Recreational marijuanaWhite House Press Secretary Sean Spicer spoke today at a press conference on how he expects the Department of Justice to handle state-legal marijuana in America. In response to a question on how the Trump Administration will handle recreational marijuana, Spicer had this to say:

Well I think that’s a question for the Department of Justice . . . I do believe you’ll see greater enforcement of it. Because again there’s a big difference between the medical use … that’s very different than the recreational use, which is something the Department of Justice will be further looking into.”

There’s a big difference between [medical marijuana] and recreational marijuana, and I think when you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people. There is still a federal law that we need to abide by when it comes to recreational marijuana.”

Regardless of Spicer’s factually wrong take on the relationship between marijuana and opioid use, marijuana industry folks should not fret just yet.  Out of everything Spicer had to say, the key point is that marijuana enforcement falls on the Department of Justice and Attorney General Jeff Sessions. The job of the Press Secretary is “to act as spokesperson for the executive branch of the United States government administration, especially with regard to the President, senior executives, and policies” and the fate of the marijuana industry is not going to be decided in one White House press conference by the White House Press Secretary. The Department of Justice has so far declined to comment on Spicer’s briefing. It also bears mentioning that the Cole Memo setting out how the Department of Justice will treat state-legal marijuana (both medical and recreational) is still alive and well.

The bottom line. Though it is certainly unsettling to listen to Spicer predict increased enforcement of recreational marijuana businesses and to use stupid opium trope to boot, it is not time to lose heart or cash out. Will the jobs-focused Trump Administration really want to shut down cannabis businesses in multiple states and add a slew of hard-working people to the unemployment rolls? I don’t think so, but of course only time will tell.

 

Cannabis business lawyers

Dr. Hurd, the Ward-Coleman Chair of Translational Neuroscience and the Director of the Center for Addictive Disorders at Mount Sinai, speaks here to cannabis’ medicinal properties. She has extensively studied whether marijuana can help ease withdrawal symptoms in heroin users, and her work was published in the journal Trends in Neurosciences this past Thursday. Dr. Hurd’s work was inspired by the ever-increasing issue of opioid addiction, which has become a huge epidemic in the United Sates–an epidemic estimated to have economic costs of at least $78 billion in the US alone. The overprescribing of opioids leaves many addicted to legal drugs such as hydrocodone and oxycodone, but it also is a gateway to heroin addiction for far too many.

Dr. Hurd’s findings show that opioids are far more neurologically dangerous than cannabis. Further, she asserts that not only does cannabis have therapeutic properties, it can reduce heroin cravings and restore some of the neurobiological damage caused by opioid use as well.

The DEA decided against rescheduling cannabis last year on the grounds that marijuana is not a commonly accepted  “safe and effective” medicine. The DEA has us in a catch-22, since a large part of the reason cannabis is not commonly accepted as medicine by the scientific community is because there is a dearth of high-level cannabis research because of cannabis’ federally illegal status. One can only hope that with new research such as Dr. Hurd’s, the DEA (and the federal government in general) can begin to accept that marijuana is shockingly safe and does have medicinal qualities, and then move forward accordingly. If truly accomplished scientists are declaring cannabis to be a non-addictive and effective medicine, as based on their own rigorous scientific research, it is high time (pun intended) the DEA catches on.

Washington State cannabis delivery serviicesAre cannabis delivery services legal in Washington State? 

Strong demand for home-delivery cannabis services in Washington – and particularly Seattle – is apparent, as demonstrated by the numerous delivery services operating in plain sight, as revealed by a simple Google or Yelp search. Yet, such operations remain illegal following the passage and implementation of I-502. In 2016, Seattle proposed a law to permit a pilot project for legal delivery in Seattle (which failed in the state legislature). This year, Seattle officials are pushing for similar legislation, with certain modifications, that they hope will open the door to cannabis delivery throughout the state.

What’s the status quo in Washington State?

