Recent Posts

Washington Marijuana Beverages Can’t Be Too Enticing for Children… or Adults?

, , No Comment

What’s a Washington beverage processor to do?

The Washington State Liquor and Cannabis Board (WSLCB) is creating a real niche in the beverage product design industry through some of its most recent policy pronouncements. As has always been the case, edible (and drinkable) marijuana products are regulated so that they are not appealing to children. There are a host of old and new policies and rules that focus on avoiding marketing marijuana to kids, some of which are explicit (new policy mandating dull colors), and some of which are subjective (packages and labels cannot be designed in a manner that is “especially appealing to children.”).

But in one of a new set of policies that the WSLCB has issued recently, it has also sought to avoid packaging and labeling reminiscent of products made for adults — alcohol. Under BIP-07-2018, marijuana-infused products must not “Mimic, imply, represent or contain any statement, depiction, illustration, design, brand, or name of a product containing alcohol.”

Further, the WSLCB claims that if a product looks like alcohol, a licensee can’t get its product approved even if it includes a disclaimer on the packaging that the product does not contain alcohol. Even though this is a recent development as a written policy, we know that the WSLCB has been treating this …

Read Post →

CMH/LEC Grow Lamps

, , No Comment

It’s undeniable that the cannabis industry has evolved at a dizzying pace over the last decade, with a multitude of new genetics and products that we couldn’t even imagine a few years ago. A clear example of this is the new CMH (Ceramic Metal Halide) technology in illumination for indoor cultivation, also known as LEC (Light Emitting Ceramic). Based on the design of conventional high intensity discharge bulbs, these new lamps are innovative for replacing the quartz used in the familiar metal halide bulbs with a ceramic element, which provides a series of advantages, especially in terms of width of the light spectrum and better use of light, which translates into bigger harvests.

The explanation is simple: CMH LEC lighting systems emit a spectrum of light that is much closer to natural light than any other bulb on the market, with an unrivalled richness in the different wavelengths and that ranges from UV to far red. It is, in a manner of speaking, the perfect artificial light for cultivating plants indoors, increasing photosynthesis and reaching yields of 1.5 grams per watt in the case of cannabis, and with a higher production of terpenes! In addition, and as you will see below, some of the biggest brands in the illumination business already offer their own CMH equipment, which …

Read Post →

ICYMI: Los Angeles Updates Its Phase 2 Cannabis Licensing Process

, , No Comment

los ángeles cannabis licensingThe ups, downs, and unknowns around L.A. cannabis licensing have abounded from the passage of Measure M back in March 2017. This is not uncommon, especially in large cities, as regulators determine how to handle things on the fly and as issues arise (see, for example, social equity in L.A. and the ability to re-locate for Existing Medical Marijuana Dispensaries (“EMMDs“). L.A., to its credit, has been transparent and pretty consistent in the way it’s treated licensees and stakeholders. To that end, this month, L.A.’s Department of Cannabis Regulation (“DCR”) released a Phase 2 licensing bulletin that’s significantly important for those Phase 2 would-be licensees that seek a temporary license.

Recall, to qualify for Phase II temporary approval/licensing (which triggered priority licensing for existing “non-retailers” like growers and manufacturers) — folks had to meet all of the following criteria:

  1. Engagement prior to January 1, 2016, in the same Non-Retailer Commercial Cannabis Activity for which it sought a license;
  2. Supplier to an Existing Medical Marijuana Dispensary prior to January 1, 2017;
  3. The Business Premises meet all the land use and sensitive use requirements under cannabis laws and the existing City code;
  4. The applicant’s premises have to pass a pre­-license inspection without any fire or life safety violations either;
  5. All outstanding City business tax obligations were paid to the City

Read Post →

Cannabis Employment Law: The Class Action Lawsuits are Here

, , No Comment

class action marijuana cannabisMedMen, a popular California cannabis retail company, has been hit with a class action lawsuit from former employees. Class action lawsuits are no joke. These lawsuits involve a few plaintiffs suing on behalf of multiple similarly situated plaintiffs. The claims, money, and other associated costs add up very fast.

In MedMen’s case, two former employees, Chelsea Medlock and Anthony Torres, allege that MedMen failed to pay them for all hours worked, failed to pay overtime wages, failed to provide mandatory meal and rest breaks, and failed to keep accurate records of employees hours worked. Medlock and Torres worsened the blow by bringing the lawsuit as a class action on behalf of all MedMen employees (current and former) from the last four years. If the class is “certified” by the Superior Court of the State of California, where it was filed, the class of plaintiffs could include thousands of employees.

