Federal law and policy

cannabis asset forfeituresThe current U.S. House of Representatives has made its share of poor decisions regarding drug policy and crime policy, especially when those policies align with the political dreams of Jeff Sessions. Easy example — they continue to stand in the way of legislation that would make us all safer, including legislation that would protect banks that want to serve marijuana businesses. But every now and then, the House doesn’t stand in the way of clearly reasonable policy. Last week, during its ongoing budgeting and spending process, the House approved an amendment to its appropriations bill that would stop the Department of Justice from expanding its civil asset forfeiture program. Amendment 126 would stop Jeff Sessions from rolling back Obama-era asset forfeiture reforms that barred the DOJ from adopting local civil asset forfeiture cases.

Civil asset forfeiture generally is the law that allows law enforcement to take assets used in conjunction with certain crimes. On one hand, it makes a lot of sense. Police are not courting controversy when they charge someone with a crime and take their meth lab. Where asset forfeiture becomes pernicious is when it isn’t used as an after-the-fact penalty in a criminal case. Asset forfeiture actions do not require anyone actually be charged with a crime, and law enforcement can gain significant leverage by seizing real property, cash, and other assets in situations where it isn’t clear that a crime has been committed. The value of a forfeited asset does not automatically go into the general public treasury either — it often goes straight to the police department seizing it, creating financial incentives for law enforcement to expand the reach of asset forfeiture.

In 2015, Attorney General Eric Holder announced a new policy regarding federal asset forfeiture. In short, there are both state laws and federal laws governing civil asset forfeiture. When state laws were too restrictive, state and local law enforcement agencies relied on a federal “Equitable Sharing Program” in which local law enforcement would identify something it wanted to be seized and would then transfer the matter to the Federal DOJ who would adopt it. The DOJ would then have jurisdiction and would move forward with the seizure that local law enforcement either did not have the resources to pursue or could not pursue under its state laws. Then, the DOJ would take its 20% commission and give 80% of the seized property to local law enforcement. Even if state law mandates seized assets go to the general fund, Equitable Sharing allowed the DOJ to make the payments directly to the local departments. The 2015 Holder policy ended that unless there was a clear public safety threat supported by warrants and criminal charges.

In July, Jeff Sessions announced that the Department of Justice would roll back these reforms and reinstate Equitable Sharing, further encouraging local law enforcement to engage in asset forfeitures.

Equitable Sharing poses a real threat to cannabis businesses. In states where marijuana is not yet legal, it continues to incentivize law enforcement to stand on the side of illegality, blurring the lines between public safety advocacy and advocacy for their own pecuniary gain. Even if we only look at states where marijuana is legal, Equitable Sharing is by its nature an incentive structure to get local police departments to play a role in federal law enforcement. As we have described in the past. The DEA does not have enough human resources to directly enforce marijuana laws in any major way. But under an Equitable Sharing policy, a police department in a rural part of a state could conceivably identify a number of local marijuana businesses and use Equitable Sharing to have the federal government conduct the seizures. That may not comport with current federal enforcement policy as described in the Cole Memo, but Jeff Sessions has often shown an eagerness to read the Cole Memo narrowly.

So it was great to hear that Amendment 126 passed in the House of Representatives. It is not law yet. After the House and the Senate pass their own appropriations bills, they go to conference and negotiate a single bill. If Amendment 126 survives conference, it will go back to the House and the Senate before being put in front of President Trump to sign. Even if the President doesn’t like the amendment, he is not going to veto an appropriations bill because of it, so what comes out of conference will almost certainly end up being law. Conference presents especially high stakes this year, as the Senate version also contains a restriction on federal enforcement of medical marijuana laws that have been in place since 2014 that the House blocked. Call your members of Congress and advocate on both of these issues — they’re important.

Will the (former) Senator yield?

The Oregonian, Willamette Week, and KGW, to name a few, are reporting that US Attorney General Jeffrey Sessions is visiting Portland today to meet with federal and local law enforcement. These reports suggest Mr. Sessions is in town primarily to discuss immigration, sanctuary cities, and his unconscionable position on the Deferred Action for Childhood Arrivals program (“DACA”).

