General Cannabis Law News & Updates

As Florida’s 2018 legislative session comes to a close, its time to review legislative changes to Florida’s medical marijuana laws.

First, Florida’s Senate passed HB 6049,  This bill removes the requirement that the Florida medical marijuana license (Florida has a vertical licensing system) reserved for a Black farmer must go to a Black farmer who is a member of the Black Farmers and Agriculturalists Association.

As I explained in my earlier posts (here and here), Columbus Smith, a Black farmer from Panama City, filed a lawsuit challenging the law implementing Amendment Two (medical marijuana) alleging that the law was unconstitutional.

Second, the Florida legislature has withheld funds for the Florida Department of Health (putting the funds in reserve) in an effort to spur the Department of Health to move more quickly on regulations implementing Amendment Two (medical marijuana) which passed in 2016.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

As I’ve posted before, Florida’s implementation of Amendment Two (medical marijuana) does not permit patients to smoke medical marijuana.

Not surprisingly, the ban on smoking of medical marijuana triggered litigation.  Now, that case has been set for a bench trial in May 2018.

The lawsuit seeks a declaratory judgment that the smoking ban is contrary to the amendment’s language, which itself does not expressly say medicinal cannabis can be smoked. The suit is against the Department of Health, which regulates medical marijuana.

 


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Citrus greening, a disease that has been slowly spreading throughout Florida since 2004, has been putting the squeeze on Florida’s key agricultural crop (the citrus industry in Florida is worth $10.7 billion).  Citrus greening impairs the citrus trees ability to produce fruit and eventually kills the trees.  Many Florida citrus farmers are turning to other crops to replace their orange juice and citrus fruit business including olives, hops (for beer), pomegranates, and even pongamia (a type of legume).

Another crop that has been proposed for the Florida agriculture industry as a replacement for oranges is hemp.  Hemp can be used in the industrial market for fibers, rope, construction, paper, insulation materials and clothing.

Hemp was a key crop in the early years of America providing rope, clothing and sail material among other materials.  Hemp was a favored crop because it grew quickly with little cultivation and, even today, can be found growing wild in many parts of the mid-west.  President Thomas Jefferson invented the hemp brake which was used to separate fibers from the stalk of the hemp plant.  It has also been reported that Thomas Jefferson said this about hemp:

Hemp is of first necessity to the wealth and protection of the country.

In 1937, the cultivation of hemp was made virtually impossible with the passage of the The Marijuana Tax Act.   And, hemp was banned for good in 1957 mostly because it looked too similar to marijuana despite the fact that it produces little to no THC.

With medical marijuana and recreational marijuana being legalized on the state level across the country, hemp has also slowly started to make a come back.

In 2017, the Florida Legislature took the baby step of passing Florida Statute s. 1004.4473 which has created an industrial hemp pilot program in Florida.  The pilot program permits the two Florida land grant universities — University of Florida and Florida A&M University — to develop public-private partnerships to produce hemp, analyze results and report back to the Legislature.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Following up on my post from earlier this week, the Florida Senate Health committee unanimously passed SB 1134 which would strip out the requirement that black farmers who want to obtain a coveted medical marijuana license be a member of the Florida Chapter of the Black Farmers and Agriculturalists Association (which has closed its membership).

As I explained in my earlier posts (here and here), Columbus Smith, a black farmer from Panama City, filed a lawsuit challenging the law implementing Amendment Two (medical marijuana) alleging that the law was unconstitutional.

Recently, a Leon County, Florida Judge sided with Smith and granted a temporary injunction in the case, which signals that Smith’s case has a strong likelihood of prevailing in court.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last week, Leon County, Florida Circuit Judge Charles Dodson granted a temporary injunction sought by Columbus Smith regarding a portion of the Florida law passed last year to implement Amendment Two (medical marijuana).  I posted before about Smith’s lawsuit.

The law implementing Amendment Two called for an overall increase of 10 licenses for Medical Marijuana Treatment Center (Florida has a vertical integrated license structure which means licensed Medical Marijuana Treatment Centers grow, distribute and sell medical marijuana) by October 3, 2017.  But, the law also provided that one (1) of those licenses go to a black farmer who had been a party to settled lawsuits (known as Pigford I and Pigford II) regarding discrimination by the federal government against black farmers.  The law also said that the black farmer who receives the medical marijuana license would have to be a member of the Black Farmers and Agriculturalists Association-Florida Chapter.  Mr. Smith had been a member of Pigford I and Pigford II, but the Black Farmers and Agriculturalists Association had closed their membership and would not issue a membership to Mr, Smith.

The Florida Constitution bars “special” laws that relate to a “grant of privilege to a private corporation.”  Mr. Smith’s lawsuit alleged the medical marijuana law violated that part of the Constitution.

