Martha Stewart Joins the Growing List of Celebrity Cannabis Lines

Perhaps the most exciting announcement in the world of celebrity cannabis companies came last week with the announcement of Martha Stewart’s new line of hemp-derived CBD products, which include tinctures, soft gels, and “pâte des fruit.” The products are manufactured and sold through Canadian company Canopy Growth Corporation, which also produces Snoop Dogg’s cannabis brand Leafs by Snoop. The reaction to the announcement on Twitter and other social media was overwhelmingly positive. And while it’s easy to think that the cannabis market is already saturated with celebrity cannabis brands, it’s seems clear that there was still plenty of room for Martha Stewart.

I’ve worked on many celebrity licensing and endorsement deals, and my firm’s cannabis intellectual property lawyers have received countless inquiries from companies looking to partner with one celebrity or another. And while the best of the deals can be very lucrative (and interesting) for everyone involved, plenty of them fizzle out for one reason or another. Often, the excitement over the prospect of partnering with a celebrity can blind businesses to the bigger intellectual property and trademark issues they should consider before negotiating one of these deals.

We’ve written before about a past Above the Law article on the potential pitfalls of utilizing personal names as trademarks, as is done in celebrity licensing deals. The author noted the recent trademark litigation brought by a company that owns a registered trademark for SWIFTLIFE for “consulting services in the field of design, selection, implementation and use of computer hardware and software systems for others” against none other than Taylor Swift and her “SwiftLife” app. And while a celebrity’s name and likeness can be protected under rights of publicity or privacy law, this case raises the issue of when and how personal names can be recognized as trademarks.

In the United States, a person’s name can be eligible for trademark protection only if that individual is able to establish secondary meaning for their name. In other words, a celebrity will only be able to trademark their name if, through use of the name, it has come to identify a single source of origin for a particular set of goods or services. And it isn’t enough for the name to be well-known – the name must actually be associated with a set of goods or services in order to qualify for protection. While for a celebrity like Bob Marley, the connection to cannabis goods may seem clear, for many other celebrities, there is simply no connection at all and establishing trademark protection would be difficult (even setting aside the federal issues surrounding cannabis trademarks, which we have written about at length).

Some key takeaways to consider if your cannabis business is looking to partner with a celebrity for a licensing deal are as follows: First, the more unique the name or moniker, the better the chance of that name being protectable. And second, consider whether the celebrity name has a strong association with the cannabis products you’re looking to sell, as this will help determine whether the name could be shown to have secondary meaning. A licensee should be secure in the licensor’s ability to protect what it is licensing, otherwise what is the licensee paying for?

With a number of celebrities having jumped on the cannabis branding bandwagon–including the Marley estate, Snoop Dogg, Willy Nelson, Whoopi Goldberg and Melissa Etheridge, along with many lesser known celebrities who have used their name to promote ancillary cannabis products–these deals are certainly promising. Though trademark registrations are at play for many of these brands, the rights of publicity of the celebrities are at the center of each of these branding deals. Because state law and not federal law regulates the right of publicity, it is not subject to the same restrictions based on legality of use as federal trademarks. This makes enforcement in the event of infringement much easier for celebrities.

It’s important to remember, however, that using one’s name and likeness to sell cannabis is not without risk. Even ancillary companies face the risks posed by federal illegality, since these companies and their financial backers could be subject to charges of aiding and abetting or conspiring to violate the Controlled Substances Act for providing goods and services to cannabis businesses. Given the proliferation of celebrity-branded cannabis, however, this appears to be a risk that many celebrities are willing to take to become early entrants into the cannabis market.

In the case of the Martha Stewart deal, the legality of CBD in individual states created limitations to what was possible with respect to distributing the products. Here in California, for example, I won’t be able to purchase Martha’s CBD pâte des fruits, because the California Department of Public Health has deemed it unlawful to sell hemp-derived CBD products intended for human consumption. Citizens of other states with less restrictive laws will be luckier.

Celebrity licensing and endorsement deals in the cannabis industry are still trending, but if your company is seeking a celebrity partnership, be sure to assess the deal not only from a business perspective, but from a legal perspective as well. In addition to the considerations regarding trademark protection and licensing, companies should be prepared to ensure that large deals, particularly multi-state deals, are structured in such a way as to comply with the applicable regulations in every jurisdiction because you can bet that celebrities of Martha’s caliber will not be entering into deals that expose them to unnecessary legal liability.

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Consumer Privacy, California Cannabis and CCPA Deletion Requests

The California Consumer Privacy Act (CCPA) took effect at the beginning of the year. CCPA is a massive privacy law similar in scope to the European Union’s infamous General Data Protection Regulation, and applies to many businesses (not just cannabis businesses) that are based in or even “do business” in California. I wrote about the thresholds for whether CCPA applies here, and the moral of the story is that the bar can be pretty low when it comes to application of the law.