Cannabis delivery services are as old as old-school weed dealing itself. The common trope is of the marijuana dealer who delivers late (and stays past their welcome) – and only after multiple calls or texts. Today’s pot delivery services, particularly in states with legal medical or adult-use cannabis, are exponentially more professional operations – yet, in large part, they remain illegal under both state and federal law. Such is the case in Washington State.

What happened with the 2016 proposal?

Last January Seattle city officials supported Washington State House Bill 2368, which would have authorized a pilot plan for home cannabis delivery in Washington in cities with 650,000 or more people – effectively just Seattle.

HB 2368 was seen by as “Seattle-centric” and lawmakers outside Seattle and greater King County did not vote for the bill because it would not directly benefit their constituents. Also, Washington can be a deceptively conservative in general and in terms of cannabis, especially on outside its urban centers and especially on the East side of the mountains. Ultimately, HB 2368 did not become law.

How does the new proposal differ?

MyNorthwest.com reports that Seattle City Attorney Pete Holmes intends to broaden support for the 2017 bill by allowing home cannabis delivery statewide. Such marijuana delivery services would still be subject to county and municipal regulations and prohibitions.

Will it pass?

The bill’s ultimate fate is unclear. City Attorney Pete Holmes said in January that the bill was in the early stages of finding a bill number and sponsor, though he was optimistic going forward. Ultimately, only time will tell if this or a different bill authorizing cannabis delivery eventually becomes law in Washington State. Though it is far from certain, I think pot delivery services will within the next few years become legal in Washington and I say this because the longer Washington legalization goes on without the sky falling down (and I do not foresee the sky falling down), the more Washingtonians will come to realize it is no big deal and the less they will care about restricting it by doing things like forbidding cannabis deliveries.

Why is this important for the future of cannabis reform in Washington State?

Other jurisdictions with legal medical or adult-use cannabis have experimented with home delivery, and “gray market” home delivery operations are thriving in Washington and other state-legal cannabis states since before legalization. This despite many arrests in Seattle.

The demand for cannabis delivery ensures and proves its durability as a market force. Allowing illegal delivery operations to prosper erodes the legitimacy of legal cannabis markets, and undercuts its economic rationale. Our cannabis clients resent having to pay big taxes and be subject to massive regulations while at having to compete with illegal operations that avoid both of those things. The solution is to permit legal home delivery for medical and/or recreational users and to license and treat those cannabis delivery services  as any other cannabis business.

Why is this important to medical patients and adult-use cannabis consumers?

The ability to legally provide home cannabis delivery services is particularly important to medical marijuana patients with limited mobility or other disabilities that make it impossible or unduly burdensome for them to personally go to a dispensary to obtain cannabis. Also, even adult-use recreational patients can benefit from the convenience and added value of a cannabis delivery service. Just look at Amazon Prime.

For its part, earlier this month a Seattle Times editorial endorsed legalizing cannabis deliveries.

 

California cannabis marijuanaLast Friday, the California Bureau of Medical Cannabis Regulation (BMCR) announced in a press release that it has begun seeking applicants to participate in a Cannabis Advisory Committee. The role of the Committee will be to help the Bureau and other state agencies – the Department of Food and Agriculture (DFA) and the Department of Public Health (DPH) – develop cannabis “regulations that protect public health and safety while ensuring a regulated market that helps reduce the illicit market for cannabis.”

The Committee is required under Proposition 64 and is one of several steps needed if California is to keep its promise to begin issuing cannabis business licenses by Prop 64’s January 1, 2018 deadline. The agencies still have their work cut out for them, including the challenge of reconciling the conflicting provisions under the Medical Cannabis Regulation and Safety Act (MCRSA) and Proposition 64.

The Bureau and other state agencies have been holding pre-regulatory meetings throughout California over the past year to gather information from cannabis stakeholders, which it is now using to draft initial state regulations for the various cannabis license types. According to the Bureau’s communications director, Alex Traverso, the Cannabis Advisory Committee will meet several times during the next year to review drafts of regulations and share their opinions to ensure that California rule makers are on the “right path.”

