U.S. Supreme Court Rejects Cases Seeking Workers’ Comp for Medical Cannabis

The United States Supreme Court on Tuesday denied petitions to hear two cases challenging Minnesota’s refusal to allow coverage for medical cannabis through the state’s workers’ compensation program. In both cases, workers sought a review of the Minnesota Supreme Court’s decision finding that the federal Controlled Substances Act (CSA) supersedes state law, resulting in a denial of coverage for medicinal cannabis for the employees’ work-related injuries.

The Supreme Court invited the U.S. Department of Justice to file a brief in the case before making a decision. In its response, the Justice Department agreed with the Minnesota court that the CSA does preempt state law. But attorneys with the Justice Department also argued that the states have not adequately addressed the issue of federal preeminence and urged the Supreme Court to reserve judgment on evolving law.

The case was not the first time a state court had ruled on workers’ compensation coverage for medical pot. In 2014, the New Mexico Court of Appeals approved the reimbursement of claims for medicinal cannabis for work-related injuries. But rulings on similar cases in Maine, New Hampshire, New Jersey, New York and Minnesota have not been consistent. Courts in New Hampshire, New York, and New Jersey found that state law was not in conflict with the CSA and authorized workers’ compensation claims for medical cannabis. But in Maine, Massachusetts, and Minnesota, judges have ruled that federal law takes precedence.

Is the SCOTUS Decision Bad News?

Attorney Anne Davis, the co-founder of Bennabis Health, a company specializing in affordable medical cannabis access for patients, says that the Supreme Court’s decision to decline to hear the cases is not necessarily a negative outcome for patients.

“While I would’ve loved a decision by the federal government mandating that cannabis is in fact a covered benefit, [the court] deferring to the states could be good in the grand scheme of the industry,” Davis writes in an email to High Times. “The more that the Supreme Court defers to states’ rights, I think the more it helps our growing industry. If the federal government takes the hands-off approach and leaves it to states’ rights, that allows the cannabis industry to grow and expand.”

With states taking the lead on pot reform, Davis believes federal legislation that permits cannabis trade between the states would create the most favorable climate for the industry.

“The problem we’re left to deal with is interstate commerce,” said Davis. “If we can somehow navigate that, then I think state rights having control over the cannabis industry is a much better option than the federal government rescheduling and allowing big Pharma to take control.”

Some advocates for cannabis policy reform had hoped the Supreme Court would weigh in on the Minnesota cases following comments from Justice Clarence Thomas last year indicating he believes the federal prohibition on pot no longer makes sense with so many states passing legislation in conflict with federal law.

“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the federal government’s piecemeal approach,” he wrote.

Unanswered Questions

Commentating on a case the Supreme Court declined to hear in which a Colorado cannabis dispensary challenged federal policy denying standard business deductions for weed companies, Thomas said that a 2005 high court ruling upholding the federal prohibition on cannabis possession may be out of date.

“Federal policies of the past 16 years have greatly undermined its reasoning,” he continued. “The federal government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”

This week’s action by the U.S. Supreme Court leaves many unanswered questions about the viability of workers’ compensation coverage for medical cannabis. In an analysis of the denial to grant the petitions, The National Law Review wrote that the “Supreme Court’s decision to remain on the sidelines of the debate over marijuana legalization is disappointing to many who were hoping to see the high court help to break the logjam in Congress. The decision also leaves in place the clear conflict over workers’ compensation reimbursement of medical cannabis in state court decisions and facilitates the potential for further conflict as this issue continues to percolate throughout the country.”

The post U.S. Supreme Court Rejects Cases Seeking Workers’ Comp for Medical Cannabis appeared first on High Times.

Will the Supreme Court Legalize Cannabis?

A great dark cloud hangs over the bright and sunny success of marijuana legalization in the US: federal law, which still declares cannabis an outlaw plant. This status quo causes great distress to American cannabis businesses and those still in federal prisons for marijuana offenses. Despite all the progress at the state level, this front of the drug war seems locked in a stalemate. Here’s a question: Can the Supreme Court legalize cannabis?

