Month: October 2018

Stiffed Drinks: CBD-Infused Alcoholic Beverages Banned in California

Mint is still fine; CBD, not so much.

A few months ago, I spoke to a reporter from Quartz about cannabidiol (CBD). She told me that a local cafe was offering a CBD-infused latte and that it piqued her interest for a story. Her local baristas were not alone as numerous bars, restaurants, and cafes across the country have been experimenting with CBD-infused beverages. However, as with all things CBD, the regulatory framework is rapidly changing. If you’re a business owner looking to add a CBD beverage to the menu, it’s important to carefully consider state and local law.

That brings us to California. California is an excellent case study when it comes to CBD. The Golden State has a long history with cannabis, as it was the first state to create an affirmative defense for the medical use of marijuana in 1996. In 2016, California voters approved of recreational marijuana. California has also approved of an industrial hemp pilot program under the 2014 Farm Bill, but the program has been mostly dormant because the state’s laws and regulations make it nearly impossible to legally obtain hemp seeds. In addition, and perhaps most importantly when it comes to CBD, California has a propensity to regulate just about everything under the Sun.

Cue the California Department of Public Health’s (CDPH) infamous FAQs. As we wrote back in July, these FAQs stated that CDPH was banning the inclusion of hemp-derived CBD as a food, food ingredient, food additive, or dietary supplement. California’s Health and Safety Code defines food to include beverages meaning that CBD is not allowed in beverages of any kind. California’s Alcoholic Beverage Control (“ABC”) issued its own FAQs which stated that licensees could not serve alcoholic beverages mixed with cannabis, even if the licensee was using CBD. ABC cited to CDPH’s FAQs to prohibit the use of hemp-derived CBD.

The FAQs are examples of CDPH and ABC using policy statements to enact what feels like a new law or regulation. At the state level, laws are passed by both branches of a state legislature and signed into effect by the Governor. Laws establish requirements or prohibitions. In turn, regulations are issued by agencies to clarify their interpretation of a law and how a law will be implemented. Like laws, regulations also impose requirements or prohibitions. When an agency issues a new regulation, there are procedural requirements such as a public comment period where stakeholders can voice concerns over proposed regulations. Similarly, when the legislature passes a new law, lawmakers hold public hearings. These procedural requirements provide for transparency.

Agencies also can issue guidance or other policy statements to clarify how an agency understands and implements existing laws and regulations. Generally speaking, guidance and other policy statements are not mandates but rather are an expression by the agency of a suggested or recommended action. Agencies are not generally required to provide the public with a notice and comment period before issuing a policy statement because those statements shouldn’t establish requirements or prohibitions.

When it comes to CBD-infused products, the outright prohibition in California is stated in the CDPH’s policy statement. There is no law or regulation that specifically prohibits using industrial hemp derived CBD as a food additive but CDPH interprets its governing rules and regulations to prohibit CBD in food or drinks.

Alternatively, ABC’s guidance prohibiting the use of CBD in alcoholic beverages has been enacted into California law. Recently, Governor Jerry Brown signed Assembly Bill 2914 (the “Bill”) prohibiting alcoholic beverage licensees, like bars and liquor stores, from providing hemp-derived CBD cocktails. The Bill’s purpose is summed up as follows:

This bill would prohibit an alcoholic beverage licensee from, at its licensed premises, selling, offering, or providing cannabis or cannabis products, including an alcoholic beverage that contains cannabis or cannabis products, and would provide that no alcoholic beverage shall be manufactured, sold, or offered for sale if it contains tetrahydrocannabinol or cannabinoids, regardless of source.”

That last phrase, “regardless of source,” encompasses cannabinoids like CBD even if it was derived from industrial hemp.

California has codified the prohibition of CBD-infused alcoholic beverages. The similar prohibition on CBD in non-alcoholic beverages and other consumable products is not codified in a law or regulation. In that sense, the latter prohibition would be easier to reverse. That said, CDPH’s guidance is powerful as agencies are given broad deference when interpreting their own regulations, so if CDPH changes that guidance, it will likely be because it wants to or because the legislature writes a law to expressly allow CBD in non-alcoholic beverages and other consumables. It will not be the result of a private party lawsuit.

The idea of offering a CBD-infused cocktail in California is a non-starter. If you are hoping to enjoy a CBD cocktail, you’ll have to forgo California and book a flight east. CNBC reports a New York bar is experimenting with CBD cocktails. Perhaps New York regulators will take a different approach from their California counterparts. Time will tell.

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FDA Grants “Breakthrough Therapy” Status for Magic Mushrooms to Treat Depression

In a move that will likely come as a surprise to many, the Food and Drug Administration (FDA) has granted Breakthrough Therapy status to psilocybin, which is the psychedelic ingredient found in magic mushrooms.

The Breakthrough Therapy status was granted for the use of psilocybin to treat depression. The move comes after research commissioned by the government found that the substance shows great promise in the treatment of depression.

