On Wednesday, a U.S. Court of Appeals for the First Circuit panel applied the U.S. Constitution’s Dormant Commerce Clause (DCC) to the medical cannabis industry in a 2-1 decision, striking down local laws requiring state residency as unconstitutional and protectionist. While cannabis remains federally illegal, Maine legalized medical cannabis in 2018 and imposed limitations on who could own state-legal cannabis businesses in the state.

Continue Reading First Circuit Strikes Down Maine Residency Requirement Under Dormant Commerce Clause

In late July, the U.S. House of Representatives passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act (Research Expansion Act). A similar version of the bill, S. 253, passed the Senate earlier this year. The bill is expected to head to President Biden after the bills are reconciled.

Among other things, the bill would ease limitations on medical research on cannabis and cannabidiol (CBD). Specifically, the bill would:

  • Direct the U.S. Drug Enforcement Administration (DEA) to register practitioners to conduct cannabis and CBD research and manufacturers to supply cannabis for research purposes. The bill expressly allows the DEA to register manufacturers and distributors of cannabis or CBD for the purpose of commercial production of a drug approved by the U.S. Food and Drug Administration (FDA).
  • Require the DEA to assess whether there is an adequate and uninterrupted supply of cannabis for research purposes.
  • Permit registered entities to manufacture, distribute, dispense, or possess marijuana or CBD for the purposes of medical research.
  • Clarify that physicians do not violate the Controlled Substances Act (CSA) when they discuss the potential harms and benefits of cannabis and CBD with patients.
  • Direct the U.S. Department of Health & Human Services (DHHS) to coordinate with the National Institutes of Health (NIH) and other agencies to report on the “therapeutic potential” of cannabis for conditions such as epilepsy, the impact of cannabis on adolescent brain development, and cannabis’ effects on the ability to operate a motor vehicle.

Congress continues to debate various measures to legalize and deschedule cannabis, most notably the recently introduced Cannabis Administration and Opportunity Act. The Research Expansion Act presents an important step in the process of federal regulation of the nation’s cannabis industry. This will be the first cannabis-related bill to reach the Oval Office. While the president has not expressed support for full legalization, he has signaled his support for medical cannabis research.

A class-action lawsuit was filed on July 12 in the U.S. District Court for the Eastern District of Arkansas alleging that cannabis testing companies inflated the amount of THC found in cannabis flower. Plaintiffs are a putative class of medical cannabis patients in Arkansas and bring suit under the Racketeer Influenced and Corrupt Organizations (RICO) Act. Plaintiffs allege that products with higher levels of THC cost more for patients, providing an incentive for test results to show a higher level than is actually present in the products. Plaintiffs further assert that they had the products tested by another lab, and the original THC results were overstated by an average of 25%.   

This Arkansas suit is the latest in a string of RICO suits in state-legal cannabis markets. While the number of such suits has grown in recent years, their success has been minimal to date.

Cannabis: In Focus

  • Minnesota Legalizes Edibles Containing THC
  • Senators Ask Biden Administration to Pursue Cannabis Descheduling and Clemency
  • Cannabis Legalization Up to Midterm Election Voters in Several States
Continue Reading Cannabis Legal Report – Week of July 18, 2022

On July 8, California’s Department of Cannabis Control (“DCC”) issued draft regulations looking to standardize cannabis testing across the state. According to a statement, the DCC issued the proposed regulations in reaction to concerns about cannabis potency inflation and “laboratory shopping,” by cannabis businesses looking to secure THC levels that may be higher than what is actually contained in the cannabis flower or product. These new regulations would standardize the ways in which licensed cannabis labs in California can conduct their cannabinoid testing.

Continue Reading California Proposes New Cannabis Lab Testing Regulations

Cannabis: In Focus

  • Florida Lawsuit Challenges Federal Regulations Regarding Firearm Purchases for Medical Cannabis Patients
  • Texas Upholds Ban on Smokable Hemp
  • Maryland Court Rules Aroma of Cannabis is Sufficient Evidence to Lead to a Brief Investigatory Stop
Continue Reading Cannabis Legal Report – Week of July 6, 2022

Perkins Coie and the National Cannabis Laboratory Council (NCLC) are proud to announce the release of “Standardizing Cannabis Lab Testing Nationally,” a white paper authored by numerous lab scientists and operators from around the country and edited by Perkins Coie attorneys.

As the legal cannabis market continues to expand, and potential federal legalization and inevitable interstate commerce loom on the horizon, it is imperative that federal agencies address the discrepancies among state testing requirements and develop a standardized testing regime. The establishment of national standards will create a pathway for interstate commerce of cannabis products, resolve the issues associated with varying state-based testing requirements, and protect public health by ensuring that testing for certain pesticides, elemental impurities, and harmful additives will be consistent throughout the United States.

NCLC proposes a unified approach to testing based on data from participating laboratories and scientifically recognized standards. The group specifically suggests setting national standards governing (1) standard test panels setting forth specific compounds to include in an analysis, (2) sampling requirements and testing methodologies, and (3) lab accreditation and proficiency testing requirements. Read the white paper here.

Late last week, a bi-partisan pair of federal lawmakers introduced a new bill to expand cannabis companies’ access to financial resources and opportunities. Introduced by Reps. Troy Carter (D-La.) and Guy Reschenthaler (R-Pa.), the Capital Lending and Investment for Marijuana Businesses (“CLIMB”) Act, H.R. 8200, aims to permit cannabis businesses to engage with community development, small business, minority development, and other public or private financial capital sources for investment and financing. Further, the bill aims to create a safe harbor for security exchanges to list securities for legitimate cannabis businesses.

Continue Reading CLIMB Act Introduced in Congress

More than 20 state attorneys general (AGs) authored an open letter to congressional leaders calling for legislation that would regulate tetrahydrocannabinol (THC) edibles that mimic the packaging and names of popular product. In their June 22 letter, the state AGs voiced their concern, particularly for children, writing that “copycat THC edibles pose a grave risk to the health, safety, and welfare of our children.” Specifically, the state AGs asked Congress to “immediately enact legislation authorizing trademark holders of well-known and trusted consumer packaged goods to hold accountable those malicious actors who are using those marks to market illicit copycat THC edibles to children.”

Continue Reading State AGs Call for Congressional Action on Copycat THC Edibles