Of course; the US has three branches of government, and if Congress won’t legalize cannabis federally, and if President Joe Biden can’t, what about the Supreme Court? As long as the conservative majority on the John Roberts court is overturning long established precedent such as Roe v. Wade, could it overturn precedent related to cannabis prohibition? Or even the Controlled Substances Act itself? 

That’s the strategy Abner Kurtin, the CEO of Ascend Wellness, one of the smaller publicly traded cannabis companies operating in multiple states, recently announced he’ll try. Already successful in generating headlines—and, possibly, satisfying investors upset with recent losses and impatient with the stalemate in Congress—the strategy could work as legal experts consulted for this article told Cannabis Now, perhaps as a mechanism to pressure Congress into action, even if the Supreme Court never touches the Controlled Substances Act.

“I want to emphasize this is politically shrewd,” said Douglas Berman, a law professor at Ohio State University and executive director of the school’s Drug Enforcement and Policy Center. “It’s useful to have a two-front war, you might say. Maybe the legislature is more likely to respond when the courts are breathing down their necks.”

But this gambit isn’t without risks. The courts could reject the challenge, resulting in more lost money at a time when legal cannabis businesses are burning cash. Or the court could impose a vision of legalization that isn’t in anyone’s best interest.

Key details, including when the lawsuit will be filed or exactly what claims it’ll make, remain to be seen. Through a spokesperson, Kurtin declined to comment. 

But as he and Michael Bronstein, the president of lobbying group American Trade Association of Cannabis and Hemp explained to Marijuana Moment last month, at least six major cannabis companies will join in the suit. They will argue that the CSA is unconstitutionally applied to state-legal cannabis businesses. 

And doing the arguing for them will be attorneys from prominent white-shoe law firm Boies Schiller Flexner LLP, chaired by the $1,950-an-hour SCOTUS veteran David Boies, who has famously argued several prominent cases before the nation’s top bench.

Bring on the Lobbyists

Shelling out a few million dollars on lawyers—on top of spending a fraction of that on lobbyists to change Congress’s minds—is a tactic familiar to old-school legalization advocates. This has all been done before, with varying levels of success that, in binary terms, all failed.

Various parties including federal prisoners, cannabis researchers, an ex-NFL player-turned-businessman and legalization advocacy groups have all tried to sue the federal government before—to reschedule cannabis, to deschedule cannabis. All have failed, and all but one failed to even reach the august bench of the Supreme Court. 

That one, Gonzalez vs. Raich, held that Congress’s powers under the Commerce Clause—the federal government’s Constitutional ability to regulate trade between the states—“includes the power to prohibit the local cultivation and use of marijuana in compliance with” state law. 

That was the “best set of facts to overturn the Controlled Substances Act you could hope for,” observed Sam Kamin, a professor of law at the Denver University Sturm College of Law and a cannabis law expert. “And they didn’t do it.”

It stands to reason that the federal government isn’t really wielding this power at the moment, at least not insofar as it did with litigant Angel Raich, a severely ill cannabis patient in California whose backyard garden was raided by DEA agents. But what Kurtin and other cannabis executives want is relief from the pressures that do exist—on the banks and the taxman. 

If cannabis were descheduled, banking and taxation reform would be handled without need for Congress to legalize tax deductions and banking services. (Both the SAFE Banking Act as well as more ambitious federal legalization appear hopelessly stalled in the Senate, where 60 votes are required to even get a vote on the topic.) And companies could start shuttling cannabis in between states (although some companies don’t want that, at least not right away).

For MSOs such as Ascend Wellness, the “best possible outcome” will be a ruling that removes the federal government from cannabis entirely and leaves everything up to the states, Kamin said. The problem is that a ruling like that would also remove the federal government from any national standards around minority participation or other questions of equity—which means the legalization-minded social-justice advocates would hate it.