For businesses that are subject to CCPA, compliance can be rough. One of the hallmarks of the law is that it provides California consumers with many new rights that they can exercise with respect to businesses that hold the consumers’ personal information. These rights include things like a right to direct a business not to sell consumer personal information, a right to know specifically what kinds of personal information a business collected, and importantly for this piece, a right to request that businesses delete personal information of the consumer.

The deletion right is what I want to focus on today. Per CCPA regulations, businesses that receive deletion requests must confirm receipt within a short period of time, and then respond to the request within 45 days from the date of receipt (in some cases, this can be doubled to 90 days). Businesses can use various methods to confirm that the person making the request is actually the person whose information is going to be deleted (I could write an entire post just on verification). At the end of the process, the business will be required to delete personal information unless there is an exception, which I will discuss below.

Deletion requests can be pretty significant for covered businesses. Such businesses may need to purge marketing or other key information that is otherwise valuable. The deletion process itself can also be time consuming and expensive (especially for small businesses that may not have a dedicated compliance team). However, when it comes to cannabis businesses, it’s possible that there may be many grounds to retain information.

CCPA makes clear that covered businesses may have the right to reject a deletion request if is necessary for the company or its service provider to:

  1. Complete the transaction for which the personal information was collected, fulfill the terms of a written warranty or product recall conducted in accordance with federal law, provide a good or service requested by the consumer, or reasonably anticipated within the context of a business’ ongoing business relationship with the consumer, or otherwise perform a contract between the business and the consumer.
  2. Detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity; or prosecute those responsible for that activity.
  3. Debug to identify and repair errors that impair existing intended functionality.
  4. Exercise free speech, ensure the right of another consumer to exercise that consumer’s right of free speech, or exercise another right provided for by law.
  5. Comply with the California Electronic Communications Privacy Act pursuant to Chapter 3.6 (commencing with Section 1546) of Title 12 of Part 2 of the Penal Code.
  6. Engage in public or peer-reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the business’ deletion of the information is likely to render impossible or seriously impair the achievement of such research, if the consumer has provided informed consent.
  7. To enable solely internal uses that are reasonably aligned with the expectations of the consumer based on the consumer’s relationship with the business.
  8. Comply with a legal obligation.
  9. Otherwise use the consumer’s personal information, internally, in a lawful manner that is compatible with the context in which the consumer provided the information.

These incidents are incredibly broad and can apply to a broad array of information. But number 8 is pretty significant for cannabis businesses. In interpretive materials issued in coordination with the CCPA regulations, the CA Attorney General staff noted that:

This clarification is not necessary because [the section cited above] sets forth when a business shall not be required to comply with a consumer’s right to delete, which includes when they must maintain the information to comply with a legal obligation. Civil Code § 1798.145(c) also sets forth that the CCPA shall not restrict a business’s ability to comply with federal, state, and local laws, among other things. Further, Civil Code § 1798.196 states that it is intended to supplement federal and state law, if permissible, but shall not apply if such application is preempted by, or in conflict with, federal law of the United States or California Constitution.

Unpacking this interpretation, it appears likely that licensed cannabis businesses that are obligated under the state Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) and corresponding regulations to maintain certain categories of consumer personal information may be exempted from deleting that information. Here are two good examples:

  1. Retail cannabis companies are required under Bureau of Cannabis Control (BCC) regulations to maintain video security footage for 90 days or more, and are required to use cameras capable of recording facial features in the retail sales area. This may constitute “biometric” information under CCPA (which is defined to include “imagery of the . . . face”) and therefore may be considered personal information under CCPA.
  2. Cannabis delivery companies are required to maintain records that would allow the BCC to figure out every person to whom they delivered cannabis. It appears that this obligation is for 7 years. This information would undoubtedly contain personal information.

To the extent that cannabis businesses are required by law to maintain personal information, they may be able to use that as a shield to complying with data deletion requests. This is a vast oversimplification. As one would expect, it is not always clear whether (1) something constitutes personal information, and (2) there is an actual legal obligation to maintain that information. Businesses that receive deletion or other CCPA requests must consult with privacy professionals or attorneys to determine the scope of requests. Failure to properly respond can lead to significant penalties.

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How consumers can influence social justice in weed

In the age of COVID-19 and social unrest, many are questioning the systemic racism embedded in industries new and old. Yet, of all of America’s essential economies, the cannabis industry, while not necessarily equipped to correcting long-lasting systemic inequities at large, could instantly benefit those most harmed by the drug war through reform and more just policies. 

Part of that has to do with the existence of organizations like The Last Prisoner Project.  

