46th Annual Bench-Bar & Boardroom Conference
Thursday, May 16, 2018
7:30 – 8:20 AM
Cannabis 101
10.0 CLE Hours, Including 2.0 Ethics Hours in Missouri 10.0 CLE Hours, including 2.0 Ethics in Kansas
2300 Main Street, St. 100 ■ KC, MO 64108 ■ phone 816-474-4322 ■ fax 816-474-0103
Aubrey Gann-Redmon, AGR Legal Services, LLC
EDUCATION Aubrey graduated summa cum laude from Avila University with a Bachelor of Arts degree in Sociology. She went on to obtain her Juris Doctorate degree from University of Missouri Kansas City School of Law, where she received the Order of the Barrister’s honor for excellence in trial advocacy. Aubrey also served on the staff of the ABA journal Urban Lawyer, and received the CALI Excellence in Learning Award for her academic work in the areas of Criminal Law and Gender & Justice. While in law school, Aubrey held internships where she worked on federal death penalty appeals, complex probate and trust litigation cases, and personal injury lawsuits.
EXPERIENCE After law school, Aubrey was an associate at a boutique plaintiff’s personal injury firm where she worked on personal injury, employment discrimination, and social security disability cases. Currently, her practice focuses exclusively on cannabis law, as well as litigating estate, trust, and probate cases, with experience in both defending and prosecuting legal malpractice actions in the area of probate.
COMMUNITY INVOLVEMENT & ACCOLADES Since starting AGR Legal Services, Aubrey has written and published numerous articles and taught classes and CLEs on probate and legal research techniques. Aubrey has also taught as an adjunct professor in the criminology department at Avila University. She served on the Kansas City Metropolitan Bar Association Continuing Legal Education Advisory Committee in 2015 and 2016, and in the past, has served as the Vice Chair for the Solo & Small Firm Committee. Aubrey is also active in the Association for Women Lawyers, where she has been involved in the AWL Foundation’s Connections Mentorship Program since 2009, serving as a mentee from 2009-2013, and then as a mentor from 2014 through the present.
She was also involved in the Foundation’s First Annual charity 5k committee. She is also a member of the Brain Injury Association of Kansas and Greater Kansas City. Aubrey was also voted SuperLawyers Rising Star in 2013, 2014, 2015, 2016, and 2017 and Kansas City Business Journal’s Best of the Bar 2014, 2015, and 2016 by her peers.
Outside of her practice, Aubrey supports her community through charitable giving to Lee’s Summit Meals on Wheels. Aubrey is married to Chet Redmon, a local artisan who owns CR Custom Ironworks, LLC, a shop that designs and builds custom ironwork sculptures and functional installations. CANNABIS 101: The Who, What, When, Where, Whys, and Hows of Amendment 2’s impact on Medical Marijuana in Missouri WHAT is cannabis?
Cannabis is a plant used for a number of purposes:
Hemp – cannabis that has less than 0.03% THC (the psychoactive component)
Used for rope, fiber, clothing, etc.
Used for hemp-derived CBD (cannabidinol), which has medicine purposes but is not psychoactive
Legal federally per passage of the Farm Bill, Dec. 2018
Currently FDA looking at CBD/Hemp as a food additive
Cannabis
Indica – strains grow short, known for calming effects, help with pain & sleep
Setiva – strains grow tall, known for helping with focus, energy, and creativity
Federally ILLEGAL WHAT is cannabis, continued…
Experienced cultivators can:
Get 1-2 lbs of flower per plant
Amendment 2 permits cultivators to grow up to 2800 plants in 30,000 sf of flowering canopy space
High quality medical grade cannabis goes for up to $1,500/lb of flower
Some strains have THC limits up to 30%, with the current average around 20-23%
Turpenes – do not contain THC
Turpenes are chemicals found on all plants, and help to add taste, smell, and alter the “high” of cannabis to induce calm, reduce paranoia, and intensify highs
Often referred to as “dank” – the distinctive scent of cannabis
Being added to vape cartridges to enhance flavor, aroma, and/or alter the effects of the cannabis (usually to reduce paranoia, anxiety, or to “uplift”)
WHAT’S in a word?
The lingo
Flower – refers to the “buds” or “nuggets” that grow from the stem and contain the sticky potent parts of the plant
Kief – cannabis crystals, also known as resinous trichomes, which can be extracted and made into concentrates
Concentrates or extracts – highly concentrated THC derived from the flower and other parts of the plant, often used with special vape pens or dabbing
Dabs, dabbing – means smoking the vapor or smoke of highly concentrated cannabis in the form of concentrate, oil extract, or wax – heavier dose potential and immediate effect for pain sufferers
Gummies – a type of edible ranging in dosage from an avg of 10mg to 25mg, which 10mg generally considered a “starter” dose WHAT’S in a word, continued…
The lingo:
Dispensary – where cannabis is sold, legally, to medical patient in a state where legal or to adults over 21 in fully legal states
Bud-Tender – the person who will help the patient make a decision as to the type of cannabis product to buy at a dispensary
Manufacturer – an operation that takes the whole plant, extracts the oils and alkaloids from the plant, and makes them into foods, beverages, candies, vape cartridge oils, and extracts like wax, shatter, hash oil, etc.
