EU CBD food export

We’ve been writing a lot on this blog about the regulation and sale of cannabidiol (“CBD”) products at the state and federal levels. The United States is not the only international actor, however, that is concerned with regulating the sale of CBD products, including CBD-infused foods. The European Food Safety Authority (“EFSA”), the European equivalent of the U.S. Food and Drug Administration (“FDA”), recently changed guidance on cannabinoids, declaring that all new food products infused with the plant or its derivatives should receive a pre-market approval under the European Union “novel food” regulation.

Regulation 2015/2283, which is the latest food regulation adopted by the European Parliament and the European Union (“EU”), defines “novel food” as “food that was not used for human consumption to a significant degree within the Union before 15 May 1997, irrespective of the dates of accession of the Member States to the Union.”

The EU Novel Food Catalogue entry for CBD, which contains a non-exhaustive list of ingredients that inform member nations on whether a product will need an authorization under the Novel Food Regulation, now refers to a broader class of “cannabinoids” and provides that:

Without prejudice to the information provided in the novel food catalogue for the entry relating to Cannabis sativa L., extracts of Cannabis sativa L. and derived products containing cannabinoids are considered novel foods as a history of consumption has not been demonstrated. This applies to both the extracts themselves and any products to which they are added as an ingredient (such as hemp seed oil). This also applies to extracts of other plants containing cannabinoids. Synthetically obtained cannabinoids are considered as novel.

This new EFSA guidance drastically expands the categories of cannabinoids that would require pre-market approval–note, however, that hemp seeds, flour and seed oil remain permitted–and it suggests that CBD-infused food could be off the European market for some time. Generally, it takes 3 years for an ingredient to gain novel food status.

A handful of European countries such as Spain, Italy, and Austria have already taken enforcement actions against CBD products on the basis of being “novel foods.” As such, it seems likely that these EU member nations will adopt the new EFSA guidance and continue their efforts in regulating CBD-infused foods as “new foods.”

The EU or its affiliates are expected to provide further guidance on this issue; however, due to administrative procedures and time required for adequate data collection, such publication won’t likely be released until 2020.

This new EFSA guidance will further complicate U.S. CBD companies’ ability to export their products overseas. In addition to potential international law violations, CBD companies run the risk of FDA and Customs and Border Protection (“Customs”) enforcement actions. The FDA has yet to release guidelines on shipping CBD products to other countries; however, the main FDA inquiry for the purpose of exporting CBD would likely be whether the CBD products were adulterated or mislabeled due to the fact that they were not manufactured or labeled in compliance with the target country’s law. Another risk in exporting CBD products is that Customs agents may not have a sophisticated understanding of the difference between hemp and marijuana, as demonstrated in recent state enforcement actions. If such confusion were to occur, Customs would likely seize the CBD shipment and potentially involve the Drug and Enforcement Administration.

In light of those regulatory changes, CBD companies should remain informed on domestic and international shipping laws and consult with experienced lawyers to assess the risks of exporting their products overseas.

For more on cannabis and international law, check out the following:

international law marijuana united nations

On February 1, it was reported that the World Health Organization (WHO) made some significant and long overdue recommendations with respect to cannabis. Those recommendations have not been formally released, but we expect that to happen soon. If adopted wholesale by the United Nations (UN), the recommendations will have a significant impact globally as to controls placed on cannabis and its constituent parts.

It is important to note that the WHO is not recommending the unfettered legalization of marijuana. Therefore, no one should expect the doors to swing wide on international cannabis trade overnight. Still, the WHO development is welcome news after nearly 60 years of unmerited and unexamined prohibition of marijuana under international law.

