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

It was a big week, as the states that legalized deal with how to implement their new marijuana laws.  Surrounding states may take action in response.  On the federal level, House Democrats will vote on legalizing cannabis.  Does this seem radical?  Not to the 68% of Americans who support legal marijuana.  Will a key House member join the new Biden administration?  The DEA and USDA hemp rules continue to draw criticism, both in court and in Congress.  One place where marijuana was not a winner at the ballot box was New Zealand.  And finally, the New Jersey vote gives rise to a Google search.

new jersey

Last week’s vote led to a flurry of activity in the Garden State.  Legislators passed two bills out committee in the Senate and the Assembly.  One of the major issues up for debate is how cannabis will be taxed.  So when will we see sales?  Not soon – it will probably take a year or more.  Meanwhile, lawmakers are calling for an end to arrests for possession.  So who gets to take charge of all this drama?  Dianna Houenou will chair the new Cannabis Regulatory Commission.

other northeast action

So what does all this activity mean for New Jersey’s neighbors?  Connecticut Governor Lamont (D) advocates regional action.  New York Governor Cuomo (D) believes 2021 could be the year his state legalizes, due to budget shortfalls.  Rhode Island’s Senate Majority Leader McCaffrey (D) also wants in on the action.  Looking south, Pennsylvania’s Lt. Governor Fetterman (D), a long-time supporter of legalization, hopes his state will follow suit.

arizona

Turning our attention to the West, Maricopa County in Arizona announced they will toss all pending cases for marijuana possession.  Pima County will follow suit.  All of which activity spurred New Mexico to take another look at cannabis legislation.

montana

Montana passed marijuana legalization last week, but not everyone is on board with that decision.  Opponents of the measure had filed suit to stop it before the election, but were unsuccessful.  Now they’re back, arguing that the initiative is unconstitutional.  Happily for legalization advocates, a legislative measure to undo the results is off the table for now.

south dakota / MINNESOTA

South Dakota’s successful ballot initiatives have not gone unnoticed in neighboring Minnesota.  Supporters of legalization there aren’t rushing to introduce new legislation, but are hoping some changes to the state’s medical marijuana law could result.

mississippi

The Mississippi Department of Health began working on medical marijuana regulations.  At the same time, the state is fending off a lawsuit that charges the successful initiative is unconstitutional.

other states

What about states a little further from the legalization action?  They’ve felt the green rush as well.  Texas State Representative Gutierrez (D) plans to introduce a bill in the coming days to legalize both medical and adult-use cannabis.  While in Florida, the State Senate withdrew a motion to dismiss a ballot initiative that would legalize marijuana.

congress

So what’s happening on the federal level?  The House of Representatives will vote on marijuana legalization in December.  The bill in question removes marijuana from the Controlled Substances Act’s drug schedules.  What are the bill’s chances in the Senate? Well, Minority Leader Schumer (D) is on board.  And some spending bills include cannabis-related provisions.

poll

Not that polls are always accurate <cough> Election 2020 <cough>, but the latest Gallup Poll shows that 68% of Americans surveyed support marijuana legalization.  This is the highest level recorded since 1969, when the question was first asked.  Support was over 50% is all age groups.

biden administration

So how does the new administration view marijuana?  The cannabis industry is hoping for banking reform and less trouble with the Department of Justice.  Could Rep. Earl Blumenauer (D-OR) be joining the new Cabinet as the next Secretary of Transportation?  We’ll just have to wait and see.

hemp rules

The course of true love never did run smooth, and neither does the course of hemp regulations.  The plaintiffs in a lawsuit against the DEA’s rules asked the judge to order the agency to answer questions concerning hemp byproducts.  The U.S. Senate criticized the USDA’s hemp rules, in an Appropriations Committee report.

new zealand

Following up on last week’s post, New Zealand’s cannabis legalization initiative did in fact fail at the ballot box.  Those voting against the measure eked out a narrow victory over initiative proponents.

and finally

Returning to New Jersey, Google searches for “how to roll a joint” increased significantly after the results came in.

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 legalized marijuana.

As of this writing, some key races have yet to be called in the U.S., but the vote on cannabis is in – legalization measures won everywhere.  See our roundup of the returns here.  So what does this mean for national reform?  Or for legalization measures in the Northeast?

In other news (yes, there is some), New Zealand voted against legalization.  A marijuana bill lost in the German legislature.  Hemp legalization moved forward in the Bahamas.

