In this week’s edition:

• FDA reverses marketing denial order for 490 Turning Point Brands products
• California legalizes retail sales of non-intoxicating cannabinoids, including CBD, as dietary supplements and ingredients in food and beverages
• NBA players will not be subject to random tests for cannabis this season
• Promising study from Australia shows that acidic cannabinoids may be effective in treating epilepsy
• And more…

Federal

FDA reverses MDO against Turning Point Brands products -- The FDA has reversed its marketing denial order (MDO) against 490 Turning Point Brands (TPB) products.  TPB included sufficient data in the premarket tobacco applications (PMTAs) regarding potential benefits that outweigh significant known risks to youth.  While the FDA’s reversal only applies to TPB products, other companies that have had MDOs issued are appealing those orders. 

States

AL -- The sponsor of Alabama’s medical cannabis law plans to introduce legislation to provide greater flexibility around regulatory and implementation deadlines.  Alabama’s medical cannabis law allows people with certain medical conditions access to limited forms of cannabis, including pills and skin patches. 

AK -- A putative class-action was filed by a medical cannabis patient who was denied employment by Butterball LLC.  The complaint alleges that Butterball withdrew an employment offer for a non-“safety-sensitive” position based on a positive drug test for cannabis, contrary to Amendment 98 of the Arkansas Constitution.  The size of the class in this action is unknown at this time. 

CA -- California Gov. Gavin Newsom (D) signed a bill on October 6, expanding the state’s hemp industry by legalizing retail sales of non-intoxicating cannabinoids, including CBD, as dietary supplements and as ingredients in food and beverages.  The legislation will be implemented once the California Department of Public Health publishes enforcement rules in accordance with the provisions of the legislation.  The bill also includes provisions for the sale of smokable hemp, and hemp producers can immediately begin growing and manufacturing smokable products to be sold in other states. 

CT -- As of October 1, more than 54,000 registered medical cannabis use patients in Connecticut may now legally grow cannabis for their own personal use. Additionally, the state’s Department of Consumer Protection has published Policies and Procedures for the regulation of Adult-Use Cannabis, which will become effective October 16, 2021. 

ID -- The Idaho State Department of Agriculture (ISDA) recently submitted its Hemp Plan to the USDA.  If the plan is approved, the state will have the ability to issue licenses to businesses to sell hemp and hemp-related products.  The ISDA is prepared to issue licenses to hemp-related businesses later this year after receiving the USDA’s approval. 

IL -- Cannabis retailers in Illinois have sold nearly $1 billion worth of legal recreational cannabis products in 2021, including over $100 million in September sales. 

MA -- The Massachusetts Department of Agricultural Resources has issued a Guidance on Selling Hemp and Hemp-Derived Products to Marijuana Establishments, which applies only to the sale of hemp and hemp-derived products by Massachusetts-licensed hemp producers and processors to a cannabis establishment licensed by the Cannabis Control Commission. 

MO -- The Medical Marijuana Regulatory Program at the Missouri Department of Health and Senior Services issued a new directive prohibiting medical cannabis companies from employing any type of advertising, including strain names, except for listing prices on their websites.  The directive also prohibits medical cannabis companies from accepting online payments through third-party sites. 

MT -- Montana’s Department of Revenue published a notice relating to a public hearing on a proposed adoption and amendment of rules related to limitations on cannabis-related advertising.  The department received in-person and written comments on the proposed changes, and issued a summary of the state’s responses to issues raised through public comments. 

NY -- New York’s Cannabis Control Board (CCB) recently held its first meeting to discuss the implementation of the state’s adult-use cannabis program.  Some recent changes to the state’s existing medical cannabis program include dispensaries being allowed to sell flower cannabis products to qualified patients, and a permanent waiver of the $50 registration fee for patients and caregivers.  Based on a recent projection, the state is expected to see about $20 million in tax and fee collections from cannabis-related sales in, and is expected to eventually generate $245 million in annual cannabis-related revenue.    

PA -- State Sen. Mike Regan (R-Cumberland/York Counties) and State Rep. Amen Brown (D-Philadelphia) are joining forces on a bill to legalize cannabis in Pennsylvania.  The bipartisan and bicameral effort is supported by the Governor, but has yet to gain wide support from the Republican-controlled legislature.

SC -- Following a South Carolina Law Enforcement Division request for clarification on how the state's Hemp Farming Act applies to THC and THC variants, the AG’s office issued an opinion stating that both the state's Hemp Farming Act and the 2018 federal Farm Bill specifically address the Delta-9 compound and no other isomer, and thus, the Delta-8 compound found in some hemp products is not legal.  There is no formal guidance from the US Drug Enforcement Administration on whether Delta-8-THC derived from hemp is a controlled substance under federal law.

Business

US Court of International Trade dismisses cannabis company’s import dispute for lack of jurisdiction -- Judge Gary Katzmann at the US Court of International Trade (CIT) ruled that “a seizure effectuated within thirty days of presentation of the goods to CBP, even if uncommunicated to the importer within those thirty days, will prevent the occurrence of a deemed exclusion,” and noted that issues pertaining to seizures should be litigated in front of the district court.  The CIT opinion does not weigh in on whether CBP can seize imports of drug paraphernalia to states where cannabis is legal. 

No random cannabis testing by NBA -- NBA players won’t be subject to random tests for cannabis this season, according to a National Basketball Players Association (NBPA) memo obtained by ESPN.  This is consistent with the no-testing policy observed during the coronavirus hiatus and the previous season.  There is speculation that subsequent collective bargaining agreements for the league may exclude cannabis from the list of prohibited substances.

Medical/CBD

Effect of cannabis liberalization policies on perinatal health -- A recent study of an array of perinatal outcomes found modest or no adverse effects of cannabis liberalization policies (both recreational and medical use laws) on newborn health. 

First patient survey of cannabigerol-predominant cannabis use --  In a first of its kind study, including self-reported efficacy of cannabigerol (CBG)-predominant products, respondents reported greater efficacy of CBG-predominant cannabis over conventional pharmacotherapy.  These findings support the need for randomized controlled trials of CBG-predominant cannabis-based medicines. 

Using cannabis to treat epilepsy -- A study by pharmacologists at the University of Sydney shows promising treatment options for epilepsy using cannabis.  The study reports that acidic cannabinoids reduced seizures in a mouse model of Dravet syndrome, an intractable form of childhood epilepsy.  The study has been published in the British Journal of Pharmacology. 

Dentons Speaks

Join Dentons at MJBiz Kickoff Party at MJBizCon -- The annual MJBiz Conference is “the most anticipated event of the cannabis business year.”  Please join Dentons, and co-hosts Canadian Securities Exchange and CLD Advisory, for an exclusive cocktail party at La Cave at the Wynn Hotel, Las Vegas, on October 19, 2021, to kick off this year’s conference.  This is a private event and invitations are non-transferrable. 

Please click here for more information on the Dentons US Cannabis group.

Authored by Dentons counsel Debodhonyaa Sengupta and David C. Quam