The designation of Breakthrough Therapy allows the FDA to expedite research and review of treatments containing psilocybin (or psilocybin itself). Currently a Phase IIb trial is underway attempting to determine the optimal dose range for psilocybin to treat severe treatment-resistant depression.

The FDA’s Breakthrough Therapy designation was created in 2012, and was designed to give certain substances a faster pathway to approval.

The post FDA Grants “Breakthrough Therapy” Status for Magic Mushrooms to Treat Depression appeared first on TheJointBlog.

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With Just Days Before the Election, New Poll has Michigan Marijuana Initiative Leading 57% to 41%

According to a new poll released just days before the November 6 general election, a strong majority of likely Michigan voters support Proposition 1 to legalize marijuana.

The poll, commissioned by Free Press and conducted by the polling firm EPIC/MRA, found that 57% of Michigan voters support Proposition 1, with 41% opposed. Only 2% are undecided on the issue. The numbers are almost identical to a Free Press poll released in September, which found support for Prop 1 at 56%.

“Even though there are some law-enforcement groups and others that are putting out information against the proposal, it seems to have pretty solid support,” says Bernie Porn, president of EPIC/MRA. “There has always been a perception that there are far too many people in jail for a minimal amount of use and that it prohibits the police from spending time on more serious crimes.”

Josh Hovey, spokesman for the Coalition to Regulate Marijuana Like Alcohol (the group behind Prop 1, said “the public recognizes that prohibition causes more harm than the product itself and that regulation and taxation is the way we need to go.”

If Proposition 1 is passed by voters next week, anyone 21 and older would be allowed to possess up to 2.5 ounces of marijuana, or up to 10 ounces at a private residence. They would also be allowed to grow up to 12 marijuana plants. In addition, the initiative would establish a licensed and regulated system of marijuana retail outlets, with marijuana receiving a 10% excise tax in addition to the standard 6% sales tax.

The post With Just Days Before the Election, New Poll has Michigan Marijuana Initiative Leading 57% to 41% appeared first on TheJointBlog.

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These Four States Vote on Marijuana Legalization NEXT WEEK

As surprising as it may be, we are now only a week and a day away from the November, 2018 general election.

We’re just 8 days away from the November 6 general election. During this election two states will be voting on the legalization of marijuana for all purposes, and two will be voting for the legalization of marijuana for medical use.

Below is a look at these four initiatives.

Recreational marijuana initiatives:

Michigan (Proposal 18-1):

Proposal 1, put forth by Michigan’s Committee to Regulate Marijuana Like Alcohol, would allow anyone 21 and older to possess up to 2.5 ounces of marijuana, or up to 10 ounces at a private residence. Those 21+ would also be allowed to grow up to 12 marijuana plants.

In addition, the initiative would establish a licensed and regulated system of marijuana retail outlets. Marijuana would receive a 10% excise tax in addition to the standard 6% sales tax.

North Dakota (Measure 3):

Measure 3, if passed into law this November, would legalize the possession, personal cultivation and licensed distribution of marijuana and marijuana products – including hash and oil – for those 21 and older.

In addition, the initiative establishes a 3-step system for marijuana expungements:

  • Step 1.) The state begins to analyze all those currently in prison with charges that would be applicable under the law and flags them for expungment.
  • Step 2.) 30 days after their release from prison, the state shall automatically expunge their records.
  • Step 3.) The state then has 10 additional days to send via certified mail notification of such an event occurring.

If that state fails to expunge a record that qualifies, the person has a right to a court appeal. If the person wins the court appeal, they can sue the state for fiscal damages with the state waiving it’s sovereign immunity in the case.

Medical marijuana initiatives:

Missouri (Proposition C, Amendment 2 and Amendment 3:

Missouri’s situation is a little… shall we say… complicated. Three entirely separate measures will be voted on this November. All three would legalize medical marijuana, but would do so in different ways, including all three having their own tax system. Rather than tell you which you should support, we’ll link below to the full text of all three measures so that you can read them and decide for yourself.

Utah (Proposition 2):

Utah voters will also have the opportunity to legalize medical cannabis – including dispensaries – this November through the passage of the Utah Medical Marijuana Initiative.

Specifics of the initiative include:

  • Dispensaries would be allowed to sell marijuana to individuals with medical cards. During any one 14-day period, an individual would be allowed to buy either 2 ounces of unprocessed marijuana or an amount of marijuana product with no more than 10 grams of tetrahydrocannabinol (THC) or cannabidiol.
  • After January 1, 2021, individuals with medical cards would be allowed to grow six marijuana plants for personal use within their homes if there are no dispensaries within 100 miles.
  • The measure would exempt the sale of medical marijuana from the sales tax.

The post These Four States Vote on Marijuana Legalization NEXT WEEK appeared first on TheJointBlog.

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