Higher Law

Cheryl Miller

Apr 12, 2018

Welcome back to Higher Law, our new weekly briefing about all things cannabis. I'm Cheryl Miller, reporting for from Sacramento. Kirsten Gillibrand just emailed me—well, me and probably thousands of other names on a contact list. New York's junior senator, and potential presidential candidate, wanted to know if I, like her, support the legalization and decriminalization of marijuana.

I don't think Gillibrand (or whoever wrote that email) really cares about my views. I do think it's pretty amazing that we've reached a point where a high-profile pol is campaigning on pot legalization. More on that topic below.

Got a tip? A marijuana M&A deal to crow about? A good story involving politicians and pot? Drop me a line at or call me at 916-448-2935. I'm also tweeting @CapitalAccounts.

➤➤ This week we consider John Boehner's new found fondness for marijuana. Plus, the FDA wants your thoughts on cannabis scheduling. And scroll down to see who got the work. Let's get started.


John Boehner's Pot Play

It's not like Pat Robertson suddenly endorsed marijuana. But former House Speaker John Boehner's announcement Wednesday that he is joining Acreage Holdings' advisory board was still worthy of a spit-take. (Bill Weld, the former Republican governor of Massachusetts was named to the board, too, but he's long opposed strict federal anti-marijuana laws so his appointment isn't a shock.)

Boehner in 2011 said he was "unalterably opposed" to marijuana legalization, saying it would "result in increased abuse of all varieties of drugs, including alcohol.” Fast forward seven years and Boehner, a strategic advisor at Squire Patton Boggs, now says, via Twitter, that his views have "evolved."
"I’m convinced de-scheduling the drug is needed so we can do research, help our veterans, and reverse the opioid epidemic ravaging our communities," he wrote.

How big a deal is this?

David Feuerstein, co-founder and partner at Feuerstein Kulick in New York, said that with Acreage Holdings' move "the state-legal cannabis industry just got two powerful allies."

New York City-based Acreage Holdings grows, processes and sells marijuana in 11 regulated states. Acreage founder and CEO Chris Murphy said in a statement that Boehner and Weld "have shaped the political course of our country for decades and now they will help shape the course of this nascent but ascendant industry."

Whether the two Republicans become real public advocates for federal rescheduling or just political figureheads for a growing company remains to be seen. Boehner does have a bus tour scheduled this summer … to campaign for Republicans, he says.

Boehner might run across his old Capitol Hill foe Eric Holder Jr., the former U.S. attorney general who's pushing voter rights initiatives from his perch at Covington & Burling.

The two men didn't share a lot in common—until now.

Holder in 2016, after he left Main Justice, said it's time for a greater dialogue about marijuana decriminalization.

"I certainly think it ought to be rescheduled. You know, we treat marijuana in the same way that we treat heroin now, and that clearly is not appropriate," Holder said. "So at a minimum, I think Congress needs to do that."

Meanwhile, at the FDA...

The U.S. Food and Drug Administration is seeking public comments on marijuana's current classification as a Schedule 1 drug. No, U.S. Attorney General Jeff Sessions has not had a John Boehner-like epiphany on cannabis.

The move follows the World Health Organization's review of its own classification of marijuana. WHO wants to hear from member nations, including the United States. So the FDA has opened up the public comment box for thoughts on the medical use of cannabis and related products.

The 3,269 comments filed by Thursday morning are publicly available and some make for good reading. Check them out here. Anyone interested in submitting their own responses needs to move fast. The comment period closes April 23.


Who Got the Work

➤➤ Walnut Creek, California, firm Archer Norris has filed a second suit on behalf of Calaveras County growers challenging the board of supervisors' cannabis ban. Plaintiffs in the complaint, the Calaveras Cannabis Legal Defense Fund, say leaders of the rural county in the Sierra Nevada foothills violated California open meeting laws by working on the ban behind the scenes.

"When it comes to decision making, a local government can’t stack the house behind closed doors," partner Jasun Molinelli said.

Archer Norris' Molinelli, Peter McGaw, Edward Shaffer and Adrian Lambie also represent Calaveras County growers in a February complaint accusing supervisors of failing to comply with state environmental laws when studying the possible effects of a ban on regulated medical and recreational marijuana.

➤➤ In Florida, Clearwater attorney Luke Lirot of the Law Office of Luke Lirot successfully argued that a cancer patient should be able to grow medical marijuana in his backyard.

A Tallahassee judge agreed with Lirot's argument that a voter-approved constitutional amendment broadly authorizing medical marijuana “unambiguously allows” a Tampa man to cultivate marijuana for a "juicing" treatment. The Florida Department of Health has appealed the ruling.


In the Weeds...

Citidank is not Citibank. Citigroup, the parent of Citibank, has told California pot dispensary Citidank to stop using its name and logo. "Unless you are as high as a kite, you know that Citi isn’t affiliated with this business in any way," said Citigroup spokeswoman Danielle Romero-Apsilos. [New York Post]

California regulators are cracking down on marijuana businesses operating without required licenses. The Bureau of Cannabis Control has sent more than 1,200 cease-and-desist emails and letters to dispensaries, delivery services and other operators, according to numbers compiled by Marijuana Business Daily. Among the flurry of letters is the state's warning to Weedmaps that it should stop unlicensed California businesses from advertising on its site.
[Marijuana Business Daily]

A Panama City, Florida, farmer dropped his constitutional challenge to a new law that required the state to award at least one medical marijuana license to a black farmer. The plaintiff, Columbus Smith, noted that recent state legislation dropped the requirement that the licensed farmer be a member of the Florida chapter of the Black Farmers and Agriculturalists Association. [Orlando Weekly]

Cannabis: An experiment in federalism or states' rights run amok? Public policy and law school professors recently sat down with Pennsylvania Commonwealth Court Senior Judge James Colins to talk about "the lawyer's role" in solving "an increasingly disruptive but important policy problem." [Penn Law]


Upcoming Events

--> April 16: Texas Department of State Health Services Commissioner John Hellerstedt may issue a decision to adopt a new protocol to ban hemp-CBD sales. The Texas Cannabis Industry Association is monitoring the proposal.

--> April 18: The firm Greenspoon Marder hosts the webinar "Cannabis Legalization and the Waterfall Effect: How Each State Impacts the Next." Scheduled speakers include Greenspoon Marder partners Rachel Gillette, Heather Burke and Lance Rogers and senior counsel Matthew Ginder.

--> April 19-21: The Palm Springs Cannabis Film Festival & Summit. California cannabis czar Lori Ajax will be Saturday's keynote speaker.

Thanks for reading Higher Law. Thoughts or suggestions? Reach me at

- Cheryl Miller

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