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March 03, 2021 Did You Know?

Legal Cannabis in Review: 2020

By Lisa L. Pittman

The mainstream acceptance of cannabis legalization continued its upward trajectory in 2020, with over two-thirds of Americans supporting legalization and only 8 percent believing it should be illegal. The American Bar Association has been tracking this trend. TIPS initiated a Cannabis Law & Policy Committee, which held a two-day CLE in 2019 to educate on the many traditional practice facets that legalization implicates. The Committee also drafted several resolutions to alleviate obstacles cannabis businesses face due to federal illegality, such as banking, being advised by an attorney, and social justice issues.

State-legal cannabis requires familiarity with a host of fascinating issues, including the state-federal law conflict, how each state handles the same cases differently, regulatory law, and criminal law. Cannabis has become big business, so any aspect of traditional law, such as mergers and acquisitions, is a skill in high demand by multi-state operators and international cannabis businesses. Practicing in this area is fun to be at the forefront of evolving laws where one must divine how courts will interpret them in future litigation, but it can also be frustrating. Because cannabis is still a Schedule I illegal substance under the Controlled Substances Act (CSA), the lifting of its prohibition lurches along in fits and starts both among the states and at the federal level, but 2020 was a landmark year.

During the pandemic, cannabis businesses were deemed essential services. Accordingly, governments loosened the ordinarily tight regulations on dispensaries to allow curbside pickup. As state governments endured COVID losses, cannabis tax revenue became appreciated and more pronounced. Colorado’s revenue topped previous years each month, demonstrating that legalization never gets old, even in the most mature market, such that even the most conservative states are considering it this year.

In the November elections, five states legalized, bringing the total to 36 medical states and 15 adult-use states plus the District of Columbia. Additionally, there was more federal activity on cannabis than ever before. The Medical Marijuana Research Act to expand research passed the U.S. House. The Cannabidiol and Marijuana Research Expansion Act, to allow growers to participate in research, passed the Senate (currently, only the University of Mississippi can grow). The MORE Act, filed by Kamala Harris to decriminalize cannabis, passed the House with 120 co-sponsors. The SAFE Banking Act, which allows banking for cannabis businesses that generally are required to operate solely on cash, gained 206 co-sponsors and the American Bar Association’s support.

Several significant lawsuits attacked the DEA’s rationale for retaining cannabis at Schedule I of the CSA. In December, the DEA finally published rules purportedly to allow limited cannabis research. The United Nations removed medical cannabis from the strictest category of the Single Convention on Narcotics—which the DEA has used as an excuse to deny research. Finally, mergers and acquisitions ramped up, and cannabis stocks doubled for the first time. In conclusion, this is the precipice of a gigantic new industry, one that may result in the “Coors” and “Budweiser” of cannabis by the end of our lifetimes.

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By Lisa L. Pittman

Lisa L. Pittman is Chair-elect of the Cannabis Law & Policy Committee and Co-Chair of the Cannabis Business Law Group at Coats Rose, P.C.Policy Committee. She may be reached at [email protected].