Given the recent exchange of letters between Oregon Governor Brown and the Attorney General, it seems likely Mr. Sessions has also come to Oregon to discuss and criticize Oregon’s medical and recreational cannabis programs. We’ve recently discussed how this exchange of letters demonstrates how Oregon sits uncomfortably within Mr. Sessions’ crosshairs. Governor Brown eviscerated Mr. Sessions’ reliance on a leaked, incomplete, and misleading draft of a report prepared by the Oregon State Police on cannabis in Oregon. Our money says Mr. Sessions is also here on a fact-finding mission, to see if he can drum up some better (or any?) sources for his claims that Oregon has so far failed to comply with Cole Memorandum guidelines.

Anyone in the cannabis industry here in Oregon knows Oregon treats these guidelines with the utmost respect and importance. Heck, if they didn’t, our Oregon cannabis business lawyers would not all be putting in 12 hour days! The Governor, the legislature, and Oregon’s relevant regulatory agencies, including the Oregon Liquor Control Commission and Oregon Health Authority, have been working tirelessly to improve their policies and procedures to ensure that Oregon’s recreational and medical cannabis programs protect public safety and prevent illegal activity.

Hopefully, Mr. Sessions’ visit will change his heart, but I wouldn’t count on it.

It could happen.

On Monday, ace cannabis reporter Tom Angell broke a nice story regarding a Senate Appropriations Committee report that, among other things, does the following: (1) expresses “concern” at “the [limited] amount and [constricted] type of research that can be conducted on certain schedule 1 drugs, especially marijuana…”; (2) directs federal agencies to formulate a “National Testing Program for Schedule I Marijuana-Derived Products”; and (3) specifically asks for distinct “analysis of marijuana and marijuana derived from products sold commercially in dispensaries or online.” As far as federal government reports and cannabis, that’s about as good as it gets.

We have written here before about the federal cannabis research fail, and ensuing efforts by states and local actors to fill in the gaps; and we have observed that expanding research should be promoted by industry advocates, prohibitionists and everyone in between. The reasoning is as follows: advocates should welcome the opportunity for scientific inquiry to validate their position that the plant has medically valuable effects, or is benign; whereas prohibitionists should seek to validate their view that pot is a gateway drug, or has no medical value.

The Senate report takes an agnostic approach, observing simply that research “is necessary for informing substance abuse prevention efforts, public health policy and law enforcement tactics across the Federal Government.” In further support of its recommendations, the report observes that “scientific rationale and laboratory studies suggest a decrease in addictive potential when botanical derivatives, including cannabidiol extracts, are used with an opioid in treating patients” (our emphasis). That CBD may help combat opioid abuse, which is a problem we have pointed out could also use some attention from law enforcement, is promising indeed.

Just because the Senate committee recommends more funds for cannabis research does not guarantee those funds will be allocated. These recommendations may have wings, however, in that they accompany a bona fide bill (SB 1771). Given that Congress has voted for years to extend state medical marijuana programs—at least when votes have been allowed—the report’s recommendations could become law. And if SB 1771 does make it through, the funds for cannabis research would be allocated for the coming fiscal year, which begins October 1, 2017.

The fact that we have a powerful, bi-partisan committee making recommendations of this sort is good news for the cannabis industry, and for the public generally. Reasonable public policy on cannabis should produce reasonable laws. So keep your eye on SB 1771, and any following authorizations. It certainly would be a great start to the new fiscal year.

Oregon Cannabis
Oregon Governor Kate Brown fights for cannabis

As we have discussed elsewhere, US Attorney General Jeff Sessions has been sending out intimidating letters to the Governors of cannabis-friendly states. In his letter to Oregon Governor Kate Brown, Mr. Sessions focused significant attention on a recent draft report created by the Oregon State Police that raised concerns about Oregon’s success in complying with the Cole Memorandum guidelines. Fortunately, Governor Brown is having none of it. In her August 22, 2017 response, Governor Brown meets Mr. Sessions head on with a simple message: “It is important to understand that this draft report does not (and frankly does not purport to), reflect the ‘on the ground’ reality in Oregon in 2017. This document was originally meant to provide a baseline understanding of the state of things related to marijuana in Oregon prior to legalization. Of course, such a baseline provides little insight into the effectiveness of Oregon’s post-legalization regulatory measures aimed at Cole Memorandum compliance.”

