The Grass is Greener: Cannabis Law News: Recent Episodes
Marshall Custer
The cannabis industry has exploded in the past decade, from a taboo topic to a multi-billion dollar industry. As the legal cannabis industry continues to evolve, it is crucial to stay on top of industry trends and the ever-changing regulatory landscape. Tune into The Grass is Greener: Cannabis Law News, hosted by Husch Blackwell’s Cannabis Law team as they discuss the most pressing topics in the cannabis industry.
In this episode, we hear from seasoned cannabis industry advisor, Marc Hauser, and host Hilary Bricken, about the top pitfalls and traps in today’s cannabis industry. Marc, a former practicing transactional and corporate attorney, is the current Chief of Staff of Jardin, a well-known Nevada-based cannabis retailer. Marc shares with listeners the variety of issues he’s witnessed in the past seven years in the cannabis industry, including with federal enforcement, state regulation, public and private markets, cannabis company governance, and misguided perceptions of the industry. Marc also discusses the current perils tied to cannabis politics, rescheduling, “hemp versus marijuana”, and the industry scuttlebutt surrounding the same. If you want to cut through the noise to get down to the hardline cautions currently in the cannabis industry, tune in now!
The Corporate Transparency Act (CTA) seeks to increase corporate transparency and combat financial crimes in the U.S. such as money laundering and terrorist financing. Enacted in January 2021 as part of the National Defense Authorization Act, the CTA requires certain business entities to disclose their beneficial owners—individuals who ultimately own or control the company. Namely, corporations, limited liability companies, and similar entities must report their beneficial owners to the Financial Crimes Enforcement Network. Some entities, such as large operating companies, regulated entities (banks, insurance companies, etc.), and entities already subject to extensive federal regulation, are exempt from these reporting requirements. There are steep penalties for non-compliance or falsifying information, including fines and possible imprisonment. Even though cannabis companies are federally illegal, they are not exempt from reporting under the CTA. In this episode host Hilary Bricken, and Yuefan Wang, corporate, M&A, and securities partner at Husch Blackwell, discuss the mechanics of the CTA and how and when cannabis companies must comply, including consequences to cannabis companies if they fail to report.
There are now dozens of multistate operators (MSOs) in the U.S. cannabis industry. Since 2010, the concept of MSOs has carried many connotations, good and bad. At times, MSOs are considered the ultimate form of “Big Marijuana,” and at other times, they’re considered indispensable to the democratic experiment that is state-by-state legalization. Rarely do we get to peek into the daily inner workings of these MSOs, even though the overwhelming majority are publicly traded. In this episode, Husch Blackwell’s Hilary Bricken and Jushi’s Executive Vice President of Legal Affairs Matt Leeth discuss Jushi’s day-to-day happenings as well as long-term vision. Currently, Jushi operates 38 retail facilities and maintains roughly 1,200 employees throughout the U.S., while offering numerous cannabis brands to both patients and adult-use consumers. During this episode, Matt dishes on the challenges of scaling, regulatory differences from state to state, keeping investors happy, and what Schedule III will mean for Jushi and other MSOs.
In October 2022, President Biden asked the Department of Health and Human Services (HHS) and the U.S. Attorney General to review how marijuana is scheduled under federal law. In August 2023, the HHS marijuana recommendation went to the Drug Enforcement Administration (DEA) for its consideration. On May 16, 2024, the DEA published its 92-page notice of proposed rulemaking (NPRM) to move marijuana from Schedule I on the CSA to Schedule III. We are currently in a 60-day public comment period that is part of the DEA’s rescheduling process and NPRM. Rulemaking is a complicated and drawn-out process with many twists, turns, and administrative nuances. In this episode, John Hudak, the Director of the Maine Office of Cannabis Policy and former Deputy Director of the Center for Effective Public Management (who was also a Senior Fellow in Governance Studies at the Brookings Institution where he led Brookings’ research into cannabis policy, regulation, implementation, and politics for over 10 years), takes the audience through this historic rulemaking effort by the DEA and what to expect next from federal and state governments. John covers timelines, rulemaking technicalities, the politics behind the NPRM, and the possibility of a bifurcated system for marijuana between pharmaceuticals and state-licensed markets.
