Cannabis Law (eBook, ePUB)

A Primer on Federal and State Law Regarding Marijuana, Hemp, and CBD
Redaktion: Cohe, Barak; Bleicher, Michael C.

• Format: ePub

Produktbeschreibung

For well over a decade, the cannabis industry has grown exponentially in scope and revenue. Industry participants range from giant food and beverage companies to e-commerce platforms, dispensaries, pet food companies, and growers. These companies are developing and marketing products that involve "cannabis" in all forms and derivatives, including THC, CBD, and hemp products, as well as other emerging cannabinoid products such as CBG. And as the industry has grown and diversified, so too has its legal needs.

Today, in addition to longstanding questions of federal legality and tension with state law, cannabis companies face a broad range of issues that require sophisticated legal guidance. For example, legal questions may involve anything from litigation and real estate to advertising and food and drug law. These questions are especially challenging given the breakneck pace with which cannabis policy and law has developed within a patchwork of federal, state, and local systems. Failure to navigate these concerns deftly and thoughtfully jeopardizes financial growth, not to mention business survival.

Until now, there has been no single reference to guide cannabis lawyers along the full continuum of potential legal needs challenging the industry. This treatise fills that gap from a sophisticated perspective by flagging key issues in more than a dozen practice areas and covering the impact of cannabis policy from federal and Canadian enforcement and regulatory agencies. By mapping these diverse concerns, this treatise helps provide useful guardrails for in-house and outside counsel alike.

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Produktdetails

• Verlag: American Bar Association
• Seitenzahl: 256
• Erscheinungstermin: 1. August 2021
• Englisch
• ISBN-13: 9781641058278
• Artikelnr.: 62173355

Autorenporträt

Barak Cohen is chair of the Perkins Coie law firm's Cannabis Industry Group, which he helped establish; co-chair of the firm's Veterans' Resource Group, which he also helped establish; Commercial Litigation Lead for the firm's Washington, D.C., office; and a partner in the firm's White Collar & Investigations practice. He is also a member of the policy council for the National Cannabis Industry Association (NCIA) and a vice-chair of the ABA's Committee on Cannabis Law and Policy. Barak has significant experience representing companies in the cannabis, CBD, CBG, and hemp industries, including companies seeking to do business in the food and beverage industry, and with investment banks, financial payment processors, and dispensaries, among others. Barak identified the growth potential in the cannabis industry at an early stage and has been a go-to attorney for companies in the space. Barak is a former Army officer and prosecutor in the U.S. Department of Justice. Michael Bleicher is an associate in Perkins Coie's commercial litigation group, where he focuses his practice on matters involving privacy, data security, and First Amendment issues for clients in the technology and communications industries. Additionally, Michael has experience advising established finance and investment banking companies involved in the can-nabis industry (including marijuana, CBD (cannabidiol), CBG (cannabig-erol), and hemp products and services) on entering the food and beverage market. Michael earned his BA from Brown University and JD from Harvard Law School. Both authors live in Washington, DC.