Cultivator – an operation that grow cannabis, usually under the supervision of a master grower
Testing Lab – where the cannabis products are tested and rated for consumption
Cannabis – not marijuana…because…. WHY Cannabis? A few stats to start…
Marijuana is a term associated with Prohibition and the trend is away from Prohibition and towards full legalization…
Fastest growing demographic of cannabis users – 55 years and older
Missouri is the 32nd State to legalize in some way
Fully ILLEGAL in 14 states, including Kansas
Fully LEGAL in 11 jurisdictions, including Colorado and Washington DC
Legal in 21 countries internationally, including Canada, Australia, & Mexico
Numerous medical applications, from acne to traumatic brain injuries
Studies show may be safer to consume than alcohol WHY Cannabis?
…because “marijuana” is racial slang that was used to encourage prohibition… Prior to Prohibition:
Hemp was one of the top three crops at the time of the nation’s founding
Cannabis was featured on the $10 bill until 1900
Medicinal properties introduced to the West circa 1839 for pain, muscle spasms via William O'Shaughnessy, an English botanist working in Calcutta
Widely available in the US in pharmacies by 1850s
By 1905, US Dept of Ag had printed materials on cannabis as administered by pharmacies in the US, with most states not restricting its use
By 1880s there were at least 500 hash bars in NYC alone, usually patronized by the upper-classes in city society WHY Cannabis continued…
But…Prohibition begins:
1906 Pure Food & Drug Act: patented medicines with “secret” ingredients regulated, cannabis now required to be labeled
Cannabis labeled as a “narcotic poison” and use was permitted only upon prescription and dispensed by a pharmacy
CA was the first state to jump in and regulate, with the first raid occurring in 1914 in Sonoratown in Los Angeles
1920 – Federal prohibition of alcohol
Tension with border states and cannabis regulation because of the influx of Hispanic migrant farm workers, who would smoke cannabis to relax after work
Uniform State Narcotic Drug Act (1925-32) – encouraged states to regulate cannabis and assist feds in policing trafficking WHY Cannabis, continued…
International Opium Convention, 1925, international push to curb the Indian Hemp trade Fed. Bur. Of Narcotics – 1930 – Harry Anslinger
Traveled world early in career to research the opium trade and opined that cannabis was not a substance of concern
Headed the Dept. of Prohibition for alcohol
When alcohol Prohibition ended, his job was in jeopardy and he began targeting cannabis, claiming it to cause violence and arguing Treasury should get involved due to loss of revenue since it wasn’t being taxed
29 of 30 AMA pharmacists disagreed with Anslinger’s new claims on the dangers of cannabis
Began a huge public relation campaign in papers with help of William Hurst to conflate the “marijuana problem” with the immigrants coming in from the southern border & Caribbean and with the Jazz music movement
WHY Cannabis, continued…
Note: around the same time, both Mellon (Treasury Sec) and DuPont had financial interests in joining the Prohibition push; Mellon had large financial investments in nylon and DuPont was developing synthetic fibers, incl. nylon Marihuana Tax Act of 1937
Now, cannabis has been replaced with the racially charged slang, “marijuana”
Imposed a steep tax on transfer of cannabis, tax paid by pharmacists
Farmers encouraged to obtain stamps during WWII to increase hemp production
WHY Cannabis, continued…
Mandatory sentencing began in 1952, and again in 1956 (mandatory minimum of 2-10 years for possession) Controlled Substances Act, 1970
Leary v. United States, 395 U.S. 6 (1969) – Marihuana Tax Act unconstitutional because it required self-incrimination in violation of 5th Amendment
Repealed the Tax Act, repealed mandatory sentencing, but listed cannabis as a Schedule I narcotic (no medical purpose whatsoever, along with LSD, heroin, and peyote) 1998 – CA voters approve Prop 215, legalizing medical cannabis
Let the raids begin…United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) – medical necessity (allowed under CA law for possession and use) is preempted by federal law
WHY Cannabis, continued…
Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005): by now, CA is one of FOURTEEN states that allows medical cannabis, but raided and prosecuted her from home-growing her own under doctor’s orders; argued that home grown plants effect interstate commerce because Congress regulates agriculture: “The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market.” (Justices Souter, Stevens, Kennedy, Ginsburg, Breyer & Scalia) Cole Memorandum – issued under Obama, DOJ not to use budget to enforce CSA in states where cannabis is legal medicinally or for adult use
Rescinded by Sessions, but Rohrabacher–Farr amendment (2014) discourages spending money on federal raids in legal states and is still in effect Meanwhile, while all that was happening….