But we’ll start with the United States.

national legalization prospects

Now that over 1/3 of the population lives in a state where cannabis is legal for adult-use, does that mean a change on the federal level is coming?  Well, maybe and maybe not.  Rep. Earl Blumenauer (D-OR) thinks chances are good, as marijuana now appears to be a bipartisan issue.  Industry leaders are less sanguine, pointing to the loss of Senator Cory Gardner (R-CO) as a major obstacle to legalization.

legalization in the northeast

So New Jersey’s legalization measure won in a walk.  What does that mean for cannabis measures in Pennsylvania and New York?  Their governors favor legalizing.  Cuomo promised to put a bill to legalize in the 2021 state budget. Wolf urged legislators to pass pro-marijuana legislation.

international news

Cannabis swept in the United States, but lost in other countries.  In New Zealand, preliminary results indicate that their national referendum failed.  Official results are due after WIW goes to press, so we’ll follow up next week.

In Germany a legal cannabis bill lost a vote in the federal legislature, gaining the support of only The Left and the Green parties.  Legalization advocates hope their chances will improve after the next election, which is expected in 2021 or 2022.

In the Bahamas, hemp legalization took a step forward.  A committee charged with creating an economic recovery plan recommended hemp and hemp extracts be legalized.  The next step in the process is public comment.

and finally

A word of caution, just because New Jersey legalized marijuana does not mean that you can’t get arrested for possession.  According to the state’s attorney general, you need to wait for the legislature to act to implement the law.

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

While the votes continue to be tallied in the Presidential election, one thing is certain – it was a BIG night for cannabis in America with five new states approving ballot measures to allow for legalized marijuana.  With these new laws, nearly 110 million Americans (or over 1/3 of the country) will now live in a state where marijuana is legal for adult use.

In New Jersey, by a nearly 2-1 margin, voters passed Public Question No. 1 – a constitutional amendment to legalize the use and possession of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana.  Advocates believe this may now raise the stakes for neighboring states like New York, Connecticut and Pennsylvania to similarly take up legalization bills pending in their state legislatures out of concern for losing tax revenues to what is expected to now be one of the largest marijuana markets in the country.

Meanwhile in Montana, voters narrowly passed Initiative 190 and Initiative 118 which collectively will permit the use, production and sale of marijuana to adults ages 21 or older.  In addition, persons serving marijuana-related sentences that are no longer crimes under these Initiatives may request that their convictions be expunged or may request they be resentenced if they are still incarcerated.

After a failed attempt at adult use legalization in 2016, voters in Arizona finally passed Proposition 207 — also known as the Smart and Safe Act — which permits the possession and use of marijuana for adults ages 21 years or older and permits individuals to grow up to six marijuana plants in their residences.  Importantly for Arizona employers, the new law does not restrict the rights of companies to maintain a drug-free workplace or establish workplace policies restricting the use of marijuana by employees or prospective employees.  See Section 36-2851(1).  Likewise, employers are also not required to allow or accommodate the use, consumption, or possession of marijuana on the job.  See Section 36-2851(2).

South Dakota also became the first state to legalize cannabis for medicinal and adult use purposes on the same day, overwhelming passing Constitutional Amendment A which legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older.  Initiated Measure 26 also establishes a medical marijuana program for individuals with a “debilitating medical condition” which includes those with “a chronic or debilitating disease or medical condition…that includes severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”

In Mississippi, voters also overwhelmingly passed Initiative 65 which allows doctors in the state to prescribe medical marijuana for patients with at least one of 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson’s disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more.  Patients can also possess up to 2.5 ounces of medical marijuana at one time.

Finally, others states took considerable steps in relaxing other drug laws, with voters in Oregon passing ballot measures decriminalizing possession of small amounts of drugs, including cocaine, heroin, methamphetamine and another legalizing the therapeutic use of psilocybin mushrooms (aka “magic mushrooms”).  Washington, D.C., also approved measures aimed at decriminalizing psilocybin mushrooms and other psychedelic plants.

While state governments will now be tasked with establishing the various regulatory frameworks needed to implement these new adult use and medicinal marijuana programs, it is undisputed that proponents of legalized marijuana had a very big Election Day and with these new ballot measures, adult use cannabis is now legal in 15 states (and the District of Columbia) and medicinal use of cannabis is legal in 35 states (and D.C.).

