We Are Cannabis Attorneys at Gleam Law! Ask Us Anything!

What potential impacts does having a state issued medical card have on owning or purchasing firearms? Given the question on the 4473 firm relating to illegal substances.

Ammon: The potential impact is that you could be prevented from owning or purchasing firearms because you are a known habitual drug user, aka a criminal. I could get cute with words and "lawyer" an argument in your defense, but that isn't how the FTA or DEA will see it.

It may sound harsh, but federal law doesn't really differentiate between a habitual illicit drug user and a medical marijuana patient-- both groups are breaking federal law and therefore can lawfully be stripped of certain rights. Inversely, MMJ patients are not a protected group, so governments, companies, and individuals may also create policies that discriminate against them.

One of the least understood problems with cannabis prohibition is that it allows the government to strip people/companies of their constitutional rights. Not only your firarms, your rights to privacy, to contract, to vote, to conduct business across state lines, and to live a free life are all at risk.

That the Feds aren't kicking in your door has less to do with their authority to do so and more to do with their limited resources.

As a current law student and given the current trend towards state legalization, can I get an internship?

Well, at least you're straight to the point.

Have you been following the legalization battle in South Dakota? It is so messed up, in my opinion, that the people voted to legalize and the governor is fighting against it using state funds.

Ammon: Keep up the good fight and ORGANIZE! You won the vote, now it's time to hold your leaders responsible to the people by forcing them to implement it. Washington's first cannabis stores didn't open for nearly 2 years after we voted to legalize!

We (the cannabis community) have only gotten as far as we have because we organize from the bottom up. Top-down oligarchy attempts at legalization have failed because they didn't embrace that culture and political reality (looking at Ohio's failed ballot measure and New York's old system, among others) Find grassroots organizers in your area that are interested in pushing legalization forward and work together.

By way of example, I'm a proud board member of [The Cannabis Alliance](https://thecannabisalliance.us/), a group of leading local community menbers dedicated to the advancement of a vital, ethical, and sustainable cannabis industry.

Do you think cannabis will ever be federally legalized, and how long before that would happen?

This is Justin: It will get there. I think we are a few years out. If it does get legalized, we have a great roadmap as to what that would look like. The 2018 Farm Bill, which governs hemp, essentially created some ground rules, and then allowed the various states to submit plans as to how they would manage hemp. We would expect any federal legalization to follow some modified version of that, where the states have to submit a plan to the federal government, but essentially allow the states to manage it. The biggest benefit would be the interstate commerce, which would allow producers and processors to get their product into shops anywhere.

Can hemp be legally used in the US, to manufacture clothing products? or is it legal just in certain states?

Ammon: Yes, hemp can be used for textiles and fibers anywhere in the US and has been legally used that way since our nation's founding. The fiber can't get you high (no significant levels of THC) and primarily comes from the woody stock of the plant. In contrast, smoking the flowers of the plant will get you high. This distinction was reflected in US law even before the 2015 or 2018 Farm Bill and allowed for the importation of the fiber from other countries.

Justin here: Hemp is legal within the 50 states, and no state may prohibit the interstate transportation of it (though Idaho tries). Since its not being ingested, clothing is fair game, and we've seen a lot of really innovative work done in this space recently, trying to recreate some of the hemp processing techniques that have been lost to time due to the earliest versions of the war on drugs (i.e. - Marihuana Tax Act, etc). The only requirement is that it be legally produced pursuant to the State's hemp production plan, but technically the mature stalks and seeds of the hemp plant has been able to be imported for decades.

Are you still hiring summer associates? I'm a Harvard 1L in desperate need of a summer job.

Resumes and cover letters can be sent to [[email protected]](mailto:[email protected]).

K through JD applicants need not apply.

Mia: Unless they have REALLY cool true life stories.

Alan: Owning a distillery is also a bonus.

Are there any proposed cannabis modifications to Bird Law?

Do we look like we have lawyer hands?

We are only experts in octopus law - octopuslaw.com

More than 8 years post-first state legalization, why do you reckon some states are adamantely opposed to legalization despite the reduction in harm?

​

Also, when do you think that it will be legal nation-wide? We are at the point where it feels like late-prohibition, everyone knows someone and it's not hard to get imho, would love to get your thoughts as I know that most people support it, but where it falls through is the legalness of everything.

Justin here: Turtles are interesting creatures. As reptiles, they function largely in a fight or flight response. Thus, things that we may be able to rationalize and adapt to, turtles, being reptiles, would have more trouble coming to reasoned conclusions about something they already carry an irrational fear towards. This may be why Mitch McConnell hates marijuana so much. He was taught to fear it and nothing will change his mind.

Much like the Senate Reptili...Minority Leader, there is strong evidence to suggest a large percentage of republicans are fear-based, operating with an enlarged amygdala. The theory as to how this occurs is still being developed...but I would equate it to a lack of turtle cuddles. This means, unfortunately, that the debate around legalization in red states is not really about rational thought, but about fear. That could account for it.

Regarding the legalization, see our prior answers on that.

Interesting view on it.

Regarding Democrats though, even "blue" states have a hard time. I know some politicians sabotage things like down here in Alabama our State Legislature was debating the medical marijuana bill, and a Republican purposely excluded Fibromyalgia from it just to keep the "We're for it, buttt not this one" and kicking the can down the road.

Is there anything the commoner can do?

Organize. Organize. Organize.

Alan: A couple of years ago I had a conversation with an executive at Justice Federal Credit Union, they primarily serve FBI employees. We were discussing the benefits of banking cannabis businesses. He finally said that logically it makes sense that credit unions should bank cannabis businesses, but emotionally he could never do it. We have governors and legislators who will blindly ignore fact and rationality and rely solely on emotions. There is no way to convince them that marijuana is not an evil.

Lindsey: Moralists are gonna be moralistic. Just think of the children!

As far as federal legalization, I don't know when the green button is going to be pushed (that's how politics work, right?) but I am guessing we won't see any movement on the issue until some of the more pressing political garbage fires are put out.

From a legal stand point are you profit driven or health driven?

Justin here: I would recommend no one become a lawyer, its horrible for your health.