Governor Brown then notes that the leaked draft report was not ready for primetime and “required significant additional work and revision, because the data was inaccurate and the heavily extrapolated conclusions were incorrect.” In particular Governor Brown notes that the draft report relies on “an assortment of random blog and newspaper articles that should hardly form the basis of informed policy discussion.” (you wound me Governor!) In other words, Mr. Sessions, your sourcing is bad and you should feel bad.

After thoroughly dismantling the Attorney General’s assumptions, Governor Brown outlines Oregon’s recent legislative efforts to ensure Oregon is at the forefront of common-sense cannabis regulation:

  • Oregon has already implemented seed to sale tracking for all recreational cannabis, and on May 30, 2017 Oregon Senate Bill 1057 expanded the seed to sale tracking to the medical regime as well.
  • On August 21, 2017 Oregon Senate Bill 302 expanded criminal penalties for cannabis crimes, and “makes it easier to prosecute the unlawful imports and export of marijuana products, a provision specifically aimed at stopping diversion of marijuana across Oregon’s borders.”
  • Oregon already has the “most robust resting regime of any state to legalize marijuana.”

Governor Brown finishes her letter to Sessions by explaining that she is “confident that Oregon’s regulated marketplace, coupled with our enforcement work, will serve to ensure compliance with the Cole Memorandum” and by inviting further dialogue with the Attorney General and the Department of Justice.

Your move Mr. Sessions.

Cannabis litigationOne of the unfortunate byproducts of cannabis legalization is cannabis litigation. With each passing month of legalization in the states in which our cannabis lawyers operate (California, Oregon and Washington) we see an increase in disputes. The most common cannabis litigation matters are disputes about medical and recreational grows, disputes between former business partners now going their separate ways, disputes between employee and employer, and cases involving cannabis intellectual property. This is the first in a series of posts I will be writing on cannabis litigation.

Today’s topic is criminal law, which to at least some extent, can permeate civil litigation involving any cannabis business. Criminal law is important in civil cannabis cases because conduct that is perfectly legal under state law may well be illegal under federal law. The risk of federal criminal liability means that a cannabis litigator in a civil case should at least consider whether to rely on the 5th Amendment privilege against self-incrimination, which can be asserted in in civil proceedings or in connection with oral testimony, pleadings, or requests to produce documents.

How do evaluate whether to take five, i.e., assert the 5th Amendment? Here is an overview of the three main legal issues to help you analyze whether associating criminal counsel is appropriate in your civil law matter.

1. Prior statements in a civil cannabis case could be admissions of criminal activity in another case: A large part of every civil case is explaining the facts which support your claims, and which contradict your opponent’s. A civil litigant will make statements about facts in her pleadings, in discovery before trial, or in testimony at trial. You should assume that almost anything a litigant or her lawyer says about facts in a civil case will be admissible in a later criminal proceeding, even if the statement is not made under oath. An example might be the opening allegation in a complaint against a business partner in a grow: “Pursuant to an agreement, plaintiff and defendant worked together to cultivate cannabis crops, which they intended to be sold, and did sell, pursuant to this state’s recreational cannabis laws.” Right there you are probably admitting that you violated federal criminal drug laws.

2)         Does testifying to potentially incriminating facts in the civil case waive the privilege? Courts have held that  waiver of the 5th Amendment privilege in a civil case will not waive the privilege in later criminal proceedings. But the practical effect of this principle is limited. Though a defendant who has waived her privilege in a prior civil case could testify in a later criminal case, any prior incriminating statements she made in the civil case can be used against her, even without her testimony.

3)         Risks of asserting the privilege in the civil case: In a criminal case, the fact finder may not infer that a defendant is guilty because she asserted the 5th Amendment. In civil cases, however, a jury may draw negative inferences against a party who declines to testify by relying on the 5th Amendment. So, a lawyer in the civil case might argue to the judge or to the jury: “Plaintiff claimed privilege when asked whether she grew cannabis. Doesn’t this suggest she did grow cannabis?”

