When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act (NLRA) and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  For example, under Assembly Bill 1291 (AB 1291) (AB 1291) and California Business and Professions Code Section 26001(x), any company engaged in the cultivation, packaging, distribution or sale of cannabis products cannot be licensed unless it agrees to enter into a labor peace agreement (LPA) with a union.  By statute, an LPA must, at minimum, (a) require the company not to “disrupt” the ability of unions to communicate with and to organize employees, and (b) grant workplace access to union organizers.  Likewise, under the California Agricultural Labor Relations Board (ALRB)’s access regulations – which covers agricultural workers engaged in the cultivation of cannabis – agricultural employers are required to provide union organizers with access to their property to communicate with employees and engage in union organizing efforts for up to 120 days in a calendar year.[1]
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Agricultural Employers to Grant Union Access to Private Property

This article is the second part of a two-part article which provides an overview of Texas cannabis-related legislation and regulations affecting Texas cannabis operators and consumers.  Part I[1] covered the State’s regulations for limited medical cannabis use and consumption. In this article, we will discuss the State’s hemp program for both consumable and non-consumable products.
Continue Reading Hemp Revisited: Beyond Medical Use, Texas Cautiously Legalizes Consumable and Non-Consumable Hemp Products

Even two weeks after Election Day, jurisdictions nationwide are riding high after a number of positive wins related to the possible systemic legalization of cannabis use nationwide.  As of November 3, 2020, the pendulum now undeniably swings in favor of cannabis, with medical cannabis legal in 33 states and recreational adult-use permitted in 12 states and Washington D.C.
Continue Reading Green Wave: The Latest Election Cycle Brings Hope for Standardized Cannabis Legalization

Unions have long sought to avoid the NLRB’s election process, relying instead upon so-called “neutrality” agreements to obtain initial recognition by employers and legally enforceable rights to represent and bargain on behalf of previously unrepresented employees.  Although truly neutral pre-recognition “neutrality agreements,” i.e. those calling for an employer to be neutral on the subject of unionization and little more, are lawful, many such agreements go beyond mere neutrality and venture into actual employer support of organizing.  This may render such agreements unlawful under the National Labor Relations Act (NLRA or Act) because they interfere with employees’ rights under the Act.  Indeed, Section 8(a)(2) of the Act declares it impermissible for an employer to support a union’s organizing efforts.  Likewise, Section 8(b)(1)(A) of the Act makes it unlawful for a union to receive such support.
Continue Reading Neutrality and Labor Peace Agreements – When Its Unlawful for an Employer to Be “Too Neutral” as to Union Organizing Under the NLRA

Alternative dispute resolution (“ADR”) – such as mediation and arbitration  – has long been an attractive alternative to litigating disputes in court, especially for parties hoping to arrive at a swift resolution.  Now, given the unprecedented backlog in California courts caused by the COVID-19 pandemic, as well as uncertainty related to re-initiation of jury trials, ADR may become an increasingly favorable option – particularly for those in the cannabis industry.  According to the 2019 Annual Report and Financial Statements published by American Arbitration Association (“AAA”), cannabis-related cases have seen more growth (225%) than any other category of AAA’s 9,737 business-to-business cases for that year.[i]  
Continue Reading Using ADR for Cannabis Disputes

In Granny Purps v. County of Santa Cruz, the Sixth District Court of Appeal green-lit a medical cannabis cultivator’s ability to pursue damages – to the tune of potentially $3.5M – from the County of Santa Cruz when it determined the County cannot rely on zoning ordinance to seize the cultivator’s plants grown in violation of local regulation. Specifically, the Sixth District found that, while the County is not compelled to return seized property if the property is illegal, the local ordinance at issue “ultimately regulates land use within the County; it does not (nor could it) render illegal a substance that is legal under state law.”
Continue Reading County Zoning Ordinance Cannot be Used to Justify Cannabis Plant Seizure

The viability of California’s cannabis delivery businesses continues to hang in the balance as trial in the landmark litigation between the Bureau of Cannabis Control (BCC) and over two dozen local municipalities was postponed at the eleventh hour. In her tentative ruling, issued the afternoon before the much-anticipated bench trial in County of Santa Cruz v. BCC (County of Fresno Super Court, Case No. 19CECG01224), Judge Rosemary McGuire questioned the ripeness of certain municipalities claims challenging implementation of California Code of Regulations, Title 16, section 5416(d) (Regulation 5416(d)), which allows delivery of cannabis to any jurisdiction within the state.
Continue Reading Long-Awaited Trial in Cannabis Delivery Litigation is Again Postponed Until November

By some estimates, sales of legal cannabis in the United States are expected to top $30 billion by 2025.  If cannabis is de-scheduled, this nascent industry is well-positioned to burgeon into the next great American capitalism story.  The obvious question is: “Who will benefit?”
Continue Reading Social Equity in the Cannabis Industry: Is It Working?

*This post originally appeared as an article in the August 2020 edition of Happi Magazine.

Beauty companies, including those using CBD or hemp-derived components, face an uptick in alleged false-labeling class actions. Whether the actions are justified or vexatious, one thing is certain: they are expensive to defend. By keeping the following labeling-related litigation trends in mind when considering and reviewing product labels and marketing, beauty companies can, hopefully, avoid becoming a litigation target.
Continue Reading No Reason to Blush

On June 29, 2020, Colorado adopted a statewide social equity program (SEP) for permitting cannabis operators.[1]  More specifically, House Bill 20-1424 (HB 20-1424) “defines social equity licensees, and modifies and expands the marijuana accelerator program to make it available for social equity licensees and retail marijuana stores.”[2]  The new law enables a social equity licensee to participate in the state’s accelerator program, which, as managed by the Colorado Office of Economic Development and International Trade, supports cannabis business development.[3]  Colorado’s accelerator licensing program, originally slated to go into effect July 1, 2020,[4] pairs low-income entrepreneurs with existing cannabis businesses and, under the new law, effective January 1, 2021,[5] accelerator licenses will now be available to social equity applicants.[6]
Continue Reading Colorado’s Accelerator Program Paves Way for a Social Equity Program

On June 29, 2020, the Financial Crimes Enforcement Network (FinCEN) published updated guidance intended to “enhance the availability of financial services” for the hemp industry (the Guidance).  Even though the Agriculture Improvement Act of 2018 legalized hemp[1] at the federal level, some banks have hesitated to provide financing to the hemp industry because they are uncertain of their obligations under the Bank Secrecy Act or Anti-Money Laundering regulations (BSA/AML).  The Guidance was published to clarify those obligations, and follows closely on the new National Credit Union Administration guidance for federally-chartered credit unions issued on June 20, 2020. 
Continue Reading Clearing the Air: FinCEN Guidance May Help Banks Find Their Way in the Field of Hemp Financing