Transcript
Page 1: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

HILARY V. BRICKEN

MARIJUANA LEGALIZATION, REGULATION, BUSINESS LAW, AND INDUSTRY ISSUES

Page 2: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

Federal vs. State Conflict - Federal pre-emption

- The Supremacy Clause - The Commerce Clause - Gonzales v. Raich

Bottom line

THE FEDS TRUMP ALL (for now)

Page 3: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

Federal memos

- What do the memos mean? - Yellow light for States’ rights?

- Ogden memo 2009 - Cole memo 2011 - Cole memo 2013

+ “The Great Eight”

Page 4: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

Federal Enforcement

- Do the Federal memos matter? - U.S. Attorneys have prosecutorial discretion - Lack of uniformity in enforcement - Raids versus “Landlord letters.”

Page 5: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

Banking Woes - Why can’t dispensaries get bank accounts?

+ Money laundering + Anti-Secrecy Act + Controlled Substances Act (conspiracy) + No third-party processing

- How do some dispensaries have bank accounts? - What’s the solution?

Page 6: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

The Tax Man Cometh - Will the IRS treat marijuana businesses like other

businesses?

+ 26 U.S. Code Section 280E – Expenditures in connection with illegal sale of drugs

- C.H.A.M.P - Olive (on appeal in the 9th circuit) - How to navigate 280e?

Page 7: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

Marijuana regulatory regimes - Recreational versus medical

- Dealing with the Feds - Typical barriers to entry:

+ Residency requirements + Liquidity requirements + Permits and licensing + Distance requirements + Real property requirements + Security

+ Traceability + Competency + Experience + Operational plans + Investment + State and local taxes + Dealing with multiple regulatory agencies

Page 8: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

Landlords: Tough Love - Landlords face liability from marijuana commercial tenants:

+ Civil asset forfeiture by the Feds + Tenant revolts + Mortgage foreclosure

- Make your lease marijuana-friendly: + Permitted Use should be clear + Addendums

> Loitering > Odor > Signage

+ Escape clauses

Page 9: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

DEALING WITH THE LOCALS: A MIXED BAG

Police powers allow cities and counties to regulate

 

Know the law even as it changes

 

Moratoria versus regulation

Page 10: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

NAVIGATING PUSHBACK FROM LOCALS

Federal prohibition emboldens cities to ban

 

Is it worth it to fight?  Does your client have standing?

Page 11: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

- Federal trademarks. Good luck. - State trademarks. Sure. - Why does trademark matter?

+ National expansion. + Licensing. + Legitimization.

Marijuana Branding: The Power of Trademark

TM

Page 12: Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients

HILARY V. BRICKEN [email protected] 206.224.5657

+ cannalawgroup.com + cannalawblog.com

harrismoure.com


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