Cannabis

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Recently, the City of Denver’s Department of Public Health and Environment (DDPHE) ordered, among other things, the destruction of Titan Health LLC’s (Titan Health) marijuana plants that it deemed to “hav[e] evidence of spider mite influx.” Titan Health appealed the DDPHE’s Notice of Violation (NOV), not only due to the lack of evidence warranting such an extreme remedy, but also because the NOV exceeded the City of Denver’s authority.[1] In fact, according to Titan Health, Colorado state law specifically preempted the NOV. While the merits of the appeal were not ultimately heard, this case exemplifies the importance of understanding state preemption and the limitations placed on localities’ authority.

The principle of open government is foundational to a healthy democracy, and the availability of government records upon request from the public is one of its chief cornerstones. In the U.S., the primary mechanism by which the public gains access to government records is the Freedom of Information Act (FOIA).[1] FOIA serves as a pivotal tool for ensuring governmental transparency by allowing the public to make requests to governmental entities to access specific government records.

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.[1]

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.

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.