This fall, Floridians will vote on Amendment 3, which would legalize cannabis for adults 21 years old and older in the Sunshine State. Existing medical marijuana treatment centers in the state will get first (and maybe the only) dibs to sell adult-use cannabis. It’s been a battle for Florida to even get adult use cannabis on the ballot, and the threshold for adoption of this constitutional amendment sits at a whopping 60% of voter support.
In this episode, Husch Blackwell's Hilary Bricken and Hirsh Jain, founder of Ananda Strategy, a leading cannabis consultancy serving cannabis brands, retailers, technology businesses, and venture capital funds in the United States, Canada, and Western Europe, take us through the importance and significance of Amendment 3—not just for Florida, but for the nation when it comes to meaningful cannabis reform and progress. While this episode was recorded prior to Amendment 3’s clearance for the ballot boxes by state government, Hirsh shares his invaluable insights on just why and how Florida will become the crown jewel of cannabis, surpassing even California and New York, if voters vote yes on Amendment 3.
California’s Emerald Triangle is a famed region in the Golden State for the cultivation of top-notch cannabis. In particular, Humboldt County is home to some of the nation’s most seasoned, generational cannabis farming families. One such farmer is Andy Butts, founder and CEO of Humboldt Trim Company. In this episode, Husch Blackwell's Hilary Bricken and Andy Butts give listeners an insider’s view into farming and distributing cannabis from the Emerald Triangle. Andy also takes listeners through the current maze of California cannabis regulations as they impact generational farmers, craft cannabis, and the concept of cannabis appellations similar to wine. Andy takes a “farmer’s first” approach to cannabis cultivation for which the Emerald Triangle is known, and listeners truly get a feel for what commercial and agricultural life is like for sun-grown cannabis farmers in the Emerald Triangle.
In 2023, Total Wine & More jumped into the cannabis drinks arena in Minnesota. Since then, there’s been an influx of “THC Beverages” hitting the marketplace, including in interstate commerce. How is this legally possible, and why are these libations picking up great speed with consumers? Because a lot of these “THC beverages” fall into the hemp-derived cannabinoid category. Due to the passage of the 2018 Agricultural Improvement Act (known as the “Farm Bill“), hemp and all of its derivatives (containing no more than .3% THC and that are not synthetically derived) are no longer illegal schedule I controlled substances pursuant to the Controlled Substances Act. As a result, enterprising hemp product makers and businesses quickly took advantage of this seeming oversight, while states are just now playing catch up on the regulatory side. Some states are regulating these products, while others aren’t doing anything. In this episode, Husch Blackwell's Hilary Bricken and Adam Terry, CEO of Cantrip, which is taking the hemp-derived drinks space by storm, discuss the trials and tribulations (and successes) of navigating this emerging segment of the cannabis industry.
Cannabis investing is risky business. The current federal conflict, a punitive federal income tax situation, and an inability to access financial institutions put off many institutional investors. Not so though for Emily Paxhia, seasoned institutional investor and one of the very first institutional investors in cannabis via Poseidon Asset Management. In this episode, Emily and Hilary discuss the past, present, and future of cannabis investing in the United States. Emily shares her insights on the biggest booms and busts for Poseidon and what she sees on the horizon for cannabis reform as it impacts investors of all kinds. Despite the current volatility for the U.S. cannabis industry, having launched multiple cannabis-focused funds in the past 10 years, Emily has high hopes for the future expansion of and innovation in the U.S. cannabis industry.
