17 November 2016

Wilson Elser Moskowitz Edelman & Dicker LLP : United States: The Cannabis Industry: Burning Batteries, Tasty Treats And Budding Product Liability Litigation
November 17 2016

Article by Adam J. Detsky


Using cannabis is not just a matter of rolling a joint or packing a bong anymore. Marijuana-related technology has evolved, resulting in multiple areas for the products liability legal community to watch. One of the most substantial areas of note is vaporizing. Vaporizing is generally considered to be the healthiest way to consume marijuana as the user is – supposedly – only inhaling the vapor of the THC, with some estimates saying the process eliminates as much of 95 percent of the smoke inhaled, which generally is easier on the lungs. The process involves heating the cannabinoids, often with mass-produced, pen-size batteries that boil the THC or CBD. Generally, the boiling point of CBD is 320°F – 356°F / 160°C -180°C. The boiling point of THC is 315°F / 157°C. However, these batteries have not been through extensive quality control and testing, and vaporizers come in all shapes and sizes – some can take up a whole coffee table while others look like a writing utensil.Pot smokers are not the only ones lining up outside the local dispensaries; plaintiff personal injury attorneys are as well. Watching, lurking, waiting with dollar signs in their eyes for the chance to seek punitive damages, as many states allow damages beyond compensatory for intoxication-related injuries to others.

Seyfarth Shaw LLP: United States: Recreational Marijuana Use Becomes Legal In Massachusetts: Questions And Answers For Dazed And Confused Employers
 November 17 2016
Article by Ariel D. Cudkowicz and Anthony S. Califano


On November 8, 2016, Massachusetts citizens voted in favor of legalizing the possession and use of marijuana for recreational purposes, joining a growing number of states that have passed similar laws.  This means that employers likely will have to address employee use of marijuana in the Commonwealth.  Unfortunately for employers, the legislation does not provide clear guidance on how to deal with the thorny employee-relations issues that are sure to arise.  The following are some of the employment related issues facing employers and our initial insights.  We should note that this overview should not be construed as legal advice or relied on as a definitive statement of outlook, as we have very few details at this point.Seyfarth Synopsis: Massachusetts has voted to legalize the recreational use of marijuana.  For employers that want to maintain drug-free workplaces, the new marijuana law raises a number of questions regarding employer rights and obligations.  In this client alert, we identify a number of issues facing employers in the wake of this new law and offer our initial reactions and insights.

What Does The New Marijuana Law Actually Allow?

Under the new law, an individual who is 21 or older may possess for personal use up to 1 ounce of marijuana in public, and up to 10 ounces at home.  The law also allows the possession for personal use of up to 6 marijuana plants per person, with a limit of 12 marijuana plants per household.  Under the law, marijuana use is forbidden in public places or anywhere else smoking is prohibited.

LITTLER MENDELSON : United States: Marijuana Legalization Efforts Enjoy Success, Demonstrating Major Shift In Approach To Drug Regulation And Use

November 15 2016
Article by Nancy N. Delogu and Eunju Park


Election night also saw voters approve new laws expanding or permitting the lawful use of marijuana for medical purposes in Arkansas, Florida, Montana, and North Dakota.Election Day 2016 proved to be a historic occasion for initiatives favoring expanded access to marijuana. On November 8, California and Nevada joined West Coast early adopters Alaska, Oregon, and Washington in choosing to legalize marijuana for adult recreational use. On the East Coast, Massachusetts became the first state to legalize marijuana for adult recreational use. Whether Maine will join Massachusetts in approving recreational marijuana use in New England is yet undecided, as an initiative to legalize is currently too close to call with 91 percent of the vote counted, according to local press. Arizona voters, however, rejected an initiative to legalize marijuana sales for recreational purposes.

Despite these efforts, marijuana remains a Schedule I drug under the federal Controlled Substances Act, which means that it is neither lawful to use or possess as a matter of federal law. And although none of these new legalization efforts aim to change state employment law, employers in the affected states will no doubt be faced with a chorus of questions about how the changes will affect enforcement of their workplace substance abuse policies.

WeirFoulds LLP Canada: Don’t Let Your Development Go To Pot! Tips For Leasing To Marijuana Retailers November 15 2016
Article by Robert Eisenberg


Though this new policy is good politics, it also highlights the potentially-lucrative opportunity for landlords and tenants. For example, a Forum Research survey found that 31% of adult Canadians would use marijuana if it were legalized.  Extrapolating from data which suggests that the existing marijuana industry, supplying approximately 45,000 medicinal pot users, is worth from a low of $80 million to a high of $100 million per year, industry analysts suggest that the market for legal marijuana (medicinal and recreational) in Canada could top $22.6 billion per year, eclipsing the combined sales of beer, wine and spirits!2While anti-drug activists continue to do a slow burn, Prime Minister, Justin Trudeau’s Liberal government is (leisurely) marching forward on carrying out one of its most well-publicized campaign promises: the legalization of marijuana. At a recent session of the United Nations General Assembly, Health Minister Jane Philpott announced that the Canadian government isn’t just blowing smoke, but will instead begin the process of legalizing the use of cannabis in 2017 through a joint process with the provinces and territories.

