In the Weeds: Mississippi OKs Medical Use, Illinois Might Limit THC, 1st Circuit Allows Prosecution of Growers

February 9, 2022
Newsworthy Highlights

Mississippi Legalizes Medical Marijuana. On Feb. 2, 2022, Mississippi Gov. Tate Reeves signed a bill legalizing medical marijuana for certain patients with debilitating conditions, including those diagnosed with cancer, Parkinson’s disease, AIDS, Crohn’s disease and other chronic illnesses and diseases. With certification from a medical practitioner and a state-issued registration card, patients can now purchase 3.5 grams of marijuana per day, up to a maximum of 3 ounces per month. The new law tasks Mississippi’s Department of Health with overseeing the medical marijuana industry, and within six months, the department must begin licensing and registering marijuana facilities. Mississippi cities and counties have 90 days to opt out of allowing medical marijuana facilities in their municipalities.

Mississippi is the 37th state to legalize medical marijuana.

Illinois Files a Bill to Limit THC Content. Although cannabis is fully recreational in Illinois, efforts are already underway to begin adding more restrictions on the content of THC. Illinois state Rep. Mark Batinick (R-Plainfield) sponsored a bill to begin placing limits on marijuana products in Illinois. The bill would place limits of 10% THC for flower and 15% THC for products like dabs, shatter, infused foods or other ingestible forms of marijuana. The bill is largely in response to increased calls to the Illinois Poison Control Center, with close to 40% of cases involving children and gummies.

Similar measures have been championed in Colorado and other states.

National Football League Awards $1M to Study Cannabis for Pain Management. The National Football League (NFL) announced that it awarded $1 million to medical researchers to study the effects of cannabinoids on pain management and neuroprotection from concussion in football players. To better understand and improve potential alternative pain management treatments for NFL players, the NFL Players’ Association (NFLPA) and NFL’s Joint Pain Management Committee issued a request for proposals in June 2021. After receiving 106 submissions, the NFL awarded $1 million to the University of California San Diego (UCSD) and the University of Regina.

UCSD will assess the therapeutic efficacy and adverse effects of delta-9-tetrahydrocannabinol (THC), cannabidiol (CBD) and a combination of the two for treating post-competition pain caused by soft-tissue injury, as compared to a placebo. A secondary goal is to assess effects on physical function, sleep, cognition and mood. UCSD will test and monitor professional rugby players because they experience injuries similar to NFL players. The research team hypothesizes that THC and THC/CBD combinations will yield better results than CBD alone for pain reduction, and CBD alone will perform better than a placebo.

The University of Regina will investigate the effects of different CBD/THC formulations for pain management in those suffering from post-concussion syndrome and chronic pain, and as a neuroprotective treatment for concussion. The research team anticipates that its CBD/THC formulation will reduce pain, opioid use and concussions during athletic competition, and further, that it will provide physiological and psychological benefits.

In its press release, the NFL indicated that the results of these studies may inform alternative pain management strategies. However, the NFL reiterated that the Policy and Program on Substances of Abuse from the NFL-NFLPA collective bargaining agreement remain unchanged. In relevant part, the policy prohibits the illegal use, possession and distribution of drugs, including marijuana and synthetic cannabinoids.

First Circuit Allows Prosecution of Medical Cannabis Growers Under Federal Drug Laws. On Jan. 26, 2022, the U.S. Court of Appeals for the First Circuit ruled on an interlocutory appeal in U.S. v. Bilodeau, No. 19-2292, upholding the Department of Justice’s (DOJ’s) power to prosecute medical cannabis users and businesses in states that have legalized medical marijuana. Appellants argued that all prosecution of medical marijuana licensees by the DOJ was barred by the Rohrabacher-Farr amendment, which prevents the DOJ from using federal funds to interfere with the implementation of states’ medical cannabis laws.

The First Circuit did not adopt this interpretation of the Rohrabacher-Farr amendment, noting that, while the DOJ generally cannot prosecute medical cannabis users and businesses for activities within the bounds of state law, federal law does not “provide a safe harbor to all … without regard for blatantly illegitimate activity … which the state itself has identified as falling outside its medical marijuana regime.” The court found that the charged cannabis growers had created a “facade[] for selling marijuana to unauthorized users” and upheld the DOJ’s authority to prosecute.

In its ruling, the First Circuit referenced the Ninth Circuit, the only other circuit that has ruled on this issue. The Ninth Circuit in United States v. McIntosh, 833 F.3d 1163, articulated a strict compliance standard, allowing DOJ prosecutions any time there was not strict compliance with a state’s medical cannabis regime. The First Circuit noted that strict compliance is “untenable,” in part because “the potential for technical noncompliance is real enough that no person through any reasonable effort could always assure strict compliance.” Instead, the First Circuit emphasized that “the DOJ may not spend funds to bring prosecutions if doing so prevents a state from giving practical effect to its medical marijuana laws.” However, the First Circuit did not articulate a clear test, noting that “we need not fully define … precise boundaries.” This leaves some room for argument in future cases as to when the DOJ may take action.

