RICO Claims Against Cannabis Companies Are Evolving

A few years ago, a trend began to emerge — driven by the anti-cannabis lobby — of civil claims being asserted against state-licensed cannabis operators under the Racketeer Influenced and Corrupt Organizations Act.

The suits were brought in an attempt to curtail operators’ state-legal cannabis activities based on the allegation that such activities violated the federal Controlled Substances Act and thereby satisfied the predicate act requirement under RICO.

In all such cannabis-related RICO cases, the plaintiffs’ bid for a civil judgment failed, and the trend of civil RICO claims against cannabis operators seemed to vanish as quickly as it appeared.

Recently, a putative class action, Plumlee v. Steep Hill Inc., was filed in the U.S. District Court for the Eastern District of Arkansas against four state-licensed cannabis operators, asserting civil RICO claims arising out of allegations that the operators falsified the amount of THC in their cannabis products.

To read the full text of this article by Duane Morris attorneys Ethan Feldman and Seth Goldberg, please visit the firm website.

Duane Morris Attorneys Named to Top 200 Cannabis Lawyers List

Duane Morris partners Paul P. Josephson, Michael D. Schwamm, Tracy Gallegos and Seth A. Goldberg have been named to Cannabis Law Report‘s Top 200 Cannabis Lawyers for 2022/23.

Cannabis Law Report compiled the list from the publication’s annual survey of clients and lawyers in the cannabis legal services sector “as well as our personal editorial decisions based on our reporting of the industry on a daily basis for the past six years.”

For more information, please visit the Top 200 Cannabis Lawyers website.

 

Cannabis Product Mislabeling Leads to Investigation and Recall in Oregon

The Oregon Liquor and Cannabis Commission (OLCC) is conducting an ongoing investigation into Curaleaf regarding an alleged mislabeling of a nonpsychoactive cannabidiol (CBD) product, which actually contained psychoactive delta-9 tetrahydracannabinol (THC). Curaleaf operates 101 retail cannabis dispensaries in 16 states. The OLCC investigation revealed that the alleged mislabeling resulted from an employee’s confusing the CBD bottles with the THC bottles in preparing the Curaleaf cannabis products at issue. The incident caused consumers ingesting those products to have experienced a “high” they did not anticipate, and ultimately led to the recall of approximately 500 bottles of tincture from the Oregon market. At least three of those consumers went to the emergency room due to the high, one consumer was hospitalized and one consumer’s estate brought a claim for wrongful death.

To read the full text of this Duane Morris Alert, please visit the firm website.

Seth Goldberg is a Team Lead of Duane Morris’s Cannabis Industry Group, a cannabis business advisor, and a trial attorney with experience in products liability and consumer fraud claims. Ethan Feldman is an associate in the firm’s Trial department, with experience in products liability and consumer fraud.

All About Legal Cannabis and Cannabis Beverages

Seth Goldberg
Seth A. Goldberg

Beverages infused with cannabis are becoming increasingly popular categories in both the beverage and cannabis industries. However, the regulatory regime resulting from the federal prohibition of cannabis inhibits the growth of this category in unique ways. Seth Goldberg, a Duane Morris trial partner and Team Lead of the Cannabis Industry Group, was a guest of the popular alcohol industry broadcast “On & Off” to discuss the current state of the cannabis industry, the rising popularity of cannabis beverages, and unique aspects of cannabis beverage regulation.

Cannabis Beverages are On Fire! – Ingredients and Labeling

Here’s another installment in this blog series on Cannabis beverages, which are on fire!  As an example,  as reported in Cannabis Business Executive, just the other day, Curaleaf, a major hemp product manufacturer, announced that it signed an agreement with Southern Glazer’s Wine & Spirits – the world’s largest distributor of beverage alcohol.  This blog entry provides a quick snapshot of cannabis beverage ingredients and labeling.

Although the most popular, THC and CBD are not the only cannabinoids the cannabis plant produces. Other cannabinoids are well-known for having potential therapeutic benefits, and cannabis consumers are also highly attuned to the different terpenes produced in cannabis that create different flavors and effects, such as bisabol, which some believe can be fruity and may provide anti-inflammatory and antioxidant benefits; linalol, which some believe can be floral and may provide sedation; and myrcene, which some believe can be fruity and may provide relaxation.  Whether and how to include different cannabinoids and terpenes in beverages is going to be important in expanding cannabis product lines.