Founded by seminal cannabis activist and weed-trepreneur Steve DeAngelo, known to industry insiders as the “father of the recreational cannabis industry,” The Last Prisoner Project’s mission is stated right in its title. The nonprofit coalition of cannabis industry leaders, executives, and artists is wholly dedicated to freeing every American imprisoned for nonviolent cannabis offenses, as well as bringing restorative justice to the cannabis industry. 

But it’s far more than a collection of familiar faces extolling the virtues of weed and decrying its criminalization, it’s also an assemblage of legal professionals working tirelessly on campaigns to release and provide retroactive justice to prisoners from the War on Drugs

“Marijuana, we know, is not a gateway drug, but it is a gateway offense, and it is so often the impetus for interactions with the police. Many of these interactions result in the most egregious examples of police brutality and police murder, particularly in marginalized communities” said Sarah Gersten, Executive Director and General Counsel for The Last Prisoner Project. “I think it’s critically important at this moment, as we are reimagining our justice system and reimagining public safety, that we figure out how cannabis laws fit into that puzzle” 

Gersten took a moment to sit with Weedmaps and help break down why The Last Prisoner project is integral to the Black Lives Matter movement, why we can’t really smoke freely until all cannabis prisoners are free, and how the smallest of actions can contribute to lasting, positive change.

Sarah Gersten: Executive Director and General Counsel for The Last Prisoner Project.

WM: You recently published a blog about Michael Thompson, a prisoner currently serving a de facto life sentence for selling 3 pounds of marijuana to a police informant in the now legalized state of Michigan. It was the first time I’d seen the term “cannabis POW” and I had to take a moment to ruminate on how accurate it was. By your estimate, how many cannabis POWs are in similar situations to Thompson, currently serving time for nonviolent offenses in recreationally legal states?

Sarah Gersten: That is really difficult data to ascertain. Available data has led us to the number 40,000, but I actually think that number is quite low.

When we talk about the war on drugs and its ramifications, and we focus on those numbers, we are very often leaving out how these laws have impacted communities. I think people are interested in who just had one dime bag and went to prison, and we have really egregious examples where that happened, but that’s not really how the system works. It’s more that you get one possession or fine, maybe you’re incarcerated for a short period, but then you get out and you’re saddled with all of the barriers that having an offense on your record comes with.

Since 2017, we’ve seen cannabis arrests increase in this country, despite more and more states legalizing or decriminalizing. The long term ramifications that can have on someone, whether or not they’re incarcerated, are huge.

WM: From a legal standpoint, how does a state justify keeping prisoners incarcerated on nonviolent cannabis offenses after cannabis becomes recreationally legal?

Gersten: I cannot, for the life of me, tell you how these officials justify keeping someone like Michael Thompson incarcerated. And I think Michigan is a really great example. Michigan has fully legalized cannabis, they are building up a robust industry around those plants. And yet Michael Thompson sits in a Michigan prison. Now, because of the coronavirus, he risks dying there — and for what? 

It is the height of injustice that people that look like me are able to profit off of this plant while others are incarcerated and still face the collateral consequences of even just an arrest or an offense on your record for cannabis.

WM: How do the suggestions of defunding police departments and/or abolishing police altogether work into LPP’s greater mission of nationwide clemency, expungement, and reintegration?

Gersten: When we’re having conversations about defunding the police and reinvesting those dollars into our communities, we think about where tax revenue from legalization can go. Those conversations overlap. We should be taking tax revenue from the legal industry and reinvesting it back into those communities that have been disproportionately impacted by cannabis laws but also disproportionately impacted by state-sanctioned violence at the hands of the police.

Of course, we come to it with a particular focus, and that is our justice system; public defenders and attorneys doing pro bono work across the country are focused on getting retroactive relief for folks that are still caught up in the justice system or experiencing the collateral consequences of having a cannabis charge on their record.

WM: For the newly social-justice-oriented cannabis enthusiast, can you explain how the cannabis industry as a whole benefits from a ground-up dismantling and rebuilding?

Gersten: You know, it was only a few years ago that cannabis was illegal across the board. And even today, large multi-state operators are doing something that is federally illegal. To not reckon with that restorative element but still want to do the work to legalize across the board is totally missing the point. It’s a scary proposition for someone to be faced with, the fact that they’re doing something that is still federally illegal, that if the feds wanted to, at any moment, they could come and disrupt their life, they could put me in prison because of this.

When you really start to interrogate what states have done to provide retroactive relief for those still sitting in prison, I think people would really be shocked. I think people hear “mass expungement” and “pardon” and think that those terms refer to relief. And that is totally understandable! Even as a lawyer, I get tripped up on these legal definitions. But no state has provided broad retroactive relief for those incarcerated for cannabis offenses, even those states that have fully legalized. And it doesn’t, to me, make any sense at all that you would go through the process of legalization and provide some form of retroactive relief like expungement or record clearing, but not even consider releasing those that are still in prison. 

