On Thursday, March 30, the Cannabis team at Husch Blackwell will host a cannabis seminar highlighting OSHA safety regulations. In January of 2017, the Colorado Department of Public Health and Environment released the “Guide to Worker Safety and Health in the Marijuana Industry.” This seminar will take a deeper look at this document and discuss OSHA safety regulations that affect your business. For more details, please read more here.
The House is not slowing down on the push for legalization of marijuana. There have been five bills introduced in the United States House of Representatives since the beginning of the 115th Congress (2017-2018). In addition, CO Representative, Jared Polis, has stated he will introduce his “Regulate Marijuana Like Alcohol Act” again this year. Four of the five bills were introduced by Republicans and one by Democrats, showing marijuana legalization is a bipartisan issue. All five bills are aimed at loosening federal restrictions on marijuana.
HR – 1227, titled “Ending Federal Marijuana Prohibition Act” was introduced on February 27, 2017 by Representative Thomas Garrett a Republican from Virginia. The text is the same as the Senate Bill introduced in 2015 (S. 2237) by Senator Bernie Sanders. The purpose is to remove “marihuana” and “tetrahydrocannabinols” from Schedule I of section 202(c) of the Controlled Substances Act (CSA). In 2017, Rep. Garrett’s bill is co-sponsored by six house members: Tulsi Gabbard (D-HI); Scott Taylor (R-VA); Jared Polis (D-CO); Earl Blumenauer (D-OR); Don Young (R-AK); Justin Amash (R-MI).
HR – 975, titled “Respect State Marijuana Laws Act of 2017” was introduced on February 7, 2017 by Representative Dana Rohrabacher a Republican from California. Rep. Rohrabacher introduced a “Respect State Marijuana Laws Act” in the 2013-2014 and 2015-2016. The purpose is to amend the CSA for any provisions as related to marihuana. The provisions shall not apply to any person who produces, possesses, distributes, dispenses, administers, or delivers marijuana in compliance with state law. In 2017, Rep. Rohrabacher’s bill is co-sponsored by 14 house members: Steve Cohen (D-TN); Don Young (R-AK); Mark Pocan (D-WI); Ted Yoho (R-FL); Earl Blumenauer (D-OR); Tom McClintock (R-CA); Dina Titus (D-NV); Duncan Hunter (R-CA); Jared Polis (D-CO); Justin Amash (R-MI); Barbara Lee (D-CA); Thomas Massie (R-KY); Mike Coffman (R-CO); Peter Welch (D-VT). Continue Reading
Yesterday, Sean Spicer attempted to call out a difference between medical and recreational marijuana at the federal level. He clearly does not understand that ALL marijuana is federally illegal. Further, he made a poor and factually incorrect analogy by comparing the current opioid abuse crisis to marijuana use. Spicer ended his comments on recreational marijuana by stating that the DOJ will step up enforcement actions.
What does this mean?
As we all know, Trump is a wild card, and Spicer’s comments do little to clarify the administration’s position. Previous statements on the issue indicate some degree of support for the cannabis industry, or at a minimum, support for states to determine their own regulations. “In terms of marijuana and legalization, I think that should be a state issue, state-by-state,” Trump told The Washington Post. “… Marijuana is such a big thing. I think medical should happen — right? Don’t we agree? I think so. And then I really believe we should leave it up to the states.”
Further, the recent FY2016 omnibus appropriations bill contains the Rohrabacher-Farr Amendment which prohibits the Department of Justice from interfering with state medical cannabis laws was also widely supported by a GOP controlled Congress (passed in the House by a vote of 242-186, and the Senate Appropriations Committee approved it 21-9). A recent Gallup Poll found nationwide support for legalization at 60%, the highest it likely has ever been. Florida also passed its medical-cannabis initiative with 71% approval – Florida also voted for President Trump. It is clear from Trump’s statements and Spicer’s comments that medical marijuana should remain a non-enforcement priority.
So based on Spicer’s comments regarding recreational marijuana – does Attorney General Sessions unwind years of hands-off federal policy towards state-legal recreational marijuana? We’ll just have to wait and see. I am hopeful that Spicer’s comments are just that, off-the-cuff comments with little substance or thought. However, the recreational marijuana industry is now on notice. I think we are in for a bumpy 2017.