Since legalizing in 2016, California has experienced rampant rate failure across its licensed cannabis companies. The State of California also has some of the highest and most aggressive cannabis taxes in the nation. In an effort to stave off the California Department of Tax and Fee Administration’s (CDTFA) latest round of rulemaking that would, among other things, extend cannabis excise taxes to cannabis accessories, Catalyst Cannabis Co. (one of the state’s largest cannabis operators) is in a complex challenge with CDTFA over its rulemaking authority, alleged procedural violations, and the overwhelmingly negative impact of such tax rules. In this episode, Husch Blackwell's Hilary Bricken and Anthony Almaz, General Counsel for Catalyst Cannabis, break down and analyze this potential crucial fight between the industry and California’s top tax regulator.
Due to current federal law, cannabis businesses notoriously cannot access financial institutions, even just for depository accounts. In 2014, the Financial Crimes Enforcement Network (FinCEN) released guidelines that opened the door for financial institutions to provide banking services to cannabis businesses as long as strict “know your customer” standards are followed. Those FinCEN guidelines are still valid today, and they represent the only method through which financial institutions can validly bank cannabis businesses, but they’re no picnic to follow for either financial institutions or cannabis industry customers.
In this episode, Husch Blackwell's Hilary Bricken interviews Brett Ballman and Karen Petrick of Salal Credit Union as they take listeners through the ins and outs of cannabis banking under the FinCEN guidelines and also discuss how certain states differ from others in their approach to cannabis banking. Brett and Karen also explore how federal reform will impact their cannabis industry banking customers and what they see on the horizon for the cannabis banking industry.
On October 26, 2023, a group of large cannabis companies based in Massachusetts filed suit in the U.S. District Court for the Western District of Massachusetts against Merrick Garland, our current U.S. attorney general, alleging that, while Congress has the constitutional power to ban cannabis from interstate commerce, the Controlled Substances Act (CSA) exceeds that power by overreaching to ban cannabis from purely intrastate commerce. Essentially, neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution give Congress a “general police power” to take over regulation of strictly intrastate commerce. Plaintiffs’ counsel in this case is renowned civil rights trial firm Boies Schiller Flexner, LLP, and Joshua Schiller is one of the litigators leading the charge.
To overcome negative precedent in this area, plaintiffs argue that highly regulated state markets actually reduce interstate cannabis commerce (meaning, heavy state government oversight reduces illicit interstate transactions) and that cannabis isn’t fungible anymore—state-legal products (that are tracked, traced, packaged, labeled, and tested in line with strict state rules) are easily distinguishable from illegal ones. They also argue that Congress long ago abandoned its alleged goal of banning cannabis intrastate for the sake of keeping it out of interstate commerce, using as examples the continually renewed federal spending bills in support of state-legal medical cannabis, the fact that D.C. allows for medical cannabis, and the multiple (now rescinded) Department of Justice memos that essentially let the states take over intrastate cannabis control anyway.
In this episode, Husch Blackwell's Hilary Bricken and Joshua Schiller of Boies Schiller Flexner takes listeners through the intricate in’s and out’s of this potentially landmark lawsuit, why it matters now more than ever for the fate of the cannabis industry, and how Josh believes the federal government will handle the case (while potentially getting in front of the Supreme Court on appeal).
In this episode of The Grass is Greener podcast, Husch Blackwell’s Marshall Custer has an engaging discussion with cannabis industry founding father Andy Williams – founder of Medicine Man and MedPharm Holdings. Andy discusses his experiences and insights on the current state of the cannabis M&A market and what it will take for current operators to maximize their value to future buyers.
To learn more about Husch Blackwell's innovative cannabis law team or to subscribe to more cannabis legal content, visit our website at www.huschblackwell.com.
In the inaugural episode of The Grass is Greener: Cannabis Law News, Husch Blackwell Cannabis Group Co-Leaders Steve Levine and Marshall Custer discuss the state of the cannabis industry, including the current federal landscape and predictions for the future. The big money that we’ve been waiting for may be trickling in, but what will the exit moment look like for most operators?