2025 is underway, Leafly nation! February is a month for momentum and risk, and we have the best strains, from Xeno to Chemdog, to help you hit your stride.
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We’ve assembled a list of fantastic brands and products from around the cannabis universe to help you explore what the plant has to offer and make 2025 a banner year.
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The Oregon legislative session formally kicked off this week, on Tuesday, January 21st. It’s a regular session in 2025, meaning we’re in for a longer stretch — a 160-day calendar, versus the 35-day affair we see in even-numbered years.
If you read any of the news articles previewing the 2025 session, you won’t see cannabis as a legislative priority. Most likely, you won’t see it mentioned at all. Legislators seem both wary and weary of cannabis: the 2023 industry scandals implicating public officials are still fairly recent; and, after ten dynamic years and hundreds of adult use cannabis proposals, bills and laws, the program needs to breathe.
All of that said, the Cannabis Industry Association of Oregon (CIAO) and others have been working on their wish lists, and I do expect to see a few new cannabis laws in 2025. Most of it will be scaffolding and maintenance.
Below, I summarize the draft bills currently teed up in the 2025 session (with links), and give some cursory comments. But first I’ll add my usual caveat: a large majority of these introduced bills will not pass. Some contain overlapping concepts and will never go to committee, while others will fail after a hearing or two, or be consolidated into omnibus or placeholder bills.
This is one of the omnibus bills, and one to watch. Its drafter described it to me yesterday as “omnibus but not complete,” in fact. Here’s what’s in there as of today:
Here are a few concepts that may be added:
This is an Oregon Cannabis Commission bill with some strong concepts, but it will need a lot of amending. OLCC has been slowly absorbing OHA’s medical marijuana program for years. At first that upset people, but a full windup is a fait accompli. SB 162 has a good chance to pass in some form.
Placeholder.
Same as SB 188. Placeholder.
This bill appears to be poorly conceived and poorly structured at present. I’m guessing it doesn’t go anywhere for several reasons, not least of which will be the fiscal impact consideration.
I doubt it goes anywhere.
This one, along with SB 557 and 558 just below, are the CIAO bills. (You can view CIAO’s legislative priorities here.) Each of these bills are sponsored by Senator Floyd Prozanski, longtime industry supporter.
Creative, and probably going nowhere.
A bunch of rulemaking coming up for OLCC if this passes. But it all makes sense.
This will get the cannabis industry’s hackles up, severely. Similar bills have been beaten back in prior years and I expect the same result here.
The Governor vetoed this bill last time around, citing “logistical challenges.” I haven’t had a chance to talk with the sponsors of SB 583, so I’m not sure what the plan is on reintroduction. As a guy from North Dakota — the only state in the union with a state-chartered bank; and as an equitable banking access proponent — I hope this one succeeds.
The reference there is to marijuana worker permits. Good idea. The proposed law should probably sweep in ORS 475C.269 as well.
This is a big and rangy bill with concepts overlapping some of the others. Expect it to be absorbed somewhere, in some form.
Everyone would have to re-do their labels.
Some speech and label issues here.
Placeholder. Same as 2276.
Similar to the two above.
I believe this one also comes via the Oregon Cannabis Commission, like SB 176. And like SB 176, it likely has legs but will also see some amendments along the way.
______
That’s all she wrote for now. I’ll check in again at the end of the session, or before that with any significant developments.
The post Oregon Cannabis 2025: Legislative Forecast and Report appeared first on Harris Sliwoski LLP.
Senate Bill 23-271, which went into effect in early 2024, aims to enhance Colorado’s marijuana industry. A key provision allows licensed marijuana cultivators to source “genetic material” from approved entities in other jurisdictions. Genetic material is defined as material used to propagate cannabis plants, including:
This law significantly expands sourcing options for Colorado cultivators, including opportunities, both domestic and international. Colorado cultivators can now bring in popular OG strains from around the world.
The anticipated marketing frenzy, however, hasn’t fully materialized. The answer lies in the complexity of transporting genetics across state and international lines.
That’s where we come in. With years of experience advising clients on compliant cross-border transportation, we understand the nuances in the law. Below is a high-level overview of the challenges involved. If you or your clients are ready to make an impact in Colorado’s market, please reach out to me or my team— we’d be happy to assist.
