In this week’s edition:

• FDA Hires Ex-NY Cannabis Policy Regulator
• Five States to Vote on Whether to Legalize Recreational Cannabis This November
• Smoking Cannabis Now More Popular Than Cigarette Smoking
• ASTM International Approves Four Standards for Cannabis Industry Use
• Study Reports Anti-Cancer Properties of Certain Delta-9 THC-Rich Cannabis Extracts

Federal

FDA Hires Ex-NY Cannabis Policy Regulator  – Signaling greater involvement in cannabis-related matters, and although greeted with some skepticism by the industry, the FDA has appointed Norman Birenbaum, the former program director for cannabis in New York, to be its senior public health advisor on cannabis research and regulatory actions. Birenbaum spent the last few years guiding New York’s transition to recreational cannabis. With Birenbaum, the FDA is expected to expand its relationship with the health care community as well as patients and patient advocacy groups.Industry observers welcomed the move given that the agency continues to struggle with the regulation of cannabis-based products, including those containing CBD, despite the passage of the 2018 Farm Bill close to 4 years ago.

GOP Senator Blocks Bipartisan Cannabis Research Bill From Expedited Vote – Last month, Senate leadership’s efforts to expeditiously pass the Medical Marijuana and Cannabidiol Research Expansion Act, a House-approved marijuana research bill, were scuttled when Sen. John Cornyn (R-TX) objected. Senate Majority Leader Chuck Schumer (D-NY) had initiated the process to pass the bipartisan bill under unanimous consent on September 29, 2022. If there had been no objections, the expectation was that the bill would have moved quickly through the Senate to President Biden’s desk. Sen. Cornyn’s office did not provide a reason for the objection.

US Cannabis Use Surpasses Cigarette Smoking – A new Gallup poll reveals that for the first time ever, smoking cannabis is more popular than smoking tobacco. Nearly half of US survey participants said they had tried cannabis at some point, with only 16 percent stating that they currently smoke cannabis. In 1969, only 4 percent of respondents indicated they had ever tried cannabis.

States

AR, MD, MO, ND, SD – Voters from five states have the opportunity to legalize recreational cannabis at the ballot box this November. In Arkansas, Issue 4 would amend the state’s constitution to legalize the use of cannabis for personal use by adults aged 21 and older. Likewise, Maryland (Question 4) and Missouri (Amendment 3) will vote on their own constitutional amendments to legalize recreational cannabis. Voters from North and South Dakota will get the chance to legalize cannabis by way of statutory initiatives (Measure 2 and Measure 27, respectively). For South Dakotans, this will be the second time voters have the choice of legalizing cannabis, their successful 2020 initiative having been ruled unconstitutional by their state’s high court.

AR – New analysis indicates that Arkansas could see nearly $1 billion in annual cannabis sales and close to $500 million in tax revenue over the next five years if state voters approve the legalization of recreational cannabis this November. In the first year of implementation, combined adult-use and medical cannabis sales are expected to double compared to the current sales for medical cannabis alone.

CA - California enacted a bill last month protecting workers that use cannabis at home from adverse action by their employer. Gov. Gavin Newsom (D) signed the legislation, which prohibits the discharge of employees based on their off-duty use of cannabis. However, employees (and employers) should note that the bill’s protections do not take effect until January 1, 2024.

IL – State regulators issued revised guidance last month permitting cannabis infuser licensees to produce vape cartridges. Vapes are a large portion of Illinois cannabis sales, reportedly accounting for more than a quarter of cannabis purchases. The Illinois Department of Agriculture, which oversees infusion licenses, originally disallowed vape cartridges in its initial guidance because the agency ruled it a smoking product.

NV – Clark County District Court Judge Joe Hardy Jr. sided with plaintiff ACLU in his decision holding that the Nevada Board of Pharmacy’s listing of cannabis as a Schedule I drug was unconstitutional given the present state-legal status of cannabis for both medical and recreational use. By definition, a Schedule I drug is classified as a drug with no currently accepted medical use and a high potential for abuse. “The constitutional right to use marijuana upon the advice of a physician does establish that marijuana has an accepted medical use and treatment in the United States,” Judge Hardy wrote. While the Board has had every opportunity to remove marijuana from its Schedule I list on its own, it has persistently resisted any attempts at rescheduling.

NE - Nebraskans will not be voting on medical cannabis legalization this November. According to Nebraska’s Secretary of State, the two cannabis initiatives failed to qualify for the ballot because, among other things, they both fell short of the 86,776 signatures required for ballot access.

