CannaBusiness Advisory

  • Update: SAFE Banking Act of 2019April 17, 2019

    As we discussed in a post back in February, one of the biggest hurdles facing the legal cannabis industry today remains the lack of access to banking services. Despite the legalization of cannabis on the state level, banks and credit unions have remained hesitant to provide financial services to cannabis-related businesses ( “CRBs”) out of concern that providing services to CRBs could potentially expose them to charges of money laundering and aiding and abetting federally-illegal operations. Originally introduced in May 2017, the “Secure and Fair Enforcement (SAFE) Banking Act” is a potential solution to the banking issues faced by CRBs across the country.  And while the 2017 Act was unsuccessful, the bill enjoyed bipartisan support.

    Last week, Sen. Jeff Merkley (D-OR) and Sen. Cory Gardner (R-CO)—along with 20 cosponsors—reintroduced the Secure and Fair Enforcement (SAFE) Banking Act into the Senate. The (SAFE) Banking Act’s companion bill was introduced in the House last month by Rep. Ed Perlmutter (D-CO) and a bipartisan group of 108 cosponsors. Following a hearing, the legislation was approved with bipartisan support in the House Financial Services Committee in March. It currently has 165 cosponsors.

    Based on legislators’ comments on the proposed bill, it’s clear that … Keep reading

  • Alpenglow at It AgainApril 03, 2019

    Brief Background

    As discussed in more detail in my prior post, Alpenglow Botanicals (“Alpenglow”) is a state licensed Marijuana dispensary based in Colorado. Alpenglow was audited for several tax years and the IRS made adjustments, denying Alpenglow’s deductions for ordinary and necessary business expense under §280E. The company’s two principals paid the assessed liability under protest and filed a refund suit. The district court dismissed the suit for failing to state a claim upon which relief could be granted. Alpenglow appealed to the 10th Circuit, which ultimately affirmed the district court’s dismissal.

    Supreme Court Petitioned

    On February 21st, Alpenglow filed its cert petition,[1] asking the U.S. Supreme Court to consider whether:

    • by enacting §280E, Congress empowered the IRS to investigate federal drug crimes and administratively determine whether a taxpayer is criminally culpable under federal drug laws and
    • 280E is a penalty for crime.

    The U.S., as Respondent, could have acquiesced to the petition, submitted its brief in opposition, or waived its right to respond. The U.S. elected to waive its right to file an opposition brief—leading me to conclude that they (a) thought the Court would quickly dead list the petition or (b) … Keep reading

  • CBD Update: After the Passage of the 2018 Farm Bill, Now What?March 27, 2019

    Just months ago, the hemp industry seemed to be on a clear path to legal certainty when the 2018 Farm Bill was passed on December 20, 2018 (the “2018 Farm Bill”). Though the passage of the 2018 Farm Bill legalized the production of industrial hemp, one of the main sources of cannabidiol (“CBD”), and the transport of hemp-derived CBD products across state lines, the CBD industry now finds itself in a state of disarray. So why all the confusion surrounding the CBD industry, especially at a time when CBD-infused products are flooding the marketplace? What the 2018 Farm Bill did NOT do was change the Food and Drug Administration’s (the “FDA”) authority to regulate any products containing CBD that are sold as food additives, topicals, drugs or dietary supplements in accordance with the Federal Food, Drug, and Cosmetic Act. As a result, the FDA has since made it clear that it is currently unlawful to introduce food or supplements products into interstate commerce that contain CBD, without first going through the FDA’s approval process.

    So you must be wondering why the FDA has taken this position, given the intent of Congress with the passing of the 2018 Farm Bill. … Keep reading

  • Legislation to Watch: New Jersey Makes a Push toward Legalization (and other state developments)March 20, 2019

    On Monday, New Jersey legislators voted in favor of a measure that would both legalize marijuana and expunge past marijuana convictions. Many industry stakeholders were relieved last week, when Gov. Phil Murphy and Assembly leaders announced that they had reached an agreement on the proposed bill following months of intense negotiations.

    Approved by the Assembly Appropriations Committee and the Senate Judiciary Committee, the bill is expected to be put on the floor for a final vote next week on March 25. If passed, the Garden State will become the 11th state to legalize adult-use cannabis. Broadly, the measure legalizes the possession, use and purchase of marijuana and establishes a proto- regulatory regime not unlike what we have seen in Massachusetts. It calls for the establishment a five-member commission “to oversee the development, regulation and enforcement of activities associated with the personal use of cannabis,” according to the NJ Assembly Democrats.

    The bill, among other things:

    • Permits municipalities to collect up to a 3% tax from cannabis retailers in their jurisdiction, 2% from growers and processors and 1% from wholesalers;
    • Provides for conditional licensing which would allow time for potential license holders to obtain financing;
    • Enshrines the right of
    Keep reading

  • The 2018 Farm Bill and CBDMarch 13, 2019

    The $867 billion 2018 Farm Bill was signed into law by the President on December 20th, 2018.
    The reconciled farm bill mainly just reauthorized many expenditures in the prior 2014 Farm Bill. However, it put an end to five decades of hemp prohibition. Hemp was afforded limited legal protections in 2014, when Congress passed a farm bill that authorized states to develop pilot programs for its research. The 2014 Farm Bill eventually gave rise to a patchwork of state regulations regarding hemp and hemp-derived CBD. While the bill did include legislation that impacts traditional U.S. farmers, the portion of the bill that stands to have the most impact is the part that focuses on hemp.

    The 2018 Farm Bill, among other things:

    • Removed hemp’s low amounts of THC from the Controlled Substances Act;
    • Allows the U.S. Department of Agriculture to regulate the crop like any other agricultural commodity;
    • Permits hemp products – like CBD – to be introduced into interstate commerce.
    • Allows hemp production in all 50 states for any use, including flower production and CBD or other cannabinoid extraction;
    • Allows interstate commerce for hemp and hemp-derived CBD

    However, this updated guidance was interpreted and misinterpreted throughout the hemp … Keep reading

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