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The amendment was first proposed in , and was adopted for the first time in for the fiscal year. The viability of that ruling, which is not binding in any other circuit, depends on the continuing renewal of the Rohrabacher Amendment. It was last renewed in February of as part of the spending bill signed by President Trump, and will remain valid through September 30, It is important to reiterate that the Rohrabacher Amendment applies solely to medical marijuana, and has no application whatsoever to recreational use in those states that have legalized it.
All state laws are not the same when it comes to their medical and recreational use regimes. When reviewing an investment proposal, an investor must pay close attention to the state in which the proposed venture will operate.
State and local laws and regulations may vary with respect to things like:. Because state laws vary so widely, it takes a fair amount of due diligence to understand whether a proposed venture considered these issues, and is in fact viable once the costs of compliance are factored in. An investor must also consider what would happen if a venture burns through cash as the costs of compliance become too great, while non-compliance could leave the venture open to liability under state aiding-and-abetting laws.
Finally, investors need to consider the desired balance between too much regulation, which might render a venture unprofitable, and too little regulation, which might take the venture outside of whatever safety prosecutorial discretion that used to be embodied in the Cole Memo provides.
It stands to reason that an industry that, until fairly recently, was illegal both at the state and federal level and continues to be illegal federally may have material weaknesses in those areas. Because the transportation of cannabis across state lines is illegal and is in fact an exception to the enforcement priorities under the Cole Memo , this is not necessarily a problem that can be easily solved by moving production to more favorable locales.
Access to banking is also a major problem. This generally involves heightened and ongoing due diligence surveillance obligations, paired with higher banking fees, and has resulted in a limited number of institutions willing to provide banking services to cannabis related businesses. As a result the cannabis business remains mostly a cash one.
Moreover, notwithstanding the expansion of regulated adult-use cannabis programs, illegal or black market cannabis remains as a competitor to adult-use and medical cannabis businesses. Finally, even if one believes that Federal legalization is on the horizon, an investor should evaluate the likely impact of the regulations such legalization would bring.
This means compliance with the Health Insurance Portability and Accountability Act of HIPAA , various cybersecurity regulations, as well as likely oversight of various segments of the industry by the U. Many cannabis related companies in the U. However, generally speaking, U. Federal trademark protection is only available for goods and services that can be lawfully used in commerce. Therefore, at least for now, state level trademark protection remains the best available solution.
While the USPTO may issue patents for cannabis related products, practicing or enforcing those patents is generally difficult, if not impossible, while cannabis remains a Schedule I drug. In the District of Colorado saw what appears to be the first action trying to enforce a cannabis related patent, United Cannabis Corporation v.
Pure Hemp Collective Inc. July 30, No decision has been rendered in this case, but industry observers believe it could be a bellwether for whether federal litigation is viable for enforcement of patent rights in the cannabis area. Similarly, there is an added layer of complexity when trying to enforce rights for contracts that involve something that remains illegal under federal law.
Federal courts have attempted to strike a balance in this area, but the law is not well developed. The recent decision by the Northern District of Texas in Ginsburg v. The case concerned an investment by the plaintiff in a cannabis business that went sour, and resulted in well familiar claims of breach of contract and fraud in connection with the notes purchased by plaintiff.
While the opportunities to invest in cannabis and cannabis adjacent industries may be exciting, potential investors should take additional precautions to make sure they are comfortable with the level of risk, legal and commercial, involved. For more information concerning the matters discussed in this publication, please contact the author Alexander G. Malyshev , malyshev clm. First, through Canadian companies cross-listed on U. Second, through companies that are adjacent to the cannabis industry, either through products made from the now legal Hemp or Cannabis sativa L plant , or through various service providers to the industry.
Hemp which, among other things can be used to produce the non-intoxicating extract Cannabidiol CBD , became federally legal nationwide with the passage of the Farming Bill signed into law on December 20, See Pub. Discussion of the various issues surrounding legalization including the ability to transport hemp-derived products across state lines, and certain changes to the Controlled Substances Acts CSA are beyond the scope of this particular article.
Skip to content. Business Law. Much of this capital raising activity was a result of U. With respect to the development of next generation products, significant investments from major U. In December , Altria Group Inc. With respect to exposure to the U. Tilray , have already taken advantage of the liberalized U.
On October 15, Canopy announced that it had entered into an agreement to acquire the assets of Ebbu, Inc. Canopy has also taken a step toward establishing a cultivation presence in the U. Tilray, meanwhile, announced the acquisition of Manitoba Harvest, a Canadian hemp-based food processor with products currently sold in grocery store chains throughout Canada and the U.
The company has been developing products containing hemp-derived CBD and plans to enter the U. We have found little evidence of enforcement of federal law against cannabis companies operating within states that have established a legal framework, but, despite this, U.
The primary consideration from a U. Furthermore, a firm that accepts payment for such services could be in receipt of proceeds of crime under applicable anti-money laundering statutes. However, to advise a cannabis company that operates exclusively in Canada, or any other jurisdiction which has a legal framework regulating cannabis, does not appear to be a violation of U. As a result, many U. Similarly, U. Although such issuers are subject to continuous monitoring by the exchanges, law firms are best advised to conduct their own diligence prior to agreeing to act on behalf of any cannabis company.
Another consideration that has provided some comfort for U.
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