cannabis law

Since legalizing in 2016, California has experienced rampant rate failure across its licensed cannabis companies. The State of California also has some of the highest and most aggressive cannabis taxes in the nation. In an effort to stave off the California Department of Tax and Fee Administration’s (CDTFA) latest round of rulemaking that would, among other things, extend cannabis excise taxes to cannabis accessories, Catalyst Cannabis Co. (one of the state’s largest cannabis operators) is in a complex challenge with CDTFA over its rulemaking authority, alleged procedural violations, and the overwhelmingly negative impact of such tax rules. In this episode, Husch Blackwell's Hilary Bricken and Anthony Almaz, General Counsel for Catalyst Cannabis, break down and analyze this potential crucial fight between the industry and California’s top tax regulator.

Due to current federal law, cannabis businesses notoriously cannot access financial institutions, even just for depository accounts. In 2014, the Financial Crimes Enforcement Network (FinCEN) released guidelines that opened the door for financial institutions to provide banking services to cannabis businesses as long as strict “know your customer” standards are followed. Those FinCEN guidelines are still valid today, and they represent the only method through which financial institutions can validly bank cannabis businesses, but they’re no picnic to follow for either financial institutions or cannabis industry customers.

In this episode, Husch Blackwell's Hilary Bricken interviews Brett Ballman and Karen Petrick of Salal Credit Union as they take listeners through the ins and outs of cannabis banking under the FinCEN guidelines and also discuss how certain states differ from others in their approach to cannabis banking. Brett and Karen also explore how federal reform will impact their cannabis industry banking customers and what they see on the horizon for the cannabis banking industry. 

On October 26, 2023, a group of large cannabis companies based in Massachusetts filed suit in the U.S. District Court for the Western District of Massachusetts against Merrick Garland, our current U.S. attorney general, alleging that, while Congress has the constitutional power to ban cannabis from interstate commerce, the Controlled Substances Act (CSA) exceeds that power by overreaching to ban cannabis from purely intrastate commerce. Essentially, neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution give Congress a “general police power” to take over regulation of strictly intrastate commerce. Plaintiffs’ counsel in this case is renowned civil rights trial firm Boies Schiller Flexner, LLP, and Joshua Schiller is one of the litigators leading the charge. 

To overcome negative precedent in this area, plaintiffs argue that highly regulated state markets actually reduce interstate cannabis commerce (meaning, heavy state government oversight reduces illicit interstate transactions) and that cannabis isn’t fungible anymore—state-legal products (that are tracked, traced, packaged, labeled, and tested in line with strict state rules) are easily distinguishable from illegal ones. They also argue that Congress long ago abandoned its alleged goal of banning cannabis intrastate for the sake of keeping it out of interstate commerce, using as examples the continually renewed federal spending bills in support of state-legal medical cannabis, the fact that D.C. allows for medical cannabis, and the multiple (now rescinded) Department of Justice memos that essentially let the states take over intrastate cannabis control anyway.

In this episode, Husch Blackwell's Hilary Bricken and Joshua Schiller of Boies Schiller Flexner takes listeners through the intricate in’s and out’s of this potentially landmark lawsuit, why it matters now more than ever for the fate of the cannabis industry, and how Josh believes the federal government will handle the case (while potentially getting in front of the Supreme Court on appeal).

In the latest episode of Regulatory Oversight, Troutman Pepper RISE attorneys Jean Gonnell and Cole White are joined by AGA's Bruce Turcott, legal editor of the Cannabis Law Deskbook, to discuss the evolution of cannabis regulation in Colorado and Washington, the first two states to legalize marijuana. They discuss the challenges and successes of implementing cannabis laws, including the development of licensing systems, the impact of local authority on licensing, and the role of receiverships in the industry.

Additionally, they cover social equity in the cannabis industry, with both states implementing programs to support those adversely affected by the war on drugs. 

The conversation concludes with a look at the future of cannabis regulation, including the potential federal rescheduling of cannabis, the need for national testing standards, and the impact of intoxicating hemp products. The speakers emphasize the importance of learning from the experiences of pioneering states, while recognizing that a one-size-fits-all approach may not be suitable for every state.

* Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.

SAFER, Rescheduling, the Farm bill, OH MY! Bridget and Marc discuss the cannabis policy conversations happening at the federal level right now and how they could affect both businesses and consumers.