The WHO recommendations are reported as follows:

  • Remove whole plant marijuana and cannabis resin from Schedule IV of the Single Convention on Narcotic Drugs of 1961 (the “Single Convention”), but leave them on Schedule I of that treaty. (Under international law, Schedule I drugs are relatively safe, and Schedule IV drugs are the most heavily controlled.)
  • Place cannabis extracts and tinctures containing delta-9-tetrahydrocannabinol (THC) in Schedule III of the Single Convention.
  • Remove THC and its isomers completely from the 1972 Protocol to the Single Convention. (The 1972 Protocol is a follow-up treaty requiring states to actually enforce laws on their books against cannabis cultivation.)
  • Clarify that that cannabidiol and CBD-focused preparations containing no more than 0.2 percent THC are “not under international control” at all.

So what would all of this mean? First, cannabis containing more than trace amounts of THC would still be controlled. Whole plant marijuana would no longer be in the same class of drugs as heroin and fentanyl, but it would not be eligible for trade in the same way as coffee or even tobacco. Second, concentrated preparations of THC would be controlled more strictly than flower, but not at draconian levels. Third, penalties for possession and distribution of cannabis in any form would significantly decrease. And fourth, CBD would be treated like bonbons. In all, the WHO approach is measured and scientific, seeking to isolate various parts and preparations of the plant, and distinguish their effects.

When it comes to implications for U.S. law, the WHO’s assessment of CBD could have the most immediate impact. Readers of this blog may recall that the U.S. Drug Enforcement Administration (DEA) has taken the position that the U.S. would “not be able to keep obligations under the [Single Convention] if CBD were decontrolled under the CSA”. The Food and Drug Administration (FDA) ultimately fell in line with the DEA’s interpretation, scheduled Epidiolex (an approved CBD drug), and recently issued a public statement warning that it is unlawful “to introduce food containing added CBD … into interstate commerce.”

If the WHO recommendation is adopted by the UN, though, the FDA may reverse course quickly. When the FDA agreed to schedule Epidiolex, it advised:

If treaty obligations do not require control of CBD, or the international controls on CBD … are removed at some future time, the recommendation for Schedule V under the CSA would need to be revisited promptly.

Presumably, state health authorities would fall in line with the FDA’s ruling, and we would stop seeing things like last week’s raids in New York and Maine.

At some point this year, it is likely that the UN will vote on the WHO’s cannabis rescheduling recommendations. A really, really interesting question is where the U.S. will cast its lot on that momentous day. The U.S. has always been an international hardliner when it comes to cannabis, even as a vast majority of its states have legalized marijuana for medical or recreational use. These days, though, things are changing fast – both domestically and worldwide.

For more on cannabis and international law, check out the following:

cannabis marijuana immigrationOn January 16, 2019, each of the three California cannabis agencies dropped a final set of regulations. In many senses, the Bureau of Cannabis Control’s (“BCC”) regulations were the most comprehensive and expansive (we summarized some of the highlights here, and summarized the highlights of the California Department of Public Health’s final regulations here). In one area in particular, the BCC’s regulations may have some unintended and far-reaching effects: immigration.

For some reference, one of the biggest changes to the BCC’s regulations is in the “ownership” disclosure requirements, which now will require disclosure of persons as potential owners who may be far removed from the actual licensed entity. To recap, in the post linked above, we wrote:

[The BCC’s] entity ownership requirements kick in in any situation in which a company owns a licensee—not only where the ownership is based in equity (remember that ownership can also be based on direction, management, or control of a licensee or other grounds). If an entity is considered an owner, then anyone with a financial interest in that entity must be disclosed to the BCC and may be considered an owner.

This is a tremendously significant requirement and means that virtually everyone in the corporate chain must be disclosed (and probably must provide all of the many significant and burdensome disclosures). For example, if John Smith directly owns 1% of the BCC licensee ABC Retailer and does not exercise any control over ABC Retailer, he will be considered a financial interest holder as opposed to an owner.  But if he owns 1% of XYX Holdings, which has a 20% stake in ABC Retailer, he will need to be disclosed to the BCC and may be considered an owner.”

