oregon flag cannabis

The Agriculture Improvement Act of 2018 (2018 Farm Bill) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (CSA) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (USDA) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.

This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (Hemp CBD). Today we turn to Oregon.

Oregon was one of the first states to allow the production of industrial hemp following the enactment of the 2014 Farm Bill. Pursuant to Chapter 571 of the Oregon Revised Statutes, the Oregon Department of Agriculture (“ODA”) oversees the cultivation and processing of industrial hemp, Hemp CBD products, and commodities. Any grower or processors (known as “handlers” in the state) must secure a license from the ODA and comply with comprehensive reporting, recordkeeping and total THC testing requirements.

Oregon is also one of the states that have interpreted the 2014 Farm Bill to allow for the commercial sale of industrial hemp and Hemp CBD products, including products intended for human consumption. “Consumption” means “to ingest, inhale, topically apply to the skin or hair.” This means that Oregon permits the sale and marketing of Hemp CBD foods, non-alcoholic beverages, dietary supplements, cosmetics and smokables so long as they contain no more than 0.3% total THC and are free of certain chemicals.

Another unique aspect of Oregon hemp law is that it provides an opportunity for ODA-licensed growers and handlers to sell and transfer their products to the state’s marijuana recreational market so long as they satisfy certain licensing, testing, labeling and recordkeeping requirements.

Although the hemp rules only regulate the production and sale of hemp and Hemp CBD products within the state, ODA-licensed growers and handlers are free to sell or transfer these products outside of the state so long as they contain no more than 0.3% total THC. Under Oregon law, the exportation (and importation) of hemp and Hemp CBD products containing more than 0.3% total THC is strictly prohibited. This means that out-of-state growers, processors, manufactures and distributors wishing to sell their Hemp CBD products in Oregon must also ensure compliance with Oregon’s total THC testing standards before their product cross state lines. Violating this law is a Class C felony.

When it comes to transportation, the ODA rules mandate that any industrial hemp or industrial hemp seeds transported within the state be accompanied by a copy of the hemp registration and a copy of the pre-harvest test results that corresponds to the harvest lot in transit.

Earlier this year, the ODA submitted a plan to the U.S. Department of Agriculture to oversee the production of hemp under the 2018 Farm Bill. However, the Oregon agency ultimately decided to continue operating its hemp program under the 2014 Farm Bill. Therefore, the requirements currently imposed on hemp stakeholders will remain in place until October 30, 2020.

Currently, the Oregon legislature is technically still in session: we previewed Senate Bill 1561 and the other hemp-related draft bills here. Unfortunately, the session is now hanging by a thread due to a controversial walk out, and there is a chance we don’t see a state hemp plan for commercial production and sale, a state hemp commission, or any of the other hemp-related proposals that seemed to have real legs before the session.

For more updates on Oregon’s Hemp CBD laws, stay tuned to the Canna Law Blog. And for previous coverage in this series, check out the links below:

unfair competition california cannabis

Welcome to the final post in our litigation series on California cannabis claims. For our last post, we’ll be touching on California’s Unfair Competition Law.

Introduction

California’s “Unfair Competition Law,” also known as the Unfair Competition Act, Unfair Business Practices Act, or the Unfair Practices Act, is codified at Business & Professions Code § 17200, et seq. As its name suggests, it generally prohibits “any unlawful, unfair or fraudulent business act or practice.” If this seems a little ambiguous or vague, that’s exactly the point – it’s purposefully written in “sweeping language” to prevent “anything that can properly be called a business practice and that at the same time is forbidden by law.”

Statute of Limitations

An Unfair Competition Law (“UCL”) claim must be initiated within four years.

