This article was written by Patrick J Hines and was first seen in print as part of our legislative update column.
Since the last Cannabuff issue, developments in cannabis reform have come fast and furious. Cannabis legalization was approved by voters in every ballot where it appeared, Governor Cuomo just announced another push for adult-use legalization in New York, and even Congress made some symbolic progress. But if you are in the CBD space, beware of recent enforcement efforts targeted at unverified health-based claims.
Cannabis on the Ballot
The 2020 election was an across-the-board win for cannabis legalization advocates. Voters in four states (Arizona, Montana, New Jersey, and South Dakota) approved measures to legalize cannabis for adult use, Mississippi legalized medical cannabis, and Oregon became the first state to broadly decriminalize all drug possession and legalize therapeutic use of psilocybin mushrooms. Moreover, Washington, D.C. approved a ballot measure that decriminalized psychedelics in the District.
Therefore, after the 2020 election dust has settled, recreational cannabis is legal in 15 states and the District of Columbia. 20 more states have legalized cannabis for medical use with a doctor’s recommendation. And in fact, only two states currently prohibit non-hemp cannabis for any purpose.
The overwhelming popular support for cannabis will not go unnoticed by lawmakers at the state and federal level. Any remaining holdouts may not become champions for change, but they will be much less likely to stand in opposition.
Who to Watch in 2021
Joe Biden is set to become president on January 20, 2021, and he will be joined in the Capitol by a democrat-controlled Congress. With a united government, some are hopeful that we could see real change at the federal level. This writer remains both hopeful and skeptical.
Biden did not campaign on cannabis reform. He has supported decriminalization but has not come out in support of the MORE Act passed by the House shortly after the election. Biden’s priorities appear to be focused elsewhere, and he is unlikely to spend early political capital on a strong push for cannabis reform. However, that push can still come from elsewhere. Progressive Democrats and even some Republicans have gained support from the old guard—and Biden will probably not stand in their way.
Regardless of what happens at the federal level, we can expect the dominoes to continue to fall at the state level. On January 6, New York Governor Andrew Cuomo announced that he plans to make another run at adult-use cannabis legalization in New York. While details are sparse at the time of this writing, Cuomo’s announcement indicated that the 2021 proposal will be essentially the same as the one he proposed in 2020. Readers looking for more analysis of that proposal should check out my column from the Spring 2020 issue. Other states most likely to expand their programs to adult-use are Connecticut, New Mexico, Rhode Island, and Virginia. In each of those states, senior lawmakers and governors expect formal consideration this year.
Beware the Administrative State
“Legal” cannabis does not mean “unregulated” cannabis. While the CBD space can sometimes feel like the Wild West, the Federal Trade Commission (“FTC”) recently let everyone know that there is a new sheriff in town for the hemp industry.
FTC is a powerful federal agency that, among other things, investigates and enforces federal laws governing deceptive and unfair business practices. They recently set their sights on six different sellers of CBD-containing products for allegedly making unsupported claims about the ability of CBD to treat cancer, heart disease, high blood pressure, and other conditions. Several were ordered to pay monetary judgments in addition to ceasing their health-based claims.
FTC’s action tracks with efforts at enforcement by the Food and Drug Administration. FDA has sent several letters to CBD sellers over the years—and as recently as December 2020—which warn against unsubstantiated health-based claims. FTC has now taken steps to give those warnings teeth. If you are selling products containing CBD, carefully examine your marketing and labeling to make sure you comply with restrictions on what you can say.
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