What this could mean in other words is that more people, and people higher up a corporate chain, may need to make “ownership” disclosures. One of those disclosures is the requirement per BCC Regulation 5002(c)(20)(D) to provide a Social Security Number (“SSN”) or individual taxpayer identification number (“ITIN”), and another is the requirement to obtain a live scan. These are significant requirements for foreign persons who “own” cannabis businesses and, as described below, could affect their immigration status.

SSNs are available for residents and citizens of the United States. ITINs may be available in limited circumstances to foreign persons who have a need for tax identification purposes in the United States, but they are somewhat complex to obtain and require certain documentation (either a federal income tax return or some “exemption” documents). And live scans are federal background checks that land in federal databases, and as a result, in hot water.

The reason background checks for foreign nationals are problematic is that any direct or peripheral involvement in the cannabis industry is incompatible with the immigration laws of the United States. This applies to everyone who is not a United States citizen, including lawful permanent residents (i.e., green card holders), those living, studying, and/or working in the United States under an authorized nonimmigrant visa, those temporarily visiting the United States for business or pleasure, and of course, those who have no legal status in the United States.

As explained previously, even where a foreign person is traveling to a state where marijuana is legal, federal law applies at all U.S. ports-of-entry and preflight clearance locations (the “border”). The U.S. Customs and Border Protection (“CBP”) officer at the border has the legal authority to question the foreign person about the purpose of the visit and has advance access to the list of airline passengers on each flight and the license plate of each vehicle waiting at a border checkpoint.

By the time a foreign person is greeted by the CBP officer, seemingly unrelated dots between a web search and live scan and other databases have already been connected for the officer to use in questioning the foreign person about his connection to a cannabis business.

If the foreign person wants to lie about his involvement, he should absolutely not. The CBP has broad authority to search electronic devices, including cell phones and laptops. If the CBP officer finds any information to contradict the foreign person’s statements, it can potentially permanently ban him or her from entering the United States because of fraud or misrepresentation, and not just for violating the Controlled Substances Act.

Under the BCC’s new ownership regulations and its live scan requirement, a few things are clear. First, persons who earlier may not have qualified as owners now might. This may include a host of foreign citizens who now need to obtain ITINs and undergo live scans. Second, live scans are part of a federal database, so federal agents may be able to stop and ask clients questions about why they have undergone live scans. Moreover, and third, under the BCC’s live scan memo (linked above), live scan forms won’t be sent until an application is made, so foreign persons entering the United States to undergo a live scan will by definition already have applied for a cannabis application and thus may risk being turned away.

What’s clear is that ownership of a cannabis business is a risk when it comes to immigration. The BCC’s newest regulations may pass that risk on to a host of new persons. Stay tuned to the Canna Law Blog for more developments. In the meantime, for more on immigration and cannabis, check out the following:

international trade cannabis marijuana

Recently, we’ve been getting tons of questions from clients regarding the international import and export of cannabis around the globe. 2018 was a historic year for the cannabis industry not just in the United States, but also internationally. Canada legalized recreational marijuana for the entire country. Many countries (e.g., Thailand, New Zealand, Mexico, Lithuania, U.K.) took significant steps to decriminalize or legalize medical or recreational marijuana. In December, Israel became the fifth country to pass legislation legalizing the export of medical marijuana (after the Netherlands, Canada, Uruguay, and Australia).

Despite these advances, international trade in legal marijuana currently is limited. Under a 1961 international treaty (Single Convention on Narcotic Drugs), cannabis is classified as a controlled substance with no medicinal use or value (we explored this recently here). Most countries are signatories to this and other international treaties that set forth the ground rules for the international drug control regime for controlled substances. Individual countries, however, can and have begun to make their own determinations on whether cannabis should be treated as a narcotic substance. Countries that have legalized marijuana can agree to allow trade in marijuana between those countries. Dutch and Canadian companies have gotten a head start in the global marijuana trade with medical marijuana being exported to Germany, Italy, Croatia, Australia, New Zealand, Brazil, and Chile. Currently, Israel, Australia, Uruguay, and others are also pushing to get into the medical marijuana export game.