But again, overturning the CSA at the courts may not be the lone goal. “I think it’s part of a consistent and decades-long approach to critiquing and criticizing the CSA as not based in science, not based in the Constitution, and inconsistent with the will of the vast majority of the states and voters,” Kamin said. 

So, would the courts simply leave everything up to the states, or would the courts deschedule cannabis and hand the industry over to pharmaceutical companies with the resources to get Schedule II substances through the onerous Food and Drug Administration (FDA) approval process? All are possible. “Everything is on the table right now,” Kamin said.

That includes striking down other federal powers to enforce other laws. In this, there’s a strange and dangerous irony.

Obamacare Beware

In another life, a decade ago, the bugaboo of self-avowed libertarians, Ascend Wellness’s Kurtin, was the Affordable Care Act. While the Obama Administration’s Justice Department used the logic in the Raich decision to defend Obamacare from conservative challenges, Raich herself signed onto amicus briefs seeking to overturn the federal healthcare mandate. Arguments limiting the federal government’s power are more likely to be welcomed by conservative judges. 

And so, if the Raich precedent is put into the dustbin of history, so could other federal powers.

“They’ve got to figure out a way to bring down federal marijuana prohibition and regulation without bringing down the whole universe of federal health and safety laws,” said OSU’s Berman. No pressure.

So, will the Supreme Court legalize cannabis? As always, time will tell.

The post Will the Supreme Court Legalize Cannabis? appeared first on Cannabis Now.

Will the Supreme Court Legalize Cannabis?

A great dark cloud hangs over the bright and sunny success of marijuana legalization in the US: federal law, which still declares cannabis an outlaw plant. This status quo causes great distress to American cannabis businesses and those still in federal prisons for marijuana offenses. Despite all the progress at the state level, this front of the drug war seems locked in a stalemate. Here’s a question: Can the Supreme Court legalize cannabis?

Of course; the US has three branches of government, and if Congress won’t legalize cannabis federally, and if President Joe Biden can’t, what about the Supreme Court? As long as the conservative majority on the John Roberts court is overturning long established precedent such as Roe v. Wade, could it overturn precedent related to cannabis prohibition? Or even the Controlled Substances Act itself? 

That’s the strategy Abner Kurtin, the CEO of Ascend Wellness, one of the smaller publicly traded cannabis companies operating in multiple states, recently announced he’ll try. Already successful in generating headlines—and, possibly, satisfying investors upset with recent losses and impatient with the stalemate in Congress—the strategy could work as legal experts consulted for this article told Cannabis Now, perhaps as a mechanism to pressure Congress into action, even if the Supreme Court never touches the Controlled Substances Act.

“I want to emphasize this is politically shrewd,” said Douglas Berman, a law professor at Ohio State University and executive director of the school’s Drug Enforcement and Policy Center. “It’s useful to have a two-front war, you might say. Maybe the legislature is more likely to respond when the courts are breathing down their necks.”

But this gambit isn’t without risks. The courts could reject the challenge, resulting in more lost money at a time when legal cannabis businesses are burning cash. Or the court could impose a vision of legalization that isn’t in anyone’s best interest.

Key details, including when the lawsuit will be filed or exactly what claims it’ll make, remain to be seen. Through a spokesperson, Kurtin declined to comment. 

But as he and Michael Bronstein, the president of lobbying group American Trade Association of Cannabis and Hemp explained to Marijuana Moment last month, at least six major cannabis companies will join in the suit. They will argue that the CSA is unconstitutionally applied to state-legal cannabis businesses. 

And doing the arguing for them will be attorneys from prominent white-shoe law firm Boies Schiller Flexner LLP, chaired by the $1,950-an-hour SCOTUS veteran David Boies, who has famously argued several prominent cases before the nation’s top bench.

Bring on the Lobbyists

Shelling out a few million dollars on lawyers—on top of spending a fraction of that on lobbyists to change Congress’s minds—is a tactic familiar to old-school legalization advocates. This has all been done before, with varying levels of success that, in binary terms, all failed.