Elements of an Unfair Competition Claim

There are five elements to any UCL claim:

  1. Proper Parties. Any person may sue or be sued under the UCL – that includes corporations, partnerships, associations, or other organizations of people.
  2. Parties may sue only if, as a result of the unfair competition they claim, they have (1) suffered injury in fact, and (2) lost money or property. “Injury in fact” requires an actual, legally protected interest that is invaded in a concrete and particularized way. A plaintiff can also establish “lost money or property” in a number of ways other than straight economic loss, such as acquiring less in a transaction than a plaintiff otherwise would have or having a present or future interest diminished.
  3. Enumerated violation of the UCL. There must be an unlawful, unfair, fraudulent business act or practice:
    • Unlawful: claims based on the “unlawful” prong of the UCL use other laws and assert that violation of those other laws is actionable under the UCL. The plaintiff must allege: (1) the specific violation, (2) that the unlawful conduct is a “business practice” of the defendant, and (3) as a result of this practice, the defendant received ill-gotten gains (like the plaintiff’s money and/or property).
    • Unfair: this is more nebulous, but the California Supreme Court has defined “unfair” as “conduct that threatens an incipient violation of an antitrust law … or otherwise significantly threatens or harms competition.”
    • Fraudulent: this is also somewhat nebulous, but a defendant violates the “fraudulent” prong of the UCL when it engages in conduct by which “members of the public are likely to be deceived” based on an objective, reasonable person standard.
  1. There must be a causal link between the alleged unfair competition and the plaintiff’s injury.
  2. And finally, the plaintiff must have sustained harm as a result of the defendant’s actions.
Remedies

Unlike most other claims, UCL claims do not provide for compensatory or punitive damages. Instead, UCL claims authorize the court to:

  1. Order injunctive relief. The Court can issue an order enjoining (stopping) any business practice that is found to violate the UCL. Sometimes, the Court will seek to enforce this by also appointing a receiver.
  2. Order restitution. The Court can order the defendant to “restore” the money or property that was acquired by the defendant’s violation. The point of restitution is to restore the status quo.
Conclusion

And that’s a wrap on our five-part series! If you’re interested in getting a quick rundown on the other popular California cannabis claims, those links are below. As always, if you have any questions on these or other claims potentially available to you, don’t hesitate to reach out to our Litigation Team.

cannabis appellation california

On February 20, 2020, the California Department of Food and Agriculture (CDFA) released its proposed regulations for the Cannabis Appellations Program, something that many cultivators have been anticipating since the inception of the Medicinal and Adult Use Regulation and Safety Act (MAUCRSA).

We’ve written about appellations and their applicability to cannabis before, but a quick refresher is warranted. For the uninitiated, an appellation is a geographical name (as of a region, village, or vineyard) under which a winegrower is authorized to identify and market wine. But appellations are used for more than just wine. In France, for example, the Appellation d’Origine Contrôlée (AOC) is a certification given to certain French geographical indications for wine, cheese, butter and other agricultural products.

Certifying the geographical origin of certain products stems from the concept of terroir, which is the set of environmental factors that affect a crop’s unique flavor, aroma and other characteristics. Some great examples of this are Champagne, which is produced from the Champagne region grape grown on specific parcels in the Champagne appellation, and Camembert cheese, which is protected by a designation of origin that requires production in Normandy. Tequila and Mezcal also must come from a particular region. Consumers are becoming increasingly conscientious about where their food comes from and how it’s produced.

A number of cannabis cultivators in the Emerald Triangle proposed the “Mendocino Appellations Project” a few years back, but MAUCRSA, via Business and Professions Code Section 26063(b), required the CDFA to develop the process by which state-licensed cannabis cultivators may establish appellations of origin by January 1, 2021. The CDFA’s proposed regulations lay out the process for establishing cannabis appellations of origin and provide additional clarification on the use of county of origin.

Some of the requirements for cannabis advertising laid out in the proposed regulations are as follows:

  • “Cannabis shall not be advertised or marketed containing any statement, design, device, or representation which tends to create the impression that the cannabis originated from a particular county or appellation of origin, unless the label of the advertised product bears that county of origin or appellation of origin.”
  • “A country of origin, appellation of origin, or any similar name that is likely to mislead consumers as to the kind or origin of the cannabis shall not be used in the labeling of cannabis unless:
    • One-hundred percent of the cannabis was produced in the named county or appellation of origin;
    • Records demonstrating compliance with subdivision (b)(5)(A) of this section have been retained by the licensee pursuant to section 8400 of this chapter; and
    • Within 30 days of the use of an appellation of origin, Notice of Use of the appellation of origin has been filed with the department pursuant to section 8212.1 of this chapter.”
  • “For purposes of labeling and packaging using a county of origin or appellation of origin, cannabis is produced in a county or appellation of origin if all cultivation as defined in Business and Professions Code, section 26001, subdivision (l), starting from the time the cannabis plants were taller or wider than 18 inches, was conducted within the county or appellation of origin and according to any applicable standard, practice, and cultivar requirements.”