While other countries have begun to legalize cannabis, the United States federal government still classifies “marijuana” as a Schedule I controlled substance with no medical use and a high potential for abuse. Thus, federal law effectively prohibits importation of marijuana into the United States. In September 2018, however, the U.S. Drug Enforcement Administration (DEA) granted permission for a Canadian marijuana company (Tilray) to export medicinal cannabis to University of California San Diego for clinical trial. Although DEA’s approval of this importation may be just a one-off, this one approval could signal an eventual broader opening of the U.S. market to imported marijuana.

If (or when) the U.S. finally allows the importation of cannabis products from other countries, it seems likely that some type of trade dispute will likely occur. Legalization of marijuana has often resulted in supply and demand imbalances that result in prices rising or falling sharply. In Oregon, prices for licensed marijuana plummeted with overproduction, and nearly 70 percent of the legal recreational marijuana grown has gone unsold. In Canada, medical marijuana dispensaries faced shortages as licensed producers shifted to selling to the much larger legalized recreational marijuana market. Italy faced consistent shortages of medicinal marijuana and ultimately permitted imports from Canadian companies to ease the supply shortages.

Trade disputes often result when producers in one country complain that imports from another country are being sold at unfairly low or subsidized prices and harming the domestic industry. Domestic producers can petition their government to investigate imported products and often antidumping or countervailing duties are imposed. If imported cannabis products are allowed into the U.S., it would not be surprising if U.S. marijuana producers resort to U.S. trade laws in order to fend off import competition. Which countries might be likely targets of a cannabis trade dispute?

  • Canada –Given the head start that Canadian cannabis companies already have in developing international distribution networks in a number of countries, bigger and better funded Canadian companies could swoop in and aggressively price their product to overwhelm U.S. competitors and take over a dominant market share in the United States. U.S. cannabis companies could try to seek trade protection from Canadian imports by filing antidumping or countervailing duty petitions like those filed against Canadian softwood lumber in multiple rounds going back to the 1980s.
  • Mexico – Mexico’s new President Lopez Obrador has proposed legislation to legalize marijuana. If Mexico ever legalizes exports of licensed marijuana, Mexico’s relatively lower farm labor rates could provide significant cost advantages over U.S. or Canadian licensed suppliers.
  • China – Although marijuana is illegal in China, China is nevertheless the world’s leading producer of industrial hemp cultivation. China likely will have a significant advantage in producing more cost-effective hemp fabric and medicinal products than any other country. As of 2017, Chinese companies hold more than half of the 606 patents filed around the world that relate to cannabis. These patents could trigger plenty of litigation as companies try to attack or defend the intellectual property rights of their hemp products.

It’s hard to think of international trade disputes involving cannabis when it is still illegal for marijuana to cross U.S. state borders, let alone international borders.  But as the trend of marijuana legalization continues globally, it is likely a matter of time before licensed marijuana products become treated like any other commodity subject to competitive market forces and resulting litigation over fair and unfair competition. Once imported marijuana products are allowed, it is not difficult to foresee the day when import competition in the legal marijuana markets may trigger some type of international trade dispute either in the form of an antidumping or countervailing duty petition or a patent infringement action.

canada marijuana trademark

With Canada’s new trademark law set to take effect on June 17, 2019, U.S. cannabis companies should be considering whether it makes sense for them to file for trademark protection in Canada.

Most significantly for foreign applicants, a Declaration of Use will no longer be required, meaning that you do not need to actually use your mark in Canada in order to qualify for trademark protection. This is in contrast to the United States, where trademark registration requires proof of lawful use in commerce. The upside to this regulatory shift is that U.S. companies can get a jump on procuring Canadian trademark protection prior to entering the Canadian market. But the inevitable downside is that trademark trolls will now have an open door to “squat” on trademarks that are used by companies in other countries. These trolls often aim to force companies into negotiations for use of trademark rights to their own brand. Filing for protection in Canada will be an important tool for U.S. cannabis companies to avoid such a scenario.

