General

Ohio Defines Its Position on CBD

The Ohio Board of Pharmacy declared that over-the-counter sales of cannabidiol (CBD) are illegal, despite the substance’s current widespread availability in grocery, health, and other non-licensed stores across the state.

This means that CBD sales are now only legal in Ohio from state-licensed medical marijuana dispensaries. The problem, however, is that no state medicinal marijuana licenses have yet been issued, even though Ohio approved medical marijuana in 2016, and may not be until 2019, due to the state’s regulatory delays.

“Until dispensaries are operational,” the Board wrote, “no one, including board licensees, may possess or sell CBD oil or other marijuana-related products.” The board issued 56 provisional licenses in June of this year, granting licensees six months to build out their facilities and meet all obligations in state law and rules.

The new guidance means that all products containing CBD must comply with the same rigorous testing procedures and adhere to the same rules as products with real cannabis. Further, any product derived from cannabis must have a “known source,” showing quantities of active ingredients, and CBD must undergo testing in a state-licensed lab. However, no labs that were issued provisional licenses are presently open for business, and … Keep reading

Case Watch: Crimson Galeria Limited Partnership v. Healthy Pharms, Inc.

Recently, in a closely watched cannabusiness case, U.S. District Court for the District of Massachusetts Judge Allison D. Burroughs issued a memorandum and order on motions to dismiss in Crimson Galeria Limited Partnership, et al. v. Healthy Pharms, Inc., et al. [1] For a bit of background, the Plaintiffs are property owners in Cambridge, Massachusetts’ Harvard Square, whose property either abuts or is located within 200 feet of Healthy Pharms’ now-open registered marijuana dispensary. At the time the Plaintiffs filed suit, Healthy Pharms was not open for business, so the Plaintiffs based their claims on the idea that Healthy Pharms’ disclosure of the potential dispensary hurt their property values and interests.

The Plaintiffs alleged that Healthy Pharms’ potential operation diminished the market value of their properties and hurt development opportunities, in their eyes, the RMD made Harvard Square a less desirable location for prospective buyers or renters who “reasonably worry” about “increased crime” and “pungent odors.” The Plaintiffs asserted claims against the “Government Defendants” for declaratory and injunctive relief, arguing that federal law (i.e., the Controlled Substances Act) preempts Massachusetts’ legalization of medical marijuana dispensaries. This was a clear attempt by the Plaintiffs to create a private right of … Keep reading

Judging CBD Products by Their Cover

As the legal cannabis market continues to explode, extract products, in particular, are receiving a lot of attention. Cannabidiol (CBD), for instance, is a cannabis extract widely produced and sold in the U.S., often advertised as having certain medicinal benefits. And while the laws surrounding these extract products can sometimes be cloudy, the regulatory requirements pertaining to their packaging and advertising can create even more confusion.

CBD is a non-psychotropic cannabinoid that can extracted into edibles, oils, tinctures, capsules, and topical creams. Although neither psychoactive nor addictive, and containing only nominal amounts of THC, the DEA ruled in 2016 that CBD is derived from cannabis and is, therefore, classified as a Schedule I drug under the Controlled Substances Act. While many have argued this ruling, a Ninth Circuit court recently upheld the DEA’s decision, and as a result, CBD remains a Schedule I drug at the federal level.

Regarding packaging and advertising, the U.S. Food and Drug Administration, which is responsible for the control and supervision of dietary supplements and over-the-counter drugs (among other things), has only provided a handful of opinions about what is and is not permissible. First, the FDA has affirmatively decided that CBD products may … Keep reading

Cannabis Deal News: Molson Coors Brewing Company Enters into Joint Venture with Medical Pot Distributor

Molson Coors Brewing Company is betting big on the cannabis industry by starting a joint venture with Hydropothecary, an “award-winning medical cannabis producer,” to develop non-alcoholic, cannabis-infused beverages for the Canadian market, in a move that Molson Coors believes will give it a leg up as more countries continue efforts toward legalization.

Last week, Molson Coors said the venture will be a stand-alone startup entity, with its own board (three seats for Molson Coors, two for Hydropothecary) and management team. Molson Coors will hold a 57.5% controlling interest, with Hydropothecary, which now brands itself as HEXO, holding the remaining 42.5%. A chief executive officer is expected to be named in the coming weeks.

As part of the deal, which is expected to close by month-end September, HEXO will issue warrants giving Molson Coors the right to purchase 11.5 million of its shares, at a strike price of $4.62 a share.

Recreational marijuana is slated to become legal in Canada on October 17th, but edible products infused with pot — including beverages — will remain illegal until specific government regulations are rolled out in 2019, at the earliest. Independent research firm Euromonitor International estimates that legal marijuana sales in … Keep reading

U.S. Attorney Lelling's Stance on Marijuana Comes into Sharper Focus

Back in January, on the heels of the Sessions Memo, U.S. Attorney for Massachusetts Andrew Lelling’s affirmation that his “office [would] pursue federal marijuana crimes as part of its overall approach to reducing violent crime [and] stemming the tide of the drug crisis,” coupled with his stated refusal to “provide assurances that certain categories of participants in the state-level marijuana trade [would] be immune from federal prosecution,” led many to wonder what the future of legalized marijuana would look like here in the Bay State. Earlier this month, however, Lelling, Massachusetts’ most powerful federal law enforcement officer, elucidated his position regarding the prosecution of cannabusinesses in the Commonwealth:

Because I have a constitutional obligation to enforce the laws passed by Congress, I will not effectively immunize the residents of the Commonwealth from federal marijuana enforcement.  My office’s resources, however, are primarily focused on combatting the opioid epidemic that claims thousands of lives in the Commonwealth each year.