OK – The Oklahoma Supreme Court has denied petitioners’ request to place the legalization of recreational cannabis on this year’s November ballot. The Oklahoma State Election Board said the deadline to print ballots for November had passed and therefore the ballot question could not be presented to state voters. Regardless, Oklahomans will have the opportunity to vote on recreational cannabis legalization at either the next general election or at a special election set by the Governor.

NJ – The state’s Cannabis Regulatory Commission has issued guidance for employers regarding an employee’s right to consume cannabis during off hours. Among other things, the guidance notes that employees cannot face adverse action solely because of the presence of cannabis in their bodies. The guidance also includes a “Reasonable Suspicion Observation Report Form” intended to support employers’ rights in creating and maintaining a safe work environment.

NM – New Mexico Supreme Court Chief Justice Shannon Bacon announced last month that the judicial branch will seek changes to a 2021 cannabis expungement law during the upcoming legislative session. The justice noted that the judicial branch has been heavily burdened by the law, as it requires judicial staffers to review voluminous criminal records to determine who qualifies. Instead of putting the onus on the judicial branch to identify and expunge cannabis-related convictions, Justice Bacon stated that it should be up to affected individuals to file applications for such action.

VA – Virginia is reportedly not on track for starting cannabis retail sales by the state’s 2024 target date. In July 2021, Virginia lawmakers voted to legalize possession, but not sales, of recreational cannabis. The decision to wait until 2024 to begin retail sales was originally intended to give lawmakers and regulators a three-year runway to set up the market. Any legislation authorizing retail sales will have to pass during the state’s upcoming legislation session, which opens in January.

International

Japan – A health ministry panel has publicly stated that the country should consider approving the import, manufacture and use of medicines derived from cannabis, provided the medicines follow the same approval process used for pharmaceuticals. The possession and sale of cannabis remains a criminal offense in Japan.

Mexico - Former President and cannabis entrepreneur Vicente Fox urged lawmakers last month to legalize and regulate the recreational use of cannabis. “Legalizing and regulating this industry will take a lot of revenue away from cartels and put it in the hands of marijuana growers and businesspeople,” he said. Mexico’s Supreme Court previously ruled the country’s prohibition on cannabis to be unconstitutional and directed the country’s Congress to legalize it for recreational use. The Mexico legislature has yet to follow the court’s directive.

Business

Amazon Removes Cannabis-Related Businesses From Platform, Noting that Company Policy Prohibiting Controlled Substance Paraphernalia Continues to Apply - In some cases, Amazon recently flagged products that have been sold on the platform for years. Regardless, Amazon stated that its guidelines around drugs and drug paraphernalia are longstanding. Specifically, products primarily designed for making, preparing or using a controlled substance cannot be sold on Amazon. While sellers admit that the language of the policy is clear, they claim that enforcement has been (and continues to be) uneven.

ASTM International’s Cannabis Committee Approves Four New Cannabis Industry Standards - The first standard (D8375) will provide a method to establish cannabinoid content in cannabis and hemp samples. The second (D8399) will aid laboratories in analyzing cannabis and hemp samples to establish pesticide concentration levels—or lack thereof —to ensure products meet regulatory requirements within appropriate jurisdictions. The third (D8442) will provide a method to test for terpenes and cannabinoids in cannabis using gas chromatography. The final standard (D8469) will aid manufacturers, regulatory bodies and other cannabis industry stakeholders by providing a new test method for metals in cannabis.

Medical/Health

Study Reports Anti-Cancer Properties of Certain Delta-9 THC-Rich Cannabis Extracts - An analysis, published in the journal Molecules, of 25 cannabis extracts containing high levels of delta-9 THC demonstrated various degrees of efficiency (from 66 to 92 percent) in inhibiting the growth of cancer cells. Previous research has indicated that cannabis varieties are very different in their medicinal properties, likely due to the “entourage effect,” the synergistic or antagonistic effect of various cannabinoids and terpenes.

Abdominal Pain From Irritable Bowel Syndrome May Respond to Treatments Targeting the Endocannabinoid System – An article in the journal Nature Reviews Gastroenterology & Hepatology assessed the potential use of cannabinoids in pain management, specifically the reduction of pain in patients with disorders of gut-brain interaction, namely irritable bowel syndrome. Patients in increasing numbers are already reportedly using cannabis and cannabinoids as an alternative therapy.

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

Authored by associate Jacob Raver.