Specifically, Medlock and Torres allege MedMen required them to perform work “off-the-clock” for which they received no pay. Medlock and Torres are seeking minimum wage, liquidated damages, interest and attorney fees for the unpaid time. Although Medlock and Torres have not made specific allegations in the complaint, Starbucks was recently ordered to pay an employee $102.67 for the time the employee spent locking up the store and setting alarms, without …

Read Post →

World Health Organization Temporarily Withholds Marijuana Scheduling Recommendations

, , No Comment

international law WHO UN cannabisLast Friday, December 7, the World Health Organization (“WHO”) Expert Committee on Drug Dependence (“ECDD”), was scheduled to make a recommendation about the international legal status of cannabis. The WHO is a “specialized agency” of the United Nations, and the ECCD is a WHO committee consisting of experts in the field of drugs and medicines, that assesses the health risks and benefits of the use of psychoactive substances. Alas, the ECDD announced it would temporarily withhold the results of the assessment until January, declaring it needed additional time “for clearance reasons.”

Earlier this year, the ECDD released a preliminary report (“Pre-Review”) on the effects of the plant, which concluded that cannabis is a “relatively safe drug.” The Pre-Review also revealed that cannabinoids (“CBD”) offer numerous therapeutic benefits, including reduction of pain, promotion of sleep, and improvement of motor function for individuals affected by Parkinson’s disease. As a result, the ECDD made the recommendation to the United Nations Commission on Narcotic Drugs (“CND”), that pure CBD not be scheduled under any international drug treaty.

The Pre-Review results gave us and other reform advocates great hope that a more in-depth review would take place before the ECDD makes a final recommendation to U.N. Secretary António Guterres. Comprehensive scientific data on the effects and benefits of cannabis are hard …

Read Post →

What the 2018 Farm Bill Could Mean for CBD in California

, , No Comment

farm bill hemp california cbdThe federal 2018 Farm Bill is likely to become law in the very near future. If it does, it will redefine the hemp industry nationwide. We intend on writing more in the near future as to the specifics of the 2018 Farm Bill, but one interesting question is what effect it will have on California’s industrial hemp and CBD policies.

As anyone in the California hemp business knows, the Department of Public Health (“CDPH”) issued a FAQ policy guideline over the summer which took the position that industrial-hemp derived CBD in food products is unlawful. The FAQ justified this position in part because the federal Controlled Substances Act included industrial hemp as a Schedule I drug, and in part because the federal Food and Drug Administration (“FDA”) had concluded that it was unlawful to place THC or CBD into food products.

The 2018 Farm Bill, if it passes, will essentially amend the Controlled Substances Act to take industrial hemp out of the definition of marijuana. In essence, this would make industrial hemp derived products lawful products. The question then is: Will the 2018 Farm Bill negate the FAQ?

The answer is probably not. Even though the Controlled Substances Act may be amended and some of the underlying support for the FAQ may be undermined, that won’t change the fact that …

Read Post →

Oregon Cannabis: Five Common Early Stage Mistakes

, , No Comment

oregon cannabis license marijuanaRunning a cannabis business is difficult and many people fail. There are a myriad of reasons why these ventures bottom out, although owners tend to blame federal law issues first of all. It’s true that federal law creates a tough environment for cannabis businesses (banking issues, tax issues, branding issues, etc.), but federal prohibition also kept big money sidelined at first, giving small business a real head start. My personal view, after seeing many spectacular business failures and slow motion crashes over the past several years, is that most are some combination of the following: 1) a challenging legal and regulatory environment, 2) saturated markets, and 3) operator error.

A start-up cannabis business cannot control the first two items listed above, but should be able to navigate them. The third item is a different animal. Margin of error tends to be slim for most new ventures, and self-inflicted wounds are difficult to overcome. This blog post covers the five biggest mistakes we continue to see in early stage Oregon cannabis business, and gives suggestions to avoid them.

  1. Failure to properly estimate license transition timelines

Because the Oregon Liquor Control Commission (OLCC) “paused” review of applications submitted after June 15, 2018, most new market entrants are buying their way in through asset or stock sales from existing licensees. The …

Read Post →

Breaking News: Industrial Hemp Legalization is Happening!