His focus, he went on say, will be three-fold: overproduction, which “creates the risk of illegal, and lucrative, marijuana sales to users in nearby states where recreational marijuana use remains illegal”; targeted sales to minors, as “study after study confirms that regular … Keep reading

High Hopes and Torched Dreams

This week’s cannabis news was filled with high hopes for some and torched dreams for others. On the one hand, the Food and Drug Administration made history by approving Epidiolex, a cannabis-derived medication used in the treatment of two rare forms of epilepsy. On the other hand, Massachusetts’ Attorney General, Maura Healey, issued a ruling that permits cities and towns in the Commonwealth to extend the temporary moratorium on retail and other marijuana businesses through June 2019—almost a full year past the date approved by Massachusetts voters when recreational sales were to commence. This marked a reversal by Healey, who previously indicated that local freezes could not extend beyond December 31, 2018, due to constitutional concerns.

The Epidiolex announcement cuts at the very argument used by many anti-cannabis activists that all too often focus on the lack of research into cannabis as a reason to uphold its prohibition. In a statement, FDA Commissioner Scott Gottlieb said:

This approval serves as a reminder that advancing sound development programs that properly evaluate active ingredients contained in marijuana can lead to important medical therapies … We’ll continue to support rigorous scientific research on the potential medical uses of marijuana-derived products and

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The West Coast has pioneered the national cannabis industry, with California, Oregon, and Washington leading the way in decriminalization and legalization efforts, and that trailblazing reputation has contributed to the impression that market concentration may be skewed toward the Pacific Ocean. However, it’s companies that have been established in the more restrictive, under-the-radar medical cannabis markets of states like Massachusetts, New York, Pennsylvania, New Hampshire, and Ohio, that may have the best long-term positioning and highest valuations.

The reason for this might be counter-intuitive: West Coast states have been much more liberal in issuing licenses to operate cannabis businesses, which has created a market saturated with retail, cultivation, and processing licenses, which, in turn, has created more competition for increasingly smaller market shares. States on the East Coast typically have stricter rules, and companies there must jump through a number of hoops before being granted a license to operate. So while markets in these states is, therefore, limited, given the relatively few licenses granted and high barriers to entry, there is also less competition than out west. The more highly competitive application process also creates an environment that has resulted in eastern companies being some of the best capitalized … Keep reading

Not all cannabis-related companies are created equal. In fact, in the eyes of state and federal regulators, they differ significantly, depending on whether they “touch” the cannabis plant—and they’re treated accordingly.

The most common types of companies that do touch the plant are the “operators” that are cultivating, processing, or dispensing cannabis or cannabis products. “No-touch” companies generally provide a product or service pertaining to the industry, but avoid direct involvement with the plant itself. Examples include suppliers of cultivation-related products (e.g., fertilizer) and packaging, as well as providers of real estate, consulting, and legal services (like Burns).

The complexity of the regulations that apply to “touch” companies, as well as the rigor with which those regulations are enforced, also serves as a point of differentiation. Each state that has legalized cannabis, whether medicinal or adult-use, has enacted an enormous set of rules that govern its cultivation, processing, and sale. While there is no federal standard, cannabis operators generally need to ensure compliance with stringent guidelines regarding security, waste removal, advertising and branding, and packaging, as examples.

Generally, and unsurprisingly, “touch” companies are viewed by both observers of and players in the space as inherently riskier than their … Keep reading

While trademarks for cannabis products and many accessories are ineligible for federal trademark protection (because such goods are still unlawful at the federal level), the savvy cannabusiness operator should nevertheless approach their branding strategy thoughtfully and engage in some investigation into potential trademark conflicts before adopting a new brand or business name.

Importantly, trademark conflicts are not restricted to simply using the identical mark of a competitor. Instead, they generally turn on whether use of the mark is “likely to cause confusion” in the marketplace. In other words, if it is likely that consumers will assume a relationship between you and the senior trademark owner.

Earlier this year, for example, Woodstock Ventures LC filed suit against Woodstock Roots, LLC on the basis of trademark infringement. Since 1969, Woodstock Ventures has produced the annual WOODSTOCK®-branded music festival in New York. In the intervening years, the company has expanded its offering to include audio records, movies, clothing, and other promotional merchandise, all offered under the WOODSTOCK brand. It holds federal trademark registrations for these goods and services, all of which, on their face, have no obvious relationship to cannabis goods. However, and as Woodstock Ventures readily concedes and, in fact, boasts … Keep reading

This year is primed to be the cannabis industry’s biggest yet. Almost $3 billion of capital was raised in the first quarter of 2018, more than four times the amount raised in the first quarter of 2017. With the increase in capital investment comes an increase in the sophistication of investors, including institutional ones like venture capital and private equity sponsors.

As more institutional money pours into the cannabis industry, entrepreneurs are being held to higher standards of professionalism, and are now expected to understand basic venture finance and equity structures. Part of this understanding includes preferred equity, which is a general term used to describe any class of securities (e.g., stock, limited liability company [LLC] units, limited partnership [LP] interests, etc.) that has higher priority for distributions of a company’s cash flows or profits than common equity.

In its simplest form, the “preferred” component of the equity represents additional rights and privileges investors receive in return for their investment beyond owning a percentage of the company. In most instances, when a company takes on outside investors, it will have at least two classes of securities: common equity and preferred equity. The common equity will be that owned by … Keep reading