Furthermore, cannabis goods can be specified in any Canadian trademark application. “The following terms are, at this time acceptable by the Office: ‘dried cannabis’ or ‘dried marijuana,’ ‘live cannabis plants,’ ‘medicinal marijuana for temporary relief of seizures,’ ‘medicinal marijuana for temporary relief of nerve pain.’” “Cannabis oil,” however, is not acceptable. It is important that the language used in your specification comports with the Canadian Goods and Services Manual.

Another notable change to Canada’s trademark law is that a range of non-traditional types of marks will now be registrable, including scents and tastes, holograms, moving images and textures.

Remember, though, that even though it is relatively straightforward to obtain a trademark for cannabis goods or services in Canada, there are many restrictions placed on how those cannabis trademarks can be used via the cannabis regulatory framework. For example, cannabis trademarks may not be used to promote cannabis goods:

  • In a manner that appeals to children;
  • By means of a testimonial or endorsement;
  • By depicting a person, character or animal, whether real or fictional;
  • By presenting the product or brand elements in a manner that evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk, or daring;
  • By using information that is false, misleading or deceptive, or that is likely to create an erroneous impression about the product’s characteristics, value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects or health risks;
  • By using or displaying a brand element or names of persons authorized to produce, sell or distribute cannabis in connection with the sponsorship of a person, entity, event, activity or facility, or on a facility used for sports, or a cultural event or activity; and
  • By communicating information about price and distribution (except at point of sale).

Because of the removal of the Declaration of Use requirement in particular, we strongly urge all of our cannabis clients to consider applying for trademark protection in Canada. If you fail to do so, someone else may beat you to it, preventing you from obtaining any right to use your brand in the Canadian market.

cannabis marijuana 2018
By any measure, cannabis had a banner year in 2018.

We had a blast celebrating all of the big wins for cannabis on this blog this past year. Looking back, it was a monumental year for cannabis reform, both in the United States but also internationally. At this point, it feels like there is no realistic scenario in which prohibition carries the day: Federal legalization of marijuana, at least in the United States, feels like a fait accompli. Below are the ten biggest developments in cannabis law and policy over the past twelve months.

  1. California commenced its adult use marketplace.

California is the fifth largest economy in the world. It was the first U.S. state to pass a medical marijuana ballot initiative, back in 1996, and given the interim developments in states like Colorado, Oregon and Washington, adult-use legalization in the Golden State has been a long time coming. There are still a ton of unknowns about California’s cannabis regulations (it also passed a hemp law), but the size, scope and influence of this program on other states—and even other countries—will be staggering. Our Los Angeles and San Francisco cannabis business lawyers will continue to report on these exciting and complex developments every step of the way.

  1. Canada legalized marijuana federally.

Canada did it right. Instead of mucking around with local referenda, Canada took charge of the matter by legalizing cannabis nationwide through its federal legislature. This approach should result in more coherent, organized policy on everything from banking to taxation to supply chain structure. The Canadian government is also taking progressive steps that are not feasible in the U.S., like earmarking funds for hospitals and universities to study the effects of legalization. All of this has resulted in an early competitive advantage for Canada, which is well deserved.

  1. The U.S. legalized hemp.

This happened just last week, and it was about damn time. Hemp is a cultivar of the cannabis plant that doesn’t get anyone high. Instead, it has a vast array of industrial uses, from textiles to paper to building materials. It also may be used to source cannabidiol (CBD), which now has federally approved medical applications. The U.S. hemp industry generated $820 million in nationwide sales in 2017, and that was well before the recent federal action. By 2022, that number is expected to approach $2 billion.

