The legal marijuana industry has grown rapidly in the U.S., with 38 states, three territories, and the District of Columbia legalizing its use for medical and/or recreational purposes. However, despite the industry’s growth, marijuana businesses continue to face significant challenges with payment processing and banking, primarily due to the federal prohibition of marijuana. This conflict between federal and state laws has led to an exploration of alternative financial systems, including the use of cryptocurrencies.
Jean focuses her practice on the cannabis industry. She has extensive experience in medical marijuana, retail marijuana, as well as hemp and CBD products. Jean also has substantial experience in trials and administrative hearings, where she has achieved remarkable success in helping her clients succeed in a complex and ever-changing legal landscape.
The cannabis space is young in Virginia, but valuable lessons from the past could provide an edge to those paying close attention.
On October 30, Virginia’s hemp industry suffered an early defeat in its effort to overturn Virginia SB 903, a law that imposed stricter limitations on hemp products than what is currently required under federal law.
The cannabis industry has witnessed significant growth in recent years, marked by the legalization of medical and/or recreational marijuana in 38 states, Washington D.C., and three territories. Alongside this expansion comes the need for robust regulatory frameworks to ensure compliance and safety within the industry. One such regulatory component that has stirred considerable debate over the years is the use of Radio Frequency Identification (RFID) tag technology in state track-and-trace systems. While RFID tags can offer significant benefits to both regulators and business owners when compared to traditional barcodes, the costs imposed on licensed businesses often outweigh the benefits that state regulators receive from requiring the use of the technology. In fact, in the Colorado Department of Revenue – Marijuana Enforcement Division’s (MED) latest draft rules governing the industry, the agency removed references to the requirements for RFID technology, a step that could signal the beginning of the end of state-mandated RFID tracking of cannabis products.
Effective on January 1, 2024, the Corporate Transparency Act (CTA) will require all nonexempt entities to report certain identifying information of its beneficial owners (as defined below) and company applicants (as defined below) to the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN).
Apologies for the cannabis puns in the title, but they are required by law. Okay, you are correct. That is not true. But it is true that trademark protection is important for individuals in the cannabis industry. Earlier this month, Ohio became the 24th state in the U.S. to legalize recreational marijuana. As more states pass laws to legalize marijuana, the conversation returns to the likelihood that Americans might see a law with nationwide reach. A federally applicable law (or lack thereof) becomes significant in the context of obtaining a trademark registration for cannabis products and services. Even if the products or services are legal under state law, the U.S. Patent and Trademark Office (USPTO), which oversees the registration of federal trademarks, requires that use of the mark be federally lawful before it will issue a federal trademark registration.
On October 12, hemp producers and retailers notched an early win in litigation challenging the legality of Maryland’s cannabis licensing program as it applies to hemp. By way of background, the Maryland General Assembly recently passed the Cannabis Reform Act (CRA), after voters gave their stamp of approval to recreational cannabis in the state via a 2022 referendum. Rather than create a separate licensing system for hemp products, the CRA requires anyone selling a “product intended for human consumption or inhalation that contains more than 0.5 milligrams of tetrahydrocannabinol per serving or 2.5 milligrams of tetrahydrocannabinol per package” to be licensed as a cannabis business. “Tetrahydrocannabinol” (THC) is defined to include delta-8, delta-9, and delta-10 THC. This lack of distinction between hemp- and marijuana-derived products results in the inclusion of existing producers and retailers of hemp-derived THC products into the new cannabis program.
As a result of a legal challenge by the Oregon Cannabis Industry Alliance and cannabis cultivators in Oregon, the Oregon Health Authority’s (OHA) aspergillus fungus testing rule for marijuana, marijuana products, and industrial hemp concentrates and extracts has been withdrawn, and 2,500 pounds of marijuana plus 65,000 units of infused pre-rolls that failed aspergillus testing were released from administrative hold.
Though controversial, cannabis has steadily grown into a booming industry. Despite this rapid growth and the legalization of cannabis in numerous states, cannabis is still classified as a Schedule I drug under the Controlled Substances Act (CSA). As cannabis is illegal under federal law, individuals and companies involved or related to the cannabis industry face an uphill battle when insolvency issues arise. Federal forums that traditionally address insolvency matters, such as bankruptcy, have historically been unavailable to those engaged in the cannabis industry, forcing them to seek state-controlled alternatives, such as receivership. However, as more and more states have legalized commercial transactions involving cannabis in some form, bankruptcy courts have begun to adopt two distinct paths: one for individuals and entities directly engaged in growing, processing, distributing, or selling cannabis products, and one for entities that are associated with cannabis more indirectly, which the bankruptcy system recently has been more open to.
On October 2, the Virginia Board of Pharmacy posted a general notice indicating that it had voted to rescind the request for applications (RFA) for a Pharmaceutical Processor license in Health Service Area I. The RFA will now be conducted by the Virginia Cannabis Control Authority (the CCA) sometime after it assumes oversight of the state’s medical cannabis program on January 1, 2024.