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Thursday, January 9, 2025

Banish New Year’s blues with Rainbow Sherbert 11—January 2025’s Leafly HighLight

Donny Burger supports appetite, relaxation, and fooling around.

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Wednesday, January 8, 2025

What to Expect for Global Cannabis Law Reform in 2025

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.

Key global cannabis law developments in 2024

Germany passed a quasi-legalization law with two phases. Phase I, implemented in 2023, legalized cannabis cultivation clubs, home cultivation, and personal possession. Phase II, still in the early planning stages, would introduce regulated marijuana sales through pilot programs. The most impactful change, however, has been the expansion of medical marijuana access, which has surged since the law’s enactment.
Poland’s Parliamentary Committee on Petition presented a proposal to decriminalize personal marijuana possession and home cultivation to the Prime Minister. While the proposal is not binding, it could pave the way for future progress, contingent on the outcome of Poland’s May presidential election.
The Netherlands, after multiple delays, is poised to meet demand for regulated marijuana through licensed cultivators supplying coffee shops participating in the trial, marking a significant step in its regulated cannabis market.
Switzerland expanded its pilot program for the regulated sale of marijuana to more jurisdictions.
Ukraine legalized medical marijuana for specific qualifying conditions, marking a major health policy milestone.
Thailand, under its new conservative government, opted to regulate rather than reschedule marijuana.
Australia held a vote to legalize marijuana at the end of 2024. The vote failed by a vote of 24-13, but this was a monumental step in the country’s shift away from the war on drugs.
Italy’s conservative leadership has pushed to ban hemp flower-based products, prompting hemp industry advocates to call for an immediate review of the law’s compatibility with EU regulations. The European Commission’s review could determine the future of Italy’s hemp industry.

What to expect for global cannabis law developments in 2025

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:

Germany: While several municipalities, including Frankfurt, are moving forward with commercial cannabis pilot programs, the Christian Conservative Party, expected to gain control after February’s snap elections, has indicated opposition to further expansion, particularly Phase II. Despite this, a poll showing 59% support for marijuana legalization suggests that a full reversal of Phase I is unlikely. Even if the Christian Conservatives take power, recriminalizing cannabis would be difficult without forming a coalition that includes pro-cannabis parties, which is unlikely. Thus, while pilot programs may be at risk, the current system isn’t likely to be reversed.
The Netherlands: Despite a rightward shift in the 2023 elections, the governing coalition has confirmed it will not halt the regulated coffee shop trials. Delayed by supply issues, these trials are now set to fully implement regulated sales by April of this year.
Thailand: Following its election win in 2023, the Pheu Thai Party which initially campaigned on placing cannabis back on the controlled substances list, has softened its stance. The Party’s initial plans to criminalize marijuana appear to be off the table. The government is now focused on regulating the cannabis market, which may include some form of regulated commercial sales. Restrictions will likely be placed on the current unregulated market, but the shift towards regulation suggests that prohibition is not on the horizon. This move could also position Thailand for entry into the global medical marijuana trade.
Czech Republic: Initially aiming for full legalization of commercial cannabis, the Czech Republic shifted focus in 2024 under pressure from the EU regarding UN treaty obligations. Chechia is seeking a framework similar to Germany’s, with provisions for personal cultivation and possession limits. Additionally, the government is working on a regulatory regime for low-THC hemp (not exceeding 1%), including HHC, as part of its “Psychomodulatory Substances” regime.
Ukraine: Ukraine’s medical marijuana program, which has faced delays, is set to roll out in early 2025. Initially, it will only serve patients with specific forms of cancer and war-related PTSD. While access will be highly restricted, there is hope that additional conditions may be included in the future. Currently there are no medical marijuana products available to patients, but that is expected to change in early 2025.

Big picture thoughts for cannabis law in 2025

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.

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Tuesday, January 7, 2025

Cannabis Code Enforcement Fines Must be Remedial, Not Punitive, Federal Court of Appeal Holds

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 Court of Appeal decision

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.

Lessons for industry and regulators

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.

Background on the Thomas case

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 pays off

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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