In addition, licensees must submit a Notice of Use to the CDFA for use of an Appellation of Origin that includes the licensee’s name and license number, contact email address, appellation of origin used, and the date on which use of the appellation will commence. Each Notice of Use is goods for three years.

In order to establish an Appellation of Origin, a petition must be submitted to the CDFA with a “general description and location of the proposed geographical area which may include information such as total acreage of the area, total canopy acreage within the area that is currently occupied under licensed commercial cannabis cultivation, and estimated cannabis canopy acreage eligible to use the proposed appellation of origin.” Petitioners must also include a description and evidence of distinctive geographical features affecting cannabis cultivation in the area, an identification of all standard, practice, and cultivar requirements of the proposed appellation, as well as a description and evidence of the “legacy, history, and economic importance of cannabis cultivation in the area.”

We expect that most petitions will encompass geographical areas in the Emerald Triangle, but expect to see appellations established throughout the state. Comments on the proposed regulations may be submitted until Monday, April 6, 2020, via email to CDFA.CalCannabis_Appellations@cdfa.ca.gov, via mail, or in person at the public hearing on Tuesday, April 14, 2020, from 1pm to 3pm, in the CDFA Auditorium at 1220 N Street, Sacramento, CA 95814.

usda fda cbd

According to Hemp Industry Daily reporter Laura Drotleff, it  was an eventful week for hemp regulation at the National Association of State Department of Agriculture (NASDA) meeting in Arlington, Virginia. Drotleff reported on two major developments at NASDA. These developments came from the Food and Drug Administration (FDA) and the US Department of Agriculture (USDA), respectively, which are the primary regulators of hemp and its derivative products. Both are analyzed below.

FDA Changing Its Tune on Hemp CBD?

FDA Commissioner Stephen Hahn, M.D., said that the agency is working towards regulating hemp-derived CBD (Hemp CBD) products and admitted that the agency’s approach to Hemp CBD is not sustainable:

We’re not going to be able to say you can’t use these products. It’s a fools errand to even approach that[.] We have to be open to the fact that there might be some value to these products and certainly Americans think that’s the case. But we want to get them information to make the right decisions.

Finally! The FDA is finally taking a rational approach to Hemp CBD. This is a major departure from the FDA’s recent messaging on Hemp CBD and it’s coming from the head of the agency.

It was only three months ago, on November 25, 2019, that the FDA sent out a whopping 15 warning letters to companies selling CBD and issued a consumer update stating that CBD was dangerous and could harm people before they even knew the harm occurred. Now, Dr. Hahn is admitting that the agency sees value in Hemp CBD and wants to make sure that consumers get enough information to make the right decision. Good! That’s what the FDA should be doing instead of constantly repeating that most Hemp CBD products are unlawful.

Now I know what you’re thinking: Aren’t you getting a little over-enthusiastic about a single statement on Hemp CBD? It’s not as if the law has changed or the FDA’s actually issued any regulations on Hemp CBD. Plus, hasn’t the FDA made positive statements on Hemp CBD before?

Yes, it’s true that Dr. Hahn has not established a regulatory framework for Hemp CBD with his statements, or convinced Congress to alter the Food, Drug and Cosmetic Act (FDCA) to accommodate Hemp CBD. It’s also true that before leaving his post, former FDA Commissioner Scott Gottleib, M.D., testified to Congress that “[w]e believe [CBD] does have therapeutic value and has been demonstrated[.]” That being said, there is reason to be excited the statements made in Arlington because of who said it and who heard it.

Let’s start with Dr. Hahn. The FDA’s issue with Hemp CBD stems from the FDCA’s “Drug Exclusion Rule” which, simply put, means that an article that has been approved or investigated as a drug cannot be a dietary supplement or be added to food unless the article was marketed as a supplement or food before it was investigated. CBD has been approved as an article in the drug Epidiolex and the FDA does not believe that CBD was marketed as a food or supplement prior to that investigation. But, the FDCA grants the FDA Commissioner can override the Drug Exclusion Rule by issuing “a regulation, after notice and comment, finding that the article would be lawful under [the FDCA].”  As head of the FDA, Dr. Hahn has the ability to regulate Hemp CBD so his statements are important.