Likewise, transparency in labeling those ingredients may be necessary to ensure consumers are enjoying cannabis beverages safely and to the greatest effect. Moreover, so that consumers can understand the experience intended with a particular beverage, “claims” about the intended effect, e.g., stimulating, euphoric, relaxing, may be necessary.

Ingredients and labeling are a hot button issue for cannabis products. Those familiar with the FDA’s discretionary enforcement of “claims” in hemp-derived CBD products know this is an area of particular interest for the FDA. State-specific regulation of ingredients in cannabis products is also getting a lot of attention right now.  For example, the Pennsylvania Office of Medical Marijuana recently instituted a state-wide “vaporization product review” purportedly to assess the safety of terpenes, like those above, in vape products.  Given that they occur naturally in cannabis, many in the industry believe terpenes should not be regulated in the same way, if at all, as other ingredients.

Lastly, on this topic, ingredients and labeling are the focal point of a growing number of products liability and consumer fraud class actions and mass actions, where plaintiffs are asserting physical or economic injuries because, they claim, ingredients did not perform as intended or were not consistent with the labeling. Cannabis beverage manufacturers, distributors and retailers need to particularly mindful of the possibility of such claims, which can deplete resources.

 

Q&A: Duane Morris Cannabis Practice Leader Seth Goldberg

Duane Morris partner Seth Goldberg‘s interest in cannabis emerged in 2014 as part of his work as a litigator in the healthcare space. Seven years later, he’s the leader of the firm’s cannabis industry group, and he’s seen the explosive growth of both the regulated trade and the legal work that’s sprouted alongside it.

We recently talked about the developments he’s seen over those seven years as well as other hot topics in cannabis law right now. Here is some of that conversation, edited for length and clarity.

Higher Law: What are some of the big changes you’ve seen since 2014?

Seth Goldberg: Some of the major changes have been the sophistication of the clients, the development of stronger compliance protocols and the improvement of deal terms and deal structures.

To read the full text of this article originally published by Law.com’s Higher Law, please visit the firm website.

Cannabis Beverages are on Fire! — THC Limits

In the second edition, and first substantive blog, in my series on Cannabis Beverages, entitled Cannabis Beverages are on Fire!, I am writing about THC limits, which is one of the hot-button issues for cannabis beverage producers and consumers.  Given its psychoactive effect, there is no denying that the amount of THC in a beverage should be measurable and limited so that consumers can safely ingest them and obtain the experience they are seeking. This means that a serving size of a beverage might have a THC limit, and so might there be a total container limit.

Cannabis beverage manufacturers are not starting from scratch in this area, however. Popular THC serving size limits in edibles and similar products include 5mg and 10mg could likely be applied to THC beverages, resulting in a total container limit based on the container size and number of servings. The current offerings of cannabis-infused drinks vary and the markets within states offer a wide variety of different THC levels. For example, Cann, a bestselling THC drink, contains 2mg THC and 4mg CBD per 12 ounce can. Cann is available in over 200 California dispensaries. Similarly, Tomato Jane drinks have 10mg THC per 12 ounce bottle. Comparatively, Matt’s High Soda offers an infused beverage called Uncle Arnie’s Iced Tea Lemonade with 100mg of THC per bottle—although each bottle is considered to be 10 servings.  As the market for cannabis beverages develops, THC limits are certain to be an issue that gets a lot of attention.  In the next installment of this series I’ll touch on cannabis beverage ingredients and labeling.

Cannabis Beverages are on Fire!

Want to know where the cannabis industry is going? How about the beverage industry? The answer is cannabis beverages! The hottest new product segment in both markets. Don’t believe me… just run an internet search for “cannabis beverages” and you’ll see cannabis-infused beverages tied to major beverage companies like Constellation Brands, such as Canopy Growth’s Quatreu water, and Molson Coors, with its Truss brand, and dozens of  smaller cannabis beverage brands, such as Forth, Kikoko, and Recess. 