, , No Comment

industrial hemp 2018 farm bill

After a long last, it’s finally happened. The 2018 Farm Bill has made it out of conference and has been approved by the Senate. It currently awaits approval from the House, which is expected this week. If Donald Trump signs the 2018 Farm Bill before the current legislative session ends on December 21, industrial hemp will be legal under U.S. federal law. Though we still are likely a few years out from full marijuana legalization, it appears that 2019 is going to be the “Year of Hemp” if Washington D.C. can make this happen before the deadline. Now, we’ll turn to the long awaited hemp-related text of the 2018 Farm Bill, as agreed to by the House and Senate. A copy of the full 2018 Farm Bill is available, via the U.S. Hemp Roundtable, here.

Some key provisions of the 2014 Farm Bill remain. “Industrial hemp” still means parts of the cannabis plant, whether growing or not, with less than 0.3% THC on a dry weight basis. Cannabis with more than 0.3% is still considered marijuana and is still classified as a schedule I substance. Additionally, the 2014 Farm Bill’s hemp provisions will continue for a year after the 2018 Farm Bill is signed. That means that the agricultural pilot programs that we know and love will stick around …

Read Post →

California Cannabis Cultivation: CDFA Accepts All Changes to Proposed New Rules (and Then Some)

, , No Comment

california cannabis licensing rulesThis past Friday, California’s three agencies charged with writing and enforcing cannabis regulations—the Bureau of Cannabis Control (BCC), the Department of Public Health (DPH), and the Department of Food and Agriculture (DFA)—made public their respective proposed final regulations, which are currently pending a 30-day review by the Office of Administrative Law before becoming law. Some of the most significant and controversial changes appear in the BCC’s proposed final regulations, which govern a variety of licensees such as retailers, distributors, testing laboratories, and microbusinesses, and which we will be writing about in the coming days.

As for the DFA, which issues and enforces rules for cannabis cultivators, the proposed final rules are substantially the same as the modifications the agency proposed back in October. While “substantially the same” might sound innocuous, it amounts to acceptance of the October modifications, many of which were significant. Below are some initial takeaways.

Cultivation license “stacking.” It looks like the “stacking” work-around for the acreage cap is going to be permanent. Remember the controversy surrounding the state’s decision not to limit accumulation of small cultivation licenses by a single licensee so as to essentially create a loophole to the 1-acre cap, to the benefit of big farms. However…

Shared facilities limitations. It also looks like the DFA’s proposed modifications regarding …

Read Post →

7 Ways to Improve the Health Outcomes You Get from Medical Cannabis

, , No Comment

If you’ve been using medical cannabis for any length of time, you may have wondered how you could maximize the health outcomes of this treatment. Research suggests cannabis could be helpful in the management of many different conditions.


Source: http://www.medicinalmarijuanaassociation.com/medical-marijuana-blog/7-ways-to-improve-the-health-outcomes-you-get-from-medical-cannabis…

Read Post →

FREE Webinar Tomorrow: Oregon Employment Law for Cannabis Businesses

, , No Comment

employment law oregon cannabisOwning a cannabis business can present formidable challenges. Adhering to the OLCC rules can be complex in and of itself, but your business must also comply with an array of state and federal employment laws and regulations.

If you are an OLCC licensed cannabis business with employees, Harris Bricken employment lawyer Megan Vaniman will present a free webinar tomorrow, December 12, 2018 at 12pm PST to help you better understand these issues. Throughout the presentation, Megan will discuss how to navigate employment law for cannabis businesses, and provide you with tips and tricks to ensure compliance. Topics Include:

  • What to consider when hiring
  • Oregon’s sick leave requirements
  • Oregon and Portland’s “ban-the-box” ordinance
  • Final pay checks
  • Independent Contractor vs Employee designation

Moderated by Harris Bricken cannabis attorney Vince Sliwoski, Megan will also address audience questions throughout the presentation. Please register by clicking here. For any additional questions regarding the webinar, please contact firm@harrisbricken.com. We hope you can join us!

Source: https://www.cannalawblog.com/free-webinar-tomorrow-oregon-employment-law-for-cannabis-businesses/…

Read Post →

CBD Companies Should Prepare Now for Product Liability Claims

, , No Comment

CBD product recall litigationWe counsel our cannabis (and non-cannabis) clients extensively on product liability issues, and have warned them that the federal illegality of their products will not shield them from the same products liability risks faced by companies in other industries. We extend the same warnings to our cannabidiol (CBD) clients, who, if they are operating outside of a state-run cannabis licensing regime, are actually in a position of even greater risk. Lack of regulation in the CBD space is to the detriment of consumers, who often cannot be certain what ingredients the products they purchase actually contain, or whether those products are safe and free of contaminants.