Now, let’s talk about the audience which was made up of representatives from state departments of agriculture across the country. We’ve been doing a series on how states treat Hemp CBD and if you’ve been following it you know that states have been struggling to regulate Hemp CBD in light of the FDA’s position. Some states have regulated Hemp CBD despite the FDA’s slow movement, others are locked into the FDA’s policy, banning Hemp CBD in foods and dietary supplements. Many are somewhere in between, trying to figure out how the FDA will act. A positive statement like this from Dr. Hahn, made directly to the NASDA is likely to have ripple effects on enforcement policies across the state. This doesn’t mean that everything will change overnight, but I think it does portend a change in Hemp CBD policy across the US.

USDA Ditches DEA Registration

Drotleff also covered a very promising statement from USDA Undersecretary Greg Ibach, who told the NASDA that the USDA has reached an agreement with the Drug Enforcement Agency (DEA) to remove the requirement that only DEA-registered labs test hemp for THC. The DEA wrinkle was not part of the 2018 Farm Bill but was included in the USDA’s interim hemp rules issued in October.

Update: Drotleff’s story was updated on February 27 to clarify that DEA registration will not be required in 2020, but DEA expects states to work with its labs in the 2021 season.

The DEA registration was widely opposed by the agriculture community. Requiring DEA registration on all labs testing hemp creates a huge potential for a bottleneck as all hemp must be tested 15 days before harvest and there are less than 50 DEA-registered labs that could even undertake these tests. Many state departments of agriculture saw this as such a burden that they decided not to even submit a hemp cultivation plan to the USDA, electing to run out the clock with the 2014 Farm Bill, which expires October 31, 2020, rather than operate under the USDA’s interim rules and 2018 Farm Bill. The DEA Registration was a big part of this.

There are still challenges in THC testing, including the need to test for Total THC (delta-9 THC and THCA), which has caused some cultivars of hemp that would have been legal under the 2014 Farm Bill to fail under the 2018 Farm Bill. Still, this is a step in the right direction and quite promising, considering that the USDA will again accept public comments after the 2020 season.

Conclusion

The USDA and FDA are the two federal agencies directing the domestic hemp market. This process is far from over, but the NASDA meeting indicates that policy is moving in the right direction. If nothing else, these agencies are cognizant of how their decisions are perceived by the public and by state regulators. If you’re interested in hemp and Hemp CBD, stay focused on the FDA and USDA and make sure to participate in the public discourse.

hemp cbd united kingdom england

The enactment of the 2018 Farm Bill and the legalization of hemp and hemp derivatives, including cannabidiol (“CBD”), has led to a massive CBD craze in the United States. The highly coveted cannabinoid is infused with everything: bath bombs, dog treats and even workout clothes (yes, workout clothes!). According to a recent study by Cowen, the sales of these products are expected to reach $16 billion by 2025.

Thanks to globalization, this sudden boom is not contained within the U.S. borders. Europe has also experienced a huge uptick in the sales of these products, which are expected to reach nearly $1.7 billion by 2023.

In light of this global expansion and the desire of many of our clients to export their hemp and hemp-derived CBD (“Hemp CBD”) products to Europe, we are presenting a mini-series that briefly analyses how certain European countries treat hemp and the sale and marketing of hemp-derived CBD. We begin by analyzing the laws of the United Kingdom (“UK”).

Hemp

Because industrial hemp falls under the definition of genus Cannabis, UK law treats it as a controlled drug in Class B of The Misuse of Drugs Act 1971 (“MDA”) and Schedule 1 of The Misuse of Drugs Regulations 2001 (“Regulations”). Under these Regulations, a license must be issued in order to lawfully cultivate the crop.

As a former European Union member, the UK limits the lawful cultivation of hemp strains to those found in the European Commission’s catalogue, all of which produce no more than 0.2% THC. Generally, UK law also requires that hemp from “third countries”’ be imported under a license.

Although hemp cultivation is lawful, UK farmers are prohibited from processing hemp flowers and leaves, where the highest CBD content can be found. Consequently, the processing of hemp into CBD oil is not permissible, forcing the country to heavily rely on the importation of CBD to sustain the market. In addition, the sale of CBD flowers and buds is strictly prohibited in the country even if the THC concentration is below 0.2% and from EU-approved origin.