This question – the Schrödinger’s Cat of the cannabis industry – is both simple and complex. In short, under federal law, marijuana genetics appear to be hemp. However, they are neither strictly hemp nor marijuana until a state makes that determination. In fact, in some states they may be both marijuana and hemp.
In January 2022, the DEA issued a letter stating that cannabis seeds and other genetic material with ≤0.3% D9 THC meet the definition of hemp and aren’t controlled substances. Importantly, the DEA further clarified in a December 2022 letter that if the cannabis seed germinates into material exceeding 0.3% THC, then “that material” falls within CSA control. DEA’s use of “that material” rather than specifying the seed used to grow “that material” further supports that DEA, at least for now, does not view marijuana genetics (testing at ≤0.3% THC on a dry weight basis) as marijuana.
While these DEA letters aren’t legally binding, they suggest that marijuana genetics, when testing at ≤0.3% D9 THC, are considered hemp under federal law.
Since marijuana genetics are currently treated as hemp under federal law, they can move across U.S. state and international lines. However, the 2018 Farm Bill allows states to impose stricter laws.
Some states, like neighboring Arizona, define marijuana genetics as material that will only grow into hemp. Others, like Arkansas, do not expressly exempt “hemp” form the definition of “marijuana,” creating a situation where the genetics are both hemp and marijuana. And States like Mississippi and Minnesota prohibit the sale of cannabis sativa seeds all together.
Understanding both federal and state laws is critical to ensuring a compliant transfer into Colorado. If the exporting state defines the genetics as hemp and permits exports, cultivators can likely import them into Colorado. If the exporting state does not define marijuana genetics as hemp, then selling or transporting marijuana genetics could lead to criminal violations under a state’s marijuana laws.
An international import of marijuana genetics must comply with both state, federal, and international laws. As long as the export meets USDA and Customs requirements, federal law typically won’t pose an issue. However, it’s essential to consider the laws of the exporting country, and importing US state, ensuring that the genetics are classified as hemp by both governments. Otherwise, the transport may not only violate a US state’s laws, but also international law.
Licensed Colorado cultivators seeking unique marijuana strains from outside the state—whether from California, Oregon, or countries like Colombia and Jamaica—must navigate both federal and state laws. Harris Sliwoski has extensive experience helping operators transfer cannabis genetics. With our new Denver office, we are ready to assist Colorado cultivators with global genetics imports. A “Tour de Cannabis” anyone?
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It’s MLK Day once again.
I’ve been writing an MLK Day post on this blog for eight consecutive years. The theme of my posts is that cannabis is a civil rights issue, and that Dr. King would have advocated for ending prohibition based on that fact.
Each year, I have demonstrated with facts (upon facts upon facts) that the War on Drugs continues in insidious ways. In, 2023, which is the most recent year that FBI data is available, law enforcement officials made over 200,000 arrests for marijuana-related convictions. Those 200,000 arrests constitute roughly 25% of all drug-related arrests.
Sadly, arrests of black people constituted 29% of all drug arrests in 2023, although only 13.6% of Americans are black.
Heading into MLK Day weekend, President Biden announced that he is commuting the sentences of nearly 2,500 people convicted of non-violent drug offenses. The focus was predominantly on individuals “who received lengthy sentences based on discredited distinctions between crack and powder cocaine…”, as opposed to cannabis-related crimes. According to the Last Prisoner Project, “the total number of those incarcerated for cannabis who received commutations is not knows, but nine LPP constituents will be free.”
For all that Biden promised as to cannabis, it’s the least we could have asked. Under the new Trump administration, attention will quickly return to the frustrating marijuana rescheduling process. If cannabis ends up on Schedule III, criminal penalties for traffickers may soften, but make no mistake: possessing and distributing cannabis will still be a federal crime.
At the state level, where most arrest occur, progress has slowed in the last few years. Out here where I live in Oregon, with our 800 cannabis stores, it’s astonishing to think of 200,000 annual cannabis arrests– most for simple possession, no less.
There is a lot of work to do. Here are a short list of organizations if you’d like to get involved:
For prior posts in this series:
The post MLK Day: Cannabis and Civil Rights appeared first on Harris Sliwoski LLP.
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Howie’s managerial style comes from his time in the legacy market. Most of his team also hail from the Bronx; some he coached in little league.