The Current Legal and Regulatory Landscape

At present, cannabis is a controlled substance under the federal Controlled Drugs and Substances Act and the production, possession and distribution of marijuana is illegal, with the exception of medicinal uses3.  In August 2016, in response to the Federal Court of Appeal’s ruling in R. v. Allard, 2016 FC 236, the federal government replaced the existing Marihuana for Medical Purposes Regulations with the Access to Cannabis for Medical Purposes Regulations4.  Under these new regulations, Health Canada authorizes specific producers to distribute dried marijuana, fresh marijuana and cannabis oil to eligible persons. As of October 20, 2016, there are 36 licenced producers in Canada, 21 of which  are in Ontario.

These licenced distributors are currently the only entities who can legally sell/distribute marijuana in Canada – and that is only via mail/courier. The distributors are largely located in industrial areas. Other stores – so-called “dispensaries” – are technically illegal and are currently subject to periodic raids by local police forces. However, with the seemingly-inevitable legalization of recreational marijuana, the enthusiasm for such raids varies across police forces. Nevertheless, until further action is taken by the federal government, landlords should likely avoid leasing premises for the sale of marijuana by non-licenced distributors for this reason alone.

Although the Ontario government still hopes to corner the budding marijuana market by restricting the sale of cannabis to LCBO stores, only 38% of Ontarians believe that this is the best sales channel (with over 50% believing that it should be sold from specialized dispensaries or drug stores)5.  Of course, distribution mechanisms may vary by province; it remains possible that commercial landlords will start seeing marijuana retailers as tenants as early as next year. Indeed, it was recently announced that Shoppers Drug Mart, the largest pharmacy chain in the country, has applied for a licence to distribute medical marijuana6.

Nevertheless, despite the high hopes for profits, negotiating commercial leases with marijuana retailers will, to be blunt, remain fraught with risk even after legalization, and savvy landlords and tenants should keep in mind several issues when deciding to lease space for such businesses.

Seyfarth Shaw LLP: United States: Up In Smoke?: NORML Sues After Reports That FL Medical Marijuana Measure Disappeared From Ballot
 November 7 2016
Article by Meredith C. Bailey


The McLane Law Firm The Florida chapter of the National Organization for the Reform of Marijuana Laws (NORML) filed a civil lawsuit against the Broward County Commissioner of Elections, after  news reports indicated that some mail-in ballots did not include a question about a state constitutional amendment on allowing medical marijuana.

United States: Recreational Pot Is Now Legal In Massachusetts. What Does That Mean For Employers?
 November 15 2016
Article by Adam M. Hamel


The new law, which goes into effect on December 15, 2016, allows Massachusetts residents over the age of 21 to possess up to one ounce of marijuana outside their home and up to ten ounces at home, and to grow a limited number of marijuana plants at home. The law also allows Massachusetts adults to give (but not sell) up to one ounce of marijuana to another adult. The law provides for the establishment of a Cannabis Control Commission to be responsible for regulating and licensing the commercial sale of marijuana, something that won’t begin until at least January 2018. It will still be illegal in Massachusetts to consume marijuana in public, to smoke it anywhere that smoking tobacco is prohibited, or to operate a motor vehicle under the influence of marijuana. The possession and sale of marijuana remains illegal under federal law.Yesterday, with the approval of Question 4 by a 53.6% to 46.4% vote, Massachusetts joined a growing number of states that have legalized marijuana for recreational purposes. What does this change in the law mean for Massachusetts employers?

For Massachusetts employers, however, this new statute doesn’t represent a significant change in the law. The text of the statute provides that employers are not required to permit or accommodate any of the conduct allowed by the statute in the workplace, and the law specifically provides that it does not affect employers’ authority to enact and enforce workplace policies restricting the consumption of marijuana by employees.

Seyfarth Shaw LLP: United States
: California High On Proposition 64’s Recreational Marijuana Law
 November 16 2016
Article by Geoffrey C. Westbrook and Michael G. Cross


But don’t leave your sofa for the convenience store or snack aisle just yet. Recreational use of the Green Dragon in the Golden State remains quite limited, and its sale substantially regulated. Only adults of 21 years and older may possess, transport, consume, or share up to one ounce of marijuana. Marijuana concentrates, such as waxes, oils, and other cannabis-extracted products, are controlled to an even greater extent–with eight grams as the maximum. Individuals can grow up to six plants in their home for personal consumption. Public use remains prohibited under California law, as does driving while impaired. Violating the law will result in fines and required drug education or counseling. Possession and use of marijuana is still illicit under federal law, although enforcement by the Drug Enforcement Administration has been lax in recent years. That may change with President Trump taking the Oval Office in 2017.Golden State voters trail-blazed the way for the legalized use and sale of marijuana on November 8, 2016. The California Marijuana Legalization Initiative, known as Proposition 64, was welcomed with open arms (and maybe a little cotton mouth) by the nation’s largest economy with a vote of 56% in favor of the law.