Knowing and evaluating the legal issues is only the first step in deciding whether to assert the 5th Amendment. The more difficult next step is forecasting whether a prosecutor—now or in the future—will choose to bring criminal charges for conduct legal under state law.

In part 2 of my series on cannabis litigation I will discuss how early registration of trademarks and copyrights and protection of your trade secrets can help you both avoid litigaiton and prevail should it nonetheless be unavoidable.

Cannabis law
No biggie, apparently, per DOJ

U.S. Attorney General Jeff Sessions is worried about this country’s “historic drug epidemic and potentially long-term uptick in violent crime.” Because he is so worried, Sessions has spent the past month doing things like: (1) asking his old colleagues for funds to prosecute the War on Drugs, including medical marijuana; (2) writing letters to state Governors with “serious questions” about their local cannabis programs (which letters the states have politely observed are misleading and inaccurate); and (3) disseminating bogus weed statistics far and wide. Every day that Sessions perseverates on cannabis enforcement, an average of 142 Americans die from opioid abuse, per the Centers for Disease Control. And since 1999, a total of 560,000 drug overdose deaths have occurred. That number is accelerating.

If Jeff Sessions were truly concerned about our nation’s historic drug epidemic, he would not be scheming to shutter state cannabis programs. Instead, he would be taking action against the bad actors who have fueled the opioid epidemic. Specifically, he would be filing public interest lawsuits, like last week’s bombshell filed by Multnomah County (the home of Portland, Oregon). As it stands, however, the federal government has done little to engage the opioid crisis apart from commissioning a report, and Sessions has done nothing. It tends to boggle the mind.

As with cannabis law and policy, the federal government has been terribly slow and backward in its consideration of the opioid crisis. This means that once again, states and local jurisdictions are being forced to take the lead. Lately, these localities have been doing so with gusto: a growing number are suing pharmaceutical companies and doctors for causing a public health hazard by pushing opioids on their citizens. Fundamentally, this is the same strategy that states first pursued in the 1990s with lawsuits against Big Tobacco. The local governments are essentially saying: you guys knew what you were doing all along with opioids; we are going to make you stop and make you pay.

In legal terms, the allegations in these cases include tort claims like public nuisance, fraud, conspiracy, negligence, gross negligence, etc. These lawsuits contain jarring and memorable lines, such as “the Purdue Frederick Company, Inc., is a convicted felon and admitted liar.” The filings also detail the methods used by the defendants to push their highly addictive products, and they contain demoralizing statistics, such as:

  • Opioids are now the most prescribed class of drugs, generating $11 billion in revenue for drug companies in 2014 alone;
  • Since 1999, the amount of prescription opioids has nearly quadrupled;
  • In 2010, some 254 million prescriptions for opioids were filled in the U.S. – enough to medicate every adult in America around the clock for a month;
  • In 2010, 20% of all doctors’ visits resulted in the prescription of an opioid;
  • While Americans represent only 4.6% of the world’s population, they consume 80% of the opioids supplied around the world and 99% of the global hydrocodone supply; and
  • By 2014, nearly two million Americans either abused or were dependent on opioids.

And Jeff Sessions is concerned about marijuana.

According to its website, the mission statement of the Department of Justice (DOJ) is to “…ensure public safety against threats foreign and domestic; to provide leadership in preventing and controlling crime; [and] to seek just punishment for those guilty of unlawful behavior…”. With respect to controlled substances in general and opioids in particular, DOJ should be doing all of these things. It is not. Instead, it is beating about the bushes with states on cannabis.

The opioid crisis kills 146 Americans every single day; conversely, even the U.S. Drug Enforcement Administration acknowledges that no one has ever died of a cannabis overdose. If Jeff Sessions and DOJ continue to waste valuable federal resources investigating state-legal weed and not the opioid crisis, it will be an American travesty. In fact, it already is one.