It’s only a matter of time before harmed consumers start suing CBD companies alleging defective, dangerous, or mislabeled products (and Proposition 65 violations). Here are some posts we’ve written about product liability in the cannabis industry, which are highly relevant to CBD companies as well:

Read Post →

Oregon and Psilocybin: Does the Approved Ballot Measure Language Stand a Chance?

, , No Comment

Oregon psilocybin psychedelic mushrooms

Back in August, I covered the landmark Food and Drug Administration (FDA) drug trial approval for psilocybin, the naturally occurring, psychedelic ingredient found in around 200 species of mushrooms. I speculated that if everything goes well, we could see an approved psilocybin drug hit the market sometime in the next 5 to 10 years. I also mentioned that it’s possible that psilocybin could be legalized in certain states before that, including Oregon. Last month that came one step closer to happening, when Oregon Attorney General approved ballot measure language to legalize psilocybin statewide.

Initiative Petition 2020-12 (the “Initiative”) can be found here, and a link to the Official PSI 2020 Campaign Website can be found here. If you just want to see a summary of the Initiative ballot title as it would appear in 2020, though, we’ve got you covered:

Currently, federal/state law prohibits the manufacture, delivery, and possession of psilocybin (hallucinogen from fungus). Initiative amends state law to reduce most criminal penalties for unlawful/unlicensed psilocybin manufacture, delivery, possession to violations or misdemeanors; retains felonies for large weight of psilocybin and/or some convicted felons. Initiative amends state law to require Oregon Health Authority (OHA) to establish Oregon Psilocybin Services Program to allow licensed/regulated production, processing, delivery, possession of psilocybin, and administration of “psilocybin service” (defined) by

Read Post →

Breaking: California Bureau of Cannabis Control Publishes Proposed Final Regulations

, , No Comment

california cannabis BCC

Today, the Bureau of Cannabis Control (BCC) published its Proposed Text of Regulations Submitted to Office of Administrative Law for review here. We are still in the process of reviewing everything, but there are enough ambiguities to cause us a good deal of concern, particularly with respect to IP licensing and contract manufacturing agreements.

We are also reviewing the BCC’s responses to comments submitted on the proposed regulations back in early November, of which there are about a thousand pages. We’ll be analyzing the regulations section by section and writing about all of the changes over the course of the next week.

Stay tuned.

Source: https://www.cannalawblog.com/breaking-california-bureau-of-cannabis-control-publishes-proposed-final-regulations/…

Read Post →

More Banks and Credit Unions Are Working with Cannabis Businesses

, , No Comment

marijuana bank fincen
Slowly but surely, it’s happening for canna businesses.

According to a recent report from the U.S. Treasury Department’s Financial Crime Enforcement Network (“FinCEN”), a growing number of financial institutions are willing to work with cannabis businesses. As of September 30, 375 banks and 111 credit unions were managing marijuana business accounts.

These numbers reveal a steady growth in the number of financial providers willing to engage with the cannabis industry, despite its federal illegality. The report confirms what our cannabis business lawyers have observed over the past few years in Washington, Oregon and California: namely, most of our licensed cannabis business clients are banked, and it isn’t as hard as it used to be to acquire a basic merchant account.

Still, most financial services providers have been reluctant to serve the marijuana industry for years, fearing the federal cannabis prohibition would trigger liability under money laundering laws. Earlier this year, many concluded that banks would refuse to associate with cannabis businesses following the decision by then-U.S. Attorney General Jeff Sessions to retract policy protections for licensed marijuana businesses from federal interference. However, the latest FinCEN report reveals that those fears were mostly speculative.

The American Bankers Association, which recently conducted a survey on the issues faced by banks that are serving cannabis businesses, is advocating for greater legal clarity to …

Read Post →

Ninth Circuit Agrees with Montana: Employees Can be Fired for Off-Work Marijuana Use

, , No Comment

montana medical marijuana employmentMedical marijuana is legal in Montana. Unfortunately, that does not prevent local employers from terminating workers for legal, off-work use of marijuana in the state.

In 2010, while already employed by Charter Communications, LLC, Lance Carlson was issued a medical marijuana card under Montana Medical Marijuana Act to treat chronic low back and stomach pain. The medical marijuana card allowed Mr. Carlson to legally use marijuana to treat the conditions. In 2016, Mr. Carlson was involved in a work-related motor-vehicle accident. A urinalysis that followed the accident tested positive for THC. Mr. Carlson was promptly terminated as a result of the drug test.