WM: How can everyday cannabis users support equitable local cannabis communities?

Gersten: Grassroots advocacy campaigns can really make an impact. Michael Thompson’s case is a good example of that. Though he is not (yet) free, when we submitted his application for clemency earlier this year, over 100,000 people engaged in a call to action for Michael. And that led to the prosecutor coming on board to support the petition. We hope that that will be the point that sways the governor to do the same. 

That’s an example of how these kinds of calls to action can get you engaged in these issues.  We have various campaigns that we’re running constantly. Some are dedicated to cannabis prisoners. Some are dedicated to legislative initiatives. Some are dedicated to broader federal initiatives. 

And I would say vote with your dollar, support black-owned companies and companies owned by and/or employing those that have been in the justice system. I think that’s a really critical way consumers can support the mission. 

WM: For cannabis enthusiasts with significant resources to commit to this cause, where do you suggest they begin?

Gersten: Get involved. If you sign up to volunteer, we will immediately send you a million ways that we can engage deeper on this issue. And we’ll keep following up with ways you can get involved. It’s super easy.  And obviously, cash is the lifeblood of any nonprofit.

I’ve been really heartened by the focus on criminal justice reform beyond those that were steeped in it before George Floyd’s murder. I think the day all cannabis POWs are free is coming sooner than we anticipated. But It’s going to take a ton of work and it’s going to take an army. That’s what we need: every person involved in this community to be educated, to be aware and to get involved. 

To learn more about the Last Prisoner Project’s current initiatives, campaigns, donations, and volunteer opportunities, visit TheLastPrisonerProject.org.

Featured image Reiana Lorin/Cannaclusive

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Malbec and Medical Cannabis: Have Them Both in Argentina

Recently, in Cannabis is Coming! The Latest on Colombia and Mexico, we wrote about legislative initiatives regarding cannabis in two of Latin America’s most important economies. Today we turn our attention to another of the region’s traditional powerhouses, Argentina, which is seeing developments not just at the national level, but also in its provinces and even cities.

Medical cannabis was legalized in Argentina in 2017, but inadequacies in the accompanying regulatory framework meant many users need to turn to the black market to obtain products. The national government is currently working on new regulations that will, among other things, allow home cultivation.

In the meantime, some Argentinean localities are also working on their own cannabis legislation. For instance, in Mendoza, a bill has been introduced in the provincial chamber of deputies to “regulate … scientific research and the medicinal and therapeutic use of the cannabis plant and its derivatives.” The bill specifically provides for the adoption by the provincial health system of the use of cannabis oil for the treatment of numerous ailments.

Mendoza is well known for its wines, and the dry climate that make it a viticulture powerhouse could also be ideal for cannabis crops as well. Interestingly, the bill’s sponsor, José María Videla Sáenz, is a 13th generation winegrower.

At the city level, Santa Fe recently passed an ordinance to regulate medical cannabis use. The ordinance provides for the establishment of a voluntary registry of growers, paving the way for home cultivation, something the Mendoza provincial legislation did not do.

Santa Fe’s provincial senate (Santa Fe is the capital of the eponymous province) is also considering its own cannabis bill. During the lower chamber’s debate on the bill, a legislator brought a cannabis plant into the chamber. If this sounds familiar, it’s because the same thing happened in Mexico recently.

Will a U.S. representative copy the plant antic when the House debates the MORE Act? My money is on Matt Gaetz.

The post Malbec and Medical Cannabis: Have Them Both in Argentina appeared first on Harris Bricken.

The California Fires and Cannabis

Yesterday, my Harris Bricken colleague Vince Sliwoski wrote a post entitled, “The Oregon Fires and Cannabis“. Given how fires have been ravaging California for the past few weeks, I thought I’d write on how California’s fires are affected the cannabis industry.

For the past few weeks, our California cannabis attorneys have been told by a number of cannabis businesses of actual or threatened destruction due to the fires. Even for businesses that don’t physically burn down, shutdowns and evacuations can be devastating. Especially for outdoor cultivators, smoke, ash, lack of sunlight, or other forms of environmental pollution can be devastating. On September 11, Marijuana Business Daily published an article examining some of the devastation caused by the wildfires, quoting interviews with cannabis insiders.

Like in Oregon, California’s cannabis agencies have specific rules to deal with potential disasters, which include fires. The rules are generally the same across the industry, but I’ll cite the CA Department of Food and Agriculture’s (CDFA) rules here since outdoor cultivators seem to be the most severely affected to date.

