On August 29, 2023, the U.S. Department of Health and Human Services (HHS) made a groundbreaking recommendation to the Drug Enforcement Administration (DEA) – that cannabis should be rescheduled from Schedule I to Schedule III under the Controlled Substances Act (CSA). This recommendation was made pursuant to President Biden’s request that the Secretary of HHS and the Attorney General initiate a process to review how cannabis is scheduled under federal law. In recent days, the unredacted 252-page analysis supporting the August recommendation was released pursuant to a Freedom of Information Act request. While the DEA is presently reviewing HHS’s recommendation and has final authority to schedule a drug under the CSA, it is ultimately bound by HHS’s recommendations on scientific and medical matters.Continue Reading Cannabis Rescheduling: HHS Findings and Legal Implications

On August 29, 2023, less than one year after President Biden’s directive to federal officials, including the U.S. Department of Health and Human Services (“HHS”) and the U.S. Attorney general, to conduct a review of cannabis’ classification under federal law,[1] HHS submitted a letter to the U.S. Drug Enforcement Agency (“DEA”) recommending a change in cannabis’ classification under the federal Controlled Substances Act (“CSA”).Continue Reading Reclassifying Cannabis as a Schedule III Substance – Will the DEA Agree?

On November 10, 2022, in the matter Variscite NY One, Inc. v. State of New York, et al., the U.S. District Court for the Northern District of New York granted the plaintiff’s a motion for a preliminary injunction against the State of New York (“NYS”), the New York State Office of Cannabis Management (“OCM”), and the Executive Officer of the OCM, Christopher Alexander issuing any cannabis licenses under NYS’s conditional adult-use retail dispensary (“CAURD”) application program in 5 of the state’s 14 geographic regions.Continue Reading Federal Judge in NY Issues Preliminary Injunction to Block Retail Cannabis Licenses on Constitutional Grounds

This article was originally published in the November/December issue of ELFA’s Equipment Leasing & Finance magazine.

In mid-July 2022, the United States House of Representatives passed provisions that would allow legitimate cannabis-related businesses to access federally regulated financial services. This marks the seventh time the House has approved a version of the Secure and Fair Enforcement (SAFE) Banking Act. The original version of federal cannabis banking reform was introduced nine years ago by Rep. Ed Perlmutter (D-Colo). The passage of the SAFE Banking Act, either as stand-alone legislation or as amendments attached to must-pass bills, would prohibit federal banking regulators from penalizing a federally regulated depository institution for providing banking services to cannabis businesses. Presently, cannabis businesses are essentially deprived of federally regulated financial services, which include the ability to raise capital, obtain loans and process payment. Continue Reading Federal Cannabis Banking Reform: What Happened?

In a historic move, today, President Joe Biden announced a three-step program to bring broad changes to federal cannabis policy. As an initial step towards reform, President Biden will pardon all federal offenders convicted of simple marijuana possession. According to administration officials, the pardons will be issued through an administration process overseen by the Department of Justice. Those eligible for the pardons will receive documentation showing they were officially forgiven for their crime.Continue Reading BREAKING NEWS: Biden to Pardon Federal Marijuana Possession Convictions

Recreational cannabis is now legal in 19 states and Washington D.C., driving the growth of legal cannabis sales estimated at $33 billion this year—up 32% from 2021—and expected to reach $52 billion by 2026.[1] This movement signals that financial investment in cannabis is not abating but accelerating notwithstanding the impact of the lingering COVID-19 pandemic. This growth in the cannabis industry, of course, also means that operators and their investment partners face commercial risk, including insolvency.Continue Reading The Cannabis Conundrum: Can Cannabis Companies File Chapter 15?

Federal cannabis reform is once again on the move in Congress. On Friday, April 1, 2022, the U.S. House of Representative passed the latest iteration of the Marijuana Opportunity Reinvestment and Expungement (MORE) Act. This is Congress’s oldest comprehensive measure, and it aims to decriminalize cannabis on the federal level by removing it from the list of controlled substances while providing certain social reforms to address the detrimental repercussions of the War on Drugs.[1]
Continue Reading The House Does It Again: MORE Act Ready for Senate Action

Hope soared with the possibility of federal cannabis reform in 2021.  And for good reason – the induction of a new, more liberal administration, rapid state-level legalization, broad support by Americans,[1] and growing bipartisan backing led many to believe that 2021 was going to be the year where federal decriminalization of cannabis would become a reality.  But, as 2021 continued on, optimism dwindled as any advancement in federal cannabis reform was hobbled by the inability of Congress to agree on the appropriate level of reform and the proper mechanics for passage.  Specifically, tension rose amongst the elected Democrats on whether to support incremental reform (like access to banks or removal of cannabis from the list of Schedule 1 drugs) or comprehensive legalization with provisions to address social inequities stemming from the legacy of the War on Drugs.  And so 2021 came to an end, and the cannabis industry saw yet another year of failed meaningful change on the federal level.
Continue Reading Federal Cannabis Reform – Is 2022 the Year?

It is undeniable that, not only is the cannabis industry here to stay, but it is growing exponentially.  To date, 47 states, 4 U.S. territories, and the District of Columbia have legalized cannabis in some form – whether they decriminalize production, allow uses limited to cannabidiol (“CBD”) or hemp, or is as expansive as permitting THC-containing cannabis for medical use, adult-use or both.  Yet, in comparison to other industries, legitimate licensed cannabis-related businesses remain hobbled by the difficulties they face in accessing traditional banking and financial services – largely due to the fact that “marijuana” is still considered illegal on the federal level under the Controlled Substances Act (“CSA”).  Currently, financial institutions (including federally-insured banks) are hesitant, and oftentimes unwilling, to work with cannabis-related businesses due to fear of reprisal from federal banking regulators.
Continue Reading SAFE Banking Act of 2021: Where Are We on Cannabis Banking Change?

On Wednesday, two businessmen were convicted of a single count of conspiracy to commit bank fraud (18 U.S.C. § 1349) for orchestrating a scheme to disguise cannabis-related financial transactions as transactions unrelated to cannabis.[1]  The conviction followed the close of a three-week trial in the Southern District of New York, which was one of the first federal criminal trials to be held in person since the start of the COVID-19 pandemic.  The jury deliberated for less than a day.  Sentencing is scheduled for June 25, 2021.
Continue Reading Online Cannabis Marketplace Businessmen Convicted of Conspiracy to Commit Bank Fraud