  1. The midterms: Michigan, Utah and Missouri forged ahead.

In the 2018 midterm elections, Michigan voters decisively voted to legalize adult use marijuana statewide, with a 56% approval rate. Michigan is the first midwestern state to fully end prohibition, demonstrating that the will to legalize is not confined to “liberal” western or New England states. In Utah and Missouri, the approval of medical marijuana programs was also big news. In fact, it would have been nearly unthinkable for either state to have taken such action just a few years ago. Given these and other developments, we expect more state dominoes to fall in 2019.

  1. State legislatures began looking carefully at legalization.

This is an under-reported but very important development. Historically, state legislatures have lacked the political courage to tackle marijuana legalization (medical or otherwise). Instead, everything was done in “direct democracy” states via ballot initiatives. In January, Vermont broke this barrier, becoming the first state to legalize marijuana use through the legislature. That approach should result in a more orderly roll-out, and give legislators a chance enact policy proactively (i.e., do their jobs), rather than reactively (which, in the cannabis context, often means re-writing ballot provisions down the line). Look for the New York, New Jersey, Illinois, Connecticut, Minnesota and New Mexico legislatures to each take a hard look at legalization in 2019.

  1. The international community began looking carefully at legalization.

In August, we covered the United Nations’ movement to take a closer look at cannabis prohibition under international law, and the World Health Organization’s (“WHO”) recommendation that CBD no longer be controlled. These developments continued in December, with the WHO declaring that it will make a formal recommendation on the international legal status of cannabis (and not just CBD), next month. Sensible drug policy at the international level will make actions taken in Canada, the U.S. and elsewhere even easier. We are very excited about this overdue development.

  1. Civil rights were in focus.

With the never-ending stream of cannabis industry developments, it can be easy to forget that cannabis is also a civil rights issue. In 2018, the federal government cast an inadvertent spotlight on cannabis and civil rights, due to the regressive actions of Jeff Sessions and others. Those actions gave increased momentum to marijuana civil rights legislation, from sweeping federal proposals like Corey Booker’s Marijuana Justice Act, to social equity programs at the state and municipal levels. In 2019, expect discussion around cannabis racial and social equity to continue to amplify, particularly at the federal level.

  1. Sessions (and Sessions) got the boot.

When the definitive story of cannabis legalization is finally written, the tenure of Jeff Sessions as U.S. Attorney General will likely go down as the death rattle of prohibition. A footnote to Sessions’ failures will be those of similarly minded legislators, including Pete Sessions, who single-handedly blocked countless marijuana reform efforts until he was ousted from Congress last month. In 2019, discussion around enforcing federal prohibition will be a non-starter for the first time in 50 years. The only question now is how legalization happens.

  1. The industry got so much bigger.

Legal marijuana was a $10.4 billion industry in the U.S. in 2018. Looking at the U.S. and Canada together, investors poured another $10 billion into cannabis, or twice the amount invested over the past three years combined. Reflecting this trend, our cannabis business lawyers in Seattle, Portland, San Francisco and Los Angeles were up to their ears in investment deals and new client requests over the past 12 months– more so than at any period going back to 2010. We don’t expect things to slow one bit in 2019.

  1. President Trump voiced support for ending marijuana prohibition.

President Trump says a lot of things. He says so many things that his comment of “really” supporting a marijuana bill didn’t make a lot of waves, but he did become the first sitting president to embrace legislation to end federal prohibition. The bill endorsed by Trump is knowns as the STATES Act, and it amends the federal Controlled Substances Act to exempt state-legal marijuana from its parade of horribles. Trump is just one of many prominent national politicians to embrace the end of prohibition. Let’s hope it finally happens in 2019 or 2020.

international law WHO UN cannabisLast Friday, December 7, the World Health Organization (“WHO”) Expert Committee on Drug Dependence (“ECDD”), was scheduled to make a recommendation about the international legal status of cannabis. The WHO is a “specialized agency” of the United Nations, and the ECCD is a WHO committee consisting of experts in the field of drugs and medicines, that assesses the health risks and benefits of the use of psychoactive substances. Alas, the ECDD announced it would temporarily withhold the results of the assessment until January, declaring it needed additional time “for clearance reasons.”

