food, Drug, and Cosmetic Act (FD&C Act), which requires FDA pre-market approval for drug products.  Currently, the FDA treats CBD products aimed at human or animal consumption as drugs and therefore they cannot be distributed without prior approval or a rulemaking exception (more on this below).  The following is a brief update on recent developments within the federal regulatory regime of CBD products.  Continue Reading CBD is Everywhere – But Where Does the FDA Stand?

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

We’ll start our news coverage in Louisiana, where medical marijuana has cleared the final hurdle and is shipping out to dispensaries.  It’s been a bumpy ride to the sales counter, so any optimism about the success of the program is cautious.

Meanwhile, in Utah, there are two different issues with the state’s medical marijuana program.  Several companies denied licenses to grow for the program filed appeals, saying the process was flawed.  Those appeals were recently dismissed.  And the state Supreme Court ruled that the governor and legislature had the right to change the voter-approved medical cannabis law.

Colorado physicians can now prescribe medical marijuana in lieu of opioids.  The state joins New York and Illinois in allowing this practice.

In Florida, state Rep. Shevrin Jones recently introduced a decriminalization bill.  The legislature will take it up in the session starting January 2020, but the bill is viewed as a long shot.  In other Florida legalization news, a petition to put marijuana on the 2020 ballot has garnered enough signatures to prompt Supreme Court review.

Not every state is moving forward with marijuana, however. Nebraska’s Attorney General said last week that a medical marijuana bill currently under consideration in the Nebraska Legislature is unconstitutional.  And New Hampshire governor Sununu vetoed a bill that would have allowed medical marijuana patients to grow cannabis at home.

Turning our attention to international news, the government of St. Kitts and Nevis has introduced a bill to decriminalize marijuana, and Luxembourg is planning to legalize cannabis within the next two years.

And finally, makers of snack foods might want to consider putting their support behind legalization efforts.  A recent study has confirmed what everyone already knew: sales of snack foods increased in areas where marijuana is legal.

See you next week!