Delia A. Deschaine and Nathaniel M. Glasser, Members of the Firm, were featured in Law.com’s weekly newsletter Higher Law, in a Q&A focused on the firm’s cannabis law practice. (Read the full version – subscription required.)
Following is an excerpt:
Welcome back to Higher Law, our weekly briefing on all things cannabis. I’m Cheryl Miller, reporting for Law.com from Sacramento. …
Epstein Becker Green’s cannabis practice formed about three years ago as a natural outgrowth of the firm’s healthcare law and labor and employment work. Today, 22 lawyers from across the firm work on issues in the cannabis space.
I recently spoke to partners Delia Deschaine and Nathaniel Glasser about hot topics in the practice and what’s on the horizon for 2021. Here are some snippets of our conversation, edited for length and clarity.
Higher Law: What are the biggest issues on your plate right now?
Delia Deschaine: One of the biggest issues for my pharma and biotech clients right now is understanding the scheduling status of certain cannabis, including hemp-derived, products. We have an interim final rule that was published by DEA not that long ago that categorically concludes that synthetic cannabinoids are not exempt from or included within the definition of hemp. Now that rule is currently being challenged. in federal court, we will see what the outcome will be.
In terms of the conventional food and dietary supplement companies, it should come as no surprise that FDA policy on CBD regulation is a big-ticket issue. We haven’t seen much movement on this recently, and it will certainly be interesting to see how it unfolds under the new FDA administration.
With respect to academic medical center and researchers who are conducting research on cannabis, the issues that we are monitoring Include DEA’s promised publication of a proposed rule to register additional cultivators for research, as well as the health legislation that was passed that would create a more even more flexible regime for registered cultivators.
Nathaniel Glasser: From an employment perspective, over the last five years in particular, there have been a lot of state law changes. And employers are therefore constantly assessing whether they can and should test for cannabis, whether they can conduct pre-employment testing, and whether the state or local law provides employment law protections for the applicant or employee who marijuana.
And when employers do test I’m dealing with questions about how they should treat that positive test. Can they continue to enforce zero tolerance policies? Can they reject an applicant based solely on a positive test? Do they have to accommodate a medical marijuana user? And if so, what constitutes a reasonable accommodation? And the answers to those questions vary by jurisdiction and by industry and position.
Q: Do you have any predictions for 2021?
Nathaniel Glasser: I would expect that the passage or the legalization in New Jersey to have an impact in New York. And in Virginia, the state that I live in, Governor Northam has recently said that he will add to his agenda, the legalization of marijuana here. As part of the most recent legislative session, the state decriminalized the possession of marijuana, but we’re now moving towards legalization.
And although we will continue to follow developments on the federal level I don’t expect those to pass in the next year. So again, I think we’re moving forward with a patchwork of laws across the country.
Delia Deschaine: If left to the agency, I would not predict any changes in DEA’s [hemp] rule in 2021. As for FDA’s policy on CBD regulation, that’s harder to predict, although it may be reasonable to expect the status quo to remain while the agency continues to grapple with the COVID-19 pandemic.
Another issue to watch is whether DEA publishes a final rule implementing its program to approve additional DEA registrations for the cultivation of cannabis for research. I understand that DEA may be actively reviewing those applications, which is certainly a good sign. The recent bill passed by the House on cannabis research is noteworthy, as it would create a more flexible regime for registered cultivators. However, many are predicting that the bill will not pass the Senate this term.