Behind Closed Doors: NCIA at CANNRA’s June Conference

The discussion about the future of cannabis legalization is ongoing, to say the least. Recently, Cannabis Regulators Association (CANNRA) held a two-day conference in early June to gather Marijuana government regulators, trade associations, and businesses. The Cannabis Regulators Association (CANNRA) is a national nonpartisan organization of government cannabis regulators that provides policymakers and regulatory agencies with the resources to make informed decisions when considering whether and how to legalize and regulate cannabis.

Representatives from NCIA participated in the conference – NCIA Board Members Khurshid Khoja (Chair Emeritus) and Michael Cooper (Board Secretary), and we caught up with them in this blog interview to better understand the goals and outcomes of the event.


From a bird’s eye view, what was the overall goal of this conference? 

MC:  The conference was an opportunity for regulators from around the nation to hear directly from stakeholders on the current and future challenges that face these markets and different models of regulation to tackle them.  

KK: I’ll add that our own goals, as the current Policy Co-chairs for NCIA, were to better understand the priorities of state and local cannabis regulators across the country, and anticipate future developments in cannabis policy early on, so we could take that back to the NCIA membership and the staff – especially Michelle Rutter Friberg, Mike Correia, and Maddy Grant from our amazing government relations team.

Let’s talk about who was invited to participate in these panel discussions. From cannabis industry associations to those who regulate cannabis, who else was there?

KK: Michael and I each spoke on a panel. The other speakers included reps from federal trade associations, lobbyists, vendors, and ancillary companies who were helping to underwrite the event (along with NCIA). Given that CANNRA is a non-profit that doesn’t receive any funding from their member jurisdictions, and has a single paid full-time staff member, I thought they were still able to obtain a fairly diverse and interesting set of speakers at the end of the day – including NCIA Board and Committee alums Ean Seeb, Steve DeAngelo, Amber Senter and David Vaillencourt (representing the Colorado Governor’s Office, LPP, Supernova Women and ASTM, respectively), as well as folks from Code for America, Americans for Safe Access, and the Minority Cannabis Business Association, U.S. Pharmacopeia, NIDA, the CDC, and the Alcohol and Tobacco Tax and Trade Bureau, representatives of the pharmaceutical, hemp, tobacco and logistics industries, and public health officials.

Were there any organizations or sectors of the industry that were not in attendance, whether they weren’t invited or just didn’t participate, and why is it important to note the gaps of who was not represented?

MC:  No licensed businesses were invited. Instead, organizations that represent industry members were invited. As a result, we felt it was crucial to inform these discussions with the perspective of the multitude of small and medium-sized businesses otherwise known as Main Street Cannabis that have built this industry and continue to serve as its engine.    

KK: Sadly, we did not have an opportunity to hear from members of the Coalition of Cannabis Regulators of Color. I can’t speak to why that was, but it was unfortunate for us nonetheless. And while we had some public health officials there, I know that CANNRA Executive Director Dr. Schauer would have preferred to see more of them in attendance.

Across the spectrum of policy and regulations and legislative goals, what topics were covered in the panel discussions across the two-day conference?

KK: We covered a ton, given the time we had, including the federal political and policy landscape; interstate commerce; the impact of taxes on the success of the regulated market; social equity and social justice; preventing youth access; regulation of novel, intoxicating and hemp-based cannabinoids; the prospects for uniform state regulations; technological solutions to improve compliance and regulatory oversight; and delivery models.

What information or perspectives did NCIA bring to the panel discussions that were unique from other participants? What does NCIA represent that is different from the other voices at the event?

MC:  There really are a wide variety of perspectives on how best to regulate this industry. We felt it was essential that NCIA give a voice to Main Street Cannabis, the small businesses that so many adult-use consumers and medical patients rely upon. We emphasized, for example, that these are often businesses that cannot simply operate in the red indefinitely, but provide essential diversity (in the background and life experience of operators as well as in product selection and choice). NCIA wants to make sure that the future of cannabis isn’t simply the McDonalds and Burger Kings of cannabis. There are times when consumers want that, but there are also times when they want something unique and different. And it’s crucial that policy not destroy the small and medium-sized, frequently social equity-owned, businesses that provide those choices.

What else was interesting to you about this gathering of minds? Were you surprised by anything, or was there anything you heard that you disagreed with?

MC: There are a ton of different perspectives and approaches to cannabis, and that’s no surprise to anyone who has followed these issues closely because the tensions are very clear in the policy debates that are ongoing. 