On February 17, 2017 four Congressmen announced a bipartisan “Congressional Cannabis Caucus”. Republican representatives Don Young (AK) and Dana Rohrbacher (CA) joined democrats Earl Blumeanauer (OR) and Jared Polis (CO) as co-chairs of the new caucus. In a press conference, they each outlined the importance of the caucus to their individual states and to the country. Representative Rohrbacher started by outlining the changes to the country’s outlook on marijuana, as 44 states now have laws permitting marijuana at varying levels. He noted the economic benefits and the importance of continuing to make progress on this issue. Representative Blumeanauer outlined four critical areas that need to be addressed 1. Not allowing the Federal government to prevent marijuana research; 2. Gaining access to marijuana for veterans, (VA hospitals are not allowed to prescribe medical marijuana); 3. Removing IRS code 280E which prohibits marijuana businesses from deducting business expenses on their federal tax returns; and 4. Ending the banking prohibition.
Representative Don Young of Alaska further explained the impact of the banking prohibition. (Marijuana businesses have difficulty getting bank accounts, potentially making it an all cash business.) When there is a great amount of surplus cash, Rep. Young has seen it “cause lots of sideline problems”. He wants to ensure these businesses are able to be run as businesses. Marijuana businesses should be able to utilize banks for loans and depositing cash. However, Representative Young’s primary interest in this caucus comes from his belief in state’s rights. During Q&A Mr. Young pointed out the hypocrisy of a conservative stance against legalization, “you can’t be a conservative and say we can pick and choose, you have to be for state’s rights or against state’s rights…” Alaska voters “voted to legalize it…pretty large margin” and Mr. Young is a representative of those people. Continue Reading
While these numbers are a best guess, exciting to see the projected growth for the marijuana industry over the next few years. Check out the Cannabist article:
My esteemed colleague and frequent medical marijuana commentator, Fred Miles, was quoted in the NY Times article “When Retirement Comes With a Daily Dose of Cannabis“. Check this article out for a great read about the increasing number of older Americans living in assisted living communities and nursing homes using cannabis for relief from aches and pains as an alternative to prescription pain medicine.
Myself, Winn Halverhout and Fred Miles were interviewed by Advisory Board about the main challenges facing providers related to medical marijuana, how the new administration might change the legal landscape, and more.
Check out the article here. Advisory Board is a best practices firm that uses a combination of research, technology, and consulting to improve the performance of health care organizations around the world.
Husch Blackwell Partner Steve Levine was named a top lawyer in cannabis for 2017 by Denver’s 5280 Magazine. Steve was also elected to the National Cannabis Industry Association’s (NCIA) Policy Council in 2017. The firm congratulates Steve Levine on this honor.
Read here to learn more about the Husch Blackwell Cannabis practice.
Federal appeals court judges on Tuesday reviewed the reach of racketeering laws in a case that potentially could have catastrophic effect on the cannabis industry. At issue is whether the 10th Circuit Court of Appeals will allow private parties to sue state-licensed cultivations and dispensaries under RICO for what are, essentially, nuisance issues. Safe Streets, a Washington, D.C.-based anti-drug and anti-crime organization, filed the lawsuit and claimed that Colorado horse ranch farmers are entitled to property damage under the rarely used private right of action for individuals to sue “racketeers” because of the marijuana smell that allegedly permeates their property.
While it has been widely assumed by the cannabis industry that these were difficult arguments to win, the general scene of the oral arguments, as reported by the Cannabist, was that the judges appeared to be favoring Safe Streets’ arguments.
What does this mean?
The three-judge panel for the 10th Circuit Court of Appeals will not issue an opinion for several months. Until then, it is a wait and see. If the 10th Circuit shoots down the appeal, it will be a resounding win for the cannabis industry and the US Supreme Court is unlikely to hear an appeal. If the plaintiff wins, the floodgate to additional lawsuits against the industry might be status quo.
The United States Patent and Trademark Office (“USPTO”) is at odds with the ever-growing marijuana industry. While marijuana legalization was a big winner in November’s elections, with seven states legalizing either medical or adult recreational use of the drug, the burgeoning industry may run into some problems obtaining trademarks for marijuana products and related devices. The lack of trademark protection could slow down or inhibit the growth of the industry as the lack of trademark protection limits entrepreneurs’ ability to stop infringement and protect their rights. Continue Reading