cannabis

Subscribe to cannabis via RSS
High detailed image of fresh cannabis cultivation

In April, I wrote about the Docklight case in Washington State. That case involved a qui tam action pursuant to the False Claims Act in which Docklight, a cannabis ancillary company, settled with the Department of Justice for having wrongfully received and been forgiven a Payment Protection Program (PPP) loan. While there was little reporting on or analysis of the case by the cannabis industry, it was clear that the federal government was looking at cannabis and cannabis ancillary businesses and, essentially, PPP fraud.

Now, there is growing concern among cannabis PPP loan recipients of potential audits related to the Small Business Administration (SBA) Office of Inspector General’s estimate that up to one-third of PPP loans were fraudulently secured (and forgiven). Notably, as part of the PPP, the SBA issued specific guidance in 2019 that both cannabis and cannabis-related companies were not eligible for PPP loans (though it’s likely that hundreds if not thousands of these companies applied for and received these funds anyway). And while “plant touching” businesses likely have no leg to stand on if they’re audited by the SBA, cannabis ancillary businesses potentially have a shot at surviving these audits.

As the 2024 Minnesota Legislative Session came to a chaotic close on May 20, numerous changes to Minnesota Statutes Chapter 342 were sent to the Governor’s desk to build on the already existing cannabis regulatory structure. On May 24, Governor Tim Walz signed the amendments to Chapter 342, which address social equity provisions, preapproval process for social equity applicants, the larger application and licensing process, and consumer safety.

While the cannabis industry is closely following the recently published notice of proposed rulemaking from the Department of Justice (“DOJ”) and the Drug Enforcement Administration (“DEA”), which will move cannabis from a Schedule 1 controlled substance to a Schedule 3 controlled substance under the Controlled Substance Act (“CSA”), a very important federal cannabis litigation matter is making its way through federal court. That case is Canna Provisions, Inc., Gyasi Sellers, Wisacre Farm, Inc., and Verano Holdings Corp.v. Merrick Garland, case no. 23-cv-30113. Filed in October of last year, the Canna Provisions case is more important than ever in the context of rescheduling (in my opinion) and this post serves as an update on what’s happening in court.

On May 16, the Drug Enforcement Administration (“DEA“) published its 92-page notice of proposed rulemaking (“NPRM“) to move marijuana from schedule 1 on the Controlled Substances Act (“CSA”) to schedule 3 (ironically, the proposed rule itself only takes up a couple of paragraphs on the last two pages of the NPRM). On the same day, the DEA released an opinion from the Office of Legal Counsel (within the Department of Justice (“DOJ”), which prepares legal opinions of the U.S. Attorney General “and provides its own written opinions and other advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and other components of the Department of Justice”) in response to questions from the U.S. Attorney General’s office about schedule 3 marijuana (the “Opinion”). While the NPRM represents the proposed DEA rule that moves marijuana from schedule 1 to schedule 3, the Opinion is essentially the OLC’s roadmap for fending off legal and administrative challenges to this historic move.

Dealing with creditors is never a fun experience. However, some creditors are more severe than others, especially in the cannabis industry. One of those is the California Department of Tax and Fee Administration (CDTFA), which administers California’s sales and use, fuel, tobacco, alcohol, and cannabis taxes, as well as a variety of other taxes and fees that fund specific state programs. It’s no secret that CDTFA cannabis taxes are crippling the California cannabis industry. For example, I recently recorded a Cannabis Law Now podcast episode with Anthony Almaz, general counsel for Catalyst. Catalyst is challenging various emergency rules promulgated and adopted by CDTFA that would further expand taxable items in California’s cannabis industry. This post though is about the CDTFA cannabis creditor relationship and the myths and truths around it.

Artificial Intelligence (AI) continues to jump leaps and bounds in 2024. As a lawyer, I’m always curious about how to integrate AI into my practice in order to better serve my clients. And now and then I check in with this seemingly omnipotent technology to ask what it deems top of mind for the cannabis industry. Given that we’re fresh into the new year, I logged into ChatGPT to ask it “What are the most asked questions about cannabis law”, and its answers honestly surprised me. Mainly because, after almost 14 years of practice in this area, it seems that the same questions remain despite all of the legal progress and reform in the area state by state.

Overall, 2023 was a tough economic year for the entire cannabis industry. And with lean economic times comes a myriad of bad behavior, and cannabis is no exception. Every year, I like to put out a list of the top cannabis scams and swindles so that cannabis consumers, companies, and investors don’t wind up buying into one of these schemes.

California’s cannabis industry continues to struggle in this seemingly unending shake out period. Namely, hundreds of licensed cannabis companies are getting stiffed on A/R with an overwhelming inability to collect as those debtors go out of business. It’s gotten so bad that California considered passing a bill where cannabis companies that fail to pay their overdue invoices will suffer regulatory violations. And the Credit Management Association, at the request of a significant number of B2B California cannabis businesses, was set to compile a list of bad actor retailers that left wholesalers and distributors hanging. Such dire financial times require creditors to get both aggressive and creative. Their options in cannabis are limited since bankruptcy isn’t really available and because of the cannabis regulatory red tape. However, assignments for the benefit of creditors (“ABCs”) are definitely a (surprisingly) great way to deal with cannabis debtors in California (and potentially elsewhere). So, if you’re swimming upstream with a cannabis debtor, you may contemplate using a California cannabis ABC.

When I started representing cannabis businesses in 2010, the biggest epidemic in the industry next to I.R.C. 280E was the overwhelming lack of cannabis banking. This inability to access financial institutions for just depository accounts was staggering to businesses, leading to endless public safety hazards and organizational chaos. Almost 14 years later, the cannabis banking crisis has somewhat improved due to the 2014 FinCEN guidelines. But they’re not enough on either side of the aisle, and Congressional Research Services (“CRS”) echoed that point in a recent “Legal Sidebar”, detailing the myriad liabilities financial institutions to face if they want to bank cannabis businesses.

On the heels of New York and Missouri legalizing adult use cannabis, on November 7, 2023, Ohio voters approved “Issue 2” – a citizen initiative paving the way for adult use marijuana legalization in the state, which according to voter ballots creates “a system that regulates and taxes marijuana just like alcohol”. While the law goes into effect on December 7th, lawmakers can modify the new law before it goes into effect, and of course Ohio’s newly created Division of Cannabis Control (within the Department of Commerce) will need to rulemake around the new law, which could throw some curveballs at enterprising adult use marijuana businesses.