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It’s been a wild week in the rulemaking around marijuana rescheduling, to say the least. I’ve started writing about it a couple of times, only to be whipsawed by filings, rulings, prominent hot takes, prominent rebuttals, and more. All while trying to do my real job here at the firm.
Below are my thoughts on the state of this terrible pageant, in FAQ format.
Let’s start with the procedural posture. Marijuana rescheduling is mired in an administrative rulemaking process, whereby the Drug Enforcement Administration (DEA) is the hapless, cynical “proponent” of a proposed Department of Justice (DOJ) rule.
Specifically, in May of 2024, DOJ appointed DEA to carry its water on moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). DOJ’s recommendation takes the form of a Notice of Proposed Rulemaking (NOPR). The Notice was issued because President Biden, in October of 2022, directed the Department of Health and Human Services (HHS) to revisit the Schedule I status of marijuana. HHS did so in collaboration with its downstream agency, FDA, and recommended Schedule III. DOJ then proposed the rule.
Fast forward to this week. Midway through the rulemaking process, DEA Chief Administrative Law Judge John J. Mulrooney, II, issued an order on Monday, January 13th, cancelling the merit-based proceedings that were set to begin on Tuesday, January 21st, and granting an interlocutory appeal. The Judge so ruled on a motion by a small but steely crew of pro-Schedule III witnesses, who were selected by DEA to testify in the proceeding. This intrepid crew is led by Village Farms, International, Inc. (Let’s call them the “Villagers”.)
Judge Mulrooney’s order agitated the internet cesspit of cannabis law discourse, mightily. Certain people were quite upset with the Villagers, while others rushed to their defense. More on that below.
The Judge said several remarkable things, the likes of which we don’t often hear in administrative proceedings. Alas I cannot examine them all in this small space. However, most prominently, His Honor reprimanded DEA for “unprecedented and astonishing defiance” of an evidential directive. He also characterized DEA’s bad behavior as especially, unusually bad, “even among the numerous extraordinary and puzzling actions taken thus far by the Government during the course of this proceeding.”
Further, he cited the Villagers’ allegations against DEA that:
“demonstrate a puzzling and grotesque lack of understanding and poor judgment from high-level officials at a major federal agency with a wealth of prior experience with the [Administrative Procedure Act].”
As someone who used to go to court, I can tell you that when you write things like that, it’s a lot of fun to have the judge repeat them. Finally, Judge Mulrooney explained that he will consider sanctions against DEA, which, woah!
It’s going to be at least three months, friends. Could be more. And there are further developments that could distend this already sorry state of affairs.
Foremost among them are imminent changes to DOJ and DEA personnel with the incoming Trump administration; and the related question of whether that administration will weigh in on rescheduling one way or another. As Trump’s Attorney General, Matt Gaetz would have been great for Schedule III prospects, given his private love of controlled substances, and his public statements on marijuana reform. Pam Bondi, well, maybe not so much. As to Trump, the man himself endorsed rescheduling on the campaign trail, for whatever that is worth.
In the long term, I believe that it is. Rulemaking is the process of making a record. The process, as well as its result, is subject to litigation and appeal. For this reason, you want a good record.
Interlocutory appeals like the Villagers’ are seldom granted, but the Judge granted this one due to DEA’s flagrant disrespect for the rulemaking process — of which it is proponent, no less! Judge Mulrooney is both making and protecting the record, and guarding against some later appeal based on the fact that DEA’s shithousery tarnished that record.
The Judge will soon examine allegedly inappropriate ex parte communications by DEA with prohibitionist parties, evidentiary dilemmas, and other unsavory matters that were entirely avoidable. Expect more fireworks to come.
Many people feel that this cumbersome and essentially political process could come to a halt, owing to excessive delay. It’s making them nervous.
An attorney for the National Cannabis Industry Association (NCIA) — who, like me, is not an administrative litigator – lamented that Judge Mulrooney’s order arises from a “procedural sideshow” caused by the Villagers. The NCIA — which has never been able to move the needle on rescheduling (or much of anything) — now argues that the Villagers, although pro-Schedule III, are undermining Schedule III by litigating the rulemaking.
