This presentation covers topics directly relevant to various states’ marijuana legalization process, including the Federal versus State conflict issues and State versus local law conflicts. It also provide the practical advice attorneys and their marijuana business clients need to know including the following topics: the general licensing process with various state agencies, local law implementation and litigation, medical versus recreational marijuana, trademark registration and protection, taxation, real estate transactions, and banking issues.
Text of Marijuana legalization – The Legal Ins and Outs For Cannabis Business Clients
HILARY V. BRICKEN MARIJUANA LEGALIZATION, REGULATION, BUSINESS LAW, AND INDUSTRY ISSUES
Federal vs. State Conflict - Federal pre-emption - The Supremacy Clause - The Commerce Clause - Gonzales v. Raich Bottom line THE FEDS TRUMP ALL (for now)
Federal memos - What do the memos mean? - Yellow light for States rights? - Ogden memo 2009 - Cole memo 2011 - Cole memo 2013 + The Great Eight
Federal Enforcement - Do the Federal memos matter? - U.S. Attorneys have prosecutorial discretion - Lack of uniformity in enforcement - Raids versus Landlord letters.
Banking Woes - Why cant dispensaries get bank accounts? + Money laundering + Anti-Secrecy Act + Controlled Substances Act (conspiracy) + No third-party processing - How do some dispensaries have bank accounts? - Whats the solution?
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?
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
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
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
NAVIGATING PUSHBACK FROM LOCALS Federal prohibition emboldens cities to ban Is it worth it to fight? Does your client have standing?
- Federal trademarks. Good luck. - State trademarks. Sure. - Why does trademark matter? + National expansion. + Licensing. + Legitimization. Marijuana Branding: The Power of Trademark TM
HILARY V. BRICKEN firstname.lastname@example.org 206.224.5657 + cannalawgroup.com + cannalawblog.com harrismoure.com