In issuing the temporary injunction, Judge Dodson ruled that Mr. Smith has a substantial likelihood of success of proving that the law is unconstitutional.

Plaintiff will likely suffer irreparable harm if this court does not enjoin the department from issuing the black farmer license because the law only applies to members of the association and plaintiff … will not be able to apply or qualify for such a license, because he is not a member of the association.

Judge Dodson’s Court Order also asked both sides to come up with a plan to resolve the issue by June, 2018.

Senate budget chief Rob Bradley, a Fleming Island Republican, said the Legislature will likely strip out the part of the law requiring membership in the association for an applicant to be eligible for the black-farmer license.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

As part of his recent guidance regarding federal Marijuana Enforcement, U.S. Attorney General Jeff Sessions indicated he would place more discretion in the hands of individual federal prosecutors in enforcing the Controlled Substances Act. As we noted in our initial analysis of this decision, businesses would be wise to gain an understanding of the serving U.S. Attorney in their federal district, and whether he or she has made any statements regarding their position on medical or recreational cannabis.

Cannabis and the law
Copyright: jirkaejc / 123RF Stock Photo

While some in the industry are still reeling from the announcement, statements by U.S. Attorneys have given some comfort to licensed business in states where cannabis is legal. The Huffington Post has a good rundown of many such statements, including from federal prosecutors in Alaska, California, Colorado, Maine, Massachusetts, Oregon, and Washington. (Marijuana Industry Not Freaking Out Over Threat Of Federal Crackdown, via Huffington Post).

PennLive also posted a piece highlighting the reactions of several Pennsylvania politicians to the announcement and its effect on the Commonwealth’s Medical Marijuana Program, including that of David Freed, U.S. Attorney for the Middle District of Pennsylvania. Freed stated:

“Having been involved as a state prosecutor in the drafting of that legislation, I believe that there are sufficient safeguards in the law to ensure that the products will be used as intended under the supervision of medical professionals…While I cannot state that there will never be an issue in this area meriting federal involvement, my office has no intention of disrupting Pennsylvania’s medical marijuana program or related financial transactions.”

(While feds say states can’t legalize marijuana anymore, Pa. will leave medical pot alone, via PennLive)

While it is yet unclear how the announcement of Attorney General Sessions, or individual statements referenced above, will affect any future enforcement actions, business should cautiously continue business as usual while always ensuring that all operations remain strictly compliant with the law of your state.


Joseph McNelis works in Fox Rothschild’s Blue Bell, PA office and focuses his practice on labor and employment matters. Joe also tracks legal developments in the cannabis industry in Pennsylvania and nationwide. Joe can be contacted at 610-397-2332 or jmcnelis@foxrothschild.com.

Last Thursday, Attorney General Jeff Sessions issued a policy Memo regarding Marijuana Enforcement that effectively rescinded the 2013 “Cole Memo” guidance, which endorsed a more “hands off” approach in states where marijuana had been legalized. The January 4, 2018 Memo instructed that with regard to marijuana-related enforcement actions, federal prosecutors should “follow well-established principles that govern all federal prosecutions.”

Cannabis and the law
Copyright: jirkaejc / 123RF Stock Photo

This announcement has important implications for licensed cannabis businesses across the country, and attorneys from Fox Rothschild’s Cannabis Practice Group were among the first to provide legal and practical advice for those in the industry. Links to selected publications and interviews can be found below:

AG Sessions Issues Cannabis Policy Reversal. What Does It Mean for the Industry?

First Lawyer Comments Come Through on Sessions Decision To Rescind Cole Memo (via Cannabis Law Report)

Cannabis Law Practices Brace for Impact of Sessions Memo (via Law.com)

Sessions takes aim on marijuana enforcement (via NJBIZ.com)

Bethlehem company gets green light to dispense medical marijuana (via Allentown Morning Call)

 

On January 21, 2017, the Massachusetts Cannabis Control Commission announced that it had approved the first draft of Regulations which will govern the state’s recreational cannabis program, referred to as the “Adult Use of Marijuana Industry.”

Cannabis
Copyright: epicstockmedia / 123RF Stock Photo

These draft Regulations propose 8 different license categories (including Cultivator, Manufacturing, Retail, and Research), establish a robust application process, and set forth detailed requirements for the operation of each type of cannabis-related business. The Regulations can be viewed here.

The Cannabis Control Commission is the regulatory body tasked with implementing and administering Massachusetts’ medical and recreational cannabis programs. In November 2016, the voters of Massachusetts voted 53-46 in favor of a ballot initiative proposing to legalize cannabis for recreational use. Since that time, the five-member Commission has worked to craft Regulations and has sought input from members of the public and the Massachusetts Cannabis Advisory Board through public meeting and forums.

The Commission plans to hold public hearings on the draft Regulations in February and to issue final Regulations by March 15, 2018.