A cannabis beverage generally contains either THC derived from marijuana grown pursuant to state adult-use marijuana and/or medical marijuana laws, or containing CBD derived from marijuana or derived from hemp grown pursuant to a state’s hemp laws.  Given the federal prohibition on marijuana, the federal legality of hemp, and the FDA’s current restriction of CBD in foods and beverages, the federal and state regulatory framework for producing, distributing, and consuming cannabis beverages is complex, to say the least.  In the coming weeks I will be covering in a series of short blogs some of these issues, including product labeling, THC and CBD percentages, serving size, and social consumption.

Duane Morris Cannabis Industry Group and Attorneys Recognized

Duane Morris’ Cannabis Industry Group is honored to once again be recognized with the elite law firms and attorneys in the cannabis industry.

Cannabis Industry Group and Attorneys Nationally Recognized by Chambers USA

Chambers 2021 logoDuane Morris’ Cannabis Industry Group and team leads Seth Goldberg and Tracy Gallegos received national rankings in the Cannabis Law –
Nationwide area.

Chambers Review
What the team is known for: Utilizes cannabis expertise on a nationwide basis and across a broad spectrum of practice areas, with practitioners specializing in IP, corporate transactions and regulatory advice within the sector. Offers expanded capabilities in the wake of the 2018 Farm Bill for clients trading in hemp and hemp-derived CBD products. Also boasts litigators able to handle contentious issues for producers and distributors across the industry.

Strengths: Clients describe Duane Morris as “a very well-regarded and respected firm in this space.” One client acknowledges its “deep bench with a lot of talent and experience in the cannabis industry.” Another adds: “The team as a whole is exceptionally knowledgeable. Its strengths include responsiveness and the ability to collaborate.”

Work highlights: Represented Glass House Group in its acquisition of Los Angeles-based cannabis concentrates manufacturer F/ELD Taste Matters.

Notable practitioners: Seth Goldberg boasts high-level experience advising cannabis businesses throughout their life cycle. “He’s a top-notch lawyer who really knows his stuff.” “He’s consistently responsive and knowledgeable.

Tracy Gallegos has extensive experience in the cannabis sector. Her practice covers regulatory issues, including licensing, in addition to corporate structuring and transactions.

Seth Goldberg Named a Law Firm Innovator by The Legal Intelligencer

Seth Goldberg, partner and team lead of the Cannabis Industry Group, has been named a Law Firm Innovator in The Legal Intelligencer’s 2021 Professional Excellence Awards. The award honors lawyers “who push the envelope to build their businesses [and] think outside the box and have demonstrated an ability to distinguish their brands in a crowded market.”

Cannabis Products Liability/Consumer Fraud Litigation and CBD Regulation

Seth Goldberg
Seth A. Goldberg

Yesterday, a California court federal court judge did not follow other federal courts in staying a consumer class action brought on behalf of CBD product consumers on the basis of the FDA’s primary jurisdiction over the regulation of CBD products.  The Court in Rodriguez v. Just Brands USA Inc. et al., 2:20-cv-04829, C.D. Cal., determined that claims that CBD product maker Just Brands’ labeling did not accurately state the amount of CBD in its products could give rise to state law claims for breach of warranty  and fraud that should not be stayed because, according to the Court, the FDA’s forthcoming regulations would not alter the expectation that CBD product manufacturers would accurately convey the amount of CBD in their products.  

The decision in Rodriguez should be on the radar of the entire cannabis industry, as it demonstrates how products liability and consumer class action lawsuits may be brought under state statutory and common law to seek damages for improperly labeled cannabis products.  Cannabis – hemp and marijuana – product manufacturers should be sure to build into their internal compliance safeguards against such claims.  

Relatedly, on the radar for hemp-derived CBD is legislation proposing to categorize CBD as a dietary supplement under the FDA’s regulatory regime for drugs, dietary supplements and foods and beverages under the Food, Drugs and Cosmetic Acts. That bill will be introduced today by Sens. Ron Wyden (D-Ore.), Rand Paul (R-Ky.), and Jeff Merkley.  

 

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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