Month: December 2019

Starting Jan. 1, Coloradans will have more options for consuming cannabis in public. But will we catch up to California?

Starting on Jan. 1, House Bill 1230 will allow two entirely new types of businesses in Colorado: tasting rooms that can sell cannabis flower and cannabis products, and “marijuana hospitality establishments,” which can’t sell cannabis on-site but allow full use of the plant (including on tour buses).

The post Starting Jan. 1, Coloradans will have more options for consuming cannabis in public. But will we catch up to California? appeared first on The Cannabist.

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Weld County launches “marijuana is not harmless” campaign. But how accurate are its numbers?

Weld County on Thursday launched a new campaign to warn the community against some of the ill effects of marijuana but drew criticism for citing an annual report that critics have called biased and off-base.

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Oregon to Crack Down on CBD-Infused Alcoholic Beverages

About a year ago, we were the first law firm to report on the legality of manufactured cannabidiol (“CBD”)-infused alcoholic beverages. Due to the growing popularity and mainstream nature of CBD-infused products, many alcohol beverage companies were surprised to read us conclude that blending CBD into their products was a risky business, even in hemp-friendly states like Oregon. Yet, last week, the Oregon Liquor Control Commission (“OLCC”) issued new guidelines that expressly state that:

[b]ased on federal law and regulations, alcohol manufacturers are prohibited by law from manufacturing alcoholic beverages which contain CBD.

In addition, the state agency announced it would begin cracking down on the sale of CBD-infused alcoholic beverages manufactured in the state starting February 2020.

As we previously explained, alcoholic beverages are regulated under federal and state law. Most states, including Oregon, mandate that manufacturers provide proof to their liquor control board that their product formula has received approval from the U.S. Alcohol and Tobacco and Trade Bureau (“TTB”).

Although the TTB oversees the regulation on alcoholic beverages, the agency works closely with the U.S. Food and Drug Administration (“FDA”) in determining whether the ingredients added to those beverages are safe for consumption and whether their use is lawful under the Food, Drug & Cosmetic Act (“FDCA”). Indeed, the FDA’s main function is to protect public health by ensuring that foods and drinks introduced into interstate commerce are safe.

As we have discussed at length since the enactment of the 2018 Farm Bill (e.g., here and here), any substance that is intentionally added to food, including drinks, is subject to FDA pre-market review and approval, unless the substance is generally recognized as safe (“GRAS”). Because the FDA has approved CBD as a drug ingredient in the treatment of epilepsy (Epidiolex), the cannabis compound cannot be also be used in and marketed as a food. As such, CBD has not been recognized as GRAS – except for three hemp seed ingredients that contain trace amounts of CBD. Therefore, the FDA treats CBD-infused alcoholic beverages as unsafe and unlawful under the FDCA.

Given its deference to FDA guidelines, it is no suprise that the TTB has refused to approve formulas of alcoholic beverages infused with CBD until the FDA designs a legal pathway for the sale and marketing of these products.

Therefore, no Oregon CBD-infused alcohol manufacturer could possibly show proof of TTB approval to the OLCC, which means none of the products manufactured and sold in Oregon are lawful.

This brings us back to the OLCC guidelines and letters issued to licensees. According to various media sources, the agency declared it was acting in response to health uncertainties as well as to bring its enforcement in line with state and federal laws. The OLCC further explained that according to the FDA, “many CBD products are untested and might actually pose a risk to human health.”

While the ban will be limited to manufactured products, the OLCC said it intends to also develop new regulations that would bar local bars and restaurants from mixing CBD into alcoholic drinks for on-premises consumption.

So whether you are an Oregon manufacturer or a bar/restaurant owner, you should steer clear of infusing your alcoholic concoctions with CBD as it is, and will soon become, an even more risky business. For more information on this issue, feel free to contact our Portland regulatory team.

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Hemp-CBD Across State Lines: Nebraska

The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.

This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp CBD”). Each Sunday, we summarize a new state in alphabetical order. Today, we cover Nebraska.

Just recently, on December 20, 2019, Nebraska submitted it’s hemp cultivation plan to USDA. Nebraska’s plan outlines how it will comply with the 2018 Farm Bill and the USDA’s interim rules for hemp cultivation by addressing how the Nebraska Department of Agriculture (“NDA”) will maintain relevant producer information, sample and test hemp, dispose of hemp, inspect hemp producers, collect information on harvests, comply with enforcement provisions, and will ensure that it has the resources and personnel to regulate hemp. Nebraska’s hemp plan follows Legislative Bill 657 (“LB 657“) (codified at NE St. § 2-501 et seq.), which Nebraska’s legislature passed last year to allow for hemp cultivation under state law.

Nebraska is in the process of obtaining approval from for hemp cultivation but questions remain as to the legality of Hemp-CBD products. Last year, on November 16, 2018, Nebraska’s Attorney General issued an Opinion on CBD stating that CBD products remained illegal, despite the then-pending 2018 Farm Bill. That opinion does not appear to have been updated or rescinded. LB 657, makes it legal “to possess, transport, sell, and purchase lawfully produced hemp products.” NE St. § 2-504. However, LB 657 does not define “hemp products” and LB 657’s stated purpose is to “[a]lign state law with federal law regarding the cultivation, handling, marketing, and processing of hemp and hemp products.” NE St. § 2-502. Given the FDA’s policy on Hemp-CBD this makes the legality of specific Hemp-CBD products in Nebraska questionable at best. In addition, Lincoln Police Chief Jeff Bliemeister recently warned retailers that the sale of CBD products is not clearly legal under LB 657 and that they “could jeopardize[e]” their business if they sold these products.

Nebraska is in the process of implementing LB 657 and obtaining approval from the USDA for its hemp plan. That will certainly provide clarity for the production of hemp but questions will likely remain un-answered as to the legality of Hemp-CBD products under Nebraska law. Hopefully, they are cleared up in the new year.

For previous coverage in this series, check out the links below:

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Working in Colorado’s cannabis industry could prevent you from becoming a U.S. citizen. A new bill in Washington could change that.

Sen. Cory Gardner, a Republican from Yuma, joined forces with an unlikely partner in liberal Democrat Sen. Elizabeth Warren from Massachusetts to introduce legislation that would remove participation in the legal cannabis industry from the list of activities that automatically bar naturalization.

The post Working in Colorado’s cannabis industry could prevent you from becoming a U.S. citizen. A new bill in Washington could change that. appeared first on The Cannabist.

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