Welcome to the Spring 2017 edition of The SciTech Lawyer. As you will have seen from this issue’s cover, we have focused our authors’ energies and talents on the rapidly evolving business of combustible herbage, whether for recreational or medicinal purposes. While it has been many years since President Bill Clinton swore he didn’t inhale his toke, in January of this year the staid Forbes had an article detailing that “Marijuana Sales Totaled $6.7 billion in 2016.” The last election cycle included several referenda (dare we say “reeferenda”?) on legalizing Mary Jane in different contexts so that about a dozen states permit it, while the feds continue to prohibit marijuana use and distribution.
April 01, 2017 Features
Altered State of Mind: The Science and Technology of Marijuana
By Peter F. McLaughlin
So, without admitting or denying that any authors or editors inhaled at any time, we have engaged some of the best minds in the growing area of cannabis law. Mara Gordon is the entrepreneurial founder of Aunt Zelda’s, driven by her personal journey of chronic physical pain. In developing a niche in medicinal pot, Gordon and her team worked hard to standardize dosing, which otherwise seemed haphazard across brands of weed and resultant products. Gordon’s article reflects many of the broader legal speed bumps surveyed by Gina Tincher, as Tincher outlines the expansive fields of law and regulation applicable to the cannabis industry.
Entrepreneurs are not the only ones planting seeds in this sector, though. Our articles demonstrate that there is big money and thus significant commercial operations running. Hilary Bricken is just one of our authors who has developed a specific cannabis practice, and she brings her experience to bear on what financing is available for these businesses, even though challenges remain. Some of these hurdles are as basic as how to process revenues, given that federal prohibitions dissuade most financial institutions from permitting bank accounts with drug money. Nonetheless, business continues, and Professor Annette Nellen surveys tax and ethical diligence topics, because corporate transactions occur in this space too. The conflicts between federal and state laws present some topical buds to consider. One interesting arena is that of hospitals, given that those involved in the treatment of chronic pain and oncology have increasingly recognized that properly administered cannabis can relieve pain, improve a patient’s ability to eat, and calm epileptic symptoms. Bob Morgan addresses the conundrum this can create for licensed healthcare facilities.
The federal-state conflicts also arise in the protection of a marijuana product’s intellectual property and branding. Shabnam Malek explains how common-law and statutory IP protection require careful weaving through the regulatory grasses, given that branding is so often a key organizational asset. Branding is, of course, central to promotion and advertising of cannabis blends and products, and so William Baker leads us in a review of how the simple mailing of advertising materials crosses permissive state laws and restrictive federal rules. We get a whiff of these federal-state issues again with Peter Gillespie’s contribution on the interplay of employment law, drug testing, and impairment with OSHA, disability, and employee privacy rights.
We close out the issue with insights from Courtney Saleski and Mark Kasten on what the future of legal marijuana may be under the Trump administration. Attorney General Jeff Sessions’s directives this spring likely mean that many of the challenges for financing, advertising, IP, and distribution will continue.
Enjoy this issue’s focus on ganja, and please enjoy your doobies responsibly. ◆