Earlier this year, the ECDD released a preliminary report (“Pre-Review”) on the effects of the plant, which concluded that cannabis is a “relatively safe drug.” The Pre-Review also revealed that cannabinoids (“CBD”) offer numerous therapeutic benefits, including reduction of pain, promotion of sleep, and improvement of motor function for individuals affected by Parkinson’s disease. As a result, the ECDD made the recommendation to the United Nations Commission on Narcotic Drugs (“CND”), that pure CBD not be scheduled under any international drug treaty.

The Pre-Review results gave us and other reform advocates great hope that a more in-depth review would take place before the ECDD makes a final recommendation to U.N. Secretary António Guterres. Comprehensive scientific data on the effects and benefits of cannabis are hard to find. Indeed, the current status of cannabis as a strictly prohibited substance has forced researchers who wish to study the plant to overcome additional hurdles that do not exist for the study of other drugs. To this end, U.S. Surgeon General Jerome Adams declared last week that the federal government should evaluate how it classifies the drug because the restrictive scheduling hinders research.

Just as we need to look at criminal justice laws, rules and regulations, we need to look at health laws, rules and regulations, and that includes the scheduling system.”

This statement by one of the key officials of the Trump administration highlights a shift in the U.S. federal government’s strict position on the prohibition of cannabis. As we previously discussed, the federal government has repeatedly cited to obligations under international treaties to perpetuate the current ban on cannabis and its derivatives. Back in May, the Food and Drug Administration (“FDA”) concluded that CBD should be descheduled but felt forced to recommend rescheduling the plant to Schedule V of the Controlled Substance Act to comply with international treaties to which the U.S is a party. Nonetheless, the FDA specified that if treaty obligations were to no longer require control of CBD that its recommendation would need to be promptly revisited.

Accordingly, the potential recommendation by the ECDD to remove cannabis from international control would create wide-ranging implications for the global effort to legalize the plant, including in the U.S. But for now, we must wait patiently for the ECDD’s recommendation to the CND, which is scheduled to be discussed and to go up for a vote in March 2019. The delay is frustrating, although we are encouraged to see that the U.N. continues to take a hard look at cannabis. Sit tight.

cannabis marijuana FDALast Wednesday, the Food and Drug Administration (FDA) announced it was seeking public comments regarding “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use ….” of cannabis and other substances currently under international review. If you want to take FDA up on its offer, go here.

The FDA’s announcement was released as the World Health Organization (“WHO”)’s Expert Committee on Drug Dependence (“ECDD”) prepares to discuss the medical and legal status of cannabis in a November meeting in Geneva, Switzerland. Specifically, the ECDD is evaluating whether to recommend that certain international restrictions be placed or removed on the plant.

As we have previously discussed (here and here), marijuana is currently classified as a Schedule I substance under U.S. federal law and international drug treaties. Schedule I drugs, substances, and chemicals are defined as drugs with no currently accepted medical use and with a high potential for abuse. Consequently, nations that are signatories to these international drug treaties are expected to treat cannabis as an illegal substance. However, depending on the outcome of the survey conducted by the ECDD, the November meeting may bring us one step closer to the rescheduling of cannabis, giving signatories the freedom to decriminalize, and possibly legalize, the plant within their own borders.

Legalization advocates are hopeful that a careful review of the medical values of the plant will result in the rescheduling of marijuana. Groups like the Marijuana Policy Project intend to submit scientific and anecdotal evidence detailing the benefits of cannabis. Their optimism is undoubtedly fueled by previous ECDD recommendations to deschedule “preparations considered to be pure CBD,” the non-psychoactive constituent of the cannabis plant, which the ECDD concluded did not appear to have abuse potential nor present a significant risk to the public health.