Links:
Marc Hauser
Subscribe to Cannabis Musings
Hauser Advisory
SAFER Banking Act
Reuters Article on Rescheduling
The UN Single Convention on Narcotic Drugs
NCIA White Paper on Tax Code 280E
Federal Food, Drug & Cosmetic Act
2018 Farm Bill loophole 

Show Notes: 
0:00 Lift off
1:53 Marc’s Bio
6:46 Cannabis Musings, the newsletter
8:36 Hauser Advisory
9:43 SAFER Banking Act explained
14:21 Cannabis banking in Vermont
20:47 The credit card problem
27:31 Rescheduling Cannabis
32:10 The UN Single Convention
34:10 280E Tax Code
41:20 De-scheduling vs. Rescheduling
45:10 FDA oversight of cannabis
49:22 Interstate commerce of THC
52:10 Farm Bill loophole
57:00 Marc’s selfcare routine

Any facility that handles or processes cannabis is subject to a laundry list of requirements before construction can even break ground. Depending on the type and size of the operation, obtaining an air permit can be one of the more challenging and nuanced steps in this process. Grant Gilezan, leader of Dykema’s environmental practice, sits down with Tony Percha of GZA GeoEnvironmental to discuss how to stay ahead of compliance.

Find more on Tony and GZA GeoEnvironmental here

Find more on Grant here

To hear more episodes, visit DykemaPodcast.com, our YouTube page, or search “A Higher Law” wherever you get your podcasts.

Subscribe to Dykema’s Cannabis Law Blog

Learn more about Dykema’s cannabis group

Follow Dykema on LinkedIn

For employers, providing a strong benefits package is key to attracting and retaining top talent. But in the cannabis industry, there’s no clear playbook for what this looks like. Brett Gelbord of Dykema’s Labor and Employment group sits down with Adam Blitchok of Kapnick Insurance Group to discuss the unique challenges faced by cannabis employers when it comes to providing benefits, from regulatory hurdles to a shortage of insurers willing to work with the industry.

Find more on Adam and Kapnick Insurance Group here

Find more on Brett here

To hear more episodes, visit DykemaPodcast.com, our YouTube page, or search “A Higher Law” wherever you get your podcasts.

Subscribe to Dykema’s Cannabis Law Blog

Learn more about Dykema’s cannabis group

Follow Dykema on LinkedIn

Whether you’re a grow operator, retail location, or anything in between, conflicts between state and federal cannabis laws can create a complex legal landscape for cannabis employers at every level. While employee handbooks can help provide an essential framework for how to operate, navigating these nuanced regulations can still present a major challenge. Brett Gelbord of Dykema’s Labor & Employment Group shares best practices on how to make sense of it all.

Find more on Brett here

To hear more episodes, visit DykemaPodcast.com, our YouTube page, or search “A Higher Law” wherever you get your podcasts.

Subscribe to Dykema’s Cannabis Law Blog

Learn more about Dykema’s cannabis group

Follow Dykema on LinkedIn

Shaleen Title, an Indian-American attorney and longtime drug policy activist who has been writing, passing, and implementing equitable cannabis laws for over 20 years, and the author of "Fair and Square: How to Effectively Incorporate Social Equity Into Cannabis Laws and Regulations." She is CEO and co-founder of the drug policy think tank Parabola Center, which creates model policies to protect people rather than corporate profits. She currently serves as Distinguished Cannabis Policy Practitioner in Residence at The Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center and as vice-chair of the Cannabis Regulators of Color Coalition. She is a frequent keynote speaker and consultant on cannabis policy and has testified before governmental bodies around the world about restorative justice in marijuana laws, and in 2021 was an honoree on the Boston Business Journal’s 40 Under 40 list. Shaleen, one of the nations foremost experts on cannabis legalization, cannabis reform, social equity and economic inclusion joins Relax Its Just Cannabis to break down, in terms we all can understand, the major cannabis legislation including SAFE, the MORE Act, the SHIP Act and CAOA . In addition we discuss the cannabis regulator process as well as the importance of grass roots organization involvement in cannabis reform and holding regulators, politicians and policy makers accountable for  social and economic equity in the exploding cannabis market. 

This week we visit Rancho Verde Farms close to harvest and talk with my old friend Peter G. Out on the California coastal plains, Peter G has a medical grow at Rancho Verde Farm, where the it gets sun all day from sunrise to sunset. We take a stroll with Peter through the garden and learn some of his clever growing techniques. 

Peter has been a friend of mine for 44 years. We were in an avant-garde band called The Dadas in the late ‘70’s and in recent years he has been a mentor to me, helping me with my grow and sharing his knowledge, expertise and techniques of growing high quality, healthy cannabis. Peter is a drummer and after the garden visit, we composed a small duet for drums and melodica, of which several clips are interspersed in this episode. This is a fun episode to watch if just to watch us circle the garden and uncover gems of knowledge while checking out Peter’s grow. Not to mention the musical repartee between us. Just two (too) high OG’s in the garden and jamming! Check it out!