As noted above, CDFA’s rules define “disaster” to mean “condition[s] of extreme peril to the safety of persons and property within the state or a county, city and county, or city caused by such [sic] conditions such as . . . fire”. CDFA rule 8207 regulates disaster relief–if a licensee believes it can’t comply with a licensing requirement (e.g., storing cannabis on a property that’s in the path of a fire), it must notify CDFA and specifically request relief from that requirement. CDFA has total discretion as to whether to grant this relief and can only do it for a limited time (how limited depends on the circumstances). CDFA can also condition that relief on licensees doing certain things, again in the agency’s discretion.

Given that obtaining this pre-approved relief can take some time, crops can be destroyed in the period it takes to get relief. Therefore, CDFA allows licensees to move cannabis off the premises if certain conditions are met, including that the cannabis is brought to a secured location where access is restricted to the licensee and its employees/contractors, and the licensee gives notice to the CDFA within 24 hours of movement. To be clear, these are not the only conditions and requirements and it’s critical to understand all of the requirements.

For licensees that think they could be affected by the fires, evaluation of CDFA’s rules proactively and consulting with an attorney who understands the disaster relief process is key. CDFA and the other agencies (which again have similar rules) will undoubtedly have their respective hands full for the foreseeable future. As my colleague Vince noted, “For now, the best approach is probably to remain alert, listen to local authorities and keep an eye out for further regulatory advisement. And pray for rain.”

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Friday, September 11, 2020 Headlines | Marijuana Today Daily News

Marijuana Today Daily Headlines
Friday, September 11, 2020 | Curated by host Shea Gunther

// Medical Marijuana Measure Removed From Nebraska’s November Ballot By State Supreme Court (Marijuana Moment)

// Early freeze in Colorado could cost marijuana hemp growers millions in losses (Marijuana Business Daily)

// Oregon’s marijuana businesses face threat from devastating wildfires; 1 in 5 under some evacuation level statewide (Oregon Live)


These headlines are brought to you by Atlantic Farms, a Maine-based multistate cannabis business with operations in Maine and Massachusetts. Open up TheAtlanticFarms.com for more on the company!


// Lawmakers call on Pritzker to clarify IL marijuana dispensary lottery process after 21 companies chosen to compete for 75 licenses (ABC 7 News Chicago)

// Medical marijuana manufacturer license up for grabs in Iowa (Marijuana Business Daily)

// Aurora Cannabis To Take Billion Dollar Charge As Revenues Fall (Green Market Report)

// Marijuana Possession Arrests Plummet In Texas After Hemp Legalization, New State Data Shows (Marijuana Moment)

// Marijuana firm Cronos replaces CEO with consumer packaged goods veteran (Marijuana Business Daily)

// Maine Finally Approves First Marijuana Business Licenses Weeks Before Legal Sales Launch (Marijuana Moment)

// Why No Cash Crop Is More Vulnerable To California Wildfires Than Cannabis (Forbes)


Check out our other projects:Marijuana Today— Our flagship title, a weekly podcast examining the world of marijuana business and activism with some of the smartest people in the industry and movement. • Marijuana Media Connect— A service that connects industry insiders in the legal marijuana industry with journalists, bloggers, and writers in need of expert sources for their stories.

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Photo: Ted Rheingold/Flickr

The Oregon Fires and Cannabis

Wildfires are ravaging Oregon, Washington and California. They are truly terrible. Here in Oregon, a full 500,000 residents have been evacuated as I write this blog post on the evening of September 9. Portland smells like burning ash and the suburbs are in evacuation protocols. It’s awful even here.

For the cannabis industry, things look scary too. According to the Oregonian, the Oregon Liquor Control Commission (OLCC) reported that one in every five licensed marijuana businesses (or 408 businesses) are in evacuation protocols from the 35 uncontained wildfires. A total of 73 outdoor producers have been forced off site entirely. As to hemp grows, which are heavily concentrated in some of the afflicted areas, things may be even worse.

The OLCC moved quickly on Wednesday to issue Guidance for OLCC Marijuana Licensees Impacted by Natural Disasters. The Guidance is straightforward. If emergency officials issue a level 1 or level 2 evacuation notice (as has happened in many locales), licensees may transfer endangered product while notifying OLCC. The product must go to another licensee, although it can be any licensee: the prohibition on producers transferring to producers, for example, does not apply. The 24-hour notice requirement for bulk product transfers is also waived temporarily.

The Guidance is very clear that moving product to an unlicensed area, even in evacuation scenarios, is not allowed. Everything must be manifested and tracked in CTS, like always. Licensees are also prohibited from transferring products back to an evacuated premises prior to confirmation that buildings and cameras are fully operational. All in all, it seems the OLCC is trying to help vulnerable businesses while guarding against diversion.

The Oregon Department of Agriculture (ODA), which largely oversees hemp, has not issued any advisement to date on wildfire protocol. Hemp does not have similar diversion issues to marijuana, and Oregon hemp crops are still in the ground (at least for another few weeks). For those reasons, it’s likely that we won’t be seeing much from ODA on this issue.