I do not believe these terms are on the same spectrum. We believe it personal responsibility and are against overregulation, especially when there is no victim and no true harm.

Yes!

When will I be able to legally send weed through the mail to my friends/family? When can I sell my weed online and ship it directly to the customer?

We prefer catapults for interstate transport. Or rockets and orbital flights. Most people do not know this, but there currently are not any laws against cannabis on the moon. Or Mars.

Ammon: Not until after federal legalization. Mail and all commercial traffic across state lines fall under Federal authority pursuant to the Commerce Clause of the US Constitution. No cannabis goods with THC greater than 0.3% by dry weight basis can currently be put into interstate commerce--below that threshold, it is considered hemp and can be shipped across state lines, subject to local state hemp laws.

No cannabis goods with THC greater than 0.3% by dry weight basis can currently be put into interstate commerce

Couldn't you just haul 1,000 lb of 0.3% and then process it down into 3 lbs of pure THC?

Well...

On a different and unrelated anecdotal topic, sometime containers of hemp dry further and go “hot” by spiking above 0.3% THC.

Justin here: I pulled out my magic 8-ball, and it said "Not likely". The biggest hurdle is age verification. Given what just happened with USPS shutting down vape shipment, and FedEx and UPS following suit, I wouldn't count on direct to consumer shipment any time soon.

How so you see the laws evolving and becoming more defined in regards to cannabis consumption and driving as more science is being conducted?

In my case, I live with chronic pain. I have reduced my use of narcotics by 85%, other meds by 50%, by being really consisted about marijuana use. This means I consume regularly, carefully around driving needs. I am aware that because I consumed an edible at night before bedtime, and do every night, that a blood test in the morning would reveal thc levels that might indicate intoxication in some people. Even if I am not under the influence of cannabis at the time, because of my regular (safe and legal!) use I would ALWAYS have thc in my blood, likely in levels that could be problematic for me legally. I would have to abstain for a while for that number to come down. I am not willing to do that, and go back on those medications.

This is honestly something I fret about every time I drive.

I served on a jury for a trial for a DUI case with someone under the influence of Cannabis, and it was a bit alarming in regards to my own situation. I will add that I have also participated in a study through CU in Boulder that was establishing the effects of CBD on driving, and hope to continue to help with cannabis science!

The science around cannabis in general is lagging because of decades of prohibition on research, and the law is just doing its best with a decades long paradigm shifting, and lack of good solid statistics and science to really build the rules upon. I don't want to get caught in the middle.

Justin here: Quite frankly, it will depend on the science. One of the largest barriers to good science has been the federal illegality which, prior to the Cole Memo, was nearly impossible. As research improves, the illegality of the conduct will be more clearly defined.

I am a litigator in Michigan any thoughts of opening an office here? Additionally, it seems like any firm that is looking for attorneys to do this type of law want 2+ years of experience. With the field being so new here how would you suggest gaining this experience. Also is it possible to do this as a solo practitioner?

Neil: Cannabis Law is not really an area of law practice, but an industry. Therefore, there are many of the same legal practice areas: litigation, admin law, IP, corporate law, securities, real estate, etc. The cannabis industry offers unique aspects. Therefore, you can be a litigation attorney in cannabis, or an attorney that focuses exclusively on cannabis, similar to some alcohol attorneys. In new markets, some solo attorneys aim to provide most of the needs of a cannabis client. Michigan is becoming a more mature market, so it is better to have a number of attorneys with diverse experience if a firm wants to cater to all the needs of a cannabis client. However, I do not see why you could not do it as a solo practitioner right now.

We do not currently have plans to open in Michigan at this time.

As a Pagan who worships alone in the US, but uses cannabis in a ritual fashion (and recreationally, but that's not what my question is about), how can I protect myself from discrimination at work and home?

This is Justin: If you're suffering discrimination at home over your marijuana use, it might be time to find new roommates. I think the vegan rule applies here (i.e. - don't talk about it all the time). Are you sure its the weed and not the ritual blood-letting getting on everyone's carpet? That's definitely not vegan unless its YOUR blood.

As far as recreational use in the workplace, most states state that, due to the federal illegality, employers can still generally have a ban on marijuana usage (though the medicinal usage can vary state by state). If you're really worried, you may want to talk to an employment law attorney in your state.

If selling cannabis is still federally illegal , then how are all these cannabis companies able to open bank accounts and deposit fund? I thought they weren’t allowed to, yet I find it hard to believe they’re all hoarding cash somewhere . Or are they holding money through some legal loophole ?

Alan: In 2014 FinCEN issued guidance on how banks can accept cannabis deposits. The bank effectively partners with law enforcement and has processes in place to monitor the account activity to ensure the business operates within state laws. If the bank thinks the business is doing something illegal the bank will report to law enforcement. There is still lots of cash hording because of the work required bank accounts are expensive.

FinCEN is the financial crimes enforcement network which is part of the Treasury Department, they oversee Bank Secrecy Act compliance for all financial institutions.

See Alan's answer to u/martinluther3107. Its...complicated.

Is there any reliable way to stop a search of your vehicle because an officer "smells marijuana"?

I don't smoke personally, but ask because I feel like this is something any officer could say to gain access to searching your car, and it seems like bullshit to me.

Justin here: This is actually a fairly interesting issue. My personal take, both here and in the class I teach, is that the smell test is dead. Hemp is legal, and it has the same smell. Further, if you're in a state that has legalized any quantity of possession, the smell may not provide probable cause to a search, because sniffers can't detect quantity (though maybe some dogs can, I'm not a dog).

What do you see as a realistic timeline for federal legalization and do you think people who work for defense contractors will be allowed to smoke after legalization?

Alan: You need to remember that federal legalization doesn't mean that each state will adopt legal cannabis. Each state currently has laws which define what is legal or not, a change in federal law has no impact on those state laws. So each state will need decide if they want to maintain their current laws or not. Hemp is federally legal, but I would avoid driving through Idaho if you have a car full of hemp!