Hemp CBD Products

In the UK, Hemp CBD products may be commercially sold so long as they:

  1. contain no more than 1 mg (0.1%) of THC and/or of any other controlled cannabinoid, such as THC-V; and
  2. make no health claims about their therapeutic values.

Other requirements may apply based on the category of products at issue.

Hemp CBD Foods

As we recently discussed, the Food Standard Agency (“FSA”), the agency responsible for protecting public health in relation to food in the UK, recently cleared a path for the sale of Hemp CBD food. Specifically, the FSA is giving the CBD industry until March 31, 2021 to submit valid novel food authorization applications to ensure these products meet specific safety standards. Following the March 31, 2021 deadline, only products for which a valid application has been submitted will be allowed to remain on the market. Therefore, for now, the sale of CBD-infused foods is lawful in the UK so long as these products are:

  1. Properly labeled, including free of health claims;
  2. Safe to consume; and
  3. Only contain low/negligible amounts of THC or other controlled substances (i.e., no more than 1 mg).

Hemp CBD Cosmetics

There are no regulations that pertain to the sale and marketing of Hemp CBD cosmetics in the UK. However, even following its exit from the EU, the country strictly regulates the sale of all cosmetics pursuant to the EU Cosmetics Regulation. For more information on these regulations, you can visit the Cosmetic, Toiletry and Perfumery Association (“CTPA“), the trade group that aims to regulate the cosmetic industry and educates consumers about the safety of these products.

Hemp CBD Vape Products

Similarly to US regulations, vape products may be subject to regulation by various governmental agencies depending on their purpose, how they are being used, and whether they contain nicotine and/or tobacco. As of now, no agency has issued Hemp CBD regulations for the sale and marketing of vaping products. All we know, thanks to the Medicines and Healthcare products Regulatory Agency (“MHRA”), is that Hemp CBD vaping products are “less tightly regulated” and that these products should not contain any health claims.

Hemp CBD Pet Foods and Products

Hemp CBD Pet food and pet products are treated as veterinary medicines and thus would require a license before they can be lawfully sold in the UK. There are currently no Hemp CBD products licensed for veterinary use, which means the sale and marketing of these products is unregulated at best, and unlawfully at worse.

So, unlike in the US, the sale and marketing of Hemp CBD foods is the safest category of products a CBD company may sell right now given the fairly clear regulations implemented by the FSA – assuming their products meet all requirements imposed on these products, including no more than 1 mg THC per product.

california cannabis intentional interference litigation

Welcome back to our litigation series on California cannabis claims. Today, we’ll be discussing intentional interference or “tortious interference” – which may apply to your situation if you find that a third party is improperly interfering with you and your contractual relationships.

Introduction

This claim stems from California’s basic recognition that contractual relationships are worthy of protection from the acts of third parties. Therefore, any third party that intentionally seeks out to disrupt or otherwise interfere with an existing contractual relationship can be liable for the damage that results from interference.

Statute of Limitations

The statute of limitations on an intentional interference with contractual relations is two years. That clock starts ticking on the date of the third party’s wrongful act or, if unknown, no later than the date the contract is breached as a result of the tortious interference.

Elements of an Intentional Interference with Contractual Relations Claim

The elements of a cause of action for intentional interference with contractual relations are:

  1. A valid contract: a valid agreement must exist between the plaintiff and a third party.
  2. The defendant is not itself a party to the contract: this claim only applies to a third party that isn’t involved in your contractual relationship. Courts are somewhat vague about how distant that third party needs to be, but generally, the third party cannot be a party or an agent of a party to the contract. On the other end, the third party doesn’t have to be a total stranger either – it can have some kind of relationship to the contracting parties. This is a determination of facts made on a case by case basis.
  3. The defendant has knowledge of the contract: pretty basic, but the third party has to know the contract exists. (This is because of the next element, intent.)
  4. The defendant has intent to interfere with the contract: the third party’s acts must have been “designed” to induce a breach or other interference with the contract. Note: intent can be inferred if the third-party’s conduct was “substantially certain” to cause interference.
  5. A breach or interference of the contractual relationship: there must be a breach of, or interference with, the contractual relationship between the parties. Even making either party’s ability to perform the terms of the contract more burdensome or costly will qualify – you don’t need to show that the third party’s action resulted in a total breach of the contract.
  6. Causation: the plaintiff has to show that, but for the third party’s interference, the contract would have been performed.
  7. Damages/harm: finally, the plaintiff has to show actual damages that resulted from the interference.