When Bernie Sanders announced he was in favor of removing marijuana from any schedule in the Controlled Substances Act, it was a big deal. He was the first serious presidential candidate in either a general election or a primary to take such a forward-looking stance, and it at least temporarily brought the issue of cannabis legalization to the front of voters’ minds. In the general election, of course, neither Hillary Clinton nor Donald Trump supported legalization. Clinton’s position was to do more research and otherwise leave it to the states, while Trump waffled between supporting medical marijuana, to leaving it to the states, to outright hostility.

When 2020 rolls around, however, it is becoming increasingly likely that whomever the Democrats nominate will be vocally in favor of legalization. Less than a year into President Trump’s term, Democratic senators are already moving to position themselves as the party’s next nominee. And, as reported in Politico, those candidates are increasingly moving in the direction of legalization. Senator Kamala Harris of California, a former prosecutor and state Attorney General, has voiced support for decriminalization. Senator Kirsten Gillibrand of New York has vocally supported various medical marijuana bills in the past few years. Finally, Senator Cory Booker of New Jersey has gone so far as to introduce a bill fully legalizing marijuana at the federal level. Booker’s bill would deschedule marijuana, retroactively expunge the criminal records of those convicted of federal marijuana possession or use charges, and withhold federal law enforcement dollars from states with arrest rates and incarceration rates for marijuana crimes that skew heavily against poor people and racial minorities. Unfortunately, Booker’s bill has no chance of passing or even being debated while Republicans hold the House, the Senate, and the White House. But it does draw a clear line in the sand for all would-be 2020 contenders on the Democratic side.

The real story here is that the Democratic Party is getting to the point where it must support legalization to stay relevant. There seem to be three types of Democratic politician right now: Sanders-style social-democrats, Clinton-style Baby Boomer liberals, and Booker/Harris/Gillibrand style young liberals. There are a few centrist/conservative Democrats still out there (e.g. Joe Manchin of West Virginia), but most of the rest of the party falls largely into one of the other alignments. The difference between the Clinton group and the Booker group isn’t based so much on policy as it is on candidate age and priorities. Baby Boomers (people born between the mid-1940s and the early 1960s) were the generation most influenced and susceptible to the War on Drugs. For as long as the Boomers have made up the core of the Democratic party, the party has been unwilling to move strongly in support of marijuana legalization. But we are now seeing a shift in the political landscape. White working class voters were up for grabs in the past, but that demographic seems to be moving toward the Republican party in droves. For Democrats to survive, they need to pull stronger numbers from their core demographics, including minorities disproportionately affected by the War on Drugs and millennials who never understand why marijuana was demonized, groups that overwhelmingly support cannabis legalization.

President Trump has always been shifty on policy, but his ardently anti-cannabis Attorney General, Jeff Sessions, presents an easy foil for pro-legalization Democrats to compare themselves to. Other than exceptions like Rand Paul and Dana Rohrabacher, the Republican party remains generally anti-marijuana. And marijuana legalization is the kind of simple, understandable policy that Democratic politicians should point to as positive differentiators from their competitors. If Republicans start to see their stance against marijuana as a political liability, they too will start shifting in large numbers. Looking forward to 2018 and 2020, it is becoming increasingly clear that cannabis legalization will be both good policy and good politics.

Cannabis lawyers
Jeff Sessions: Titling at Marijuana Windmills

On Monday, the National Conference of State Legislatures (NCSL) adopted a formal resolution that Congress enable financial institutions to serve marijuana businesses. The most interesting thing about the resolution was its forcefulness: it did not ask Congress to pass a banking bill specific to cannabis, or even to revisit the FinCEN guidelines for financial services. Instead, NCSL cut to the heart of the issue, telling Congress to deschedule marijuana altogether.

NCSL is a big deal. The bi-partisan organization represents all state legislators and their staffers nationwide. And NCSL seems to get more progressive on cannabis policy with each passing year. Last year, for example, NCSL issued a resolution that marijuana be removed from Schedule I, but not descheduled entirely. Next session, NCSL may adopt a separate resolution calling on Congress to “make medical cannabis policy a national priority to expand access to affordable medicine.” That resolution is rooted in fighting opioid addiction.