Ironically Idaho’s legislature just passed a law this morning legalizing hemp

Justin here: The federal government already did that, technically. Idaho had to get this bill in so that it could come up with a hemp plan to submit to the Department of Agriculture. If it didn't, it would be bound by the bare bones federal rules. Idaho is doing this likely to place some stringent requirements on the product through administrative rules. They were the last holdout, though.

Justin here: It could be as early as three years, it could be never. Even if there is still federal legalization, there still could be a carve out for federal employees and contractors. If we get legalization in the near term, I would say 3-5 years (see above). See our other answer in response to u/Beautiful_Dream_1129.

South Dakota experienced a big dissappointment after voters indicated their desire for medical and recreational in the state. The constitutional ammendment they supported has been challanged and last I heard was headed up to appeals.

What is your prediction for how this will turn out? Will the citizens have to start over? Can the language issues be ironed out?

I've been through South Dakota a couple of times and yes it is a big disappointment, except for Wall Drug and the corn palace.

Zing

But lol, you picked the worst things (except the corn palace, which is a center of culture and beauty)

What about Black Elk peak? The Badlands? Spearfish Canyon? The Slim Buttes? Custer? Sylvan lake? And the miles upon miles of beautiful untouched prairies in our national grasslands?

I'm joking with you. My dad was born in Pierpont and there are a lot of great things in SD, including Mt. Rushmore, and Crazy Horse. But I do love the plywood signs along I-90 every 2 miles for Wall Drug. We also have at least one cornamente on our Christmas tree every year.

Ammon: It's times like these when I remember that the USA isn't a democracy, it's a republic. We elect leaders who made decisions. Voters get to make very few decisions...and even when we make a decision on a ballot our leadership can still sometimes thwart our collective will.

I can't tell you how it is all going to go down in Pierre, but I can tell you that the cannabis activists that carried the state this far must keep up the pressure and continue engagement with the communities who fear cannabis in order to combat those fears.

My only advice is to fight fear, not people. Most people who oppose cannabis legalization do so because they fear crime and public health problems, especially among children. We can address those fears directly and respectfully by including protections for at-risk groups (like kids) without a confrontation about their support for the War on Drugs.

For instance, Washington State has strict rules against advertising to children and has directed much of the initial tax revenue from cannabis sales to public health and law enforcement. Those compromises helped us get off the ground by converting some of our outspoken opponents to neutral positions or even becoming supporters.

Do you guys know about "Shut the Fuck Up Friday"?

Yup, great viral video!

What are your thoughts on Delta 8? Do you think it will continue to be legal?

Mia: Oregon is going to regulate it. This might make me unpopular, but I don't have an issue with that. Either we need to regulate cannabis and cannabis products that get you high, or we don't. Also, I am concerned about adulterants in heavily processed, unregulated delta 8 and would like regulation to deal with that as well.

Justin here: I've actually done a lot of looking at this in recent months, both in terms of drug policy, as well as on behalf of some of our clients working in the space. The biggest hurdle Delta 8 has its the low volume of naturally occurring Delta 8 in strains. Usually, its processed as an isomerization of CBD. This then, exposes a gap in the federal law. As an isomerization, it could be considered a synthetic THC, which would be the DEA's interpretation. However, under the 2018 Farm Bill, derivatives from hemp are legal.

Normally, if I were reading the tea leaves, which I do often, I would say that Delta 8 is short for this world. However, given how close we may be to federal legalization of Delta 9 (through Cannabis legalization), it could just be that there is not the political will needed to make the correction to harmonize the CSA interpretation with the 2018 Farm Bill Interpretation.

Besides political roadblocks, what's stopping Biden from signing an executive order legalizing marijuana?

Neil: There really are not political road blocks for Biden. He could potentially deschedule cannabis without the house and senate. Evidently, this is not his goal, therefore a vote in congress is required.

Justin: Here's my thoughts (Ammon is going to weight in separately). It's the controlled substance act itself. Any blanket descheduling of marijuana without a proper regulatory reason would lead to a judicial reversal due to a claim that it was an "arbitrary and capricious" decision. You need only look at who has a majority at the Supreme Court to see that outcome. So, while he could deschedule it, it wouldn't stick and we'd be back to square one, only with the loss of political capital. It really needs to be done by bill, which takes the political will.

Lindsey here, While I don't think this carries as much weight as it once did, the United States is one of the countries that joined the UN's Single Convention on Narcotic Drugs treaty whereby the joining countries agreed to prevent the production and sale of the certain drugs except for limited instances such as for research and medical use. This is where that glorious scheduling comes in that classifies cannabis as a horrible, no-good Schedule I drug without any medicinal value while classifying everyone's favorite and harmless medicine -- meth -- at a less restrictive schedule. Historically, the US has been a bit of a teacher's pet with regard to maintaining its word in international treaties and pressuring other countries to do the same. However, several countries that are parties to the Single Convention have federally legalized cannabis (oh hi, Canada) and things seem to be going just peachy for them, so I don't know that this is really a sticking point now. Especially now that there is more universal acceptance that cannabis has medicinal properties.

If one lives in a state that legalized, and one happens to live in federally funded housing, like public housing/section 8, can that person smoke in their home legally or nah?

Ammon: Read your lease. Regardless of legalization, if your lease agreement says that you cannot smoke in your Apt. then smoking there would be a breach of the agreement and could result in eviction.

There is also the issue with legality. I'm going to go out on a limb here and guess that your lease for public housing prohibits any illegal activity as defined by state OR federal law. That absolutely includes federally illegal cannabis regardless of whether any law enforcement agencies are willing to enforce those laws against you.

Fellow lawyer here. My question is how do you square your ethical obligations to your state's bar with advising your business clients to take actions that are most likely in violation of federal laws. How do you navigate the ethics rules as they may or may not apply in your business?

Upcoming

Oregon updated its ethics rules:

(d) Notwithstanding paragraph (c), a lawyer may counsel and assist a client regarding Oregon’s marijuana-related laws. In the event Oregon law conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy. Adopted 01/

Justin here: Washington did something similar. We do often stretch the bounds of our clients businesses. In those areas, we have to be extremely careful to make sure we are advising them regarding risk. Grey markets are especially tricky for lawyers, and you really have to work hard to make sure they know that whether a particular act is legal is an open question in some cases.

