Cannabis: In Focus

  • New Mexico class action calls for insurance coverage for medical cannabis
  • Bicameral attempt to legislate bipartisan cannabis omnibus package
  • Oregon ban on “artificially derived cannabinoids” in cannabis products set to take effect July 1, 2022
Continue Reading Cannabis Legal Report—Week of June 19, 2022

As the cannabis industry and its associated sectors have gained increasing social and legal acceptance, these businesses have started to face an issue that has been plaguing traditional Consumer Packaged Goods companies in the state of California for decades—Proposition 65 claims.

Proposition 65 is a California initiative approved by voters in 1986 and enacted into law as the Safe Drinking Water and Toxic Enforcement Act. The law requires California to publish a list of substances that are known to the state of California to cause cancer or reproductive harm. The law prohibits “knowingly and intentionally” causing exposure to one of the substances on the list without first providing a “clear and reasonable” warning. To comply with Proposition 65, businesses must provide consumers with a Proposition 65 compliant warning unless they can ensure that their product does not expose consumers to a listed substance at levels that may cause cancer or reproductive harm.

Continue Reading Prop 65 Plaintiffs Set Their Sights on Cannabis Industry

Cannabis: In Focus

  • Candy Companies Defend Their Trademarks, Consider THC Copycat Products a Health Hazard
  • Iowa Supreme Court Upholds Possession Conviction, Even With Out-of-State Registry Card
Continue Reading Cannabis Legal Report—Week of June 5, 2022

As Congress continues to debate the SAFE Banking Act, cannabis business and financial institutions should pay close attention to the bill’s potential to transform the accessibility of banking and payment processing solutions within the cannabis industry. In May, a national group of state banking regulators issued open letters to Congress urging passage of the bill. This action by state banking regulators builds upon prior support from groups like the American Bankers Association as well as dozens of state governors and attorneys general. Here, we check in on the status of the SAFE Banking Act and look ahead for its implications if passed.

Continue Reading Where Is the SAFE Banking Act?

On May 26, the FDA issued warning letters to four companies alleging that the companies sold unapproved animal drugs containing cannabidiol (CBD). Specifically, these products were intended for use in food-producing animals. In announcing the warning letters, the agency stated it was “taking steps regarding these unapproved and potentially unsafe products now to help protect animals and the safety of the food supply.”

The FDA’s latest set of warning letters builds upon the letters the agency has issued in recent years that highlight that CBD products are not approved for the diagnosis, cure, mitigation, treatment, or prevention of any disease. Just this year, the agency issued at least 14 such letters targeting consumer products. These warning letters are unique as they target companies selling products targeted for food-producing animals, rather than those focused on human consumption.  

Continue Reading FDA Issues New CBD Warning Letters for Animal Products

On May 19, 2022, the U.S. Circuit Court of Appeals for the Ninth Circuit issued an opinion holding that Delta-8 THC products are legal at the federal level and eligible for intellectual property protection. The Ninth Circuit held that the “2018 Farm Bill was silent with regard to Delta-8 THC,” writing that “regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.” According to the Court, if the bill “inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.”

 The case involved two companies selling products both labeled under “Cake” branding. Manufacturer AK Futures argued that a competitor was selling counterfeit “Cake” Delta-8 THC products. The competitor did not contest that it was selling counterfeit “Cake” products, but instead it argued that AK Futures could not hold a valid trademark because Delta-8 THC was illegal under federal law.

Continue Reading Ninth Circuit Rules on Legality of Delta-8 THC Products

On May 13, the FDA issued a public warning regarding reports of accidental ingestion of food products containing tetrahydrocannabinol (THC) by children. The FDA warned that edible products containing THC “can be easily mistaken for commonly consumed foods such as breakfast cereal, candy, and cookies, and accidentally ingested.” The agency was particularly concerned as some products were specifically designed to mimic popular, well-recognized foods that appeal to children via similar brand names, logos, or pictures.

The FDA’s public warning reports that the agency has received over 100 adverse event reports involving children and adults who consumed edible THC products. Reportedly, these adverse events involved hallucinations, increased heart rate, and vomiting, and many of the children involved required medical intervention or hospital admission. The agency specifically noted that several of the adverse event reports were prompted following the consumption of products intentionally made to be a “copycat” of a popular food product.

The FDA is working with federal and state partners to address these concerns and monitor this emerging market. The agency further advised that consumers and health professionals report complaints and cases of accidental ingestion to its MedWatch Safety Information and Adverse Event Reporting Program.

California enacted statute AB 45 in October 2021, authorizing the use of hemp and hemp-derived cannabidiol (CBD) in food, beverages, dietary supplements, and cosmetics at the state level. Now, state regulators have proposed new regulations to govern the state’s hemp-derived CBD market. Comments on the proposed regulations are due by May 31, 2022.

California’s proposed regulations primarily address new registration requirements for in-state industrial hemp manufacturers and out-of-state industrial hemp extract manufacturers. In-state manufacturers of extract, human foods (including beverages and dietary supplements), cosmetics and processed pet food products containing industrial hemp will need the appropriate registration for their respective products. Manufactures may be required to hold multiple registrations for each type of product manufactured if the proposed rule is adopted.

Continue Reading California Proposes New CBD Regulations & Registration Requirements

Earlier today, May 4, 2022, the FDA issued warning letters to five companies selling products that contain delta-8 tetrahydrocannabinol (Delta-8 THC). Several of the companies also manufactured products containing hemp-derived cannabidiol (CBD). Significantly, today’s actions represent the first time the FDA has issued warning letters for products containing Delta-8 THC. According to the agency, “Delta-8 THC has psychoactive and intoxicating effects and may be dangerous to consumers,” and the FDA has received reports of adverse events after individuals consumed products containing Delta-8 THC.

Delta-8 THC is one of many cannabinoids produced in the cannabis plant, and it can have psychoactive and intoxicating effects. Products containing Delta-8 are available in numerous forms, such as edibles, extracts, and tinctures. Today’s five warning letters allege the companies violated federal law in the marketing of unapproved Delta-8 THC products as treatments for various medical conditions or for therapeutic use. The letters further claimed violations regarding drug misbranding and the addition of Delta-8 THC in food, such as gummies, chocolate, caramels, and chewing gum.

Continue Reading FDA Issues New Warning Letters For Delta-8 and CBD Products

Regardless of the industry, education and training your workforce is important. In the cannabis industry, it is critical and can significantly impact how consumers purchase cannabis moving forward. Perkins Coie associate Juan Fonseca Angel is joined by Maureen McNamara, Founder and Chief Facilitator of Cannabis Trainers, and Danny Gold, Co-Founder and CEO of ZolTrain an industry like cannabis, to discuss the importance of training both the workforce and the consumer. Maureen and Danny discuss the evolving regulatory framework that cannabis operators are currently working in and what best practices look like when it comes to consistently training their workforce. Juan also has our guests dig into how we educate the consumers and the role that the cannabis industry plays in ensuring a good experience with the product.

Listen to “Educating the Cannabis Industry: A Conversation with Maureen McNamara and Danny Gold–Episode 19” on Spreaker.

Note that all episodes are available on AppleGoogle, and Spotify.