The charge was not well taken. The Villagers replied that their advocacy is vital to ensure a balanced record and rulemaking, and that it is DEA, not them, which has imperiled Schedule III. The Villagers have a strong ipso facto argument at this point – Judge Mulrooney granted the interlocutory appeal, after all.
I’m not going to summarize the arguments of either side further, but you can read the NCIA attorney’s charge here, and the Villagers’ response here. Or, you can watch attorney Shane Pennington with an absolute fireball of an interview here. (Shane is the administrative litigator representing Village Farms.) I’m with the Villagers.
I think he is. He is paying attention, and he’s smart, and he has ruled quickly and decisively throughout the process. Generally speaking, Judge Mulrooney’s rulings have been evenhanded. To that point, we’ve also seen him take the Villagers to task throughout the proceedings, including on big-ticket items, such as their demand that DEA be removed as proponent in this rulemaking. Overall, the Judge is in a difficult position; but he’s certainly working hard.
Do you have a couple of hours? I’ll start from the top and try to be brief about it.
First, Biden screwed up by putting us into an administrative process to reschedule marijuana, back in October of 2022. I have been saying and writing this consistently throughout.
Remember: in the 2020 campaign, Biden promised to “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.” He didn’t do that, or even give it a shot– including when his party had control of Congress. Last year, when he announced his bid for re-election, I graded him a gentleman’s “C” for his cannabis policy efforts. And I again criticized him for “passing the buck with rescheduling, putting us on an uncertain, circuitous path.”
If Biden didn’t want to deal with Congress, he also could have leaned on Merrick Garland, as Attorney General, to commence rescheduling proceedings. He didn’t do that, either.
DOJ screwed up. Merrick Garland screwed up. Here, it’s important to understand that the NOPR provides that DOJ itself will issue the final rule. Garland himself signed the NOPR in his official capacity as Attorney General.
All of that was high and tight, because the CSA “vests” the Attorney General with the authority to “schedule, reschedule or decontrol drugs” (21 U.S.C. 811(a)). The Attorney General has traditionally delegated that authority to the DEA administrator (28 CFR 0.100). However, the Attorney General also retains the authority to schedule drugs under the CSA in the “first instance” (28 U.S.C. 509, 510).
Garland should have done that. Instead, he kicked this down to DEA, a body which has shown repeated disdain for law and judicial orders— as I pointed out the very day that HHS made its rescheduling recommendation. Garland’s decision also stirred up a hornet’s nest of tedious legal arguments around delegation, whether the DEA should be the proponent here, etc.
Let me count the ways.
The NOPR sought submissions from “interested persons” desiring to participate in the hearing. “Interested Persons” is defined in 21 CFR 1300.01 as “any person adversely affected or aggrieved by any rule or proposed rule issuable” under 21 USC 811 (my italics). You really have to squint to see how the Villagers and others might be adversely affected by a move to Schedule III. The same can be said of many opposing party witnesses selected by DEA. So why did DEA invite them?
Ultimately, Mulrooney permitted the inclusion of all of these witnesses back in November, partly because DEA selected them, and partly based on His Honor’s consideration that their participation would “meaningfully assist the decisionmaking.” That might be true, although the Schedule III naysayers and yeasayers will likely offer trucksfull of useless, duplicative testimony. So again, why have witnesses in the first place?
Milgram and DEA ostensibly wanted a hearing because marijuana rescheduling is a matter of public import. But a hearing wasn’t necessary. In fact, none of this was really necessary. As I pointed out back when this goat rodeo commenced, DEA could have issued an Interim Final Rule, immediately, putting marijuana on Schedule III last year. (DEA does this all the time, by the way, including with hemp and many other things.)
I’m with the pro-Schedule III witnesses in that I have no faith in DEA. My colleagues have written on this blog since 2015 that DEA ought to be disbanded. I’m with them, at least in the sense that I don’t feel optimistic about DEA’s approach to the rest of these proceedings. How could anyone — regardless of who next sits in Milgram’s chair?
Unless you are even more in the weeds on this stuff than someone like me (in which case, I’m sorry), I don’t think parallel proceedings are worth your attention. However, for completion:
Relentless DEA foe Matt Zorn recently sued DEA over in the D.C. Circuit on a FOIA request. He sought an order requiring DEA to immediately turn over certain emails and communications which may demonstrate DEA’s contempt for marijuana rescheduling and the rulemaking process, and collusion with prohibitionists.
