On May 28, 2019, the United States Department of Agriculture (the “USDA”) and the Office of the General Counsel (the “GC”) issued a legal opinion on the status of hemp following the passage of the 2018 Farm Bill. The opinion confirms: first, hemp must be produced under the 2014 Farm Bill until the USDA creates federal regulations or endorses a State program, and second, all hemp produced under the 2014 Farm Bill is protected by the provisions in the 2018 Farm Bill.

The legal opinion clarifies three major points of concern for farmers, business owners, and investors interested in the production of hemp: descheduling, legal ways to produce hemp under current law, and the interstate transport of legally produced hemp.

Descheduling

Most importantly, the opinion confirms hemp has been entirely removed from the Controlled Substances Act (the “CSA”), effective December 20, 2018. Enforcement and penalties for producing, transporting, and owning hemp are now out of the hands of the Drug Enforcement Agency. Instead, the USDA, Food and Drug Administration (“FDA”), and State governments hold responsibility for enforcing the laws and rules around hemp.

Legal Production of Hemp Under Current Law

As Husch Blackwell has stated since the passage of the 2018 Farm Bill, hemp production is allowable only under the provisions of the 2014 Farm Bill until the USDA creates new federal regulations. The 2014 Farm Bill requires hemp to be produced for the purpose of research under a State pilot program.

Transportation of Legal Hemp Across State Lines

Third, in contrast to a recent magistrate decision in Idaho, the USDA and GC have taken the position that States and Tribes may not impede the transportation of hemp produced under a valid 2014 Farm Bill pilot program. The 2018 Farm Bill prohibits States and Tribes from interfering with interstate transport of any hemp produced lawfully under the 2018 Farm Bill, which, according to the USDA and GC, incorporates the 2014 Farm Bill’s pilot programs.

Canna Compliance West is a unique gathering of policy-makers, attorneys, proprietors, and growers. They all come together annually to discuss the current legal regulations on cannabis and the state of the market. Husch Blackwell’s Steve Levine will be the keynote speaker for the conference on May 30, 2019. Steve will be giving a presentation called, “Where are We? The Latest Scorecard on State Regs and Overall Market Evolution.” In his presentation he will address the current state of cannabis and deregulation. Learn more about the event on the conference website.

Trademark practitioners, hemp producers, and hemp-derived product manufacturers have long struggled with the clash of federal and state law regarding protection of trademarks with the United States Patent and Trademark Office (USPTO). Historically, the USPTO has refused registration of marks that include cannabis, hemp, CBD or derived products on the basis that these marks were unable to have lawful use in commerce under existing federal law. These waters became even murkier after the passage of the Agricultural Improvement Act of 2018 (known as the 2018 Farm Bill), which removed “hemp” from the list of controlled substances under the Controlled Substances Act (CSA). On May 2, 2019, the USPTO issued Examination Guide 1-19, outlining the USPTO’s policies with respect to trademarks including legal CBD and hemp-derived goods and services since passage of the 2018 Farm Bill. This appears to open the door for registration of marks that include legal CBD, hemp or hemp-derived products (such as hemp oil), or services such as the cultivation or production of hemp.

Continue Reading USPTO Issues Guidance on CBD and Hemp Trademarks After the 2018 Farm Bill

Last Friday, Husch Blackwell’s Steve Levine talked with James Dornbrook of the Kansas City Business Journal about the unclear rules and regulations of the medical marijuana business in Missouri. With the state deadline for accepting applications Aug. 3, there is no way a comprehensive set of regulations will all be ready in time. Another area of concern is the tricky (and sketchy) subject of leases.

Read the article to find out why Levine focuses on helping people make smart decisions about these unsettled horizons.

On Wednesday, April 3, 2019, the U.S. Food and Drug Administration (FDA) announced plans to hold a meeting to discuss its regulatory approach to products that contain cannabis and cannabis-derived compounds, including cannabidiol (CBD). The public hearing, which is scheduled to be held on May 31, 2019, is intended to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling and sale of products containing cannabis and cannabis-derived compounds.

Husch Blackwell attorneys Seth Mailhot and Steve Levine issued a legal alert about this announcement. Find out what this means for the safety, manufacturing, product quality, marketing, labeling and sale of products containing cannabis and cannabis-derived compounds.

As almost 40 states have legalized medicinal and recreational use of cannabis, there is much to learn as the trend toward full legalization continues. Husch Blackwell’s Steve Levine will participate in a webinar on April 18, 2019 hosted by the International Economic Development Council that will explore the current regulatory environment in both U.S. and Canada and explain how cannabis businesses have generated revenues.

Continue Reading Webinar: “The Cannabis Economy” – April 18, 2019

On January 1, 2020, entities doing business in California will have to comply with the California Consumer Privacy Act (CCPA), a first-in-the-nation consumer privacy law that grants numerous privacy rights to California residents. The CCPA will require thousands of businesses, including cannabis businesses, to undertake significant compliance efforts or risk substantial penalties. For cannabis businesses, however, compliance efforts must be considered in light of other applicable privacy laws.

Continue Reading Analyzing the California Consumer Privacy Act’s Impact on the Cannabis Industry

The State of Colorado has taken a major step towards opening its marijuana industry to outside investment in what could be a transformative piece of legislation.

On Monday, March 4, bipartisan legislation unanimously passed the House Committee on Finance that would allow for an increase in marijuana investment in Colorado. The legislation seeks to address the need for investment dollars while maintaining strict regulations and oversight of the industry. The legislation removes the statutory requirement of background checks for owners of less than 10% of a marijuana business, thus opening the state’s marijuana market to outside investors as well allowing marijuana businesses to offer their employees equity in the company. In addition, the legislation outlines requirements for publicly traded companies to both invest in licensed marijuana businesses and to hold Colorado marijuana licenses. The legislation will next face a floor vote, where it is widely believed to have the support needed to pass, then it will go to the Senate and if passed, on to the state’s governor for final passage.

Continue Reading Colorado Poised to Pass Major Marijuana-Related Legislation