They are specifically seeking input from representatives of the cannabis industry, labor organizations, local or state law enforcement, state or local agencies, and from communities disproportionately affected by past federal and state drug policy, as well as cannabis cultivators, environmental experts, patient advocates, physicians, public health experts, social justice advocates, individuals with expertise in regulating intoxicating substances for adult use, and individuals with expertise in the medicinal properties of marijuana.

The application to join the Cannabis Advisory Committee includes requests for any relevant work history in the cannabis industry, and past or present affiliation with a cannabis company, relevant qualifications to serve on the Committee, an explanation of why you wish to serve on the committee, and any potential conflicts of interests. Applicants will also need to provide four references and submit a resume and letters of recommendation. In addition, selected committee members may be required to complete a Fair Political Practices Commission (FPPC) Form 700, Statement of Economic Interest disclosing their personal assets and income.

Committee members will be appointed by the Director of the Department of Consumer Affairs (DCA), Awet Kidane. The DCA is not looking to fill a specific amount of committee seats, but instead the committee’s size will be determined by the number of qualified applicants. Also, the positions on the Cannabis Advisory Committee are voluntary, which means you will not be paid for serving on the Committee, but members are entitled to receive reimbursement of their travel expenses to approved meetings, which will be held in the state’s capitol in Sacramento.

If you’re interested in applying, the bureau says it will keep the application process open for at least a month. For those currently involved in or hoping to join the California cannabis industry, this is an important opportunity to help shape the laws that will impact your/our future. The best way to affect marijuana law and policy is to get involved, whether it’s at the local, state, or federal level.

Marijuana cannabis potPresident Trump’s actions have sparked massive activist energy from progressives. His Executive Order on immigration created waves of protests at cities and airports across the country. Those protests have been significant in getting lawmakers that oppose Trump’s actions to take stands where possible. Without massive protests, Washington’s Attorney General Bob Ferguson may never have brought the case that put a temporary stand to the immigration executive order. The protests may also have had a chilling effect on new executive orders that would generate more protests, including one order that would have curbed LGBT rights that appears to have been scrapped. Basically, the activism appears to have had some impact.

What will it look like if the Trump Administration goes after cannabis?

With the confirmation of Jeff Sessions as Attorney General, we now have an ardent pot critic in charge of our country’s law enforcement apparatus. Because of the Rohrabacher Amendment, the Department of Justice cannot use resources to interfere with state implementation of medical marijuana laws, which includes medical marijuana businesses at least in the Ninth Circuit. However, recreational states such as Washington, Oregon, and Colorado could be targeted if Sessions and Trump decide to make this an issue.

If they do decide to go hard after recreational marijuana, with either a general notice or targeted civil actions or even criminal law enforcement actions against cannabis entrepreneurs, what will the public reaction be? It isn’t automatic that legal changes a majority of Americans oppose will lead to massive reaction and protesting. The administration has appointed someone to the Federal Communications Commission who threatens the open internet we have today and would like to replace it with a system where internet service providers can curate content. Yet, there have been no protests or even much public opposition by political leaders against this appointment. Net neutrality as a concept is very popular, but it does not provide the same energy spark as civil rights, LGBT rights, or immigration.

One of the best ways to prevent an attack on the rights of states to treat marijuana how they see fit is to convince federal officials that marijuana issues will spark the same kind of energy as the refugee ban. This means that people who don’t care at all about cannabis as a product have to get involved. There were tons of people involved in the immigration protests that have probably never known a Syrian refugee or Iraqi immigrant, but they protested because Trump’s immigration order struck them as un-American.

In the same way, using federal law enforcement authority to attack businesses and individuals that are fully compliant with a marijuana state regulatory system is deeply un-American. It has never been the job of the federal government to involve itself in intrastate issues unless it is trying to protect civil rights or voting rights. Every success the federal government has had at the intrastate level has been to curb discrimination and protect the rights of workers, voters, and others against state actions that violate federal law or the constitution. Federal action against intrastate activity outside of those types of issues has been seen as brazen overreach.

