California Governor Gavin Newsom signed Assembly Bill 2188 (AB 2188) into law on September 18, 2022. AB 2188 will amend the state’s employment anti-discrimination law, the Fair Employment and Housing Act (FEHA), and make it an unlawful practice for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace.” The new law will take effect on January 1, 2024.

California joins several other states, including New York and New Jersey, that have adopted protections for applicants’ and/or employees’ off-duty cannabis use.

For more details, read the Perkins Coie Update.

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This blog series addresses common employment-related issues for cannabis industry professionals.

This post addresses meal and rest break requirements manufacturers and retailers of cannabis products should consider to ensure compliance with applicable state and federal law.

In addition to ensuring accurate timekeeping, employers should be mindful of various state-level meal and rest break laws, if any, that are applicable to their nonexempt employees. For example, California state law generally requires employers to provide nonexempt employees with a paid rest period of 10 consecutive minutes for every four hours of work, or major fraction thereof, and a 30-minute unpaid meal period for every work period of five or more hours in a day. Other states have similar requirements.

Continue Reading Wage and Hour Compliance: Meal and Rest Breaks

As 2022 drew to a close, the Wall Street Journal reported that the FDA is finally considering releasing potential guidance regarding cannabidiol (“CBD”) in the coming year. While the exact timeline and scope of the FDA’s potential action is unclear, the Journal asserts that the agency will decide “within months” regarding the appropriate regulation of CBD and whether that regulation would require Congressional action or new agency rulemaking. Concurrently, the FDA continues to explore potential CBD safety risks.

The agency has generally pursued limited enforcement activity to-date regarding CBD, with a focus on products in foods and beverages that make unsubstantiated health claims, such as claims that CBD could treat or prevent cancer or Covid-19. Stopping short of taking aggressive action, the FDA has only issued warning letters on CBD, despite the widespread availability of largely-unregulated food and beverage products containing the hemp-derived cannabinoid.

Continue Reading Will The New Year Finally Bring FDA Guidance on CBD?

This blog series addresses common employment-related issues for cannabis industry professionals.

This first post addresses timekeeping considerations for manufacturers and retailers of cannabis products to ensure compliance with applicable state and federal law. Future posts will address other employment-related issues, including the administration of meal and rest periods, overtime and regular rate considerations, engaging independent contractors, exempt and nonexempt employment classifications in industry-specific roles, accommodating employee off-duty cannabis use, and similar topics.

Wage and Hour Compliance: Timekeeping

Large-scale class actions and other litigation alleging violations of legal obligations regarding payment of wages and related recordkeeping constitute a large percentage of active employment-related litigation and can expose businesses, including individual founders and owners, to exorbitant financial risk. Ensuring accurate timekeeping and compliance with related requirements is key to avoiding such liability.

Continue Reading New Series: Employment Law and the Cannabis Industry

On November 16, 2022, the Food and Drug Administration (FDA) issued five new warning letters to various companies making edible products containing cannabidiol (CBD) and/or Delta-8-tetrahydrocannabinol (THC). The companies were directed by the FDA to respond within 15 days to defend how their products do not violate the Food, Drug, and Cosmetic Act (FDCA) and how they plan to bring their products into compliance with the FDCA. Failure to address the issue to the agency’s satisfaction could plausibly result in enforcement actions, including seizure and/or an injunction.

The FDA’s most recent set of warning letters builds upon warning letters sent earlier this year targeting CBD and Delta-8 THC products. Previously, FDA has largely focused on CBD products that made health claims. These new warning letters are not, however, limited to those prior concerns. The FDA now appears to be particularly concerned about CBD and Delta-8 THC products that appeal to children.

Continue Reading FDA Issues New Warning Letters to Companies Making CBD and Delta-8 THC Edibles

Cannabis: In Focus

  • Election Round-up: Two States Approve, Three Reject Adult-Use Cannabis Referendums
  • Northern District of New York Rules on Dormant Commerce Clause and Adult-Use Retail Licenses in New York
  • Kansas Federal Court Dismisses Hemp Seizure Suit
  • Federal Court Dismisses Florida Lawsuit Seeking Gun Rights for Medical Cannabis Patients
Continue Reading Cannabis Legal Report – Week of November 14, 2022

Cannabis: In Focus

  • Federal Court Allows State To Import Cannabis-Related Paraphernalia
  • Biden Announces Pardons of Federal Convictions for Simple Cannabis Possession and a Plan To Review the Current Schedule Status for Cannabis
  • California Struggles To Tame Thriving Illicit Market
Continue Reading Cannabis Legal Report – Week of October 17, 2022

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
Continue Reading Cannabis Legal Report­­ – Week of October 3, 2022