Thank you for doing this AMA today.

In the state of Connecticut a patient can qualify for the medical marijuana program if certified by a licensed practitioner. While there are state employment protections in place, can an employee be fired from their job if the company they work for has contracts with the federal government even if that employee isn’t working on a government contract?

Along with that, if the employee if contracted out to a public utility to perform work, can they be fired if they have a positive drug test for marijuana even if they have been certified for the CT medical marijuana program?

Justin here: The Connecticut law only protects your status as a patient. So if you are intoxicated at work, it is still fair game. Most states that have dealt with this have required more than a blood test or drug test, but as far as I know, this is relatively untested in CT. This would apply regardless of where you were working in CT.

However, the law carves out an exception for those companies that work with the federal government, where required by federal law or where receiving federal monies.

Thank you for the reply. I have one follow up question.

Can you be fired for simply possessing the medical marijuana card or is a positive drug test required to make that decision?

Justin again: For possessing a card, no. For a drug test, that's still untested, but usually the state's that have employment protections end up requiring some evidence of actual intoxication at the time you were working.

What are the most common legal/practical issues you're seeing in businesses opening up in newly legal markets? What barriers are there to entry that are commonly preventing folks from joining a newly legalized market?

Ammon: Financing. The lack of access to traditional banking and financial instruments for financing new businesses forces cannabis businesses to seek hard money lenders and equity partners that are very expensive for a new business. With these expensive options, it becomes even more important to have good legal contracts to ensure there is no ambiguity that could lead to litigation nor regulatory oversights that could cause the company to lose its cannabis license.

Bad agreements can bankrupt a business just as fast as market pressures.

Justin here: Piggybacking off of that, I think one of the other issues I see most often is a lack of familiarity with legal business structure. Canna-business is first and foremost a business. That means all the little things like employment laws, taxes, policies, procedures, loss prevention, and everything that goes into a business come into play. However, because it is a highly regulated industry, it is often more exposed than other businesses. Even things as small as a text messaging program, if done improperly, could subject a business to a class action lawsuit that can take it down.

Can I smoke just a little weed before court to calm down?

Justin here: As the sole person in the group that occasionally wears a black robe, if I got the sense you were intoxicated in my courtroom during a hearing, it would likely not go well for you. Maybe look to CBD instead ;)

Mia: Are you the judge? If so, then yes, you can do whatever you want.

This judge disagrees

Racists like pot too, you know.

You can do anything you put your mind to.

Are you hiring lol? I'm barred in Florida

I'm not sure, but I think we're barred FROM Florida at this point. It was a wild time at Universal Studios.

What are the typical costs for starting a business as a cultivator, dispensary/retailer, or product manufacturer? In particular, what are the costs associated with banking and insuring marijuana businesses?

Also, what does your team think about the seemingly rapid decriminalization of entheogenic plants and fungi relative to the timeline of marijuana decriminalization/legalization?

Neil: Typical costs can vary based upon the location, particular regulatory hoops you have to jump through, and the size of a facility or region on a dispensary. It could be as low as $50k (rare) or reach over $10m (in certain California markets). There are too many variables.

I think we will see a much quicker decriminalization of other psilocybin and similar substances than we did for cannabis, at least in some locations. Oregon already legalized and regulated it. The public is waking up to the fact that the drug war is pointless, except as a tool of racial discrimination. As the stigma goes away as people get older, it is likely we will see most, if not all drugs, become legal in one shape or other.

Justin: Whoa! That's a lot of questions rolled up into one. There are no "typical" costs associated with all three businesses, as they are vastly different. A cultivator (producer in Washington) could be indoor, or it could be indoor. A large indoor grow, with proper space, ventilation, lights, automatic systems, and security could easily run a couple million dollars. For a retail shop, a license could run from between 500k and $10M, depending on the location, plus the expense of build out and product to open the shop.

The banking costs are largely driven by the increased requirements under the Financial Crimes Enforcement Network (FINCEN), which requires detailed reporting of cannabis transactions. (for more, go see Alan's answer on Cannabis banking generally in response to u/malamutebrew (coming shortly).

Regarding fungi, Oregon and other cities are making great strides. I think seeing how proper regulation can assuage fears has easily been translated over to this area. I don't see it as rapid at all, but rather an extension of the years of work put in by the Cannabis industry with regard to drug policy overall.

Mia: Cost to start a cannabis business very widely by state, as Neil said. In Oregon, licenses current cost about $100k-$275k, depending on license type (and there are amazing deals that pop up occasionally), but we expect non-producer licenses to start being issued again this summer and producer licenses to follow at the beginning of 2022. Once you can get your own new license, the fees are only approx $5,000. Legal fees vary widely depending on how complex the business is and other factors. Then there are lease or real estate acquisition costs and the other typical costs of starting a business.

Alan: Bampho, I just saw you question. Banking cost can vary wildly, with prices ranging from a couple of hundred per month to a couple of thousand per month. Factors will include a size/volume and complexity of your business and the amount of banking competition in your state.

Thanks for doing an AMA!

My question is about Montana's new law, which I understand is very similar to one or more of the states you operate in, but not necessarily identical.

If someone had seeds, but not plants, I presume they would have to go through the same process to be licensed to sell the seeds as they would for fully-grown finished product. Is that accurate, or would the seeds not be considered comparable to e.g. actual flowers?

And how about for germinated starters?

I don't possess anything of this nature and ask only for academic interest.

This is Justin: I am not answering based on any actual *reading*, but just a couple of conversations I had about a year and a half ago with a regulator in Canada. From what I understand, seeds are actually tracked more heavily in Canada and require a ton more information, so it will be treated just as strictly as a plant. The seed sales do require a license per my understanding, as does any cultivation beyond the personal plants allowed under your law. In the states, we call this seed-to-sale tracking. Up north, I believe you call it 'Eh Eh Maple Leaf Queen Ham Bacon Moose Antler Eh' Tracking, and I think that is beautiful.