If we grant that public reaction and public protest is a real check on federal authority, then people who care about cannabis rights must place the issue within the framework of fundamental American values. Only through that structure, and through adoption of that structure by people who are not cannabis users or business owners, will there be enough potential or actual public backlash to avoid the administration upending the current cannabis status quo.

leah-heise

Heise, the new CEO of Women Grow, makes an astute observation here regarding an injustice of the legal cannabis industry. Though having state-legal cannabis greatly reduces marijuana-related arrests in those states, it doesn’t erase prior arrests and the discrimination that goes with that. And in many states, having a prior criminal record (even if it is for cannabis) is reason enough to prohibit someone from securing a cannabis business license.

As Heise states here, these types of limitations need to go. Why not let people who have been a part of the industry for a long time benefit from it? Why not allow those who have fought for the industry’s very existence continue fighting the good fight?

What are your thoughts?

Washington state cannabis licenseAdvocates for cannabis reform often point to favorable studies documenting the positive medicinal and wellness effects of marijuana to debunk federal law scheduling of cannabis as a substance on par with heroin. Opponents of cannabis reform invoke statistics that purport to show a relationship between cannabis and crime and violence. What both sides must agree upon, however, is the need for new, in-depth, and nuanced research of legal cannabis’ effect on society. At least if they belive in scientific research over anectdote.

Washington State is  moving in this direction with its cannabis research licenses. Here is what you need to know about these cannabis research licenses.

What is a Washington cannabis research license? Washington’s cannabis research license has been set up to facilitate further study of cannabis’ scientific, medical, and industrial properties and applications. According to Washington statute RCW 69.50.372, marijuana research license holders  may “produce, process, and possess marijuana for … limited research purposes.” The law restricts the scope of permitted research to the generously broad categories of: tests of chemical potency and composition; clinical investigation of cannabis-derived drugs; tests regarding the efficacy and safety of cannabis as a medical treatment; and genomic or agricultural research.

Along with a whole host of other factors, these new cannabis research licenses will help solidify Washington state – more specifically the Seattle area – as a hotbed for cannabis research. Existing Seattle cannabis and biotech and technology firms (almost all of which are quite open to cannabis), along with the city’s vibrant vibrant start-up scene should combine to accelerate worthy cannabis research for a wide range of applications.

What is the latest regarding Washington cannabis research licenses? The Washington state legislature passed a law authorizing licenses for researching cannabis’ medical properties, chemical composition, and agricultural potential last year. Following a rule making period, the Washington State Liquor and Cannabis Board has indicated it will begin accepting applications March 1, 2017. However, absent swift action by the Washington state legislature, this date will probably get pushed back by a requirement in the research licensure law discussed below.

Why might there be a delay in implementing cannabis research in Washington? The law that created cannabis research licenses also mandates that applicants and their research projects be vetted and approved by third-party scientific reviewers. The reviewers are required to audit the research and its reports. This is a an understandable precaution given the state law’s conflict with federal law (which still pretty much makes cannabis illegal for any purpose), and a fair method for ensuring the licenses are being used for their intended purpose.

The problem is that Washington State has not yet approved any third-party scientific reviewers, and no such approvals appear to be forthcoming. Many expected Life Sciences Discovery Fund to serve as a scientific reviewer, but for what appears to be funding reasons, it has not stepped up. Nor unfortunately, have either the University of Washington or Washington State University or any of the other institutions of higher learning in the state. Until a third-party scientific reviewer is approved, applicants will be in limbo.

The new cannabis research law also requires the Washington State Liquor and Cannabis Board select a scientific reviewer to review the research project and determine the merit of its quality, design, and impact; the adequacy of its personnel, expertise, and other functional capacity; and whether the quantity of marijuana cultivated matches the needs of these objectives. No scientific reviewer, no cannabis research.