Mr. Carlson initially brought suit against his former employer in Montana state court, alleging the former employer had wrongfully terminated him in violation of the Discrimination Under the Montana Human Rights Act— specifically, that his employer had discriminated against him because of a disability. The case was removed to Federal District Court. Charter Communications quickly moved for a motion to dismiss arguing that the Montana Marijuana Act allowed them to terminate Mr. Carlson for his medical marijuana use. Mr. Carlson appealed the decision to the Ninth Circuit.

The Ninth Circuit, in an unpublished opinion, upheld the district court’s dismissal. The Ninth Circuit specifically relied on the carve-out of Montana’s medical marijuana act that states employers are …

Read Post →

What Will the California Cannabis Industry Look Like in a Few Years (From the Legal Perspective)?

, , No Comment

california cannabis litigation
We see litigation in the California industry’s future.

Because California’s cannabis regulatory scheme is still in relative infancy, 2018 has looked the same for most operators: applying for annual licenses and waiting (and then continuing to wait) for them to issue or fighting to get temporary license applications submitted before they can no longer be issued. But what happens in two or three years after hundreds or thousands of commercial cannabis licenses have been issued? A host of administrative and civil litigation, probably.

California’s cannabis regulators have immense power that’s not just going to disappear after they issue licenses. The Bureau of Cannabis Control, which regulates a number of different license types, arguably has more police power than the actual police. Section 5800 of the BCC’s readopted emergency regulations, for example, gives the BCC “full and immediate access”, without prior notice, to enter premises, inspect cannabis or vehicles, and copy books and records, and failure of a party to comply with a BCC investigation can be subject to discipline.

Not only do the agencies have broad investigative power, but the subject matter of what they can investigate—all the various regulations that companies have to comply with—is immense. The regulators are not going to sit around and assume that licensees are following the law, the regulations, or even their own …

Read Post →

What Patients Need to Know about Medical Cannabis and Travel

, , No Comment

With medical cannabis, you’re hoping to get back to living your best life and doing the things you love. For many people, this includes travel. Whether you’re planning an epic road trip or hopping on a transatlantic flight, you’re probably anticipating your next vacation.


Source: http://www.medicinalmarijuanaassociation.com/medical-marijuana-blog/what-patients-need-to-know-about-medical-cannabis-and-travel…

Read Post →

Types of grow lights for indoor cannabis cultivation

, , No Comment

How do we light our cannabis growing space?

When we decide to set up an indoor cannabis grow for personal use at home, there are many factors to take into account if we want to get the best results, but one of the most important to consider is the type of light and its power consumption.

When deciding on the type of light to use, we must keep in mind that each technology has its different advantages and disadvantages with respect to growing cannabis. Certain types of bulbs will offer the best yield (lumen per watt) but at the same time they are a considerable heat source that can cause problems to many growers, especially those that live in particularly warm climates or are only able to grow cannabis in small spaces.

On the contrary, other types of illumination emit almost no heat at all, although often the high price of this kind of lighting, combined with its lower effectiveness when compared to other systems, combine to make them less popular. They are, however, indispensable to the many indoor growers that can only cultivate cannabis successfully thanks to the low heat emission of these lights.

Kit with cool tube

This lighting kit with air-cooled reflector includes all you need for plentiful flowering


The choice of lighting systems for indoor growing mainly depends on …

Read Post →

Webinar December 7: Ethically Navigating Local and State Licensing for Cannabis Businesses

, , No Comment

california cannabis CLE ethics

Representing cannabis businesses is fraught with ethical traps. Cannabis businesses require guidance in navigating complex and shifting state and local regulations, and providing that guidance in a federally illegal landscape requires a delicate dance. To learn about and discuss potential pitfalls in representing California cannabis businesses, join us on December 7 at 12pm PST for a webinar entitled “Ethically Navigating Local and State Licensing for Cannabis Businesses.”

At the webinar, attorneys Julie Hamill of Harris Bricken and Ruben Duran of Best Best & Krieger will provide tips on how to traverse the ever-changing landscape of local and state licensing without getting your clients or yourself in trouble. The attorneys will cover changes to the California Rules of Professional Conduct, updates to federal policies and state regulations, and cautionary tales of cannabis attorneys who have found their ethics called into question.