Edit: Damnit! I read this as Montreal. Let's try this again: Montana will regulate seeds and clones under a seed to sale tracking program. Most states, when they begin, have what we call a "look away" period, where they really don't prosecute the importation of seeds and clones for the initial process. However, Montana did include seeds and clones in its definition of "marijuana", and those would fall under the statute. My previous comment regarding Canada stands though, it really is beautiful.

It's so wild that in my state, Tennessee, they are super against marijuana, yet seeds are perfectly legal to buy, sell, and possess.

It boggles the mind.

If mind-boggling is what you're after, you should go to Dollywood!

Damn you Justin, now all I can think about is bacon and maple syrup!

Can I be fired for failing a drug test for Marijuana in Ohio if I have a Medical card? Does the card protect me in any way?

Justin: To the first question, yes. The Ohio carve out, by my read, allows employers to continue to ban use in or out of the workplace. As far as employment, the card doesn't really offer protection, unless you are at work and shot by an extremely slow bb-gun, and the card stops the bb from entering your body. The Ohio law is more designed to prevent arrest, but does nothing for employment issues, which is a fairly common problem.

My county has stated they will move to ban marijuana, even if the state legalizes it.

Do they have legal authority to do this? Does it work the same as how "dry counties" work?

Justin here: Interestingly enough, it depends on the state. In Washington, the law permitted states to have moratoriums on marijuana, and those were upheld by our supreme court. So, yeah, similar.

How different do the legalization laws end up being from state to state? It feels like each new state to legalize marijuana approaches things as if they're the first ones to think of it. Have you seen some of the states that legalized later picking up portions of their laws from the earlier states?

Neil: When Washington and Colorado became the first two states, the rest of the country watched very closely and tried to learn from our mistakes and achievements. I see most states being one of two systems: 1) unlimited licenses, such as Oregon; 2) limited licenses such as Washington (which used the lottery system) and states such as Missouri that required applications for the very limited licenses. License limitation could come from the state, the local cities and counties, or a combination of factors. Each state has their own complicated system of usually one of these two flavors, and even sometimes both. And it changes weekly when it's getting started.

Ammon: Yes, they are carefully watching what is and isn't working in other states. Organizations like NCSLA (https://www.ncsla.org/) have enabled regulators and policymakers to share notes and ideas nationally. They may implement different regulatory structures for various logistical reasons, but they are very much building on each other's successes and failures.

What we are seeing with new states is broader laws that allow activities previous states would not allow. New legalization measures often are more open about what is possible because they have successful examples they can lean on for the more basic necessities and therefore can be more experimental about other aspects of their program.

Washington and Colorado, for instance, do not allow for delivery or on-site consumption (aka a smoking lounge) because they were initially focused on ensuring inventory tracking and basic production limitations. California, building on the successful production and traceability successes in WA and CO, made rules to allow delivery and consumption if their local governments wanted it. New York just went even further and now allows for public consumption.

Justin here: That's exactly what was done. One of our attorneys actually wrote the model cannabis regulations that became the basis for rules in CO and Washington. As other states come online, they'll pick some of what they like from one state, and a little from another. Its fun to see the experimentation happening as to what works and what doesn't.

Mia: Ugh. The "we are such a special smart state, let's do this our own way" thing is super frustrating. However, states do seem to look to each other and see what as worked and what has not. For example, with respect to residence requirements and whether to disallow, allow, or mandate vertical integration. It will be really interesting when states start having to work with each other to facilitate interstate commerce.

How long until federal legalization?

The crystal ball says 145 days, but sometimes it lies. Allow me to consult the tarot deck instead.

Hello, thanks for taking the time to review our questions.

In California, how do county regulations hold up against state regulations? I've heard rumors that staying below the state 99 plant count w/ a prescription will often lead to you being overlooked by enforcement. Is there any precedent to justify this, or is it far too situational to say one way or the other?

Habib here: The 99 plant threshold is a vestige of Prop 215, when you could operate as a collective and cultivate an amount of cannabis that is reasonable for the medical needs of the collective. When CA transitioned into the regulated system in 2018 it implemented a sunset provision for collectives (which took effect back in January of 2019). There is no protection from state law enforcement if you cultivate more than 6 mature or 12 immature plants. You can get a physician's note saying you need more but that will be an affirmative defense, not a get out of free jail card.

How can we get a job with you? I’m U.K. based with an overseas legal degree (not US) :)

You can attend law school in the US and take the bar. Alternatively, do you know what a drug mule is by any chance?

This is Justin: First and foremost, you have to be a big nerd in whatever you do. I litigate, and am as big a nerd for the rules of court and legal research as you will find. Second, work on building up your practice now. We have people in every area of the law surrounding cannabis, and can hit the ground running. Third, you must bring us a shrubbery...and none of that low quality shake.

In WA, what needs to happen for recreational vendors to feel comfortable accepting cards rather than cash or cryptocurrency?

Alan: It not a matter of the comfort level of the vendors accepting credit cards, but a matter of are they comfortable violating the law. All credit card companies have a prohibition of using their card networks to conduct illegal transactions and if they discover it they will shut it down. To avoid this there are payment companies that are getting creative in hiding these transactions. There have also been a couple of high profile prosecutions against these companies. At some point if the dispensary is aware of the fraud they could also be subject to prosecution.

Today the House is voting on the SAFE Banking Act, which if it becomes law credit card companies will likely begin to allow credit card transactions. I would anticipate that it will pass during this administration. There are several payment arrangements that are legal, if you have a retailer that has questions, I would be happy to talk to them.

Why the name 'Gleam Law' ?

Neil: When I passed the bar over a decade ago, I remember standing on my porch watching the rain fall with an attorney friend over rye. We decided over rainy drinks to open a law firm together because often whisky dictate your path in life. We had an interesting practice. He represented clients in criminal law, immigration, and family law. I handled business law, intellectual property, and entertainment law. It was easy to see which of us a client was came to see. His clients were all distraught and having the worst day of their life. They were getting a divorce, getting deported, our out on bail. Mine were so happy to have reached a point in their life where they could come to see me. They were starting businesses, creating inventions, or starting a band. You could see them skip in happily.