Remedies

Two types of damages are available here:

  • Compensatory damages: the plaintiff can potentially recover all damages flowing from the third party’s interference, including expenses, lost profits, and prospective profits. Again, lost and future profits are only recoverable when “their nature and occurrence can be shown by evidence of reasonable reliability.”
  • Punitive damages: if the plaintiff can show by clear and convincing evidence that the third party acted with “oppression, fraud or malice,” punitive damages are recoverable as well.

We’ll be wrapping up this series with our final claim, violation of California’s Unfair Practices Act, shortly! For previous posts in this series check out the following:

psilocybin california mushrooms

Psilocybin has been in the news with increasing frequency as research into psychedelic therapy has proliferated, and a number of local jurisdictions, including the cities of Oakland, Denver, and Santa Cruz have decriminalized psilocybin to varying degrees. Much like cannabis, public perception of certain psychedelics like psilocybin is shifting rapidly, as people really the incredible potential for therapeutic benefits of entheogenic plants.

Last November, proponents (Decriminalize California) submitted the California Psilocybin Decriminalization Initiative 2020, which seeks to “decriminalize psychedelic mushrooms in California by submitting a citizens initiative to be placed on the ballot for the November 3, 2020 election, to the Office of the Attorney General.” In order to make it on the ballot, the initiative will need 623,212 valid signatures and in order to pass, it will need a 50% +1 vote. According to Decriminalize California, the current timeline for the initiative is as follows:

  • Submitted to the Office of the Attorney General on 1st November 2019.
  • 30 Day Public Comment period ended on 4th December 2019.
  • Received Title, Summary, and Fiscal Impact Reportfrom the Office of the Attorney General on 8th January 2020.
  • Currently: Eligible for signature collection.

The drafters of the current iteration of the initiative cite the following findings and declarations:

  • No one should be in prison for using Magic Mushrooms.
  • No families should be separated for using Magic Mushrooms.
  • Magic Mushrooms have been safely used for thousands of years for spiritual and religious purposes.
  • Taxing Magic Mushrooms will generate money for the State.
  • Regulating the sale of Magic Mushrooms will take money away from gangs and drug cartels.
  • Denver and Oakland have decriminalized Magic Mushrooms.
  • Magic Mushrooms are much safer than caffeine, nicotine, and alcohol. A 2010 analysis of the harms associated with the war on drugs found Mushrooms to be the safest of all twenty drugs studied.
  • The FDA designated Psilocybin (the main component of Magic Mushrooms) as a Breakthrough Therapy for treatment-resistant depression and major depressive disorder.
  • Research conducted by the Beckley Foundation has found Magic Mushrooms to be a safe and effective treatment for severe and treatment-resistant depression, anxiety in terminally ill patients, and nicotine addiction.

The initiative proposes amendments to the Health and Safety Code that would implement a regulatory framework for the “cultivation, processing and distribution of Psilocybin Mushrooms and the chemical compounds contained therein for personal, spiritual, religious, dietary, therapeutic, and medical use.” Many of the purposes cited in the proposed legislative language mirror the concerns of former U.S. Attorney General James Cole in his oft-cited 2013 Cole Memo related to the legalization of marijuana, including preventing distribution to minors, preventing cartels, gangs, and criminal enterprises from benefiting from legalization, preventing impaired driving, etc. But the drafters have contemplated some other purposes to this legislation, including, perhaps most importantly, supporting the therapeutic and medical research of Psilocybin.

Some other highlights from the initiative:

  • Taxes on Psilocybin Mushroom businesses could not exceed the amount charged or assessed for comparable non-Psilocybin Mushroom businesses.
  • Psilocybin Mushroom businesses should be regulated as closely as possible to other agricultural businesses, except for age restrictions and potency testing.
  • Psilocybin-assisted psychotherapy could be provided by mental health professionals with specialized training in psychedelic-assisted therapy and a license to administer Psilocybin and the California Department of Public Health (CDPH) would work with research institutions to develop protocols for healthcare worker engaged in such therapy.
  • There is a possibility for local jurisdictions to “opt out.”
  • Protections would be in place for employees who utilize psilocybin.
  • Legislation would be established to expunge the records of non-violent prisoners convicted of buying, selling, growing, manufacturing, or possessing Psilocybin Mushrooms.