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

New York releases new CBD regulations, and Governor Cuomo supports legal cannabis.  The Montana Supreme Court denied a ballot initiative challenge, and some in the medical marijuana industry oppose the measure.   Oregon Senators voice their opposition to the DEA’s hemp rule.  Five states have marijuana on the ballot this year.  In South Dakota, medical cannabis has support; adult-use less so, and the Governor is against both measures.  And finally, service members stationed in Japan, should not drink the hemp-laced Coke.

new york

New York State released proposed rules for hemp extracts in food, drinks and vapes this week.  These rules run counter to federal law prohibiting the use of hemp in food.  The public comment period runs from November 10, 2020 through January 11, 2021.  In other New York news, Governor Cuomo came out in support of legalizing recreational cannabis yet again, and a new poll shows the majority of New Yorkers agree.

montana

We reported last week that an anti-legalization group filed suit to block the state’s marijuana ballot initiative.  The state’s Supreme Court dismissed the suit, so the vote will go forward. Not everyone in the medical marijuana industry supports the measure.  Polling shows the vote could go either way – we’ll know next week!

dea hemp rule

Two weeks ago, we reported that the hemp industry was unhappy with the DEA’s new hemp rule.  Oregon’s two Senators joined in the condemnation this week.  In a letter to the agency, they state that continued DEA oversight of the industry runs counter to their intent in drafting the Hemp Farming Act of 2018.

state ballot roundup

So next Tuesday is Election Day!  We at The Blunt Truth urge you to vote and stay safe doing so.  Five states have marijuana measures on the ballot, and several of our news sources look at the legalization landscape. See write-ups from Marijuana Business Daily, Rolling Stone, Forbes, and Roll Call.

south dakota

One of the states with cannabis on the ballot is South Dakota.  Polling shows that voters strongly support medical marijuana legalization, but are more evenly split over recreational use.  Governor Noem, long an opponent of all forms of cannabis, opposes both measures.

and finally

If you’re a service member stationed in Japan, do not relax with Coca-Cola’s Chill Out beverage.  It contains a hemp extract, which the Department of Defense prohibits military personnel from consuming.

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

Election Day 2020 is quickly approaching and with this election cycle occurring during the ongoing COVID-19 pandemic, it is gearing up to be one of the most unique and unprecedented election seasons in recent memory. Each ballot contains consequential choices at every level of government, from the highest office in the land to the “highest” ballot initiatives in several states where voters are asked to decide the legality of future adult-use marijuana in their neighborhoods. Voters in Mississippi will choose whether medical marijuana should be legalized, while Arizona, Montana and New Jersey citizens are asked if they think recreational use should be permitted, and South Dakota has put forth both recreational and medicinal measures on its ballots. Each proposal takes a slightly different approach, but New Jersey’s initiative may turn out to be the most consequential of the marijuana ballot questions put to voters this November, as it has significant support in recent polling and will likely cause a ripple effect throughout the states in the Northeast region, if approved.

When the state legislature passed the New Jersey Compassionate Use Medical Marijuana Act in 2010, the Garden State became just the 14th state to allow medical marijuana. The New Jersey Senate considered legalizing the substance for adult recreational use in 2019 but failed to gain enough traction to pass it legislatively, so advocates turned to the current ballot initiative, which Governor Phil Murphy has supported, as an alternative. The constitutional amendment proposed by Public Question 1 on the ballot asks voters to decide whether “to legalize the possession and use of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana” in New Jersey. If successful, Section 13 would be added to Section VII of Article IV of the New Jersey Constitution making New Jersey the 12th state to legalize recreational cannabis use.

Some recent polls show that the measure is popular among voters and is expected to pass, but it is uncertain how quickly the required regulated market to grow, distribute and sell the product could be established. The implementation delay would mean that it could take years before the State sees revenue generated from sales taxes (currently at 6.625%) set forth in the measure, as well as the additional 2% sales tax local governments may be able to collect. The spiking pandemic has further complicated the landscape, as all active registered voters in New Jersey automatically received ballots in the mail and since the Public Questions are on the reverse side of the ballot, there is concern that some voters may not complete that portion.

Should the initiative successfully pass, legalization of adult use marijuana in the Garden State will likely force neighboring states to follow. While New York’s recent attempts to legalize recreational use have failed, the fiscal strain caused by the COVID-19 pandemic may be incentive enough for propel changes that could generated much needed revenue. With Massachusetts and Maine already allowing adult consumption, a change in New Jersey could push Rhode Island, Connecticut and Pennsylvania to follow as well, making the ballot initiative an interesting one to watch closely this November.

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.