Over drinks, I started referring to his side of the practice Nightmare Law and my side was Dream Law. You could always tell my clients – they had a dream. When my law partner and I went on different paths, I knew, without a shadow of a doubt, I would help those people run after their hopes. I would look for that gleam in their eyes and help them achieve their dreams.

What are the unique issues that arise in cannabis civil litigation versus civil litigation in other businesses?

Justin here: Now you're in my wheelhouse! There's three big issues I tend to see. First, issues generally arise under the legality of contracts. If people are doing things that don't meet the regulatory requirements, there's the potential that the contract is unenforceable. Sometimes people seek to invalidate contracts as being illegal under federal law as well.

Second, another issue that arises as of late has to do with settlement of class action claims. As you can imagine, a federal judge is unlikely to accept a coupon or gift certificate for an illegal substance as a settlement in a class action complaint.

Third, another big problem I see, and this is fading with time, is the client's trust in their attorney. As a litigator, I need to know the good AND the bad, in order to deal with the case appropriately. But many of our clients came from the black market, and they play their cards close to the chest, thinking that even the attorney can't know what's in the closet. It can sometimes make it difficult to manage the case.

Oh the contract issue sounds super interesting! I'm in law school, and I don't plan to ever practice outside of criminal defense, but I'm really interested in how this works. Could you talk some more about that? Do federal courts enforce cannabis related contracts? Do state courts ever balk?

Justin again: Right now it's a mixed bag. More and more, federal courts are allowing the contract itself, even if it deals with Cannabis, and acknowledging the Cole Memo and its continued pragmatic existence (even if sort of revoked by Sessions). However, there's still quite a few federal judges out there whose analysis begins and ends with the CSA. State Courts really cannot balk, because it's their state's law. Though I did see one weird case out of Arizona, Hammer v. Today's Health Care II, Co., where an Arizona Court invalidated an Arizona contract over a loan involving a grow center authorized under Arizona law...as federally illegal. That's definitely an outlier case.

Met 2 two of Gleam's folks at a Seattle event a few years ago. Thanks for the advice/opinion (and tequila) at the time on an idea. The idea never panned out due to several reasons, but maybe someday.

Q: Is the issue of what constitutes 'market rates' in Washington still an issue?

Justin here: Not sure if I was one of the one's you met. If it was one of our tequila days, I likely don't remember the event even. Regarding market rates, this is still very much a problem. The WSLCB has largely taken a hands off approach unless they see something severely varying from the market rates, but even low market rates tend to be okay as long as they do not dip below the production cost. The bigger thing they tend to look at is whether discounts are being offered that aren't there for every customer. But the data out there gives everyone a pretty good handle on what the market can bear in terms of price.

I am a prospective law student (will be applying in the upcoming cycle this fall) with plans to pursue cannabis law. I have experience working in the medical cannabis industry in CO, which is ultimately what lead me to pursue law.. my question is, how can I prepare in law school for a career in cannabis law specifically? It seems to me that the pathway to this area of practice is still relatively unclear, so any advice or guidance you might be able to offer is appreciated!

Justin: I agree with Neil. Follow your passion. I started out as a litigator first and foremost, which led me to Cannabis law eventually. There's a wide industry out there, and it all has its roots in standard law school classes, they just each have a twist. Regarding Cannabis specific things, you can start a Cannabis Law Society at your school, lobby for and take a Cannabis Law and Policy class, and start early in your career with internships and informational interviews during law school. It really is just like any other law job in that regard.

Lindsey: In addition to Neil and Justin's advice, if you have a class with a paper assignment that you can tackle through the cannabis lens, I would suggest doing so. That way you will leave school with a solid, cannabis-specific writing sample that illustrates your interest and a base knowledge in the industry to prospective employers.

Neil: Think of cannabis as an industry and follow your favorite area of law that fits you. You can work towards corporate law, litigation, admin law, IP, tax, etc. You'll find yourself drawn to a few areas of law, and chances are, there's a way to apply it to cannabis.

Will federal legalization be the only action that would compel the FDIC to insure cannabis related business accounts?

Alan: Today the SAFE Banking Act is getting a vote in the House. If it becomes law, FDIC will be prohibited from preventing or discourage a bank from serving cannabis clients which means they couldn't withhold insurance coverage for cannabis accounts. Even without the SAFE Banking Act, there are probably around 100-150 banks and credit unions that currently accept cannabis businesses as customers.

How are the 100-150 able to take cannabis related customers? I work in a bank and I was under the assumption FDIC would not go near any cannabis accounts. Are they not FDIC insured?

Alan: The 100-150 are primarily NCUA insured credit unions, but there are FDIC insured banks too. Apparently, credit unions have a greater intestinal fortitude than banks;-). In 2014 FinCEN issued guidance on how a financial institution can serve marijuana related businesses. As long as the bank has a strong cannabis compliance program in place there is little risk of getting into trouble with the regulators. If you google Chairwoman McWilliam's comments on cannabis banking, she wont give blanket immunity but she says banks should be okay if they follow the guidance. I started one of the first cannabis banking program in the nation and its still going strong. If your bank is interested I would be happy to talk to them and discuss the risks.

Justin here: Alan can correct me if I'm wrong (he's our banking guy), but under what's known as the FINCEN memo (like the Cole Memo for the bankers), you have to do Suspicious Activity Reports, extreme vetting of the client, and a whole bunch of other stuff. Its an onerous process to set up. They charge large fees because of it. Re: the FDIC question....well, I'll leave that to Alan.

Honestly from the sounds of it, not much more arduous to than what we are already required. Do you know of any resources off the top of your head that I can use to research this further? Any relevant legislation I can read or anyother resources? thanks a ton

Read the FinCEN Guidance, FIN-2014-G001, I would also look at the SAFE Banking Act. Shoot me an email and we can set up a time to talk, [[email protected]](mailto:[email protected])

Alan: You are exactly right Justin.

So I have two questions:

1. What is the likelihood of those convicted for marijuana possession having those convictions overturned of the federal government were to legalize weed? (This is assuming there were no other crimes associated with their conviction and his death was just weed) and with over turned convictions are their records cleaned or will it still have a conviction on it since it was a crime at the time.