The court ruled against his request for a preliminary injunction on January 6. The ruling was not particularly surprising – injunctions are tough to get — and that case isn’t over. It could be mooted at some point, though.
Out in the Western District of Washington, DOJ told a federal court on January 15th to pause a lawsuit by Panacea Plant Sciences challenging the rescheduling process. This follows on Judge Mulrooney’s earlier denial of the plaintiff’s request to postpone the rescheduling hearing over “improper blocking” of witnesses.
Both Panacea and DOJ now agree that the litigation should be paused, because the Mulrooney granted the interlocutory appeal and canceled next week’s hearings. So this one’s on ice for now, too.
Friends, nothing is ever easy in cannabis.
In the narrow context of this rulemaking, it really comes down this: a bunch of people, many of them law enforcement officials, are arguing to a pretty smart Judge that they know better than HHS (who are scientists, doctors, etc.) about the medical benefits and harms of marijuana.
HHS made an exhaustive, 250 page finding that marijuana has current accepted medical use and doesn’t belong on Schedule I. And, while the CSA is clear that while DOJ maintains final authority to reschedule marijuana, it is also clear that HHS’ recommendations “shall be binding … as to [] scientific and medical matters.”
So let’s see if DEA can actually un-ring this bell, assuming that’s the actual motive. I don’t think it can, especially while being exposed by the Villagers, reprimanded by its own administrative law judge, and generally held to account.
__________
For more in this series, check out the following posts:
The post Thoughts on the Terrible Pageant of Marijuana Rescheduling appeared first on Harris Sliwoski LLP.
Adults ages 50 to 65 will be next to make the switch.
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Cannabis reform could arrive in nine states this year. Yet some remain far more likely than others to make it a reality.
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Last year, I attended an Expert Seminar in Amsterdam on Cannabis Regulation, EU Drug Law, Trade Rules, and the UN Drug Control Treaties. A central topic focused on advancing full cannabis legalization while complying with EU law and international Drug Treaties. During the discussion, Czechia presented its three-pillar approach to cannabis regulation: (1) decriminalization (in 2010, Czechia decriminalized cultivating up to five plants and possessing up to half an ounce of marijuana); (2) regulation of “psychomodulatory substances”; and (3) full commercial regulation. Like Germany, Malta, and Luxembourg, Czechia’s approach relies on scientific evidence. It shows that regulation, rather than prohibition, better protects children and society’s health, safety and welfare.
The law and related rules (effective on July 1, 2025), creates a new category of psychoactive substances with acceptable health risks. The current list includes four substances: low-THC cannabis extracts and tinctures (≤1% THC), kratom, and kratom extract. Other substances, like Hexahydrocannabinol (HHC), could be added if research shows their low health risks after two years. To be included, substances must prove they don’t pose significant public health or societal risks.
HHC faces hurdles in gaining approval. Czechia previously sought to ban HHC products in 2024. Additionally, the global community is still evaluating the substance. Last year, the WHO completed its review of HHC. Many expect the UN Commission on Narcotic Drugs to schedule it under the 1971 Convention. While cannabis is listed under the 1961 Single Convention, “industrial hemp” is excluded. This creates a legal loophole for low-THC hemp programs.
In Czechia, cannabis with less than 1% THC is classified as “technical hemp.” This classification has led to a legal grey area, increasing illicit-market activity. The Psychomodulatory Substances Law aims to curb illicit market influence by providing regulated access through licensed operators. This will help protect children, adolescents and adult consumers.
Once added to the list, psychomodulatory substances can be sold to adults (18+) for human consumption. Retail sales will begin in specialized stores by mid-2025. However, EU food and cosmetic laws prevent these substances from being sold in finished food products or cosmetics. Commercial operators will need permits to ensure compliance with regulations and local municipalities can impose their own usage restrictions.
Regulating instead of prohibiting ensures safer, quality-controlled products. This protects vulnerable groups. The law seeks to balance public health protections with Czechia’s obligations under international drug conventions and EU law. Czechia believes its approach aligns with its international commitments and the EU’s free movement of goods.