Program Highlights:

  • Continuing tension between state and federal laws
  • Applying the new Rules of Professional Conduct
  • Regional bar association ethics opinions
  • Attorney-Client privilege concerns
  • Public law: conflicts of interest and bribery
  • Real life ethical scenarios

This is an intermediate level program worth 1 MCLE credit in Legal Ethics. Some experience with cannabis law is assumed. Please go here to register!

For more of Julie’s work, please check out the below posts:

Read Post →

Anti-Competitive Alert? Marijuana Slotting Fee and Pay-to-Stay Contracts in California

, , No Comment

shelf space california cannabis contract
Shelf space is a big deal right now in California cannabis.

With the roll out of the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA“), our California cannabis attorneys see all kinds of agreements between and among licensees. From IP licensing to white labeling to distribution contracts, we’re beginning to see people emerge from the shadows and enter into written agreements with each other, which is undoubtedly for the best given the amount of litigation that already exists in the industry and given the amount of fighting that’s sure to come regarding commercial disputes. Lately though, what we’ve seen a lot of are “pay-to-stay” and slotting fee agreements between cannabis cultivators, manufacturers, distributors, and retailers. In these agreements, cultivators, manufacturers and distributors are locking retailers into contracts for dedicated, prime-time shelf space. The question, though, is whether such agreements are kosher in California and what you need to know to have a reliable, enforceable, pay-to-stay contract.

California is still pretty dynamic when it comes to contracts between licensees. Unlike other states, California hasn’t really broached the subject of massive restrictions on contracts between licensees (the lone exception is the most recent of proposed permanent regulations that attacked IP licensing and white labeling between licensees and non-licensees). Other states are very particular about licensees exerting undue influence over …

Read Post →

A Non-Solicitation Agreement for your California Cannabis Employees? Be Careful!

, , No Comment

Legalized recreational cannabis businesses are still new in California. As a cannabis business owner, you may be thinking that a great way to protect your confidential information and prevent your employees from leaving would be a non-compete agreement. Think again. Not only are non-competition agreements unenforceable and prohibited in California, but they can come with criminal sanctions if an employer requires an employee to enter into a non-competition agreement as a condition of employment. In other words, don’t even think about entering into non-competition agreements with you California cannabis employees.

Many cannabis companies may try another route to protect their confidential business information and get employees to stick around through “non-solicitation agreements.” Non-solicitation agreements are not as restrictive as non-competition agreements and generally are not prohibited by California law. Non-solicitation agreements typically prohibit employees from taking any actions that will cause any employee, customer, or vendor of the employer to change its relationship with the employer. California courts will carefully scrutinize non-solicitation agreements to ensure they are not overly broad and therefore crossing the line from non-solicitation into non-competition. A recent case from the California Court of Appeals demonstrates that the courts are continuing this tradition and carefully examining non-solicitation agreements and only enforcing them if they are true non-solicitation agreements.

california cannabis nonsolicitation noncompete employeeIn AMN Healthcare Inc v. Aya Healthcare Services Inc

Read Post →

Cannabis Fines and Asset Forfeiture: Supreme Court to Weigh In

, , No Comment

asset forfeiture fine cannabis marijuana

We have handled a number of excessive fines cases on behalf of clients who’ve had their property seized, or threatened to be seized by the government. For some background on this, see our blog posts here and here.

The United States Constitution provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const., Amdt. 8. The Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’” Austin v. United States, 509 U.S. 602, 609-10 (1993). That constitutional protection applies in cannabis cases, just like everywhere else.

On Wednesday, the United States Supreme Court heard oral arguments in the case of Timbs v. Indiana regarding whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment. The case involves the forfeiture of petitioner’s land rover as punishment for selling heroin. The Indiana Court of Appeal held that the forfeiture of the land rover was grossly disproportionate to the gravity of the offense. The Indiana Supreme Court reversed and concluded that because states are not subject to the Excessive Fines Clause, the forfeiture was not unconstitutional.

The predicted outcome is that the United States Supreme Court will apply the Excessive Fines Clause against the states. …

Read Post →

Labeling CBD-Infused Foods: Part 2

, , No Comment

cbd label copyright trademark
Start from scratch to avoid infringement issues.

We previously discussed the need for manufacturers of CBD-infused foods and beverages (“Manufacturers”) to comply with the Food and Drug Administration labeling rules. However, such requirements are only one of many issues Manufacturers should worry about. Indeed, Manufacturers should also ensure: 1) that their name as well as their logo/design are not infringing on those of another; and 2) that they hold the right to the Trademarks they intend to display on their labels. This post provides a brief overview of the steps Manufacturers should take to shield themselves from infringement claims.

Trademark and/or Logo Infringement

As we explained before, trademarks are words, phrases, symbols or designs (i.e., logos) that identify the source of a product and help distinguish that product from that of competitors. The very best way to protect your trademark is to register it at the state or federal level.

Logos may also be protected under copyright law. Copyright law protects literary, musical, graphic, or other artistic forms in which an author expresses intellectual concepts. Thus, logos that are adequately original and ornate have a strong chance of being copyright protected, even without registration—though it is in the Manufacturer’s best interest to register its Logo with the U.S. Copyright Office, see why here.

Choosing branding that will …

Read Post →

Cannabis Events: MJBizCon 2018 and Beyond

, , No Comment

cannabis marijuana events

Thanks to Marijuana Business Daily for hosting MJBizCon 2018 in Las Vegas earlier this month! MJBizCon has separated itself from other cannabis conferences in both quality of content presented and sheer number of attendees. According to the Las Vegas Review-Journal, the conference was projected to draw 25,000 attendees, a 50% jump in attendance from last year. When the dust settled, the event actually surpassed that projection, with Marijuana Business Daily reporting that nearly 28,000 people attended the conference.

Contributing to those solid attendance numbers were several folks from Harris Bricken including attorneys Hilary Bricken, Robert McVay, Alison Malsbury, Megan Vaniman, Tatiana Logan, and Julie Hamill, and paralegals Meghan Saunders, Desiree Andersen, Kait LaPorte and Madeline Williams.

To celebrate the occasion, Harris Bricken hosted a pre-conference cocktail party, “Vegas Magic: A Cannabis Industry Soiree.” The sold-out event allowed our team to meet and mingle with cannabis entrepreneurs attending the conference. There was also a magician to keep the crowd entertained. Thanks to the following businesses for providing SWAG (i.e. “Stuff We All Get”) for the Soiree:

If you missed MJBizCon, or if you attended but still have an appetite for more cannabis analysis, we have good news! Our attorneys are speaking at a number …

Read Post →

Industrial Hemp Litigation: U.S. Postal Service Loses CBD Delivery Case

, , No Comment

USPS industrial hemp delivery litigation
If only it were so simple!

In January 2018, the United States Postal Service (USPS) seized a package in Denver, Colorado sent by KAB, LLC, a registered, Colorado industrial hemp cultivator. The package contained 1170 grams of cannabidiol (CBD) powder, derived from industrial hemp. KAB appealed USPS’s decision, arguing that the powder was not a controlled substance and therefore should not have been withheld. Administrative Law Judge (ALJ) James G. Bilbert oversaw the appeal and wrote an opinion in favor of KAB.

In his opinion, the ALJ considered whether CBD grown and cultivated from industrial hemp, in line with Section 7606 of the Agriculture Act of 2014 (Farm Bill) was nonmailable as a Schedule I controlled substance. The ALJ observed that marijuana is classified as a Schedule I substance under the Controlled Substances Act (CSA) and that “CBD that is a derivative of the marijuana plant, as defined under the CSA, is non-mailable.” The ALJ quoted USPS, Publication 52, Hazardous, Restricted, and Perishable Mail § 453.31 (Aug. 2017) stating that “[i]f the distribution of a controlled substance is unlawful under [the CSA or related regulation] than the mailing of the substance is also unlawful under 18 USC § 1716.”

The ALJ’s analysis then turned to the Farm Bill, reciting well-known § 7606, which establishes the following:

  • Notwithstanding the CSA, a

Read Post →

5 Signs You Should Find a Different Medical Marijuana Doctor

, , No Comment

The number of Canadian medical marijuana patients has been growing steadily over the last few years. As medical cannabis becomes more accepted as a treatment, more doctors and patients have become curious about what it can do. New research is showing the medical field more possible uses as well, expanding the number of patients who could benefit from medical marijuana.


Source: http://www.medicinalmarijuanaassociation.com/medical-marijuana-blog/5-signs-you-should-find-a-different-medical-marijuana-doctor…

Read Post →

Oregon Cities and Counties Continue to Refine Cannabis Rules

, , No Comment

oregon marijuana cannabis clackamas deschutes We always talk about the cannabis industry being dynamic. That’s true from a markets perspective and it’s true from a regulatory point of view. When it comes to regulations in particular, industry observers tend to focus on the big picture developments: e.g., whether marijuana will finally be re- or de-scheduled at the federal level, whether we will get a farm bill legalizing industrial hemp nationwide, or which new states have legalized marijuana. Those broad issues deservedly get a lot of press. However, marijuana business owners are often more concerned about what is going on locally, at the city or county level. In fact, most cannabis business owners get more passionate about proposed changes to local regulations than proposed state- or even federal law developments.