And 2. Is there a precedent for how companies can react? Right now in many states that have legalized weed, many business still will not permit employees to smoke, even in personal off time, claiming they follow the federal standard. If weed were suddenly federally legal could these companies be in violation of anything by forbidding under penalty of termination what a person does in their off time?(I ask if there is a precedent wondering if there were similar issues after prohibition was repealed)

Justin here: Re: expungement, these have taken a few different models. Given our nation's history of racist policies with regard to drug enforcement, it would not likely be an automatic expungement model. Usually it would require a petition to the Court. The current bill in the House (the MORE Act, HR 3884) would take the "process for expungement" rather than the automatic expungement route. Most states have done this. The real solution, IMHO, is an automatic expungement process. Unfortunately, to get those through, there are so many political add-on requirements as to make them largely ineffective (i.e. - only one possession, limits on the amount possessed, limits on other convictions, etc).

Regarding your other questions, most states allow the companies to make the decision, and I don't see this changing. The only thing that might come into play would be potential ADA claims for medicinal marijuana discrimination being available, but that would largely depend on the wording of federal legalization.

Alan: I'll answer your first question. One of the bills currently in Congress is the MORE Act. MORE stands for Marijuana Opportunity Reinvestment and Expungement Act. Expungement is the legal process to remove a conviction from someone's record. So yes you will likely be eligible with federal legalization. We also see States include an expungement provision as they legalize weed. It is a process that you will need to apply to the court to get they expungement, it is not automatic.

Will I get arrested if I get caught with weed in my house in Utah?

Depends. Cops are like vampires. Without a warrant, you should never invite them in. But yeah, weed is still illegal in Utah.

Wow, I didn’t expect a response. Thank you! I’ll be sure to remember that if something were to happen.

Also, Garlic only works on one of those, I'm pretty sure its the cop. But you may want to double check that.

Also, they cannot see their reflection in a mirror. Keep garlic on you at all times.

I am meeting with some processors (in Washington) to discuss a unique product I developed, leading hopefully to a partnership. How do I protect myself from having my idea ripped off by them? I created the method and unique tools, but with some research it wouldn’t be hard for it to be replicated.

An NDA (Non Disclosure Agreement) of some sort, as well as your intellectual property protected, if possible. Also, the resources to enforce the NDA if they violate it.

Quick question, how can I start smoking dank reefer immediately?

Rolling papers and lighter. Remember to inhale.

Also, remember to exhale too. Terribly confusing, the process. Eventually, if you fail to exhale, your body will take care of that for you after you pass out.

What’s your opinion on big business marijuana (Big Marijuana) and the potential barriers to entry for smaller, mom and pop type dispensaries?

It seems like the transition to legalization comes with a highly regulated industry that would make it near impossible for entry for new/less funded entrants.

Justin here: Big business is a blessing and a curse for the industry. The consolidation will potentially make small brand awareness hard, but as long as state regimes currently operate as they are, there are potential way to maintain small cannabis even while big cannabis is moving forward. Ideas have been floated regarding co-ops for producers and processors, similar to how they do it with milk. And we are starting to see some bills for craft cannabis licenses, which would allow limited vertical integration for small producers to sell their products similar to wineries.

Why is Washington so afraid to legalize cannabis? And why is it such a high crime in the court of law? (Pun intended)

Neil: A lot of it is the lobbyists for industries that would be hurt by cannabis legalization. In addition, there are conservative religious folk and older people who hold outdated views of reefer madness.

What should Be done to prevent teens from taking weed? What's ur opinion on this? I'm perfectly fine with adults taking em but teens or early 20s have developing brains and Cannabis may hamper growth. Do u support something similar like drinking age for cannabis?

Justin here: Well right now, its 21 and older in every state that has legalized it. Honestly, this is a public health and neuro-development question at its core. Recent literature tends to suggest brain development ends at 25, and that may be the age that gets set eventually, but right now I'd see it being treated similar to alcohol.

In terms of preventing teens from taking weed, you should take away their weed syringes so they can't dope up.

Can you explain the difference between decriminalization and legalization?

Decriminalization removes the criminal penalties for such an activity. Legalization provides a system for regulation, taxation, and most importantly, testing and safety.

Will you be smoking with us tonight?

Justin here: Unfortunately, I have a class to teach. But maybe after the kids are in bed, if I'm still awake. Why did no one warn me about this adulting stuff?

How do you feel about the efforts in Idaho to amend its constitution and lock in its current drug policies?

I wish minority rule was not a thing and the leaders would follow the will of the people.

Happy Holy Day! I'm trying to start a Cannabis farm, via crowdfunding. Here's our website. How likely is it that the DEA or SEC knocks at our back door before we get off the ground?

Thank you for spending your time doing this AMA. Whenever y'all extend down to Oklahoma I'll be in touch.

Justin here: Not going to give you the full evaluation...but...umm....you should maybe hire a securities attorney...like soon...or now...or yesterday.

Do you guys think that if the SAFE act becoming law would speed up federal legalization at all?

It is very much a step in the right direction. This is incremental change over decades. This is a huge step some of us at Gleam were in DC lobbying for a few years ago.

Alan: Carlitos96, that's an interesting question. In theory I think it could potentially slow it down. The states that really want medical or adult-use are already there or are taking steps to get there, so federal legalization doesn't necessarily increase the access to individuals who want marijuana. What federal legalization does do is solve the problems related to banking, taxation, interstate commerce, etc. If we have separate legislation to address these issue individually, you could argue that federal legalization becomes moot. Granted, that is an extremely inefficient way to conduct business, but we are talking about government.

Aloha Legal Toke Team, I was wondering if there have been any inroads to work protections via the Americans with Disabilities Act? I was recently offered a job at a local zoo, here in Grand Rapids, Michigan, which I was very excited about, but had the job offer rescinded after I tested positive for cannabis. I have a medical card, but it’s also legal here for both medical and recreational.
I now know that Michigan is rather conservative when it comes to right-to-work and worker protections, but I’ve heard that there are still unexplored avenues for coverage under ADA protections. Thoughts on this, or recommendations for folks like me till it’s legalized federally? And do you think things would change nationally for drug tests if it passed federally, or would it still be left to the whims of uptight HR departments? Mahalo!

