In our previous post, we highlighted that the United Stated Department of Agriculture (“USDA”) published its final rule (the “Final Rule”) regulating the production of industrial hemp under the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”). The Final Rule supersedes regulations set forth in the interim final rule published on October 31, 2019 (the “Interim Rule”).

The Final Rule was initially scheduled to take effect on March 22, 2021. However, a White House Memorandum issued by the Biden Administration on January 21, 2021 (the “Biden Memorandum”) effectively “froze” all regulations that had been published in the Federal Register but had not yet taken effect, including the Final Rule. The Biden Memorandum also granted agencies (such as the USDA) the authority to “consider opening a 30-day comment period.”

As part of the transition to the Biden Administrations, the USDA and many other agencies took this opportunity to review new and pending regulatory actions, including the Final Rule. Continue Reading USDA Final Rule Takes Effect

Delta-8 has been the topic of many conversations over the last year in various cannabis circles. Is it legal?  How will hemp-derived Delta-8 THC impact the state-legal marijuana industry?  How is Delta-8 THC extracted from hemp and in what quantities?  Much of this was already covered in a recent webinar hosted by our firm a few weeks ago.

Demonstrating how popular the idea of hemp-derived Delta-8 THC has become, yesterday the New York Times latched onto this subject as well.  While the legality of Delta-8 THC extracted from hemp is complex and of a dubious nature, what we also find interesting is the science of where Delta-8 THC extracted from hemp is likely coming from.

The New York Times did not address two critical questions in analyzing the legality of Delta-8 THC derived from hemp:

  1. The commercial viability of extracting naturally occurring Delta-8 THC in quantities sufficient to make actual products; and
  2. If Delta-8 THC is naturally present in hemp plants in very small amounts, how much of the Delta-8 THC being sold into commerce outside of the state-legal marijuana industry is being synthetically derived from CBD?

From our perspective, interested parties looking to take advantage of this potential loophole should take a long, hard look at what the answers are to these questions.

If you have any questions, please contact Steve Levine, Alyssa Samuel or your Husch Blackwell attorney.

On February 8, 2021, leading cannabis businesses, associations and advocacy organizations launched the U.S. Cannabis Council (USCC), a nonprofit organization focused on advancing social equity and advocating for state and federal cannabis reform.

The coalition will advocate for the descheduling and legalization of cannabis.  Additionally, the USCC aims to fight for restorative justice in communities that have been disproportionately impacted by dated state and federal policies.  The USCC will become a leading resource for cannabis policy change across the country and will support the creation of an inclusive and well-regulated cannabis industry.

The USCC coalition is made up of the top leading voices in the modern cannabis industry.  Husch Blackwell is proud to be among the founding members of the USCC coalition.

A new California Proposition 65 mandate took effect on January 3, requiring health warning labels for all cannabis products sold in the state.  Failure to comply with the requirements can and will result in enforcement against cannabis producers and sellers, resulting in hefty penalties.  Here’s what you need to know. Continue Reading California Laws Regarding Health and Safety Warnings for Cannabis Have Changed: Are You In Compliance?

The Federal Trade Commission (“FTC”) has joined the U.S. Food and Drug Administration (“the “FDA”) in enforcing laws related to marketing CBD products. The FDA has historically issued warning letters and pursued companies that illegally market CBD products with claims the products may treat medical conditions.  The FTC has joined the FDA is this pursuit and announced settlements with six different CBD companies involves fines ranging between $20,000-$85,000 in addition to notifications provided to consumers.  Pursuant to these settlement agreements the respondent companies are also prohibited from similar marketing efforts in the future, any health claims must have scientific evidence to support them.

Industry actors making any health or therapeutic claims are vulnerable to action by agencies such as the FDA and FTC, however, they may also be subject to civil suits based on enforcement by those agencies. In April of 2020 Charlotte’s Web Holdings, Inc. (“CWB”) was served with yet another (its second) class action lawsuit due to how their products are labeled. Benson v. Charlotte’s Web Holdings, Inc., No. 1:20-cv-00418 (N.D. Ill.)  The suit based a significant portion of the allegations on FDA guidance:

 “Based on available evidence, FDA has concluded that THC and CBD products are excluded from the dietary supplement definition under section 201(ff)(3)(B) of the FD&C Act [21 U.S.C. § 321(ff)(3)(B)]. Under that provision, if a substance (such as THC or CBD) is an active ingredient in a drug product that has been approved under section 505 of the FD&C Act [21 U.S.C. § 355], or has been authorized for investigation as a new drug for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public, then products containing that substance are excluded from the definition of a dietary supplement”

Companies facing enforcement actions by the FTC may similarly be subject to civil allegations.

WHAT DOES THIS MEAN FOR YOUR BUSINESS Continue Reading CBD Companies Now Facing Monetary Penalties For Deceptive Marketing, Will Civil Liability Follow?

On January 15, 2021, the United States Department of Agriculture (“USDA”) published its final rule (the “Final Rule”) regulating the production of industrial hemp under the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”). The Final Rule modifies regulations set forth in the interim final rule published on October 31, 2019 (the “Interim Rule”). The modifications are based on approximately 5,900 public comments submitted to the USDA over three public comment periods.

The Final Rule contains the following key provisions: Continue Reading USDA Releases Final Rule Regulating Industrial Hemp

Earlier this year the City of Denver Department of Excise and Licenses created the Marijuana Licensing Work Group (the “MLWG”). This week the MLWG released draft legislation regarding a continued license cap, licensing categories, and Social Equity Applicants. If passed the legislation would have some noteworthy impacts. Continue Reading City of Denver Releases Proposed Legislation To Extend The Current Licensing Mortarium, Creation Of Social Equity Opportunities, And Development Of A Delivery Framework

cannabis oil and hemp  On Friday, December 4, 2020 the US House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (the “MORE Act”), which would effectively legalize cannabis by removing marijuana from the Controlled Substances Act. The bill (H.R. 3884) has several key components. Continue Reading MORE Act Passes the House – is legalization around the corner?

Husch Blackwell’s Labor & Employment team issued a legal alert containing guidelines for employers as more states legalize marijuana. Employers should review the state laws in the jurisdictions in which they operate, understand their rights, and consider adopting the practices outlined in the update by Timothy Hilton and Jenna Brofsky.

As a historic election here in the United States unfolds beyond Election Day, one thing is certain – marijuana continues to win – and win decisively. While notable races in several states and counties were too close to call at the end of Election Night, marijuana state ballot initiatives were called early. All five states with marijuana on the ballot passed their various measures. Read more in yesterday’s legal alert by Husch Blackwell’s Steve Levine and Meghan Brennan.