As the voice for the industry, we sought to urge an approach grounded in reality. Americans want these products. That’s clear from the ballot box and public polling. The question should be about how to encourage Americans to purchase regulated, tested versions of these products. 

KK: There was definitely stuff we didn’t agree with – some of it from folks that we otherwise largely agree with. For example, our good friend Steve Hawkins of the USCC shocked a few of us in the audience when he seemed to indicate some receptivity to re-scheduling cannabis on an interim basis, rather than moving to de-scheduling immediately. I think that while rescheduling may benefit scientific research and pharmaceutical development, it could ring the death knell for Main Street Cannabis businesses. NCIA has consistently advocated for de-scheduling rather than re-scheduling.

After two days of panels, did anything new come through these discussions, or were any accomplishments achieved?

KK: I think there’s a growing recognition that addressing social equity solely through preferential licensing and business ownership for the few isn’t enough and that the licensing agencies and regulators that execute social equity policies have a very limited (and often underfunded) arsenal to comprehensively redress the harm caused by federal, state and local governments prosecuting the war on drugs. In my remarks, I said it was time for us to start discussing additional forms of targeted reparation and had a number of regulators approach me afterward to continue the discussion. Candidly, I expected my remarks to fall on deaf ears. They didn’t. That was very encouraging.

MC: There was definite progress. At the end of the day, these cannabis regulators are working hard to try to get this right. But in such a new area, and with so many competing perspectives and voices, their job isn’t easy. We were heartened to see the level of engagement from regulators on these points, including follow-ups to get more information on some of the pain points we identified for small and equity businesses in the industry. 

It was definitely rewarding to provide NCIA and our members’ perspectives in a forum like this, and we’re looking forward to continuing to further strengthen NCIA’s relationship with CANNRA and regulators around the country.  

Video: NCIA Today – September 3, 2021

NCIA Deputy Director of Communications Bethany Moore checks in with what’s going on across the country with the National Cannabis Industry Association’s membership, board, allies, and staff. Join us every Friday here on Facebook for NCIA Today Live.

 

 

U.S. Supreme Court Refuses to Hear Landmark Cannabis Case

On Tuesday, the U.S. Supreme Court refused to hear a prominent case, Washington v. Barr, which argued that cannabis prohibition is unconstitutional. This action in effect upholds an earlier district court ruling which said that the plaintiffs – who included a former NFL player, a veteran, pediatric cannabis patients and advocacy organizations – had not exhausted all administrative remedies available to them to change the schedule of cannabis in the Controlled Substances Act.

Last month, the law firm of Wilson Elser filed an amicus brief on behalf of NCIA and Arcview which argued that the court should proceed with the case because the historical behavior of the Drug Enforcement Administration made pursuing the remedies sought in the case through administrative means practically impossible. You can read the full brief here.

“We were disappointed that the Supreme Court declined the opportunity to address this critical issue,” said amicus contributor Michael Cooper with MadisonJay Solutions, who is the co-chair of NCIA’s Policy Council and chair emeritus of its State Regulations Committee. “As the leading non-profit trade association for the cannabis industry, we urged the Supreme Court to protect the countless Americans who rely on state-regulated cannabis programs and the small businesses that support them. We will continue to work on behalf of our members to end prohibition, whether by continuing to support crucial impact litigation such as this or through NCIA’s team of full-time government relations professionals who continue tirelessly to advocate for reform through Congress and the Executive.”

Politico reports that the lead attorney for the plaintiffs, Michael Hiller, is continuing to explore options for appeal.

Member Blog: “Death Penalty for State-Legal Marijuana Businesses” Is a Good Headline; It’s Not the Real Takeaway

by Michael Cooper, MadisonJay Solutions

In recent days, and for the second time in 2018, the state-legal cannabis industry is abuzz over a new memo issued by Attorney General Sessions. Having revoked the Cole Memo in a January memo, the Attorney General’s latest memo addresses the use of capital punishment in drug cases. Notably, he urges federal prosecutors to consider the death penalty in drug cases—including in circumstances that facially could include the operation of large-scale state-legal marijuana businesses regardless of compliance with local rules.  

There’s no doubt “Sessions to Execute Legal Industry Members” makes for an eye-catching headline, but it’s time to pour some cold water on the hype: It’s highly unlikely that federal prosecutors would ever bring such a death penalty case. And even if prosecutors brought such a case, it’s even more unlikely that they could convince a jury to impose a death sentence that would stand up on appeal.  