The ADA generally won't apply due to the federal illegality. Each state will be able to simply apply their own rules as to whether the medical use prevents or does not prevent employers from using that as a basis for employment (most states are pro-employer on this issue). The best thing you can do is organize and work to get laws passed that offer specific worker protections.

As a medical patient in MA, should I be concerned about my use as a teacher or when I’m applying for teaching jobs? I only use to help with sleep.

Ammon: Any job that would require a drug test could be risky. Drug tests will only show that you consumed cannabis recently, not that you are high at the time of the test. However, as mentioned below, employers and lawmakers don't have a better test to make sure you're not getting high on the job so many will simply use the existing tests as justification to fire/not hire people. The federal prohibition gives them ample cover regardless of your job performance because any cannabis use is technically illegal.

Thank you! A follow up question: Can my medical status show up on a background check?

Ammon: Depends on your state. Generally speaking, medical information is protected from public disclosure and most states with medical marijuana registries have exempted the registry from public disclosure. There is not much chance that would come up in the databases a normal background check would look.

However, state regulators in some cases are shaping their registries to specifically sidestep HIPAA protections so that they don't risk liability for accidental disclosure by making it a "voluntary" opt-in decision by patients. Washington is one such example where the information is protected, but not considered PHI under HIPAA.

What will the future barriers to interstate Canna-comerce be?

Neil: Possibly castle walls and moats.

edit: Possible changed to Possibly.

So if Biden does federally decriminalize does that mean MJ can start getting legally shipped between states for retail or will new laws need to be written before that can happen?

Neil: Serious answer: I believe it will be very similar to US liquor law. There will be federal laws and state laws. Dry counties and possible even dry states. So some interstate commerce will occur freely and some might be limited. Taxes may vary dramatically, as well as limitations on products and THC levels in some regions.

Justin: In addition to the walls and moats, I would say recalcitrant states that get overly strict on enforcement, and of course the current main barrier -- federal illegality.

Will there ever be a test, much like a breathalyzer, for cannabis? Something that will allow people to indulge at night but allow the company they work for to test them the day of to make sure someone isn’t high before work.

Neil: There are devices like this beginning to hit the market. The real issue is that we do not know how the amount in your blood/breath decreases over time, as it does not appear to be linear. The current breathalyzers coming out are targeted towards a positive/negative result as opposed to the equivalent of a BAC. This means you could be completely sober for 12+ hours, but come up positive. There is still much more research to be done.

Unfortunately, Gleam Law's R&D department is severely underfunded, consisting largely of one labcoat and a bottle of whiskey.

Edit: It is now just a lab coat.

Sorry to the R&D team, I found your bottle and its now empty!

In the state I work in we have Kamnino's law which allows for random drug testing for employees caring for disabled people. My state recently legalized marijuana but under this law I could still lose my job if I tested positive without a medical card. What is a way I could protect myself without needing a medical marijuana card?

Ammon: Probably not. Recreational cannabis smokers are not a protected group of people so it is constitutional for companies or states to discriminate against them unless there is a law saying they can't. Medical users will likely eventually get protection nationally under the ADA and other civil rights laws for people with medical conditions, however, recreational cannabis will likely always be treated like alcohol--no excuse for being high/drunk on the job.

The problem is that there aren't any good tests for showing that you are high. They only prove that you smoked recently, not whether you are high right now. For heavy smokers, a urine or blood test could pop positive even weeks after they last smoked.

Without a better scientific test for ensuring workplace safety by ensuring sobriety among workers, policymakers are not going to take away the primary tool for employers to fire cannabis users who may or may not be high on the job.

Justin here: As you can imagine, every state is different, so 'my state' doesn't say anything. Luckily, Kamnino is a Jersey Law (thank you, Google). In Wild v. Carriage Funeral Holdings, the Jersey High Court stated that you can't be fired for just failing a drug test, they need to show more, such as intoxication during the job. The use has to be legal though, so without a medical card, you are SOL, because your use is entirely illegal and a business can regulate illegal off duty conduct of its employees.

What are the laws in your state in regards to insurance and banking for Cannabis Businesses? Do you know of any insurance agencies in your area that work specifically with Cannabis policies that you can refer?

Alan: I'm located in Oregon, we have three credit unions that bank cannabis businesses. A good resource for finding state specific business is the Nation Cannabis Industry Association website. You can search their membership directory to find insurance businesses by state.

Justin: There are a whole host of insurance companies that deal specifically with the cannabis industry. I highly recommend attending a cannabis specific convention when things open back up. The same with banking, there are over 100 institutions that permit cannabis banking. We do not make referrals, but the Googles is your friend in that regard.

Oath, a division of Focus1 Insurance https://focus1ins.com/ is who I refer Oregon clients to. Ask for Todd and tell him Mia sent you.

Alan: I'm located in Oregon, we have three credit unions that accept cannabis businesses. A good tool for finding businesses that work with cannabis is the National Cannabis Industry Association (NCIA). They have a searchable membership directory and there are several insurance businesses there.

Ammon: All cannabis businesses in Washington State are required to have large insurance policies. There are lots of insurance providers who work with them, but we won't be endorsing anyone publicly today.

How does IP work with particular strains?

Ammon: Lots of people come to us to claim a trademark on a strain name, meaning they want to own the exclusive commercial right to use the name. Strain names can't be trademarks because they don't "function" as trademarks by identifying the source of a product or service--strain names are the generic words to identify a particular kind of cannabis.

Compare to apple cultivars. Nobody owns the generic words 'Granny Smith' or 'Pink Lady' even though it might be possible to control who can grow proprietary cultivars like a Honeycrisp or Pink Lady through patent controls.

Neil: For genetic protection, the primary areas we are playing with includes plant patents (asexually reproduced plants), utility patents, which can include the F1s, and the Plant Protection Variety Act for sexually reproduction through a seed deposit. The first two can potentially protect high THC varieties and the process lies with the United States Patent and Trademark Office. The PVPA falls under the Department of Agriculture.