This ruling suggests that, while medical cannabis users, executives and businesses operating in compliance with state laws are likely safe from federal prosecution, the DOJ is still monitoring activity closely and may prosecute where material noncompliance is found. Importantly, though the Rohrabacher-Farr amendment does provide some protection for medical cannabis users, executives and businesses, it does not change cannabis’ status as a controlled substance under federal law.

Grassroots Federal/State Legislative Highlights

Medical Cannabis Law Introduced in Tennessee. Tennessee law currently allows individuals with certain qualifying conditions to possess CBD oil containing up to 0.9% THC with a physician’s recommendation, T. C. A. § 39-17-402. However, the law does not allow Tennessee physicians to prescribe, order or recommend CBD oil, nor does the law allow for the sale or cultivation of medical cannabis in Tennessee.

A proposed constitutional amendment in Tennessee introduced Jan. 31, 2022, would allow the expanded use of medical cannabis and would provide for in-state cultivation, processing and sale of medical cannabis.

The amendment’s sponsor, Rep. Jason Powell, told the media, “Tennesseans should have access to a comprehensive medical cannabis program in our state. No Tennessean suffering from an approved medical condition should have to drive hours out of state to purchase medical cannabis.”

House Bill 1968, the “Free All Cannabis for Tennesseans Act,” which also was recently introduced, would provide for recreational and medical cannabis use in the state, allow the transportation and cultivation of cannabis in the state and allow the opening of recreational cannabis dispensaries.

Rep. Bob Freeman, the bill’s sponsor, noted that the “25-year war on drugs that looped in cannabis into that war has sent many people to prison, ruined lives, and it’s time we move past this and legalized it — 37 states have already done this.” Freeman also noted that the state could generate significant tax revenue through the legalization of recreational marijuana in the state.

North Dakota Marijuana Ballot Measure Fails. Attempts in North Dakota to legalize recreational marijuana use for adults — including permitting adults to possess, grow, process or transport up to 12 cannabis plants for personal use — failed.

Advocates were pursuing the 31,164 signatures necessary to put the North Dakota Legalize Marijuana and Allow Home Growth Initiative on the ballot. In North Dakota, once an initiated constitutional amendment for the ballot is approved by the secretary of state, petitioners must collect signatures from 4% of the population by the one-year anniversary of the initial approval. A total of 19,500 signatures were collected in support of the initiative by the Jan. 22, 2022, deadline. Had the petitioners obtained 31,164 signatures, the ballot initiative, which sought to amend Article I of the North Dakota Constitution, would have still needed approval by a majority vote.

This is the second failed attempt in North Dakota to legalize recreational use of marijuana. The first attempt, which pursued legalization through an initiated state statute rather than a constitutional amendment, occurred in 2020 and was hindered by COVID-19-related setbacks. North Dakota currently has a legal medical marijuana program, which voters approved in 2016. In 2018, 59% of voters rejected legalizing recreational marijuana use. Organizers are forming committees to propose two future ballot measures related to recreational use and improving the quality and access to medical marijuana.

New York Expands Medical Cannabis Program. On Jan. 24, 2022, New York’s Office of Cannabis Management (OCM) implemented an expansion to the state’s medical marijuana program increasing eligibility for patients. While medical cannabis has been legally available to New Yorkers since 2014, it was administered through the Department of Health and limited to certain medical conditions. Moving forward, the program allows practitioners to certify a patient for any condition the practitioner believes can be treated with medical cannabis. The new certification and registration system will issue certifications to new patients directly from OCM, while previously issued certifications from the Department of Health will continue to remain valid as long as they have not reached their expiration date (at which point they will be reissued from the OCM).

Investments and Transactions Highlights

Minority-Owned Cannabis Company Viola Brands Expands With $13M Infusion. Viola, a minority-owned producer and licensed cannabis wholesaler recently closed a $13 million bridge round that will allow the company to expand its operations into several new markets.

Viola was founded in 2011 by Al Harrington, an NBA veteran who played for the Denver Nuggets. Harrington named the mission-oriented business after his grandmother, Viola, who suffers from glaucoma and diabetes and often found relief by using cannabis-derived products. The company began operating in 2011 with cultivation operations in Colorado, Michigan and Oregon. Since then, the company has grown to serve customers in several additional states, including California, Oklahoma and Washington. This latest funding will allow the company to expand even further, to markets in Pennsylvania, Illinois, New Jersey and Maryland.

Notably, one of the company’s key missions is to restore those communities most impacted by the war on drugs. Viola actively invests in local communities of color and focuses several initiatives on education and operational support to minority-owned businesses in the cannabis space.

“In the Weeds” is McGuireWoods’ biweekly ounce of highlights in the budding cannabis, hemp and CBD industries. For more information, see our newsletter archive, our Edible Bites podcast series (available on Apple and Spotify), or visit our Cannabis, Hemp & CBD practice.