Various parties including federal prisoners, cannabis researchers, an ex-NFL player-turned-businessman and legalization advocacy groups have all tried to sue the federal government before—to reschedule cannabis, to deschedule cannabis. All have failed, and all but one failed to even reach the august bench of the Supreme Court. 

That one, Gonzalez vs. Raich, held that Congress’s powers under the Commerce Clause—the federal government’s Constitutional ability to regulate trade between the states—“includes the power to prohibit the local cultivation and use of marijuana in compliance with” state law. 

That was the “best set of facts to overturn the Controlled Substances Act you could hope for,” observed Sam Kamin, a professor of law at the Denver University Sturm College of Law and a cannabis law expert. “And they didn’t do it.”

It stands to reason that the federal government isn’t really wielding this power at the moment, at least not insofar as it did with litigant Angel Raich, a severely ill cannabis patient in California whose backyard garden was raided by DEA agents. But what Kurtin and other cannabis executives want is relief from the pressures that do exist—on the banks and the taxman. 

If cannabis were descheduled, banking and taxation reform would be handled without need for Congress to legalize tax deductions and banking services. (Both the SAFE Banking Act as well as more ambitious federal legalization appear hopelessly stalled in the Senate, where 60 votes are required to even get a vote on the topic.) And companies could start shuttling cannabis in between states (although some companies don’t want that, at least not right away).

For MSOs such as Ascend Wellness, the “best possible outcome” will be a ruling that removes the federal government from cannabis entirely and leaves everything up to the states, Kamin said. The problem is that a ruling like that would also remove the federal government from any national standards around minority participation or other questions of equity—which means the legalization-minded social-justice advocates would hate it.

But again, overturning the CSA at the courts may not be the lone goal. “I think it’s part of a consistent and decades-long approach to critiquing and criticizing the CSA as not based in science, not based in the Constitution, and inconsistent with the will of the vast majority of the states and voters,” Kamin said. 

So, would the courts simply leave everything up to the states, or would the courts deschedule cannabis and hand the industry over to pharmaceutical companies with the resources to get Schedule II substances through the onerous Food and Drug Administration (FDA) approval process? All are possible. “Everything is on the table right now,” Kamin said.

That includes striking down other federal powers to enforce other laws. In this, there’s a strange and dangerous irony.

Obamacare Beware

In another life, a decade ago, the bugaboo of self-avowed libertarians, Ascend Wellness’s Kurtin, was the Affordable Care Act. While the Obama Administration’s Justice Department used the logic in the Raich decision to defend Obamacare from conservative challenges, Raich herself signed onto amicus briefs seeking to overturn the federal healthcare mandate. Arguments limiting the federal government’s power are more likely to be welcomed by conservative judges. 

And so, if the Raich precedent is put into the dustbin of history, so could other federal powers.

“They’ve got to figure out a way to bring down federal marijuana prohibition and regulation without bringing down the whole universe of federal health and safety laws,” said OSU’s Berman. No pressure.

So, will the Supreme Court legalize cannabis? As always, time will tell.

The post Will the Supreme Court Legalize Cannabis? appeared first on Cannabis Now.

DEA Letter – Delta 8 THC derived from hemp is not a controlled substance

The Delta 8 THC industry can breathe a little easier, so long as they are using hemp. In a recently obtained letter, the DEA clarified its position on hemp-derived Delta 8 THC. As long as the product is hemp-derived and doesn’t contain Delta 9 THC, it’s legal. Delta 8 THC made from hemp is legal […]

The post DEA Letter – Delta 8 THC derived from hemp is not a controlled substance appeared first on Latest Cannabis News Today – Headlines, Videos & Stocks.

The DEA Removes CBD From the Controlled Substances Act – But There’s A Catch

Earlier this month, a well-known drug manufacturer
received word that a CBD-based medication will no longer be regulated under the
United States Controlled Substances Act.

Epidiolex, a medication made with CBD that is used to treat certain types of epilepsy, will now be marketed as a normal medication. While this is fantastic news, it’s also a bit confusing since CBD is already federally legal. While this announcement effectively removes CBD from the controlled substances act, much remains to be understood about how the U.S. regulates cannabidiol.