If you’re interested in learning more about this initiative, or in signing the petition, visit Decriminalize California’s website here. In the meantime, for more on psilocybin, check out the following posts:

The Agriculture Improvement Act of 2018 (2018 Farm Bill) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (CSA) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (USDA) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.

This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (Hemp CBD). Today we turn to Oklahoma.

In April 2018, shortly before the passage of the 2018 Farm Bill, Oklahoma enacted the Oklahoma Agricultural Industrial Hemp Pilot Program (OAIHPP). The Oklahoma Department of Agriculture, Food, and Forestry  (ODAFF) passed temporary rules in May of 2018.

At the time that the OAIHPP was established, the 2014 Farm Bill governed hemp and Oklahoma’s program reflects that. According to ODAFF’s website, “a farmer wishing to grow industrial hemp must establish a relationship with a University or college that belongs to the Oklahoma State System of Higher Education and has a plant science curriculum. Once the farmer has a relationship with a University or College they can apply to the Department to receive a license for each cultivation site.”

In April 2019, Oklahoma passed Senate Bill 868, which directs ODAFF, in consultation with the Governor and Attorney General to submit a hemp cultivation plan to the USDA to bring the state’s hemp program in compliance with the 2018 Farm Bill.  According to the USDA website, Oklahoma is currently drafting a hemp cultivation plan.

When it comes to Hemp CBD there is yet another piece of recent legislation in the mix:  Senate Bill 238 which passed in May 2019.  Products containing Hemp CBD, other than pharmaceuticals approved by the FDA (i.e., Epidiolex), must include the following on the label:

  1. The country of origin of the cannabidiol; and
  2. Whether the cannabidiol is synthetic or natural.

SB 238 also states that, “retail sales of industrial hemp and hemp products may be conducted without a license so long as the products and the hemp used in the products were grown and cultivated legally in this state or another state or jurisdiction and meet the same or substantially the same requirements for processing hemp products or growing hemp.” This appears to indicate that Hemp CBD sales in Oklahoma are OK (apologies, I had to have at least one shameless pun).

SB 238 also states that the addition of hemp derivatives, including Hemp CBD, does not make “cosmetics, personal care products, and products intended for human or animal consumption” adulterated. A license is not required to manufacture Hemp CBD products. However, SB 538 does not “exempt any individual or entity from compliance with food safety and licensure laws, rules and regulations as set forth under the Oklahoma Public Health Code.” That clarification does not explicitly mention the Food, Drug and Cosmetic Act or FDA regulation meaning that Oklahoma has left the door open to Hemp CBD products that the FDA opposes, such as foods and dietary supplements.

Oklahoma is still working on its hemp cultivation plan. It may not have the most robust Hemp CBD regulations but SB 238 at least addresses Hemp CBD, which is more than many other states can say.

For previous coverage in this series, check out the links below:

Michael Bloomberg

Last fall, we ran a 13-part series taking a hard look at each of the 2020 presidential candidates’ history and views related to marijuana. We assigned each candidate a letter grade corresponding with our analysis (for the final summary post, go here). In that popular series, grading criteria was as follows:

  • Current stance on marijuana: What have they recently said about marijuana legislation? When did they adopt this stance? We awarded higher grades to candidates who currently support legalizing marijuana and even better grades if they have openly supported legalization for more than just the past couple years.
  • Website and social media: Did the candidate include marijuana on their website? How often do they mention marijuana on social media? We used the candidates’ websites and social media as a litmus test of their dedication to the legalization of marijuana. While most candidates have expressed support for legalization, some only speak on the issue when prompted or have very few statements on the matter. If a candidate does not actively advocate for marijuana, we doubt their conviction.
  • Past legislative history: How many marijuana-related bills did this candidate introduce, sponsor or sign? Did this candidate legislate the War on Drugs? How much opportunity did this candidate have to legislate bills? We considered the legislative history of each candidate to determine whether they would be likely to take real action to legalize marijuana as president.
  • Past rhetoric: What has the candidate said about marijuana over the course of their political career? What about the War on Drugs? The views of most candidates have evolved over time, but we gave lower grades to candidates with a history of strong anti-marijuana remarks.

