In the Weeds: DC Allows Adults to Self-Prescribe Medical Marijuana, NY Warnings, Oregon Bans Delta-8 THC Products | McGuireWoods LLP

Newsworthy Highlights

DC Passes Emergency Bill Allowing Adults to Self-Prescribe Medical Marijuana. Recently, DC councilmembers unanimously voted to pass, and DC Mayor Muriel Bowser signed, an emergency bill allowing adults at least 21 years old to self-prescribe medical marijuana and obtain a medical marijuana card regardless of whether a doctor recommendation exists. The act also expedites the process for obtaining a medical marijuana card to one day if an adult visits the Alcoholic Beverage Regulation Administration to register.

Previously, adult DC residents could consume, possess and gift marijuana pursuant to Initiative 71, which passed in November 2014. However, passed the following year, legislation that prevented DC from regulating adult marijuana use in the retail industry. Harris Rider, as the legislation is commonly known, blocked DC’s ability to tax and regulate commercial adult marijuana use. As a result, marijuana gifting skyrocketed in the district, with businesses charging for memberships, merchandise and other items in exchange for “free” marijuana, which was untaxed and unregulated.

The Medical Marijuana Self-Certification Emergency Act, which takes effect immediately, permits adults to access one of DC’s seven medical marijuana dispensaries to purchase marijuana legally. The act has created a workaround to district officials’ inability to regulate and tax adult marijuana use in their respective jurisdictions. Although previous action was proposed to overturn Harris Rider, the legislation never passed. The Alcoholic Beverage Regulation Administration has stated that it will waive all medical marijuana card registration fees through Aug. 18, 2022.

New York State’s Office of Cannabis Management Warns Businesses Gifting and Bartering Cannabis and Landlords. In its enforcement continuing efforts, last week New York state’s Office of Cannabis Management (OCM), the agency tasked with regulating cannabis sales, issued cease-and-desist letters to 52 New York businesses for selling, gifting or bartering cannabis. OCM noted in the letters that “[t]here are currently no licenses available from the Office of Cannabis Management or other permissions available from any other New York State agency that authorizes the legal sale of cannabis.” OCM threatened fines, criminal penalties and permanent bans from receiving New York state licensure if businesses do not comply. The letters also state that landlords hosting any illegal activity on the premises jeopardize the ability to continue to retail to house a licensed dispensary or on-site consumption lounge in the future. Some have criticized New York for delays in issuing cannabis licenses to businesses. The Cannabis Control Board announced in March 2022 that the first round of licenses would go to individuals previously impacted by marijuana-related prosecutions.

Canadian Pharmaceutical Company Begins Psilocybin Clinical Trial. Filament Health Corp., a Canadian pharmaceutical company, announced that it has begun a Phase 1 clinical study for its psilocybin-based investigational drugs. This is a first for mushroom-derived psilocybin and not synthetic lab-created analogues. The study will look into the best route of administration for psilocybin and psilocin drug candidates. The primary goal of the study is to compare the effects of the pill form of psilocin to the sublingual form. The study was designed to include subjects who had prior experience with psychedelics and will be engaged in monitored sessions to analyze effects of the drug in three rounds for each subject. The trial is small with only 20 enrolled participants. More information on the study can be found on ClinicalTrials.gov.

DEA Hearing to Evaluate Scheduling of Certain Psychedelics as Controlled Substances. On July 6, 2022, the US Drug Enforcement Administration published notice of an Aug. 22, 2022, hearing to further evaluate information and expert opinion regarding DEA’s January 2022 proposal to schedule five tryptamines (hallucinogens) as controlled substances, including their salts, isomers and salts of isomers in Schedule I of the Controlled Substances Act. These include 5-Meo-Mipt, DIPT, 4-Ho-DIPT, 5-MEO-AMT and 5-MeO-DET. According to the notice, DEA received over 500 comments, largely from the general public and multiple requests for a hearing to present factual information and expert opinion. DEA’s supporting materials can be viewed at Regulations.gov. The hearing will be held at the DEA Hearing Facility in Arlington, Virginia. Anyone interested in participating must provide notice of desired participation on or before Aug. 5, 2022.

Virginia Agencies Warn of Enforcement Against Delta-8 Products. The Virginia Department of Agriculture and Consumer Services (VDACS) and the Office of Attorney General of Virginia recently issued a press release indicating an intent to step up enforcement against food and beverage products containing chemically synthesized cannabinoids. According to the announcement, prior to stepping up enforcement efforts, VDACS will distribute a communication to Virginia food manufacturers, retail food establishments and registered industrial hemp processors outlining the requirements of the Virginia Food and Drink Law and, more specifically, that any chemically synthesized cannabinoid , including delta-8 THC as a food or beverage is in violation of the law. The announcement indicates that VDACS will encourage voluntary compliance; However, if such compliance is not achieved, VDACS will utilize enforcement tools, with the highest penalty allowed under Virginia law, which is a Class 1 misdemeanor.

Grassroots Federal/State Legislative Highlights

New Jersey Eliminates Taxes on Medical Cannabis. On July 1, 2022, a provision of New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (Jake’s Law) that eliminates local sales taxes on the sale of medical cannabis took effect. While Jake’s Law was signed into law on July 2, 2019, the language in the act included a sunset provision for the local sales tax imposed under the act. Tax rates for sales made for medical marijuana started at 4% and reduced every year since 2020 until the tax rate was zero this July. Taxes from the sale of medical cannabis were appropriated to programs for the treatment of mental health and substance use disorders. Notably, adult-use cannabis taxes are not affected by Jake’s Law. The reduction in the sales tax aligns New Jersey with several other states that do not impose taxes on the sale of medical cannabis.

Minnesota Bill Legalizes Some THC Edibles. A new law that took effect on July 1, 2022, allows anyone over the age of 21 to purchase edibles or beverages containing up to 5 milligrams of hemp-derived THC per serving (up to 50 milligrams per package). The regulation essentially permits edibles containing hemp-derived THC to be available on the market. THC derived from cannabis plants containing more than 0.3% delta-9 THC remains illegal. Marijuana and hemp come from the same cannabis plant, albeit with subtle differences — marijuana plants are high in THC and hemp plants are very low in THC. However, THC derived from hemp is chemically the same. It appears that several Republican lawmakers who oppose marijuana legalization were not aware of this, and may have unwittingly voted for the new law, which has the practical effect of legalizing THC edibles. Importantly, the new law does place additional restriction on vaped delta-8 by clarifying that the 0.3% limit on THC content now includes “any tetrahydrocannabinol” (including highly concentrated delta-8 products).

Oregon Bans All Delta-8 THC Products. Oregon has banned all delta-8 THC products in a new regulation that became effective July 1, 2022. The ban orders removal of such synthetically derived cannabinoids, including THC-O (known as THC acetate) and nonpsychoactive cannabinoids like CBN, from all retail outlets.

Delta-8 naturally occurs in cannabis and is typically synthesized from CBD, which gets extracted from hemp plants. Delta-8 can be utilized like regular CBD products in the form of cookies, gummies, candies, vape liquid and drinks. The Oregon Liquor and Cannabis Commission states that the synthetization of delta-8 is the reason for the ban because of the lack of testing protocols surrounding delta-8 products and the chemicals used in their production. Unlike delta-9 THC, which is classified as a Schedule 1 drug, delta-8 has not been evaluated by the FDA, and the FDA has reported several adverse events in patients who consumed delta-8 products over the past few years.

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