Welcome to our weekly roundup of CBD and hemp-related legal and regulatory news:
Before a House Appropriations subcommittee, FDA Commissioner Dr. Robert M. Califf said the bulk of agency funds spent on CBD has been devoted to research on the risks of the various uses of CBD in its different forms. While he wants the FDA to continue moving forward on rules for CBD products, he said the agency requires broader regulatory powers from Congress to do so.
Related:
Hemp biz group urges FDA action on CBD after new study – Law 360 (sub. req.)
Marijuana Movement
A Ninth Circuit Court of Appeals, all selected by former GOP presidents, ruled the 2018 law repealed prohibitions on hemp products containing Delta-8 THC. While Delta-8 THC contains psychoactive and intoxicating effects like those of marijuana, the judges said it’s not a marijuana product, and therefore, not explicitly banned by laws against marijuana and other drugs. When Congress allowed the growing and marketing of hemp, it also allowed Delta-8 THC. “Regardless of the wisdom of legalizing Delta-8 THC products, this court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher said. If the legalization was inadvertent, he added, it’s up to Congress to change the policy.
San Francisco Chronicle
A bill allowing the Colo. Department of Public Health and Environment to limit the sale of Delta-8 THC products also calls for a task force to study intoxicating hemp products. The task force will comprise 20 members, including state government representatives, experts in cannabis and industrial hemp regulation and other stakeholders, who will submit a report to the Assembly by Jan. 1, 2023. The bill also allocates nearly $600,000 to the state’s AG office to focus on general consumer protection from synthetic hemp-derived intoxicating products, including Delta-8 THC and Delta-10 THC.
Forbes (sub. req.)
The N.Y. Senate and Assembly passed a bill to encourage businesses to use hemp materials for packaging and construction. After final procedural steps, the measure will be sent to the governor. The legislation amends state statute to stipulate the Agriculture Commissioner must work with the Urban Development Corporation, hemp workgroup and stakeholders who use or may use hemp to develop hemp for industrial purposes.
Marijuana Movement
In a friend-of-the-court brief filed by the DOJ at the request of the SCOTUS, the government said since federal law, in this case the Controlled Substances Act, takes precedence over state law, the court shouldn’t hear the case. The petitioner in the case, Susan K. Musta, demands that her insurer subsidize the purchase of a controlled substance. When asking the high court for a rehearing, Musta said the tension between state and federal policy had reached a breaking point with respect to the question of medical marijuana reimbursements. However, the DOJ disagrees, saying the split, with Minn. and Maine high courts ruling against reimbursement laws and high courts in N.H. and N.J. upholding them, was limited and recent. The government further warned a ruling allowing states to enforce laws compelling parties to violate federal drug laws could have broad and unintended consequences beyond cannabis.
Law 360 (sub. req.)
A Nebraskans for Medical Marijuana (NMM) complaint suggests a law requiring signatures from rural areas and giving undue influence to voters in sparsely populated counties is unconstitutional. The multi-county requirement dilutes the votes of residents in urban areas and violates the Equal Protection Clause and Due Process Clause of the U.S. Constitution, alleges NMM. The campaign is seeking an emergency injunction ahead of the final weeks of signature gathering, an effort that has been hindered by the recent loss of a financial donor, whose resources would have been used to hire contractors to get signatures from rural areas.
Law 360 (sub. req.)
An Ohio appeals court remanded to trial court a decision on whether the state’s Board of Pharmacy could subpoena a cannabis cultivator in an investigation on whether it knowingly sold cannabis grown out of state, in violation of state law. The appeals panel said the trial court didn’t consider the statutory context of the Board of Pharmacy’s subpoena powers when it declined to quash its subpoena served on Standard Wellness. Standard Wellness moved to dismiss the subpoena, arguing the board exceeded its authority. The trial court granted the Board of Pharmacy’s motion to enforce the subpoena, but also acknowledged this was a broad view of the state law in question. It stayed the motion pending Standard Wellness’ appeal.
Law 360 (sub. req.)
Calif.’s Second District Court of Appeal affirmed in three separate opinions (Decision (B308897), Decision (B308645) and Decision (B312412)) an L.A. County Superior Court judge’s decisions maintaining SweetFlower Pasadena’s lawsuits, rejecting moves by rivals Integral Associates Dena and Harvest of Pasadena to dismiss claims that their applications were invalid under the city’s own rules. The panel found the wrongs purported in SweetFlower’s complaints are Pasadena’s alleged arbitrary application of its licensing rules when it granted Integral’s and Harvest’s applications and not statements that city officials made in meetings discussing the requirements, meaning the claims don’t arise from protected activity.
Law 360 (sub. req.)
From The Earth argues it’s owed attorney fees after defeating the City of Commerce’s attempt to dismiss the case under a state statute designed to quickly kill lawsuits filed with the intent of censoring speech. The city filed its motion to dismiss the cannabis company’s lawsuit under Calif.’s anti-SLAPP statute, which the trial judge denied in 2020 on the basis that Commerce couldn’t show the alleged activity at issue in the complaint was protected. Commerce appealed the dismissal to a state appellate court, where the effort was also quashed in Mar. 2022. From the Earth says it’s owed $59,074 for its work litigating against the motions to dismiss and adds it’s entitled to the money under a Calif. law awarding costs and fees to a party that faced a frivolous anti-SLAPP motion.
Law 360 (sub. req.)
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