California was an early state to legalize marijuana for recreational use, but the state has been slower to regulate hemp-derived products such as cannabidiol (“CBD”).
Continue Reading California Bill Offers Insights into Future of CBD Regulation
Food & Consumer Packaged Goods Litigation Year in Review 2020
Perkins Coie is pleased to announce that its fifth annual Food Litigation Year in Review, in coordination with the expansion of the firm’s practice, has been broadened and renamed the Food & Consumer Packaged Goods Litigation Year in Review. With this rebranding, we have featured a section on the latest cannabis litigation trends.
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Cannabis Law: A Primer on Federal and State Law Regarding Marijuana, Hemp, and CBD
Perkins Coie is proud to announce the launch of “Cannabis Law: A Primer on Federal and State Law Regarding Marijuana, Hemp, and CBD,” published by the American Bar Association, authored by various Perkins Coie Cannabis Law attorneys, and edited by Barak Cohen, chair of our Cannabis Law industry group, and Michael Bleicher. Until
Looking Ahead: Cannabis Policy Update January 2021
Two recent actions from the Biden Administration may have immediate consequences for the cannabis industry. First, a new Executive Order signed by President Biden reversed prior policy requiring federal agencies to submit guidance documents to the White House for review. Second, the Biden Administration distributed a memorandum to federal agencies asking them to postpone any rules published in the Federal Register for 60 days.
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Another Blow to Bankruptcy Relief for Marijuana-Adjacent Debtors
Though it appeared the smoke might blow in a more favorable direction, the hopes of marijuana-adjacent businesses using the Bankruptcy Code were snuffed out once again by the Bankruptcy Court in Colorado. The Controlled Substances Act (the CSA) makes it illegal to rent, lease, or make available for use or profit from a location for the manufacture, storing, or distribution of controlled substances. Federal law generally imposes criminal liability for aiding and abetting the unauthorized manufacture, distribution, or dispensing of marijuana, which is a Schedule 1 controlled substance. A number of courts have ruled that businesses whose operations constitute federal crimes cannot take advantage of the federal bankruptcy system.[1] Bankruptcy courts have even dismissed cases where the debtor does not operate a cannabis business, but operates ancillary businesses such as the manufacture or sale of equipment that may be used to cultivate marijuana (discussed below), or leasing real estate to marijuana growers.
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Cannabis and CBD Marketing Developments in 2021
Since the legalization of marijuana in a growing number of states and of hemp-derived CBD at the federal level, lawmakers have been hard pressed to keep pace with the explosive growth of the industry. However, with a number of potential sources for regulatory developments in both industries on the horizon, 2021 could be the year for greater legalization and regulatory clarity for marketing these products.
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FDA Issues 5 Warning Letters Targeting Unsupported CBD Health Claims
On December 22, 2020, the U.S. Food and Drug Administration (FDA) issued five warning letters to companies selling products containing cannabidiol (CBD). In a statement, the FDA’s Amy Abernethy, principal deputy commissioner, explained that the agency remains “focused on exploring potential pathways for CBD products to be lawfully marketed while also educating the public about these outstanding questions of CBD’s safety,” and that the agency “will continue to monitor and take action, as needed, against companies that unlawfully market their products—prioritizing those that pose the greatest risk of harm to the public.”
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Striving to Reach Consensus on a Regulatory Framework for the Emerging Cannabis Industry
On December 7, 2020, cannabis industry leaders, former federal government officials, and leading state regulators met for a Virtual Public Policy Summit, a policy discussion among key leaders in the cannabis industry that was co-hosted by the Marijuana Policy Project and the National Cannabis Industry Association (NCIA). Participating industry leaders discussed how to define and address key issues to help advance the cannabis industry in 2021 and beyond. To help facilitate candid discussion, the event was closed to the media (likewise, comments made and positions taken described below have not been ascribed to particular speakers).
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FTC Announces Crackdown on Unsupported CBD Marketing
Today, the U.S. Federal Trade Commission (FTC) announced Operation CBDeceit, a suite of six settlements that herald the FTC’s ongoing efforts to monitor the marketplace regarding misleading cannabidiol (CBD) product claims. In a statement, FTC leadership said the six settlements “send a clear message to the burgeoning CBD industry” to avoid making “spurious health claims that are unsupported by medical science.” The FTC noted that companies, particularly CBD product manufacturers, “that represent expressly or by implication that what they sell can prevent, treat, or cure serious medical conditions will be held to the highest substantiation standards and marketers can expect careful scrutiny of those promises.”
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Proposition 65’s Imminent Enforcement Date for THC: Is Your Cannabis Business Ready?
Proposition 65 warning requirements announced last year are set to be enforced starting January 3, 2021; if your business is selling cannabis products in California, now is the time to ensure that your labeling complies with state requirements.
Last year, California’s Office of Environmental Health Hazard Assessment (OEHHA) added Δ9‑tetrahydrocannabinol, better known as “THC,” to