Here at the law firm, our thoughts are with our clients and the industry at large. Many Oregon cannabis businesses are un- or underinsured and others were struggling even before the fires. Looking ahead, it is hard to predict what effects the wildfires will have on the industry at large– especially because we do not know when the fires will be done with Oregon. For now, the best approach is probably to remain alert, listen to local authorities and keep an eye out for further regulatory advisement. And pray for rain.

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ICYMI: Here Comes California-Certified “Comparable-to-Organic” Cannabis

Due to the federal illegality of cannabis, cannabis businesses don’t receive normal treatment from the federal government (with maybe one or two exceptions, like the NLRB and the 2014 FinCEN guidance for access to financial institutions). This obviously mucks up the ability of a cannabis business to operate in a consistent and reliable way, and it can make it difficult for cannabis businesses to really stand out when it comes to the creation of household names and brands.

In particular, other, federally legal businesses in the agricultural world are freely able to use the term “organic” on their comestible products so long as they adhere to U.S. Department of Agriculture (“USDA”) protocols and regulations. Not so for your average cannabis farmer or distributor. At the same time, to assist cannabis cultivators and other cannabis licensees with economic survival and product recognition as well as establishing more comprehensive standards for product quality, individual states have contemplated pseudo-organic certification programs under state law (like Washington State). California is leading the way though as the first state to have a “organic” certification program comparable to the Feds that will go live in 2021.

Back to federal law. Labeling a product as “organic” generally requires an actual certification, and that certification is regulated by the USDA. Congress set forth general organic principles in the Organic Foods Production Act, and the USDA defines and regulates specific organic standards. Though alternative certifications exist for cannabis and cannabis products under various state laws, none are approved or regulated by the USDA, and they therefore do not create an official federal organic certification (which will not happen unless and until cannabis is legalized at the federal level).

Despite current federal laws around organic certification, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”), the California Department of Food and Agriculture (“CDFA”) is required to establish a certification program for cannabis that is comparable to the National Organic Program (“NOP“) and the California Organic Food and Farming Act by January 1, 2021. In response to its statutory directive under MAUCRSA, CDFA created the OCal Program. “OCal” is a labeling term that “identifies California commercial cannabis products produced according to the OCal regulations, which are comparable to the [NOP] regulations.” The OCal Program is charged with the development and enforcement of regulations for products sold, labeled, or represented as “OCal”. To be very clear, “OCal” does not mean “organic” as that term is defined by and used under federal law–“OCal” actually stands for “comparable-to-organic” cannabis products sold only within the State of California.

In case you missed it, OCal is strictly a voluntary certification program (but you cannot utilize the OCal label without the required certification). Essentially, cultivation or distribution licensees can pursue certification through the program and, if the licensee meets certification requirements, the certifying agent (who will be accredited either under NOP or OCal,and it can be a “private entity” or local government doing the certifying) will designate the licensee’s operations as “OCal.” OCal isn’t yet in play–while the program has been created and initial round of regulations sent to the public for comment, those initial draft rules are still being modified and aren’t anticipated to be adopted until December of this year, with the OCal Program going live on January 1, 2021. And if you’re a manufacturer that wants to label your products as “comparable-to-organic” under state law, you’ll get your chance, too, as the California Department of Public Health must also establish a program similar to OCal by July 1, 2021.

What does certification actually mean and entail? A solid outline is available in the proposed regulations issued by CDFA in May of this year. Here are some of the highlights of those regulations:

  1. Not every licensee can get OCal certification. In particular, “a licensed commercial cannabis operation that does not handle cannabis and nonmanufactured cannabis products to be labeled, sold or represented as OCal is excluded . . . including . . . Distribution operations if nonmanufactured OCal cannabis products: (1) Are received enclosed in a package or container; (2) Remain enclosed in the same package or container while under the control of the distributor, except for Bureau sampling; and (3) Are in a container labeled pursuant to section 10301(a) of this chapter; Laboratory operations; [and] Retail operations.
  2. Even if you can label your products as “OCal” certified, you still cannot use the term “organic” anywhere on the label or it’s a violation of state law (not to mention a violation of federal law), and the products labeled as OCal must contain 100% OCal certified product components/ingredients. If you’re knowingly labeling your products as OCal without accreditation or just as “organic”, you can receive administrative fines from the state for up to $17,952 per violation, or up to $20,000 per violation with revocation or suspension (as of the release of the September 1 modified rules).
  3. Cultivators and distributors that participate in the program have additional and increased record keeping, system protocols (including the adoption of a very specific OCal systems program to be utilized at the licensed premises), and regulatory accountability requirements (including regarding track-and-trace) to ensure they can prove compliance with the program at any time.
  4. To be sold or labeled OCal, cannabis and nonmanufactured cannabis products have to be made/grown without the use of: “Synthetic substances and ingredients”, except as provided in The National List of Allowed and Prohibited Substances; “Nonsynthetic substances” prohibited in The National List of Allowed and Prohibited Substances; Substances prohibited for use on cannabis under state law as determined by the Department of Pesticide Regulation; “Excluded methods”; Ionizing radiation, as described in Food and Drug Administration regulation, 21
    C.F.R. section 179.26; and sewage sludge.
  5. Specific to cultivators, not just any plot of land or location can be used if you want to be OCal, and the land/farm must be managed in extremely specific ways, too. The land or farm must have (1) been managed to support soil fertility and crop nutrient levels in compliance with the regulations, which is an incredibly comprehensive and detailed system with specific seed and plant stock practices that also includes specific crop rotation requirements as well as fertilizer and pesticide requirements and prohibitions; (2) had no prohibited substances on it or applied to it for a period of 3 years immediately preceding harvest of cannabis; and (3) distinct, defined boundaries and buffer zones on the operator’s field or farm parcel to prevent the unintended application of a prohibited substance to the crop or contact with a prohibited substance applied to adjoining land that is not under organic management.
  6. A specific OCal seal can only be used on products depending on background color. Here are your two choices so far:
  7. Securing certification is not going to be the easiest task in the world as applicants will have to demonstrate compliance with the program through a separate application process (that includes review of a proposed OCal systems program prepared by the applicant) that involves a fairly rigorous on-site inspection by the state/certifying agent before the certification will be granted.
  8. It’s a $500 fee to apply, and you’ll also be paying for a certifying agent’s time to complete the accreditation process at $55 an hour–you’ll get the bill for that time spent after you’re found eligible for accreditation and you have to pay within 10 days of receipt in order to actually receive accreditation. There are also flat fee registration renewal fees for certifying agents that increase over time depending on when you register going into 2021 and beyond.

On September 1, CDFA issued modified regulations around the OCal Program. The modified regulations are almost identical to the proposed regulations from May of this year with a few notable exceptions around clarifying (1) that a certifying agent’s fees have to be “reasonable” and well-documented in order to be eligible for payment by an applicant per 8 above; (2) penalties and fees for willful violations; (3) that any agricultural product test results that have pesticides, residues, or contaminants that exceed either the Food and Drug Administration’s or the Environmental Protection Agency’s “regulatory tolerances” need not be reported to the state by a certifying agent (which makes sense because no such standards exist for cannabis with either of those agencies). The public can submit comments to CDFA regarding these modified rules until September 15.

With the advent of the modified rules pretty much mirroring the proposed rules, and given that it’s already September, we’re likely looking at the bulk of the OCal Program already. In turn, cultivators and distributors should be preparing themselves now for OCal certification, as it’s sure to be no easy task to accomplish. The point here though is that California State certification will try to be as good as federal certification (even if the legal semantics around the term “organic” don’t completely line up), and it will hopefully be to the long-term benefit of cultivators, distributors, and consumers. Let’s see.

The post ICYMI: Here Comes California-Certified “Comparable-to-Organic” Cannabis appeared first on Harris Bricken.

Hemp-CBD: USDA Reopens Commenting for 30 Days on Interim Hemp Rule

Everyone in the hemp industry knows that last fall the U.S. Department of Agriculture (“USDA”) released its interim hemp rules governing the production of hemp. Our hemp-CBD attorneys have written extensively about the new hemp rules and their shortcomings, as well as the panoply of different hemp regulations at the state level and the DEA’s recent promulgation of an interim rule that may criminalize the processing of hemp:

Next week, on September 17, three of our attorneys (Nathalie Bougenies, Daniel Shortt, and Griffen Thorne) are leading a free Q &A webinar on all aspects on hemp and CBD. Here’s a link for more information on the webinar and how to register.

The timing of the webinar couldn’t be better as the USDA just announced that it is reopening the comment period on the hemp rules for 30 days. The comment period opened yesterday, September 8, and all comments must be received by October 8, 2020. The reopening is notable because the USDA received over 4,600 comments during the initial 90-day period.

As explained in the notice of reopening, the USDA is particularly interested in comments on the following topics:

  • Measurement of Uncertainty for Sampling
  • Liquid Chromatography Factor, 0.877
  • Disposal and Remediation of Non-Compliant Plants
  • Negligence
  • Interstate Commerce
  • 15-day Harvest Window
  • Hemp seedlings, microgreens, and clones
  • Hemp breeding and research
  • Sampling Methodology – Flower vs. Whole Plant
  • Sampling Methodology – Homogenous Composition, Frequency, and Volume
  • Sampling Agents
  • DEA Laboratory Registration

Today I’ll discuss one of these topics and why it matters.