Inhaltsangabe

Editor's Note xiii Preface xv Acknowledgments xvii Chapter 1 Basic Issues: The Tension between Federal and State Law and Policy 1 1. Introduction 1 2. Definitions 2 3. Overview of Law and Regulation 2 4. Federal Law and Enforcing Agencies 2 5. U.S. Congress and DOJ 3 6. U.S. Food and Drug Administration (FDA) 3 7. Federal Trade Commission (FTC) 3 8. U.S. Department of Agriculture (USDA) 3 9. U.S. Department of Treasury (Treasury) 4 10. Cannabis and Hemp: Enforcement 5 11. DOJ 5 12. FDA and FTC 6 13. Treasury 7 14. Proposed and Pending Federal Legislation 7 15. Decriminalization 7 16. Banking 8 17. Looking Forward 8 18. States 9 19. Afterword 9 Chapter 2 Transactional Considerations 11 20. Introduction 11 21. Private Company Transactions 13 22. Federal Legal Considerations 13 23. State Regulatory Considerations 14 24. Transfers of Applicable Licenses 15 25. Restrictions on Ownership of Cannabis Businesses 15 26. 27. Reporting Requirements for Owners of Cannabis Businesses 16 Contract Considerations 17 28. Structure 17 29. Representations, Warranties, and Indemnification 18 30. Covenants and Conditions 19 31. Dispute Resolution 20 32. Minority Investments and Joint Ventures 21 Public Company Transactions 21 33. Disclosure Requirements 21 34. Exchange Rules 22 Chapter 3 Banking and Finance Issues 25 35. Introduction 25 36. Federal Controlled Substances Act 26 37. Dual-Banking System 27 38. Bank Secrecy Act and Anti
Money Laundering Laws 28 39. Asset Forfeiture 29 40. Fines and Imprisonment 29 41. Bank Regulator Oversight 30 42. BSA Requirements 30 43. Establish Written Internal Policies, Procedures, and Controls 31 44. Conduct Independent Testing 32 45. Designate a BSA/AML Compliance Officer 32 46. Provide Ongoing Training to Relevant Employees 33 47. Customer Due Diligence 33 Suspicious Activity Report Filing 35 48. Hemp Business and SARs 36 Currency Transaction Reporting 37 49. Federal Legislation 38 50. State Marijuana Banking Innovations 39 51. Identifying a Bank for MRBs 42 52. Payments for Marijuana 42 Chapter 4 Employment 45 53. Federal Law Grants Employers Greater Rights to Regulate Cannabis in the Workplace 46 54. Cannabis and the Hiring Process 47 55. Background Checks and Consideration of Cannabis-Related Arrests and Convictions in Hiring Decisions 47 56. Pre-Employment Drug Testing 49 57. Consideration of an Applicant's Participation in a Medical Cannabis Program or an Applicant's Off-Duty Use of Cannabis 52 58. Cannabis Use during Employment 53 59. On-Duty Use or Possession of Cannabis Products 53 60. Off-Duty Use of Cannabis Products 53 61. Post-Hiring Drug Testing for Cannabis Use 55 62. Accommodating Cannabis Use 59 63. Accommodating Cannabis Use under the Americans with Disabilities Act 59 64. Accommodating Medical Cannabis Use under State Law 61 65. Accommodating Recreational Cannabis Use under State Law 64 66. Carve-Outs from State Cannabis Laws 64 67. Safety-Sensitive Positions 64 68. Exception for Compliance with Federal Law, Contracts, Funding, or Licensing Requirements 65 69. Job Positions Regulated by Federal Agencies 67 70. Related Topics Associated with Cannabis Use and Employment 68 71. Workers' Compensation Benefits 68 72. Unemployment Benefits 69 Chapter 5 Cannabis and Real Property 71 73. Acquisition of Real Property for Cannabis-Related Uses 71 74. Real Estate Broker Issues 71 75. Financing Issues 72 76. Investors 72 77. Banks and Other Financial Institutions 73 78. Hemp and Hemp Derivatives 74 79. Title Insurance Issues and Real Estate Due Diligence 75 80. Property Insurance 76 81. Commercial Leasing for Cannabis-Related Uses 76 82. Leasing Due Diligence and Loan Document Review 77 83. Enforcement Issues 78 84. Drafting Considerations 78 85. License Contingency or Condition Subsequent Clause 78 86. Permitted Use 79 87. Applicable Laws/Compliance with Laws 80 88. Rent and Form of Payment 81 89. Security and On-Site Cash 81 90. Landlord's Access 81 91. Tenant Improvements 82 92. Common Areas/Odors/Etc. 82 93. Utilities and Operating Expenses 83 94. Environmental Concerns 83 95. Insurance and Indemnification 83 96. Surrender and Other End-of-Term Provisions 84 Forfeiture 84 97. Use Restrictions 85 98. Conclusion 86 Chapter 6 Tax Law Issues 87 99. Federal Income Tax Issues 87 100. General Principles 87 101. Internal Revenue Code Section 280E
