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.” Continue Reading FDA Issues 5 Warning Letters Targeting Unsupported CBD Health Claims
In our latest podcast, Perkins Coie partner Barak Cohen is joined by Andrew Kline, Director of Public Policy for the National Cannabis Industry Association, the youngest—and largest—cannabis trade association in the U.S. and the only organization representing state-sanctioned cannabis-related businesses at the federal level. Among other things, Barak and Andrew discuss key policy and legal issues faced by the cannabis industry as it confronts federal legalization, an economy-crippling pandemic, and the fallout of the Drug War.
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). Continue Reading Striving to Reach Consensus on a Regulatory Framework for the Emerging Cannabis Industry
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.” Continue Reading FTC Announces Crackdown on Unsupported CBD Marketing
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 the list of chemicals requiring specific labeling for retail sale in California. Better known as Proposition 65, California’s Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses selling consumer products—including food and cannabis goods—to notify Californians about certain chemicals that are in those products. THC is the cannabinoid most associated with a marijuana-related “high.”
Earlier today, the U.S. House of Representatives passed H.R. 3884, the Marijuana Opportunity, Reinvestment, and Expungement (“MORE”) Act. The MORE Act would remove marijuana from the list of scheduled substances under the Controlled Substances Act and would eliminate criminal penalties for the manufacture, distribution, and possession of marijuana.
The MORE Act also makes other changes to existing law, such as making Small Business Association loans and services available to cannabis-related business and service providers; requiring the Bureau of Labor Statistics to public demographic data on cannabis businesses owners and employees; creating a reinvestment program to administer services to individuals and communities adversely affected by the War on Drugs, and prohibiting the denial of federal public benefits on the basis of cannabis-related conduct or convictions. Continue Reading House Passes MORE Act, Votes to Decriminalize Marijuana
The European Court of Justice (ECJ), the EU’s highest court, ruled on November 19th that cannabidiol (CBD) derived from the entire hemp plant was not a narcotic under applicable law. The ECJ found: “the CBD at issue …is not a drug.” Continue Reading European High Court Finds CBD Is Not A Narcotic
On November 17, a California court tossed a challenge to a statewide rule allowing delivery of cannabis to any jurisdiction in the state. The state’s Bureau of Cannabis Control (“BCC”) issued a regulation that “[a] delivery employee may deliver [cannabis] to any jurisdiction within the State of California.” 16 C.C.R. § 5416. Many local jurisdictions in California have regulated or limited the sale and delivery of marijuana within their borders. Fearing that the regulation would preempt their local ordinances, a group of these jurisdictions brought suit challenging the BCC’s rule. Continue Reading California Court Dismisses Pot Delivery Challenge
Perkins Coie Partner Barak Cohen is joined by Natalie Papillion, a drug policy expert and organizer who serves as the executive director of The Equity Organization and sits on the Board of Directors for the Last Prisoner Project. Natalie and Barak discuss the disparate impact that the war on drugs has had on marginalized communities, particularly communities of color, and how the cannabis industry can help address this through social equity legislation.
Legalization of marijuana continues at the state level including in several new states this November, but it remains illegal at the federal level. Given this illegal status, businesses and individuals directly involved in the marijuana industry have often been unable to obtain relief in federal bankruptcy courts—with bankruptcy courts dismissing marijuana cases because the purported debtor’s conduct is unlawful under federal law. Three cases decided in 2020 highlight potential barriers to bankruptcy protection faced by debtors even when they are only indirectly involved in the marijuana industry. Continue Reading Marijuana Industry Takes a Big Hit in Federal Bankruptcy Court in 2020