Why is this important? Lack of legal and high level cannabis research is a classic “chicken and egg” problem for cannabis legalization. Cannabis is illegal in large part because the powers that be claim it to have no legally recognized medicinal or therapeutic value. And yet — surprise, surprise, efforts to conduct high level research that might show the contrary gets suppressed by a lack of legal access to cannabis and by a reluctance by many to fund research that could be shut down as illegal. Something will have to give in order to overcome this impasse, and it is not sure when or how that might happen.

As cannabis lawyers, we find all of this extremely frustrating, as it not only means that those needing cannabis for medical reasons are cheated out of their medicine in states where cannabis is not legal even for medical treatments, but it also means that in cannabis legal states like Washington, far too many patients do not not get the ideal strain and quantities and ingestion method for their particular conditions because there is no high level research on these things. It also means that countries like Israel and Canada will continue to surpass the United States in cannabis research and technology.

Bottom Line: Do not expect your Washington State cannabis research license soon. And that is too bad.

California marijuana license
California marijuana licenses: start now, but stay flexible

California lawmakers have been tasked with the difficult challenge of reconciling the Medical Cannabis Regulation and Safety Act (MCRSA), which legalized commercial medical marijuana activities, with Proposition 64, which legalized recreational marijuana use for all adults and is set to begin licensing commercial recreational businesses by January 1, 2018. We’ve previously blogged about this challenge and the state’s efforts to meet the 2018 deadline here, here and here.

The many conflicts between the MCRSA and Prop 64 include different timelines, license categories, rules on ownership, residency requirements, and tracking systems. Another key difference is that the MCRSA places limits on vertical integration, generally allowing cannabis licensees to hold state licenses in up to two separate categories and only in certain combinations. The MCRSA also does not allow licensed cannabis cultivators and manufacturers to hold a marijuana distribution license. Licensed cannabis cultivators and manufacturers in the State of California instead must work with an independent distributor to transport cannabis products to labs for testing and quality assurance before they enter the consumer market.

The California cannabis industry is divided on both vertical integration and distribution issues, and the side you take most likely depends on your views on allowing big business to operate under the new regulated cannabis regime. Growers and dispensaries in California are also divided on the issues. California dispensaries generally believe that the use of independent distributors is unnecessary and will ultimately increase costs for the consumers, small mom-and-pop operations worry that without limits on vertical integration they will be squeezed out by bigger, well-funded investments groups.

In contrast, Prop 64 places no limits on vertical integration, except that all testing labs must be independent and large Type 5 grows will not be able act as their own distributors (but these licenses won’t even kick in until 2023). For those hoping to create a vertically integrated cannabis business in California in 2018, Prop 64 offers a nice alternative to avoid the MCRSA’s limits and independent distribution requirements altogether.

However, this option could be gone by the time state licenses are issued. As California legislators work to develop regulations for both the MCRSA and Prop 64 that can operate simultaneously and in congruence, special interests are sending their lobbyists to the Capitol to try and influence the upcoming laws. Labor unions, investors, and entrepreneurs are all seeking to shape the laws that will most favor their members and bottom lines for when the California cannabis gold rush starts in earnest.

The coalition of Teamsters, local government, police chiefs, a Sacramento distribution company called RVR, and the California Growers Association (CGA) that helped draft the MCRSA bills wants to see the same limits on vertical integration and independent distribution requirements extended to recreational businesses under Prop 64. On the other side, cannabis manufacturers, the United Food and Commercial Workers (UFCW), and the California Cannabis Industry Association (CCIA) want to see a more free-market approach under the current Prop 64 model. They argue this is the model California voters supported when they passed Prop 64 last November.

To make changes to Prop 64, California legislators will need to pass any amendments by a two thirds vote. We advise cannabis license hopefuls to start NOW to prepare for California cannabis licensing, but remain ever mindful that much can change between now and January 1.

Neil

Supreme Court nominee Neil Gorsuch points to one of the major issues posed by a federally illegal substance being state legal in some states. Though it is for the most part true that dispensaries (in Colorado and other states with legal cannabis) will not be raided by the Feds simply for legally distributing marijuana, they remain federally illegal.