However, even if the ECDD report were to favor the legalization of cannabis, it would take some time to implement this global reform. In its announcement, the FDA explained that it will not make any recommendations to the ECDD regarding whether cannabis should be subject to international controls at the moment. Instead, it will defer such consideration until the ECDD has made official considerations to the Commission on Narcotic Drugs, which are expected to be made in mid-2019. Moreover, the FDA declared that any position it takes on this issue will be preceded by another Federal Register notice, soliciting public comments.

Of course, the United States could deschedule marijuana before the international community takes that step—after all Canada, Uruguay and Portugal have managed to go around the international ban. According to a recent Fox News interview of Representative Dana Rohrabacher (R-CA), the Trump administration intends to relax federal marijuana laws and regulations after the midterm election.

Rep. Rohrabacher declared he has been “talking to people inside the White House” about ending cannabis prohibition and that he has been “reassured” that the president will stick to his promise to protect state cannabis laws from federal interference.

While it is premature to determine whether the Trump Administration will soon loosen, and possibly legalize, federal cannabis laws, it is clear that the international effort to study the medical and legal status of cannabis are promising steps.

U.S. border policy on Canadians and marijuana is tough.
On the eve of the Canada’s cannabis legalization, the U.S. Customs and Border Protection (“CBP”) held a teleconference to explain the agency’s enforcement policy and field questions from journalists.

The on-the-record teleconference featured the head of the CBP’s Office of Field Operations, which has a staff of 28,000+ employees and an operating budget of $5.2 billion to oversee the agency’s operations at 328 ports of entry and air preclearance locations worldwide.

CBP officials confirmed that U.S. government policy remains unchanged in the face of cannabis legalization in Canada: past use of, and any affiliation with, cannabis is grounds for getting a lifetime ban from entering the U.S. without a waiver, as explained in a previous post.

The key takeaways from the teleconference are as follows:

  • Possession: Individuals attempting to cross the Canadian-U.S. border while possessing marijuana are subject to arrest and prosecution. If prosecution is deferred, the individual is potentially subject to a fine of $5,000.
  • Amnesty or Pardon for Past Use: U.S. law will not recognize any amnesty or pardon by Canadian authorities for cannabis-related convictions. Admitting to a CBP officer that you used marijuana any time before legalization is the equivalent of a formal court conviction for that crime and you will likely be denied entry into the United States.
  • Cannabis Industry Workers: Those who legally work in the Canadian cannabis industry must provide details about their role and convince U.S. border officers that their trip to the U.S. is purely personal. Cannabis workers will likely need to prove that while in the U.S., they will not engage in any networking or strategic meetings, presentations, marketing efforts, or any manufacturing or distribution activities with customers or cannabis industry colleagues.
  • Cannabis Investors: Investors who knowingly financed and furthered the growth of the cannabis industry will almost certainly be denied U.S. entry and they risk a lifetime ban. Exceptions to this rule may be made for individuals whose mutual fund investment portfolio happens to have, without their knowledge, some stock in cannabis companies.

There appears to be some latitude at the border for occasional users of marijuana who start using marijuana post-legalization, and can demonstrate to the CBP officer’s satisfaction that they will not consume marijuana while in the U.S., even in states that have legalized it. Testing this theory, however, is for the brave who will put their hand in the crocodile’s mouth after being told that the crocodile does not bite.

canada cannabis marijuana

 

Congratulations to all of our Canadian readers! Today is the big day!

Whether you are a cannabis business owner, consumer, lawyer, doctor, advocate, or even an opponent, you can surely appreciate this historic day. Canada has bucked international trends and become the first North American country to legalize recreational, adult-use marijuana.

Canada has instantly become an international leader in marijuana policy. If states like Washington, Oregon, and California are any indication, there will surely be bumps along the way, but Canadians should be excited about what comes next.

For those celebrating today, be safe and enjoy responsibly!

For more on Canadian cannabis, check out these posts: