Cannabis: In Focus

  • Cannabis Testing Companies Facing State Regulatory Scrutiny in Nevada and Florida
  • FDA Appoints Former State Cannabis Policy Regulator as New Cannabis Advisor
  • DOJ Responds to Florida Lawsuit Challenging Federal Regulations Regarding Firearm Purchases by Medical Cannabis Patients

Cannabis Testing Companies Facing State Regulatory Scrutiny in Nevada and Florida          

State regulators in Nevada and Florida have recently targeted cannabis testing companies for violations of state regulations.

In Nevada, the state’s Cannabis Compliance Board brought an action against a testing lab for allegedly inflating THC levels and allowing the sale of cannabis samples that were known to contain microbial contaminants. According to media reports, the testing lab, which has faced suspensions in 2019 and 2020 for failing to adhere to state regulations, is now faced with a threat to its license to operate. The lab moved to dismiss the disciplinary action, but its motion was recently denied.

In Florida, the state’s Office of Medical Marijuana Use (OMMU) has issued numerous fines to testing labs for such violations as false test reporting, using unapproved methods, and inflating THC potency. News reports indicate that the fines have reached tens of thousands of dollars a day. This regulatory enforcement is ongoing.

News of such increased regulatory scrutiny demonstrates the need for national-level guidance with input from the scientific and medical communities as well as from the industry itself. The National Cannabis Laboratory Council (NCLC) has proposed such an approach and suggests setting national standards governing testing methodologies, sampling, and lab accreditation. Lawyers at Perkins Coie assisted in the publication of a white paper outlining this proposal.

FDA Appoints Former State Cannabis Policy Regulator as New Cannabis Advisor

The U.S. Food and Drug Administration (FDA) has appointed Norman Birenbaum as its new cannabis advisor. Birenbaum is an experienced cannabis regulator, having served in senior regulatory roles in New York and Rhode Island.

In addition to these roles, Birenbaum served as the founding president of the Cannabis Regulators Association (CANNRA), an organization dedicated to coordination among state cannabis regulatory agencies as they navigate policy implementation.

Birenbaum’s hiring may be a signal that the FDA is finally preparing to provide further guidance on cannabis and cannabidiol (CBD) issues. The appointment of an FDA official with significant cannabis regulatory experience at the state level indicates that the agency will gain further insight into the challenges state regulators are facing in the absence of clear FDA guidance.

DOJ Responds to Florida Lawsuit Challenging Federal Regulations Regarding Firearm Purchases by Medical Cannabis Patients

In July, we reported on Fried v. Garland, a case pending in the U.S. District Court for the Northern District of Florida challenging the federal ban on medical cannabis patients’ ability to purchase and possess firearms. Now the U.S. Department of Justice (DOJ) has filed its long-awaited response.

The case alleges that accessing state-legal cannabis should not infringe on individuals’ Second Amendment rights. Specifically, plaintiffs challenge the application of certain federal regulations regarding firearms to state-legal medical cannabis patients. The federal government prohibits the sale of firearms to an “unlawful user” of controlled substances such as cannabis. See 27 C.F.R. § 478.11.

The DOJ’s response was clear: cannabis possession remains federally illegal. The government relied on a recent U.S. Supreme Court case, New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111, 2122 (2022), which found that the Second Amendment protects “law-abiding” citizens. The DOJ brief reflected the reality of federal law that those possessing cannabis, even if it is state-legal, are nonetheless committing an unlawful act under federal law. DOJ lawyers wrote, “Plaintiffs argue that the crime of marijuana possession is somehow not really a crime. Plaintiffs are wrong.” In other words, plaintiffs are not “law-abiding” under federal law. DOJ lawyers specified that those “who possess medical marijuana are committing crimes today for which they may be prosecuted in the future.”

Among other issues, plaintiffs and the government sparred over the significance of the Rohrabacher-Farr Amendment, a federal spending rider that prohibits the DOJ from using its funds to interfere in state-legal cannabis markets. Plaintiffs asserted that this amendment prohibits DOJ from considering state-legal cannabis possession as unlawful activity. By contrast, DOJ contended that the amendment “does not legalize medical marijuana or immunize users from prosecution.”

The case is ongoing. We will continue to report on this litigation and other developments affecting cannabis businesses, consumers, and other stakeholders.