And really, whether you think cannabis should be legal or illegal, we ought to be able to agree that a betwixt and between situation is not good for anyone. Does it make sense for something to be federally illegal in all fifty states, and yet enforced by the Feds in just some of them? This sort of situation weakens the rule of law and that is bad for just about everyone. And if cannabis is going to be legal (which it should be) cannabis businesses should be treated by the “tax man” just like any other business. Fairness requires that and the unfairness of the current situation is bad for everyone.

The sooner cannabis is legal nationwide and the sooner those in the cannabis business are treated by the law no differently than those in any other legal business, the sooner our entire country will benefit.

Do you agree?

Cannabis Marijuana pot weedThe world of cannabis has been abuzz since November with anxiety over what a Trump administration could mean for the industry and the future of state- and federal-level cannabis reforms. This was only made worse by the nomination of notoriously anti-marijuana senator Jeff Sessions as Attorney General. Following his party-line approval by the Senate Judiciary Committee yesterday, Sessions is likely to be confirmed by the full Senate by a similar vote in short order. Though hope springs eternal, some in the cannabis industry are bracing for the worst and looking for ways to ensure the rapidly growing industry’s does not go to pot (pun intended) under Trump.

One recent source of optimism is last week’s announcement that Boulder County, Colorado, District Attorney Stan Garnett will be part of a group of prosecutors advising the Trump administration on marijuana policy. The group – comprised of 14 district attorneys, including some from weed-friendly states California and Oregon – is part of the National District Attorneys Association, a prosecutor and criminal justice policy think tank. Advocates for relaxed marijuana laws hope Garnett’s appointment foreshadows a group that will be a voice of reason to the administration and a force against rolling back marijuana reforms in legal states.

Yet it remains unclear exactly what role the NDAA group will play in advising the administration and how its cannabis agenda will take shape. After all, in discussing his selection, Garnett (who is also Colorado’s NDAA state director) remarked that he “always end[s] up on the more liberal position than anyone else, particularly on marijuana.” This observation is borne out by a report entitled “Policy Positions on Control and Enforcement” adopted by NDAA in 2005. Though dated, it reflects NDAA’s most recent official positions on cannabis reforms – and it is not a pretty picture.

In the report, NDAA states that it “opposes the legalization of illicit substances” and notes that it “specifically opposed” California’s 1996 legalization of medical marijuana. It goes on to state that NDAA “opposes the opposition of any state legislation or adoption of voter initiative that legitimizes and legalizes the ‘medicinal use’ of marijuana.” NDAA also alleges in the report that the cannabis reform movement’s “strategy is to legalize all illicit drugs” using “the sick and dying as pawns” and “myths” that cannabis is not harmful, among other claims. One might assume that the NDAA’s position likely evolved in the intervening years, but, according to Garnett, the group’s first meeting saw some prosecutors urge that the governor of every medical and recreational cannabis state be sent a letter demanding closure of all cannabis businesses in 90 days. Garnett, to his credit, “was not shy” about denouncing the idea, but one must wonder how much one or even a small contingent of forward-thinking committee members can affect institutional policy.

Let’s face it people, prosecutors are not generally friendly to cannabis.

It also appears the group’s role and influence in the Trump administration has been overhyped. As reported by Leafly, the Director of Policy and Government affairs at NDAA said in a statement that “[c]ontrary to other reporting, the working group is not affiliated with any other organization or entity, including the incoming administration.” So do not get your hopes up that some pro-cannabis Justice League of prosecutors is about to save the day if Sessions decides to crack down on weed.

It is undoubtedly a positive development that Garnett and other pro-cannabis reform prosecutors are in a position to help shape an important trade group’s position on marijuana. But, industry stakeholders and advocates should temper their expectations for the impact and direction of the NDAA taskforce.

Like pretty much everything else related to cannabis and the Trump administration, the safest stance is probably wait and see.