Many hoped for full legalization of commercial cannabis. EU and international law create barriers the Czech government is unwilling to challenge. As more quasi-legal programs emerge across Europe, pressure may build on the EU to adjust its laws, allowing for fully regulated commercial cannabis sales. Until then, scaled-back approaches like Czechia’s psychomodulatory substances law will help fill the gap.
Czechia’s regulatory framework aims to reduce illicit market activity while prioritizing public health and welfare. It is not the first EU country to explore alternatives to full cannabis legalization and it likely won’t be the last. Despite a conservative government, Czechia balances traditional views with evidence that regulation, not prohibition, is the best approach. As seen in the U.S., low-THC legalization can create a robust market. It can also lead to unintended consequences, like unregulated intoxicating hemp products.
Since Czechia’s law does not allow ready-to-eat low-THC products, it remains unclear whether the country will face the same challenges seen elsewhere. While illicit market activity in cannabis extracts and tinctures will likely decrease, demand for ready-to-eat, low-THC products may rise. Until countries regulate the entire supply chain—from seed to sale (including ready-to-eat products and high-THC marijuana)—it will remain difficult to eliminate illicit market influence. Czechia operates within the constraints of EU and international law. This hinders EU members from implementing fully legalized commercial cannabis programs. As a result, the illicit market will continue to fill any gaps left by these limitations.
The post Global Cannabis Spotlight: The Czech Republic’s Psychomodulatory Substances Law appeared first on Harris Sliwoski LLP.
Oh, Original Glue, America is so stuck on you. A decade after it won two different state’s High Times Cups in 2014, Glue flooded dispensary shelves and online forums and never really left. Smoke gorilla glue like it’s fuckin’ legal Jay-Z, “APESHIT” The blend of Chem’s Sister, Sour Dubb, and Chocolate Diesel creates a pungent, dank, piney […]
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As the U.S. cannabis community awaits the resumption of the DEA’s administrative law hearing on rescheduling marijuana later this month, this blog will take a glimpse at the ever-dynamic global landscape of cannabis policy. While some countries may expand, retract, or maintain the progress seen in 2024, much attention will focus on the key developments that marked the past year. Notably, Europe saw significant movement in cannabis policy.
Despite the promising advances in 2024, 2025 may see increased resistance from conservative governments opposed to cannabis liberalization. Several countries may face setbacks or even roll back their cannabis reforms:
In 2025, conservative governments may pose challenges to expanding cannabis reforms. However, the full repeal of existing cannabis laws seems unlikely.
Recently, the United Nations High Commissioner for Human Rights underscored the failure of the War on Drugs and advocated for a shift toward regulatory frameworks that prioritize public health over punitive measures. These “alternative regulatory approaches” seek to reduce the influence of the black market and cartels, boost tax revenues, and fund social programs aimed at mitigating the impact of drugs on society.
Hopefully these principles will gain traction, and governments will continue moving away from the failed war on drugs in favor of common-sense cannabis regulation.
The post What to Expect for Global Cannabis Law Reform in 2025 appeared first on Harris Sliwoski LLP.
The Ninth Circuit Court of Appeal has reinstated a civil rights lawsuit against Humboldt County, California, that challenges the county’s practices in imposing punitive daily fines. It is the first time a federal appellate court has weighed in on local government’s enforcement of code violations involving cannabis farms.
The decision, in Thomas v. County of Humboldt, comes after years of complaints by cannabis cultivators that local governments impose unfair fines for technical violations at licensed farms. That counties and municipalities have adopted and are enforcing large fines involving licensed properties is one of many reasons why increasing numbers of farms have given up their licenses and shut down completely or returned to the illicit market. This is hurting state efforts to bolster the legal market and suppress the illicit market for cannabis.
A takeaway from the decision is that local governments need to keep the goal of remediation in mind in establishing penalties, must be more reasonable in allowing cultivators to fix violations, and more flexible in decisions to impose fines and settling disputes. The decision should motivate county and city attorneys, and cannabis licensees and applicants, seek assistance from a mediator with expertise in the cannabis market and regulation. The courthouse might not now be as friendly a venue for local government as it has been in the past.
Most cannabis businesses that run afoul of local codes pay the penalties, no matter how unfair they might seem, because they can’t afford a long legal battle and the administrative and court processes are tilted against the property owner. Administrative hearing officers routinely uphold notices of violations and the penalties imposed by code enforcement officers. Writs of mandate brought against local government in state court, particularly in smaller counties, are extremely difficult to win.