The timing of the NCSL action is important. We know that recently, Attorney General Jeff Sessions received recommendations on marijuana enforcement policy from a Justice Department task force. Sessions is keeping those recommendations under wraps, probably because they provided him with nothing to support his enforcement animus (a finding confirmed on Friday by an Associated Press report). At this point, it’s clear that Sessions is on a quixotic, lonely mission, when it comes to the issue of cannabis.

Still, Sessions is not throwing in the towel. After failing to convince Congress to allocate funds for the prosecution of medical marijuana operators two weeks ago, Sessions wrote the governors of a number of states with “serious questions” about their state cannabis programs. This letter was sent while federal agency representatives held veiled meetings about marijuana policy with state and local officials in Colorado. What exactly those meetings covered has not been ascertained. We do know, however, that Sessions has been using bogus weed statistics in the hopes of furthering his aims.

With Sessions working around the edges to promote his retrograde War on Drugs agenda, it is heartening to see legislative groups like NCSL proclaim that states are having none of it. Going forward, states will continue to set the trend on cannabis legalization, although Congress may find itself having to act sooner rather than later to re- or deschedule marijuana. Ironically, the catalyst for that action may be Attorney General Sessions, who continues tilting at windmills in his own strange reality.

Cannabis lawyersPresident Trump spent some time attacking Jeff Sessions on Twitter in July. There are plenty of reasons why that was a bad thing. You don’t want the leader of the executive branch attacking the chief law enforcement officer in the nation for failing to stand in the way of an investigation into that leader. But if you temporarily ignore the threats to democracy, it was pretty fun watching Sessions get metaphorically slapped around. Mr. “Good people don’t smoke marijuana” was only able to come back with a lame comment that Trump’s behavior was “kind of hurtful” while still calling him a “strong leader.” Show some backbone.

Despite the attacks, it looks like Sessions is sticking around, which means we have to continue guessing how his Department of Justice is going to treat marijuana. On that front, there is some bad news and some potentially good news.

On the negative front, the Huffington Post uncovered a letter Sessions sent to Washington Governor Jay Inslee on July 24. In that letter, which was in response to various requests to Sessions from Inslee and others that Sessions reaffirm the validity of the Cole Memo, Sessions does not deviate from the Cole Memo. Instead, he cherry picks data and presents statistics in a way that negatively reflects on Washington’s marijuana regulatory system. The vast majority of his criticisms are unfair or are outright misleading.

This post isn’t a good place to refute each of his arguments, but here are some of the highlights. He states that Washington’s medical marijuana system is considered “grey” due to a lack of regulation. But his information dates back to 2014 — Washington folded medical marijuana into its regulated system in 2015. He claims that 90% of the “public safety violations” that occur in Washington involve minors. But this is because Washington groups its violations into four categories, and all violations involving minors are in the “public safety” category. Other violations that are more common are in other categories. Additionally, a percentage without any reference to the whole is meaningless — referring to the 90% without reference to the whole is purposefully misleading. Finally, he stupidly claims Washington State isn’t well regulated because the leading regulatory violation is “failure to utilize and/or maintain traceability.” If the state is policing traceability so much that it is consistently nailing businesses for any deviation from the law, that is the definition of robustly regulating an industry. Regulatory enforcement isn’t evidence of a lack of regulation — it is the opposite.

My firm’s cannabis lawyers have since 2010 represented clients all over the country, and from this I can tell you that Washington State tends to have the toughest regulations and the strictest enforcement. The idea that Washington isn’t robustly regulating the cannabis industry is laughable. If Jeff Sessions wants to attack the principles of the Cole Memo, he should just do it instead of hiding behind weak accusations that Washington is violating its tenets.

But this is where the potential good news comes in, or at least a reason why Sessions is trying to couch his arguments within the terms of the Cole Memo. Sitting on Sessions’s desk right now is a report from his own Task Force on Crime Reduction and Public Safety. The Department of Justice hasn’t released that report, but the Associated Press got a copy of it, and contrary to expectations, the Task Force does not recommend any changes to current DOJ policy in the Cole Memo. That makes sense of course. Even if you hate marijuana, the Department of Justice doesn’t have an unlimited budget. Every penny and every man-hour dedicated to marijuana is taken away from opioids, terrorism, violent crime, etc. If the states are not acting as partners in federal law enforcement, why would the feds use resources to target marijuana businesses and their customers in those states?