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The Initial Announcement

On Monday, April 6, GW Pharmaceuticals announced that the company had received notice from the DEA (United States Drug Enforcement Administration) stating that Epidiolex was no longer subject to the requirements of the Controlled Substances Act (“CSA”).

According to the statement
released by GW CEO Justin Gover, “This notification from DEA fully establishes
that EPIDIOLEX, the only CBD medicine approved by FDA, is no longer a
controlled substance under the federal Controlled Substances Act. We would like
to thank DEA for confirming the non-controlled status of this medicine.
Importantly, the descheduling of EPIDIOLEX has the potential to further ease
patient access to this important therapy for patients living with Lennox-Gastaut
Syndrome and Dravet syndrome.”

Epidiolex first launched in the United States in late 2018 and has since formed a market in 30 European countries and is currently undergoing clinical testing in Japan. It’s the first and only CBD-based drug to be approved by the FDA (United States Food and Drug Administration). This medication is used to treat the two aforementioned forms of epilepsy (Lennox-Gastaut Syndrome and Dravet syndrome), which are both extremely rare, severe, and debilitating.

Keep in mind that all non-Epidiolex CBD products are still illegal and will be regulated under the FDA Controlled Substances Act. The FDA has recently cemented their position on CBD, stating that cannabidiol’s safety profile has “not been established” and that and products containing the compound will be viewed as “adulterated and misbranded drugs”.  

Confusing and
Contradictory Laws

The FDA’s clarified stance on CBD is extremely contradictory, especially after they released a 27-page report nearly 2 years ago in which FDA officials argued (rather convincingly I might add), that CBD-use is associated with a very low risk profile.

CBD Warnings From FDA Spook Major Consumer Brands

From the report, “Upon
consideration of the eight factors determinative of control of a substance
under section 201 (c) of the CSA, FDA concludes that CBD and its salts … could
be removed from under the CSA… We reach this conclusion because we find that
CBD does not meet the criteria for placement in and of Schedules II, III, IV,
or V under the CSA.”

That said, GW is
wasting no time in updating their facilities and operations throughout their distribution
network. They will be look at this on a state-by-state basis and will begin
shipping Epidiolex to pharmacies and will possibly even have access to prescription
delivery though some insurance networks. The doors are certainly open wider for
the drug manufacturer now.

So, Is CBD Legal or
Not?

Honestly, it’s
still all very confusing. Simply put, it’s legal but highly regulated. To
expand on that a little bit, we’ll have to take a look at the 2018 Farm Bill that
legalized hemp at the federal level and removed it from the controlled substances
act. But what is defined as hemp?

According to the FDA, hemp is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Smoking CBD Flowers FAQs: Your questions answered.

Hemp, both
industrial and smokable CBD Flowers, are NOT regulated as controlled substances.
However, any manufactured product containing cannabis or hemp extracts (ie –
cannabinoids) still is. That means CBD-infused supplements, medications,
edibles, and cosmetics are still technically illegal unless they have been
subjected to FDA-approval, which is a tedious and costly endeavor.

This will remain
the same, the only difference is that now, Epidiolex can be manufactured and
sold as non-controlled substance. In the United States, most medications such
as those for blood pressure, diabetes, heart conditions, and other common
illnesses are not considered “controlled substances”. Medications that can
cause mental and physical dependence, like pain medications for example, are
regulated under the controlled subsantces act because there are restrictions on
the way these prescriptions can be filled and refilled.

The Silver Lining

Even though this
change only applies to Epidiolex, it goes without saying that it’s a testament
to the effectiveness of CBD-based therapies. The FDA and DEA have both officially
acknowledged that, yes, CBD can be used safely to treat certain health
conditions.

Additionally, loosening
restrictions on the way these prescriptions are filled means that patients will
have easier access to this medication. It will be easier to obtain and likely
cheaper. When a medication is regulated as a controlled substance, there are
certain requirements that are needed to fill and refill these prescriptions.
Patients will need to be a certain age, will need to have an ID, and the amount
of controlled-medications that can be prescribed each month is limited.