My law firm has worked with regulated cannabis business in Oregon, Washington and California since 2010. I suspect that none of our cannabis business lawyers support extensive local regulation of marijuana (let alone local licensing programs). Because states tend to promulgate extensive regulatory structures, local rules tend to be duplicative and controversial once you get beyond basic land use concepts. That said, cities and counties are often pressed by their citizens to regulate cannabis businesses, and state governments give ample regulatory authority to local jurisdictions– often including the choice to “opt out” of industry participation …

Read Post →

How to make THCA Crystals & Solventless Sauce

, , No Comment

Why isolate cannabinoids?

In recent times we’ve seen a great increase in the amount of isolated cannabinoids coming onto the market, with CBD crystals and pure THC distillate becoming a more frequent sight on the menus of dispensaries. Their popularity is mostly due to the ease of calculating dosage amounts. While the vast majority of resin extracts have an unknown cannabinoid content, when we isolate a cannabinoid, users can be confident that they have a product with a purity approaching 100%, which makes it very simple to adjust dosage to a specific amount of milligrams. This is particularly important when preparing edibles, tinctures or other products for oral consumption, where knowing the cannabinoid content is vital to avoid any ill effects caused by ingesting too much THC.

Pure Solventless THCA Crystals

THCA Crystals isolated using this method

For the most part, these isolated cannabinoid products are the result of complex processes that employ expensive equipment, volatile chemicals and in-depth, specialist knowledge that are far out of the reach of the average home grower, extraction enthusiast or fan of cannabis concentrates.

THCA molecule

THCA molecule

However, over the last year, new techniques have come to light that enable anyone with a rosin press and some good quality starting material to produce their own isolated THCA, the un-decarboxylated, acid form of THC. It …

Read Post →

Data Breaches are Coming and Will Wreak Havoc in the Cannabis Industry

, , No Comment

cannabis data breach
Cannabis businesses may be especially vulnerable.

Virtually everyone knows about breaches of companies like Equifax. Massive breaches have happened to established, mega-companies who still took major reputational and monetary hits after they were breached. What many people don’t realize is that it doesn’t take a major breach to devastate a business. We don’t want to be dramatic, but we also don’t want to downplay the significance of breaches—they are coming, and cannabis companies that are not prepared may be left in the dust.

Data breaches can range from anything from malicious hacking to the simple loss of a laptop containing unencrypted “personal information”. In either case, if statutorily defined classes of personal information were accessed or acquired without authorization, the party who held the personal information must provide written notification to the affected individuals within a relatively short period of time, and in many cases to other services like credit monitoring. This may seem like a straightforward process. It is not. Just figuring out what kinds of information may have been accessed and whose information may have been accessed could take tens of thousands—if not hundreds of thousands—of dollars in forensic review.

Take the following example: A human resources manager is the victim of a phishing attack. Typically, forensic review of the affected account may need to be undertaken to …

Read Post →

Data Breaches are Coming and Will Wreak Havoc in the Cannabis Industry

, , No Comment

cannabis data breach
Cannabis businesses may be especially vulnerable.

Virtually everyone knows about breaches of companies like Equifax. Massive breaches have happened to established, mega-companies who still took major reputational and monetary hits after they were breached. What many people don’t realize is that it doesn’t take a major breach to devastate a business. We don’t want to be dramatic, but we also don’t want to downplay the significance of breaches—they are coming, and cannabis companies that are not prepared may be left in the dust.

Data breaches can range from anything from malicious hacking to the simple loss of a laptop containing unencrypted “personal information”. In either case, if statutorily defined classes of personal information were accessed or acquired without authorization, the party who held the personal information must provide written notification to the affected individuals within a relatively short period of time, and in many cases to other services like credit monitoring. This may seem like a straightforward process. It is not. Just figuring out what kinds of information may have been accessed and whose information may have been accessed could take tens of thousands—if not hundreds of thousands—of dollars in forensic review.

Take the following example: A human resources manager is the victim of a phishing attack. Typically, forensic review of the affected account may need to be undertaken to …

Read Post →