Also included at the end of the episode is the only known clip of The Dadas performing Pete the Pet Shampooer

Don is joined by Reese Xavier of HT23 Growers who talks about his own journey as a grower, Illinois' medical cannabis laws & how to start your own home grow! Rate, Review and Share!

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Today I am with Courtney Moran, chief legislative strategist for Agricultural Hemp Solutions and legal champion for hemp agricultural development.  Hemp is one of the most useful plants on the planet, it is a carbon capturing monster, and easy to grow, but legal redtape has put the damper on it’s popularity among farmers in the US.  Hear how Courtney is leading the charge to change that. 

Courtney N. Moran, LL.M. founding principal of EARTH Law, LLC and chief legislative strategist for Agricultural Hemp Solutions, LLC expertly champions legal policy for hemp agribusiness development.  Courtney’s passion and her forward-thinking leadership have carved pathways making hemp an accessible agricultural commodity. She litigated the landmark case KaB, LLC v USPIS, MLB 18-39 (2018) establishing precedent for the shipment of hemp through the US Postal Service. Courtney played a key role in drafting and negotiating the language included in the 2018 Farm Bill federally legalizing hemp. Her extensive knowledge of Hemp Law continues to position her clients at an advantage in the marketplace.

https://www.earthlawllc.com

Last Prisoner Project emerged from a kind of ugliness of the cannabis industry: Depending on which state and which year (as well as what color your skin is, in many cases) you ate an edible, lit a blunt, or hit a bong, doing that exact thing could give you a jail sentence or be a complete nonissue. 

Legalization criss-crosses the country, thousands sit in jail cells for nonviolent marijuana offenses, some even for life sentences, because they bought or sold the stuff, transported it across state lines, or possessed it before legalization.

Imagine sitting in a cell for years, decades, or even for life, convicted of an activity that is no longer a crime, while thousands of other people build intergenerational wealth doing exactly the same thing.

That is the situation that over 40,000 cannabis prisoners face today in the United States alone, while countless others languish in jails and prisons worldwide.

The Last Prisoner Project has one singular mission: to set them free.

The Last Prisoner Project is a non-profit organization dedicated to cannabis criminal justice reform. As the United States moves away from the criminalization of cannabis, giving rise to a major new industry, there remains the fundamental injustice inflicted upon those who have suffered criminal convictions and the consequences of those convictions.

Through legal intervention, public education and legislative advocacy, we work to redress the past and continuing harms of our country’s unjust and ineffective approach to drug policy.

The #TalkingHedge discuss #LastPrisonerProject...

https://youtu.be/FD0MyXG-eeY

Michael Burwick and Nick Richards of Greenspoon Marder law firm discuss cannabis law and the benefits of section 453, which could dwarf the impact of 280E.

Episode 906 of The #TalkingHedge with Pro Cannabis Media...

https://youtu.be/MSnD2cBglZI

Marijuana Banking Legislation Update:

This week, the Secure and Fair Enforcement (SAFE) Banking Act, which would prohibit financial institutions from being penalized for doing business with marijuana companies, was stripped from the National Defense Authorization Act (NDAA), the omnibus spending bill pending in Congress. In September, the House included the SAFE Banking Act as an amendment to the NDAA for the fiscal year 2022, but the Act was removed by a conference committee in the Senate this week. U.S. Rep. Ed Perlmutter (D – Colorado) confirmed the legislation’s removal on Twitter.

The House passed a similar cannabis banking reform bill in 2019, but the legislation has yet to make it through the Senate. The SAFE Banking Act would ease restrictions on the use of banking services by legitimate marijuana-related businesses by, among other things, prohibiting a federal banking regulator from penalizing a depository institution for providing banking services to a cannabis-related business where state law allows such businesses.

According to a recent tweet by Rep. Perlmutter, the SAFE Banking Act would “strengthen the security of our financial system & keep bad actors like cartels out. Most importantly, it will reduce the risk of violent crime in our communities.”

The SAFE Banking Act, along with other federal legislation such as the Marijuana Opportunity Reinvestment & Expungement (MORE) Act, which seeks to remove marijuana from the list of scheduled substances under the Controlled Substances Act, the proposed Cannabis Administration and Opportunity Act, a comprehensive de-scheduling and restorative justice proposal, and the recently announced States Reform Act, which seeks to end the federal prohibition of marijuana, all represent the latest efforts in Congress to decriminalize marijuana at the federal level. While cannabis reform legislation has been gaining momentum in Congress in recent years, thus far, these efforts have been unsuccessful.

To learn more about Husch Blackwell's innovative cannabis law team or to subscribe to more cannabis legal content, visit our website at www.huschblackwell.com.