Many candidates have since dropped out of the race, but a handful remain. After we concluded the series, businessman and former NYC mayor Michael Bloomberg announced his entry in to the race. Bloomberg’s summary is below.

Grade: D-

Stance on marijuana: This past December, Bloomberg’s campaign told the Wall Street Journal that he supports the decriminalization of marijuana. However, he does not mention marijuana reform on his social media nor on his campaign website. Bloomberg’s website paints the former NYC mayor as a long-time advocate for criminal justice reform, but his past rhetoric and legislative history tell a much different story.

History with marijuana legislation: In 2001, Bloomberg was elected mayor of New York City as a Republican. He won reelection in 2005 and again in 2009. In 2018, Bloomberg registered as a Democrat and in November of 2019 his announced he was running for president.

The topic of cannabis was first addressed publicly by Bloomberg in 2001, when he was asked in an interview if he had smoked marijuana. Bloomberg replied: “You bet I did. And I enjoyed it.”

Despite this lighthearted admission, Bloomberg was opposed to marijuana legalization throughout the course of his mayoral career, in the past referring to cannabis as a “narcotic”, asserting that it reduces IQ, and refusing to acknowledge the possibility of its medicinal use. His time as mayor also coincided with a spike in arrests for cannabis possession. In fact, the number of arrests for possession under Bloomberg exceeded that of the previous three mayors combined. In 2011, Bloomberg also opposed a bill proposed by state senators that reduced the penalty for possession of small amounts of cannabis.

To his credit, Bloomberg softened his stance on marijuana a bit in 2012, when he vocally supported a proposal to end arrests for possessing marijuana in public view. In 2013, the then-mayor also supported a proposal that would change marijuana possession from a misdemeanor to a violation.

Bloomberg’s presidential campaign website presents his time as mayor as successful at criminal justice reform, citing reduced murder rates and reduced incarceration during his time as mayor. Arguably the most memorable aspect of Bloomberg’s mayorship, however, was the expansion of New York City’s “stop-and-frisk” program, which allowed police officers to detain and search members of the public without probable cause. This policing strategy undoubtedly resulted in many arrests and convictions for marijuana possession.

In 2013, a judge ruled that the implementation of this program by the NYPD to be unconstitutional, as blacks and Latinos were disproportionately frisked. Despite this express finding of racial profiling, Bloomberg long maintained his support for the program, vetoing policing reform bills as mayor and claiming that stop-and-frisk was an effective method of crime reduction years after he had left office. This past November, Bloomberg finally admitted that stop-and-frisk had done more harm than good, but this apology comes far too late.

Conclusion: We award Bloomberg a “D-” grade because he does not support the legalization of marijuana and because of his history of anti-marijuana rhetoric and policies. As mayor of New York, Bloomberg actively obstructed attempts to reform the criminal justice system and fully supported a racist policing tactic, even after a judge ruled that its implementation had been unconstitutional.

california land use

Developers of cannabis projects in California want to turn projects around as quickly and cheaply as possible, and are frequently frustrated by the amount of time, money, and effort required for the entitlement process. On Wednesday, February 26, a panel of real estate development experts will explain the entitlement process in California at a LACBA panel moderated by our own Julie Hamill.

Julie will be joined by:

  • Amy Freilich, Partner at Armbruster Goldsmith & Delvac;
  • Larry Kosmont, CEO of Kosmont Companies; and
  • Corinne Verdery, Chief Development Officer at Caruso.

The panelists will describe the steps that a developer goes through to entitle a project, and how political strategies, community outreach, CEQA, and new development laws play into the process. Theses panelists are working on some of the biggest development projects in Southern California and will share their war stories, successes, and challenges with the audience in a guided discussion followed by audience Q&A.

This panel is for real estate practitioners, land use lawyers, developers, and students eager to learn more about how the mysterious world of land use really works. The panel is not tailored specifically toward the cannabis industry, but will be worthwhile for anyone interested in development in this or any other industry in California. Registration information is available here.