Operating Expenses Not Deductible 89 102.
Trafficking
89 103.
Controlled Substances
90 104. Application to Non-Cannabis Lines of Business 90 105. Application to Internal Revenue Code Section 199A 92 106. Constitutional Issues
Eighth Amendment 92 107. Constitutional Issues
Fifth Amendment 93 108. Constitutional Issues
Sixteenth Amendment 93 Reductions to Gross Income
Internal Revenue Code Section 471 (Cost of Goods Sold) 93 109. Resellers 94 110. Producers 95 Reductions to Gross Income
Internal Revenue Code Section 164 (Taxes) 95 111. Internal Revenue Code Section 501(c)
Exempt Organizations 96 112. State Tax Issues 96 113. Income Taxes 96 114. California 97 115. Colorado 97 116. Illinois 98 117. Oregon 98 118. Other General Business Activity Taxes 98 119. General Retail Sales Taxes 99 120.
Sales
99 121. Exemptions 99 122. Business Inputs Exemptions or Incentives 100 123. Cannabis Excise Taxes 101 124. Weight-Based Excise Taxes 101 125. Price-Based Excise Taxes 102 126. Stamp Taxes 103 127. Non-Marijuana Forms of Cannabis (Hemp and CBD) 103 Chapter 7 Marketing 105 128. Marketing Cannabis Products in the United States 105 129. Cannabis, Marijuana, and Hemp 105 130. Cannabis Derivatives 106 131. Legality of Advertising Cannabis Products 106 132. Regulatory Framework for Hemp and Hemp Derivative Advertising 107 133. Federal Advertising Laws 107 2.1.1 FTC 107 2.1.2 Lanham Act 108 2.1.3 Federal Food, Drug, Dietary Supplements, and Cosmetics Regulation 108 134. State Laws 108 135. Mini-FTC Acts and Consumer Protection Laws 108 136. State Hemp and Hemp Derivative Laws 109 137. National Advertising Division 109 138. Advertising Basics 110 139. Identifying an Advertising Claim 110 140. Puffery 111 141. Disclosures 111 142. Substantiating Advertisement Claims 113 143. Generally 113 144. Scientific Claims 113 145. Health Claims 115 146. Generally 115 147. Examples of Prohibited Health Claims 115 148. Advertising Issues Regulated by the FDA 116 149. Drug Advertising 117 150. Dietary Supplement Advertising 118 151. Food Product Advertising 118 152. Cosmetic Advertising 119 153. Unapproved New Animal Products 120 154. Special Advertising Issues 120 155. Endorsements and Testimonials 120 156. Comparative Advertising 121 157. Price Advertising 122 158. Contest and Sweepstakes Promotions 122 159. Marijuana and Marijuana Derivative Advertising 123 160. Federal Law 123 161. State Laws 124 162. Conclusion 125 Chapter 8 Trademarks 127 163. Federal Overview of Cannabis Trademarks 127 164. The Federal Lanham Act and the Lawful Use in Commerce Requirement 127 165. Compliance with the Controlled Substances Act 128 166. The 2018 Farm Bill and Examination Guide 1-19 130 Alternative Trademark Protection for the Cannabis Industry and Its Limitations 132 167. State Trademark Registrations 132 168. Federal Registration for Ancillary Goods or Services 134 Trademark Infringement and Dilution 137 169. Likelihood of Confusion 137 170. Dilution by Tarnishment 139 Takeaways 141 Chapter 9 Patent Law in the Cannabis Industry 143 171. Introduction 143 172. How Can the Industry Protect Its IP? 145 173. Utility Patents 145 174. Design Patents 148 175. Plant Patents 149 176. Plant Variety Certifications 150 177. Why Is Patentability Important? 