What has made the Thomas case viable is that several plaintiffs banded together in a civil rights class action in federal court under 42 U.S.C. § 1983, alleging that Humboldt County’s penalties for cannabis abatement violate the Eighth Amendment’s Excessive Fines Clause.
Humboldt County established a schedule of daily fines for illegal cannabis cultivation of up to $10,000, with a minimum of $6,000. Upon receiving a notice of violation from the county, the party has 10 days to abate all violations, subject to an appeals process, during which penalties continue to accrue. Violations included not just the illegal cultivation of cannabis itself, but also any other violation that facilitates illegal cultivation of cannabis. The Thomas plaintiffs contended that the county issues violation notices with hefty fines based on imprecise data (such as satellite and drone photos) and for code violations that originated with previous property owners.
The lower District Court dismissed the lawsuit on the basis that the plaintiffs lack legal standing, because they had not, at the time of suit, paid any penalties. But the Ninth Circuit held that the plaintiffs had concrete injuries, providing standing, because they suffered emotional distress and had incurred expenses with engineers and attorneys as they attempted to abate the alleged violations and defended themselves in hearings.
Getting to the merits of the lawsuit, the Ninth Circuit held that the plaintiffs had plausible claims under the Excessive Fines Clause because the penalties were punitive, not remedial. The Ninth Circuit agreed with the plaintiffs that the fines were unconstitutionally excessive because (1) the notices were vague, often inaccurate, or involved violations that pre-dated the plaintiffs’ occupation of their properties; (2) lesser penalties could accomplish the same health and safety goals; and (3) the alleged offenses caused no harm beyond a technical lack of compliance with the county’s permitting regulations.
Humboldt provides for an administrative appeal before a hearing officer who determines whether a violation has occurred or continues to exist. The hearing officer can only reduce the penalty for a violation in limited circumstances and cannot reduce it to less than $6,000 per day. Although the Ninth Circuit did not explicitly address it in the Thomas decision, a property owner in most circumstances also can be forced to pay the county or municipality’s abatement costs and legal expenses — including those incurred in a subsequent writ of mandate proceeding in state court. The Ninth Circuit agreed that the Thomas plaintiffs had come under:
“immense pressure to settle due to the County’s issuance of ruinous fines, . . . its undue delay in providing hearings, its denial of permits while abatements are pending, and the cost the County imposes to prove one’s innocence.”
The Ninth Circuit found that Humboldt County’s fines were “clearly punitive, not remedial as argued by the County.” The fines could reach millions of dollars, and, in the case of one plaintiff, the fines dwarfed the value of her property. The appellate court was untroubled by the involvement of cannabis, which remains unlawful under the federal Controlled Substances Act:
“[I]t seems clear to us that lesser penalties could accomplish the same health and safety goals,” and “the offenses here have caused no harm beyond a technical lack of compliance with the County’s cannabis permitting regulations.”
The Thomas plaintiffs’ strategy of going to federal court was fraught, because the court could have just as easily declined to hear the matter under the illegality doctrine, but it paid off here; the Ninth Circuit not only considered the case but also disregarded the problem of whether the plaintiffs were entitled to any remedy under federal law.
The Ninth Circuit concluded by acknowledging that local government is “often at the forefront of addressing difficult and complex issues,” but it should use “flexibility” in decision making and “cannot overstep its authority and impose fines on its citizens without paying heed to the limits posed by the Eighth Amendment.”
Note: This post was first published January 6, 2025 on the Alger ADR Blog
The post Cannabis Code Enforcement Fines Must be Remedial, Not Punitive, Federal Court of Appeal Holds appeared first on Harris Sliwoski LLP.
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Find some cool brands to try.
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May the year ahead be rich with growth, success, and business and legal breakthroughs.
Here’s to 2025— let’s make it groundbreaking!
The post Happy New Year From Canna Law Blog! appeared first on Harris Sliwoski LLP.
A new year, Leafly nation, but we're still up to our old tricks. Here are the best strains to help you start 2025 on the best foot.
The post Star signs and cannabis strains: January 2025 horoscopes appeared first on Leafly.
