Nevertheless, as the industry continues to grow, it will be important for cannabis industry entities to deal with the unique civil legal issues that are certain to arise. For instance, determining liability in product liability cases involving cannabis edibles will bring issues before the courts that have never been previously adjudicated. For food companies that choose to pursue the potentially lucrative opportunities, it will be vitally important to understand and mitigate the full range of potential risks—a feat that will necessarily entail the use of complex contractual agreements.
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Regulation Challenges for Edibles
Regulation of THC-infused edibles presents the most significant challenges. Consider that in some cases marijuana is a medicine, while in others it is a recreational intoxicant, and at other times it is both. Unlike most medicinal products, cannabis is a naturally occurring plant. It can be grown in a garden and does not require the strict manufacturing parameters required for the manufacture of most other medications. At the same time, THC is a powerful intoxicant, and due to its Schedule I status and its long-term effects, many express concerns that the effects of marijuana have not been adequately studied. Whatever policies one may support regarding the way marijuana should be regulated, there are compelling arguments to support them.
Colorado, which has some of the nation’s most comprehensive cannabis regulations, observes numerous differences between the medical and recreational marketplaces. For example, Colorado residents with a Colorado medical cannabis card are not subject to minimum age restrictions, but any adult over the age of 21 can purchase retail cannabis products in person from cannabis stores, regardless of whether they are residents of Colorado. While ostensibly straightforward at the consumer level, these vagaries will likely create problems in terms of developing clear, consistent, policy-based federal regulations that apply nationally.
Traditional principles of federalism may offer the best course in developing and implementing effective cannabis regulations. The phrase “laboratories of democracy,” coined by U.S. Supreme Court Justice Louis Brandeis, describes a legal process by which states serve as de facto “laboratories.” They test novel social, legal, and economic experiments without subjecting the entire nation to the corollary risks of failed policy. Moreover, permitting states to adopt their own legal and regulatory policies encourages policy experimentation and provides valuable insight into what is (and is not) effective from a social, economic, and public health standpoint. Indeed, given the many social, economic, and legal consideration involved, we believe (as do many others) that the “states-rights” approach is the wisest course of action. In turn, we believe it is also the most likely approach the federal government will adopt. This approach would entail ending federal marijuana prohibition and allowing the states to regulate within certain broad parameters.
It is a fascinating time. Undoubtedly, cannabis issues are extraordinarily complex. They transcend our legal, social, geographical, and economic barriers. The many idiosyncrasies and ambiguities associated with cannabis will eventually have to be worked out. Indeed, we are only at the beginning of what is certain to be a long and policy-intensive process of enacting sensible federal cannabis laws.
At this point however, it does not appear likely that we will turn back. Rather, it appears cannabis is here to stay. The dramatic shift in cannabis law presents an exciting and potentially lucrative opportunity for food companies willing to enter the edibles market. If or when it is appropriate to do so, however, is a determination for each company to make. But when that time comes, ensuring the safety and quality of your products will be paramount.
Stevens, a food industry attorney, is a founding member of Food Industry Counsel, LLC. Reach him at email@example.com. Chappelle is also a food industry lawyer and consultant at the same organization. Reach him at firstname.lastname@example.org.