People will still
need to get a prescription from a licensed physician, but the prescription will
be valid for a year, it can be transferred between pharmacies, and state
reporting requirements will no longer apply.

Final Thoughts

Having CBD removed from the controlled substances act is a big deal. Even though it only applies to one medication (for now), it’s a step in the right direction. Things are at a bit of stand-still in most industries right now, but as more cannabis-medications go through clinical testing, there will be an influx of these easy-to-access CBD therapies on the market.

Thank you for tuning to CBD Testers, make sure to subscribe to the CBD Business Weekly Newsletter and check back frequently to stay up-to-date on all things cannabis and hemp related.

The post The DEA Removes CBD From the Controlled Substances Act – But There’s A Catch appeared first on CBD Testers.

DOT Not Taking CBD as Excuse for Failed Drug Test

On Feb. 19 the U.S. Department of Transportation clarified its stance that it does not test for CBD, but stated it will continue to penalize workers for THC.

Within a noticeDOT, which sets regulations for safety-sensitive employees such as transit vehicle operators and aircraft maintenance personnel, noted that while the Farm Bill removed hemp from the Controlled Substances Act, it did not except marijuana. This means hemp-derived CBD products with a THC concentration of less than 0.3% are not controlled substances. But any product, including those labeled as CBD, that breaks that THC limit is still a controlled substance.

With the legalization of hemp, DOT said they have received multiple inquiries about whether DOT-regulated safety-sensitive employees can use CBD products. They don’t want to get caught up in the testing protocols structures established after the 1991 Omnibus Transportation Employee Testing Act. The bill required all of the agencies under DOT’s regulatory umbrella to come up with a plan for drug and alcohol testing for safety-sensitive transportation employees.

“This includes pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others,” DOT noted in the announcement.

There were three main points DOT emphasized. The first is that they require testing for “marijuana and not CBD.” While CBD is present in both marijuana and hemp, what defines a plant as hemp is the presence of less than .3% of CBD. The second point was about the actual quality of the CBD marketplace right now.

“The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states,” The notice reads. “The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate.

“The FDA has cautioned the public that: ‘Consumers should beware purchasing and using any [CBD] products.’ The FDA has stated: ‘It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.’ Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.”

DOT’s final point was that CBD use is not a legitimate medical explanation for a laboratory-confirmed THC positive result.

“Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.” CBD products could lead to all the problems that would come with a failed drug test and DOT recommends people exercise caution when considering whether to use CBD products. DOT also said the announcement was meant to provide clarity to the public on existing requirements under the law or agency policies.

The DOT set its policies on recreational marijuana in the wake of the first states legalizing in December 2012. Back then, they wanted to make sure everyone knew what happened in Colorado and Washington had zero impact on the agency.

“Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used ‘recreational marijuana’ when states have passed ‘recreational marijuana’ initiatives,” the compliance notice reads. “We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use ‘medical marijuana’ when states have passed ‘medical marijuana’ initiatives.”

In September 2019 at the Montreal Council on Foreign Relations, U.S. Secretary of Transportation Elaine L. Chao noted the new rift between the U.S. and Canada when it came to pot during her speech.

“Traditionally, our two countries’ approach to road and automobile safety have been aligned,” Chao said. “Let me note an emerging challenge, however. As safety advocates know so well, alcohol and drugs play a disproportionate role in auto fatalities. Canada has legalized the recreational use of marijuana, while the United States has not. It is still illegal under U.S. federal law, although nine states have decriminalized it. While there is still much research to be done, data from states that have legalized is already pointing to the dangers of driving under the influence of both illicit and legal drugs.”

Chao did confuse legalization and decriminalization though as 25 states have some form of marijuana decriminalization on the books.

TELL US, have you ever had to take a drug test for work?

The post DOT Not Taking CBD as Excuse for Failed Drug Test appeared first on Cannabis Now.