But no matter what policy the Department of Justice ends up pursuing, Sessions will never back down on the marijuana rhetoric. “Drugs are bad” are ingrained in his identity, as they have been in every hippie-hating conservative politician since Nixon. Marijuana usage, homosexuality, and alternative lifestyles that are indicative of someone being an “other” are anathema to the Sessions dream of Americana. But as demographics and polling show us, there are a lot more of us than there are of him.

Oregon Cannabis and PhysiciansOn Saturday, I gave a fun talk at the National University of Natural Medicine’s Medical Cannabis Conference on “Oregon Cannabis Laws and Naturopathic Doctors.” I say it was fun because almost always, we corporate cannabis lawyers wind up speaking in front of other lawyers, accountants or industry entrepreneurs. Health professionals have a different and unique perspective. This talk was also enjoyable because I got to reacquaint myself with the caregiver side of the Oregon Medical Marijuana Program, a program my firm rarely advises on anymore, because, as a business proposition, it is all but dead.

Perhaps the most fun part of the presentation, though, was the incredible number of questions called out in this one-hour talk on “Oregon Cannabis Laws and Naturopathic Doctors.” Here are some of the highlights.

What’s the deal with CBD/hemp right now? This spring, the DEA announced a new Final Rule regarding its classification of “marihuana extracts,” which caused a bunch of Colorado hemp growers to file suit. Even without the questionable DEA action, though, CBD remains firmly entrenched on Schedule I of the federal Controlled Substances Act. (Bills pop up from time to time attempting to change that.) Like medical marijuana, CBD may be legal under many states’ laws, including Oregon’s, but the federal picture is a whole ’nother story. Therefore, physicians should steer clear of advising patients that CBD extracts, topicals, concentrates, etc., are non-controlled substances when extracted from U.S. hemp– even if one can buy some of these products easily online, or in big box grocery stores.

Who can dispense medical cannabis in Oregon? Only an Oregon Health Authority (OHA) registered caregiver or grower, or a licensed OHA or Oregon Liquor Control Commission (OLCC) retail dispensary, can dispense medical cannabis in Oregon. Further, for a patient to acquire cannabis from any of these sources, the patient must first secure an “Attending Physician Statement” explaining that the individual “has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects…”. OAR 845-008-0010(4). The term “Attending Physician” is defined as “a Doctor of Medicine (MD) or Doctor of Osteopathy (DO).” OAR 845-008-0010(3). This means that naturopathic doctors, chiropractors, acupuncturists, etc., cannot facilitate access.

What have courts said about physicians discussing medical marijuana with patients? Mostly good things. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) held that the feds cannot revoke a physician’s DEA license to prescribe controlled substances, or investigate that physician, solely for “recommendation” of the use of medical marijuana. Other cases, like Rust v. Sullivan, 500 U.S. 173 (1991) and Planned Parenthood of S.E. PA. v. Casey, 505 U.S. 833 (1992) observe that regulations on physician speech may “impinge on the doctor-patient relationship” and that doctors have a First Amendment right not to speak, respectively. Because the Oregon Constitution has even broader speech protections than the U.S. Constitution, it seems that physicians in Oregon would be within their rights to discuss medical marijuana treatment of debilitating conditions with their patients.

What about other types of claims? In theory, we could see a patient or a patient’s representative bringing a tort claim against a doctor, if the doctor had recommended cannabis while the patient was prescribed other substances, resulting in a negative reaction. Unfortunately, due to the status of federal law, there is a relative paucity of cannabis research as compared to other controlled substances; but if there were not, it is possible cannabis would be contraindicated for any number of scheduled pharmaceutical drugs. Aside from traditional tort claims, we could also see a doctor get roped into a RICO suit for encouraging the violation of federal laws through providing basic patient services. We are not aware of any case involving physician liability for malpractice or RICO claims to date, but it’s possible.

How many cannabis patients can an Oregon physician have? A total of 450, without significant additional compliance hurdles. Yes, that’s a lot!