Liquid Chromatography Factor, 0.877

This topic goes to the requirement that all hemp be tested for “total THC.” As Nathalie Bougenies has explained, total THC is the molar sum of delta-9 THC (“THC”) and delta-9 tetrahydrocannabinolic acid (“THCA”). The 2018 Farm Bill requires that all testing for THC levels use postdecarboxylation or similar methods. Cannabis plants with total THC levels higher than .3%, plus a measurement of uncertainty, are classified as marijuana and deemed a Schedule I controlled substance.

The two accepted methods for measuring cannabinoids in industrial hemp are gas chromatography (“GC”) and high-pressure liquid chromatography (“HPLC”). HPLC uses a pump to push liquid solutions through a column at high pressure to separate chemicals. The process does not utilize heat and so cannabinoids do not undergo decarboxylation and so remain in their original form. In layperson’s terms this means that HPLC does not convert THCA into delta-9 THC (unlike GC, which uses heat and transforms the acid cannabinoids, e.g. THCA, into their neutral form, e.g. THC). So test results using HPLC show concentrations for cannabinoids in both their acidic and neutral form.

When using HPLC, the total THC is determined by summing the delta-9 THC and the THCA concentrations. Currently, the THCA concentration is multiplied by correction factor of .877 to account for the weight of the carboxylic acid chain on TCHA.  (If this sounds like we are weighing a chain of atoms on a molecule to determine whether a cannabis plant is hemp or marijuana, we are).

In its call for comments on this topic, the USDA states:

Several commenters claim that this formula is inaccurate since it is based on a 100 percent conversion factor, which is nearly impossible to achieve in a laboratory setting. In other words, commenters claim that since the conversion of the THCA to Δ9-THC is never perfectly complete without loss or degradation of starting material, the molar sum of Δ9-THC and THCA-A measured by LC is always higher than the total Δ9-THC measured by GC.

These commenters call for alternative methods, including one that would multiply the THCA content by .5262 instead of .877. So proponents of lowering the correction factor from .877 seek to take into account both (1) the weight of the carboxylic acid on the TCHA molecule, and (2) that the conversion of THCA into delta-9 THC is never perfect.  Whether the correction factor ought to be .5262 or some other number is beyond me— I’ll leave the science to the scientists. But just playing around with the following equation demonstrates why this is important: % Total THC = % THC + (% THCA x Correction Factor). Plainly, a correction factor of .877 results in a higher Total THC than a correction factor of .5262.

So how the USDA resolves this one issue will have significant consequences for whether any given batch of cannabis is hemp or (federally) illegal marijuana.

If you have the scientific expertise to comment on the correction factor, I encourage you to do so. I encourage everyone in the hemp CBD space to comment on what aspect of the interim hemp rules matters most to them. Written comments should be submitted via the Federal eRulemaking portal at www.regulations.gov. Comments may also be sent via email to farmbill.hemp@usda.gov or sent by postal mail to USDA/AMS/Specialty Crops Program Hemp Branch, 470 L’Enfant Plaza SW, PO Box 23192, Washington DC 20026.

The post Hemp-CBD: USDA Reopens Commenting for 30 Days on Interim Hemp Rule appeared first on Harris Bricken.

Tuesday, September 8, 2020 Headlines | Marijuana Today Daily News

Marijuana Today Daily Headlines
Tuesday, September 8, 2020 | Curated by host Shea Gunther

// 75 pot shop licenses to be awarded in lottery that includes just 21 applicants; losing firms ‘shocked’ (Chicago Sun-Times)

// USDA Reopens Public Comment Period On Hemp Rules Following Intense Industry Pushback (Marijuana Moment)

// Vermont Lawmakers Make Key Compromises On Marijuana Sales Legalization Bill As Deal Nears (Marijuana Moment)


These headlines are brought to you by Atlantic Farms, a Maine-based multistate cannabis business with operations in Maine and Massachusetts. Open up TheAtlanticFarms.com for more on the company!


// Pennsylvania GOP leader tosses cold water on marijuana legalization plan (Marijuana Business Daily)

// Report: ‘No Evidence of Bias’ in Awards of Medical Cannabis Licenses (Maryland Matters)

// Psychedelic Company Numinus Files $4 Million Offering (Green Market Report)

// Quebec cannabis stores post quarterly profit as sales grow (Marijuana Business Daily)

// Virginia Lawmakers Approve Another Round Of Marijuana Reforms While Broader Legalization Is Studied (Marijuana Moment)

// Marijuana Research Bill Scheduled For Key Congressional Vote Next Week Committee Announces (Marijuana Moment)

// Cannabis companies secure fresh funding deals as investors wade back into capital markets (Marijuana Business Daily)


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