The law potentially creates the largest market for marijuana products in the U.S. California is already known for its fine wine and craft beers–expectations are quite high for bud to do just as well. A state license is required to join in the fun, so not just any pothead can set up shop. And, it may be a challenge for green entrepreneurs to obtain commercial space, as well as financial lending, given the federal government’s ban.

Dickinson Wright PLLC: United States: Election Results: 4 States Pass Adult Use Marijuana Ballot Initiatives, 1 State Fails; 4 States Pass Medical Marijuana Ballot Initiatives, 0 States Fail
November 14 2016
Article by Bret D. Kravitz, Terrence O’Donnell and Scot C. Crow


On November 8, 2016, residents in 9 states voted on ballot initiatives to legalize adult use or medicinal marijuana. Arizona, California, Maine, Massachusetts, and Nevada voted to decide whether to legalize marijuana for adult use. Arkansas, Florida, Montana, and North Dakota voted to decide whether to legalize marijuana for medicinal use. The results of the voting in those states resulted in the passage of 8 of the 9 state marijuana-related ballot initiatives. The state summaries included in this Client Alert highlight those 9 ballot initiatives and their outcomes.

Arizona: Proposition 205 (FAIL)

Residents of Arizona voted down Proposition 205, an initiated state statute that would have permitted adults 21 years of age and older to possess and use 1 ounce or less or marijuana for adult use and grow up to 6 plants in their home. Proposition 205 would have established a Department of Marijuana Licenses and Control to regulate the cultivation, manufacturing, testing, transportation, and sale of marijuana. Retail marijuana sales would have been taxed at a rate of 15%.

California: Proposition 64 (PASS)

Residents of California voted to pass Proposition 64, an initiated state statute that will permit adults 21 years of age and older to possess and use up to 1 ounce of non-medical marijuana and 8 grams of non-medical marijuana concentrates for adult use and grow up to 6 plants in their home for non-medical use. Under Proposition 64, businesses will be required to acquire a state license to sell marijuana for adult use. Additionally, local governments can also require businesses to obtain a local license to sell. Proposition 64 will impose a 15% excise tax on all retail sales of marijuana, both medicinal and adult use.

Fox Rothschild LLP: United States: Marijuana Will Soon Be Legal In Half Of The United States But Not Trademarkland

November 14 2016
Article by Erika S. Koster



Trademarkland takes a hard line against drugs, refusing to register any trademarks linked to cannabis. If anything, it has gotten even stricter on this issue over time. The law animating the USPTO, the federal Lanham Act, bars the registration of trademarks that are connected to “unlawful” uses.This week eight of the nine states voting on the issue said yes to cannabis decriminalization but the USPTO continues to say no.

While the USPTO seemed to invite companies to apply to register these types of trademarks in 2010 when it created a new trademark category: “processed plant matter for medicinal purposes, namely medical marijuana”, it quickly reversed course. Trademarks for marijuana, which is still illegal on the federal level (under the Controlled Substances Act), can’t be federally registered.

This summer the board overseeing the USPTO decided it could conclude from photographs submitted by a Washington dispensary that its “Herbal Access” trademark was being used for illegal services despite the fact that the owner never mentioned pot in his application. Then, a few weeks ago, the board issued another ruling refusing to register “JuJu Joints” as a trademark for marijuana vaporizers.

Cox & Palmer: Canada: Medicinal Monday To Fridays: When Employees Are Under The Influence Of Medicinal Marijuana
November 14 2016
 Leah Ferguson


The recent arbitration decision, Unifor, Local 2001 NB v Old Dutch Foods Ltd, 2016 CanLII 61672 (NB LA) Arbirtrator Doucet addresses the emerging topic of managing medical marijuana in the workplace, combined with searches of personal employee property.

The Facts

The Grievor, Rebecca Haines, worked at Old Dutch Foods Ltd. in Hartland, New Brunswick. On February 10, 2016 her employment was terminated because marijuana was found in her possession at the worksite.  While on her break in the lunchroom, the Grievor was observed accepting a “white container” from a co-worker, which she put into her coat pocket. The worker who observed this transaction found it suspicious and informed her supervisor. The “informer” and the supervisor returned to the now-empty lunchroom and noted the Grievor’s coat had been left on a chair. The informer searched the pockets and pulled out a “Motrin” bottle.  The supervisor asked the informer to open it and, together, they discovered a bag containing marijuana.

The Decision

UNIFOR argued that the employer had breached the Grievor’s privacy rights when it searched her coat pocket without her permission. Further, the Grievor alleged that she had medical authorization for the marijuana, so it was not an “illegal drug.”

Arbitrator Doucet allowed the grievance, in part. He held that there had been a violation of the Grievor’s privacy rights, however, he rejected the Union’s medicinal marijuana argument. The Grievor was reinstated, although she did not recover her lost pay or benefits, nor was she accredited for any loss of seniority.