Given the fervor over this news, it’s worth explaining why the death penalty shouldn’t be keeping rule-following business owners up at night. But stepping back from the sensationalized headlines, it’s also worth considering what the real takeaway from the memo should be.

First, the prospect of a federal prosecutor seeking the death penalty against an individual for conduct she committed pursuant to a state-issued license and in conformance with a state-promulgated regulatory system are exceptionally low. Ask anyone who has actually interacted with federal prosecutors (and not just seen Goodfellas or American Hustle): Federal prosecutors are, unfailingly, exceptionally dedicated public servants who care above all about wielding their powers fairly and judiciously and getting the result right. They want to prevent serious crimes and put away threats to public safety. The idea that they would seek the death penalty against the owner of a state-licensed marijuana business operating in strict compliance with those rules is farfetched. After all, by their very conduct those individuals are demonstrating their ability to abide by the rule of law.  

Certainly, Attorney General Sessions is not a fan of the state-legal marijuana industries. But it is an incredible leap to believe that he intends to have prosecutors seek the death penalty in such cases. As the memo says, the Attorney General “encourage[s]” prosecutors to seek the death penalty “when appropriate.” There has been no indication to date that Attorney General Sessions or any other federal prosecutor believe the death penalty is “appropriate” for a rule-following licensed cultivator in Colorado or retailer in Nevada.

Second, even assuming a hypothetical prosecutor brought such a case and secured a conviction for the underlying offense, they would still have significant constitutional hurdles. As an initial matter, under the Sixth Amendment, those prosecutors would need to convince a jury in the state where the conduct occurred (and is licensed) that sufficient aggravating factors existed to impose the death penalty. Without getting too deeply into the legal weeds, the U.S. Supreme Court reiterated in 2016’s Hurst v. Florida that before a defendant can be sentenced to death, he has “right to have a jury find the facts behind his punishment.” Convincing a jury of the defendant’s peers in a state where the conduct is legal that the defendant’s conduct warrants the punishment of death would be a tall task for any prosecutor.  

Moreover, even assuming prosecutors secured a death sentence from the jury, any defendant would immediately appeal asserting that such a punishment violates the Eighth Amendment’s prohibition on cruel and unusual punishment. As the Supreme Court reiterated in 2008’s Kennedy v. Louisiana, punishment for a crime must be graduated and proportionate to the offense under currently prevailing societal standards. That is a heavy burden for conduct that is licensed and regulated in the defendant’s home state. Particularly daunting for the prosecution is the fact that the proportionality inquiry includes consideration of which states permit execution for the offense. In this hypothetical case, the conduct in question is (1) not a capital offense in the defendant’s home jurisdiction, (2) not illegal in the defendant’s home jurisdiction, and (3) actually licensed and regulated by the defendant’s home jurisdiction.

So, if rule-abiding business owners shouldn’t spend sleepless nights waiting for a death penalty prosecution, what should they conclude from this memo? Foremost, they should recognize that their efforts to comply with state rules on marijuana are more essential than ever.

The Attorney General’s memo makes plain that federal prosecutors will aggressively pursue drug crimes. To the extent that a state-licensed business appears to those prosecutors to be violating local law and diverting marijuana to the criminal market or selling to minors, that is a prime target for aggressive enforcement. Savvy licensees are already building robust compliance programs to avoid providing any appearance that they are not in strict compliance with local rules. In a federal enforcement environment in which the Attorney General is encouraging prosecutions with a clear intent to deter bad actors in the future, those efforts become even more essential.

In short, the prospect of a death penalty prosecution of the owner of a rule-following, state-licensed marijuana business is very remote. The way to keep it very remote is to focus on efforts that demonstrate that you are, in fact, following the rules.


Michael Cooper is the co-founder and managing member of MadisonJay Solutions LLC, the leading regulatory advisor to adult-use cannabis companies. A graduate of Harvard College and Harvard Law School, he previously served as General Counsel of MHW, Ltd., a leading provider of compliance services in the beverage alcohol industry, and in the litigation department of Cravath, Swaine & Moore LLP, known as one of the nation’s premier law firms for nearly two centuries.

Mr. Cooper can be reached at mcooper@madisonjaysolutions.com. Learn more at https://www.madisonjaysolutions.com

 

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