151 178. Marketability for Future Consolidation 151 179. Enforceability in the Courts 151 180. Potential for Patent Challenges via Inter Partes Review 153 181. Conclusion 154 Chapter 10 Cannabis Litigation: Trends and Considerations 155 182. Cannabis and Civil Litigation 155 183. Types of Cases 156 184. Consumer Protection 156 185. Products Liability and Negligence 158 186. California Proposition 65 158 187. Contract Law 159 188. Class Actions 160 189. Common Defenses 163 190. Pleading with Specificity 163 191. Reasonable Consumer 164 192. Preemption 164 193. Primary Jurisdiction 165 Conclusion 166 Chapter 11 Insurance Considerations for the Cannabis Industry 167 194. Overview of Basic Insurance Products 167 195. Comprehensive General Liability 168 196. Property Loss and Business Interruption Insurance 168 197. Commercial Crime or Fidelity Insurance 169 198. Cyber Insurance 170 199. Network Security 170 200. Privacy 171 201. Business Interruption 172 202. Directors and Officers (D&O) Liability 172 203. Overview of Key Risks and the Corresponding Insurance Product 173 204. Product Liability 173 205. Fires, Bugs, and Other Sources of Property Loss 175 206. Theft 175 207. Improper Release of Customer Information 176 208. Loss of Share Value 177 209. Judicial Guidance 178 210. Conclusion 181 Chapter 12 Bankruptcy 183 211. Introduction to Bankruptcy, Receiverships, and Assignments for the Benefit of Creditors 183 212. Treatment of Cannabis in Bankruptcy Cases 186 213. Treatment of Cannabis in Receiverships and ABCs 191 214. Receiverships 191 215. ABCs 194 Chapter 13 Regulation of Cannabis-Containing Products in the U.S. Food and Beverage Supply 199 216. Federal Food Safety Oversight 199 217. Food-Related Provisions of the Food, Drug, and Cosmetics Act 201 218. Adulteration and Food Ingredients 201 219. Dietary Supplements 204 220. Misbranding of Foods and Dietary Supplements 205 221. Application of Statutes and Regulations to Cannabis and Cannabis-Derived Compounds in the Food Supply and Current Status 206 222. Cannabidiol (CBD) 208 223. Cannabigerol (CBG) 212 224. Animal Foods 212 FDA Regulatory Actions 213 Chapter 14 Regulatory Overview of the Canadian Cannabis Industry 215 225. Federalism and Legislative History 215 226. Federally Regulated Activity 218 227. Licenses Issued under the Cannabis Regulations 220 228. Cultivation Licenses 221 229. Processing Licenses 222 230. Analytical Testing License 223 231. Medical Sale License 223 232. Research License 224 233. Licenses Issued under the Industrial Hemp Regulations 225 234. National Cannabis Tracking and Licensing System 226 235. Promotional Activity 226 236. Blanket Prohibition and Specific Prohibitions on Content 227 237. Exceptions to Blanket Prohibition, and Requirements and Prohibitions on Venue 228 238. Prohibition on Inducements 229 Import and Export 230 239. Provincially Regulated Activity 231 240. Cannabis Products 233 241. Good Production Practices 234 242. Classes of Cannabis 236 243. Dried Cannabis and Fresh Cannabis 236 244. Cannabis Plants and Seeds 236 245. Edible Cannabis 237 246. Cannabis Extracts and Cannabis Oil 237 247. Cannabis Topicals 239 248. Packaging and Labeling 239 249. Packaging 241 250. Labeling 241 251. Corporate Finance 243 252. Distribution of Securities in Canada 243 253. Prospectus and Other Disclosure Requirements Applicable to Cannabis Companies 244 254. Canadian Stock Exchange Requirements 246 255. TSX and TSX-V 246 256. Canadian Securities Exchange (CSE) 247 257. NEO Exchange 248 258. Compliance with Proceeds of Crime Legislation 248 Regulatory Approvals Relevant to Mergers and Acquisitions in the Cannabis Industry 248 259. Health Canada Notices and Approvals 249 260. Foreign Investment Review 249 261. Canadian Competition Law Considerations 250 About the Editors 253 Chapter Authors 255 Index 257