Shafer Commission (1972) – after the passage of the CSA, Congressionally commissioned to study cannabis and found it non-threatening, recommending reduction/elimination of criminal penalties Compassionate IND program (1978) – the Federal government actually grew and distributed medical cannabis to Investigational New Drug patients who applied and were granted approval, despite classification as a CSA Sched. I narcotic (with NO medicinal properties!) and held patents on cannabidinol use in medical applications! Closed to new patients under Bush in 1992 after an influx of applications from AIDS patients. Currently, 2 patients remain under this program. 1988 - DEA Chief Administrative Law Judge Francis L. Young ruled in favor of moving cannabis to a Schedule II classification, finding that "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.” The WHO and WHY behind recommendations…
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) – doctors in legal states exempt from federal prosecution for recommending cannabis, but cannot prescribe it (due to CSA Sched. I classification, no Sched. I drugs have medicinal uses, so cannot be prescribed) SO CALL IT CANNABIS, even if governments refuse to leave the term “marijuana” behind So, as for Amendment 2 in Missouri: Physicians licensed in Missouri (MD, DO, or Psych) may recommend cannabis to a patient who qualifies for a certifying condition Recommendations are HIPAA protected – the State won’t know why the patient was certified, only that a doctor recommended cannabis for one of the conditions A2 covers Recommendations must be dated within 30 days of the patient’s application for a medical card or a caregiver’s application on behalf of the certified patient The WHO and WHY behind recommendations, continued…
So patients may be certified for one of the following:
Cancer
Epilepsy
Glaucoma
Intractable migraines
Chronic medical condition resulting in persistent pain and/or muscle spasms (MS, Parkinson’s, Tourette’s, etc.)
Debilitating psychiatric disorders like PTSD
HIV/AIDS
Chronic medical conditions that would result in prescribing drugs that could be habit-forming if cannabis is deemed a safer alternative (i.e., to reduce opiod addiction)
The WHO and WHY behind recommendations, continued…
Any terminal illness
ANY OTHER chronic condition that, in the doctor’s judgment, would benefit from the therapeutic use of cannabis, including but not limited to, Hep C, ALS, IBS, Crohn’s, Huntington’s, autism, Alzheimer’s, sickle cell… Caregivers must be 21 or older, and cannot apply to be a caregiver for more than 3 certified patients Patients and caregivers can apply to grow up to 6 plants per certified patient in a secured location within their residence Caregiver status implies the ability to possess and transport cannabis for patients Out of state patient cards are accepted in Missouri – cannabis tourism?
WHEN?
June 4, 2019 – Dept. of Health & Senior Services will finalize regulations June 4, 2019 – DHSS will put ALL applications online July 4, 2019 – DHSS will begin accepting patient, caregiver, and home grow applications August 3, 2019 – DHSS will begin accepting applications for business licenses & certifications (dispensaries, testing labs, transportation facilities, cultivators, manufacturing facilities, and more) August 4, 2019 – DHSS will begin issuing patient, caregiver, and home grow cards December 31, 2019 – DHSS will issue the first business licenses & certifications EST – Mar/Apr 2020 – the first dispensaries may have product to sell in MO WHERE?
Missouri – statewide Dispensaries – minimum of 192 licenses to be approved first round, 24 per Congressional district Manufacturers – minimum of 82 +/- licenses Cultivators – minimum of 63 licenses (numbers vary depending on source) Testing Labs – minimum of 2 licenses What cities?
A2 – cities cannot prohibit cannabis business, but can regulate the time, place, and manner
No less than 1,000 feet away from schools or churches unless variance is obtained HOW?
Applications for businesses will be capped at 500 pages and include things like:
Business plans and SOPs
Security plans and diagrams
Criminal background checks of owners
Copies of lease agreements and diagrams of premises, or if purchased, the real estate documents
Resumes and experience of the “team”
Business entity documents, such as operating agreements, bylaws, shareholder agreements, and the like HOW? Continued…
Merit-based scoring system:
Once the applications for the businesses are received, they will be segregated out by congressional district
Each will be scored, blind, with no consideration given to race, color, gender, etc.
Points are awarded for such things as plans for increasing access/affordability to those with low income, community and economic impact, and experience in the industry
Extra points are awarded to dispensaries more than 25 miles away from the next nearest dispensary and the top scoring dispensary in the district area
Might be issues with constitutionality with system if found to be arbitrary and capricious (suits in other states on denied applications)
Might have constitutional challenges re: requirement of Missouri residency HOW does this effect my clients?
If stopped by law enforcement:
Patients can produce a patient card or equivalent from any jurisdiction (such as California) and be immune from prosecution (Sec. 5.1, page 10)
Card-holding patients can possess up to 4 ounces/30 days
Allows possession of 6 plants per patient, 12 plants per household Is cannabis still a controlled substance?
A2 removed cannabis as a Sched. I controlled substance from RSMo. Ch. 195 since it is now deemed to have a medical purpose/use in Missouri
Ch. 195’s exceptions to prescribing haven’t been revised yet, and cannabis cannot be prescribed, and its not a Sched. V OTC drug – so what is it? II? III? Or IV?
Many criminal ordinances and statutes refer to “controlled substances” – loophole? HOW does this affect me as a lawyer?
A2 expressly protects lawyers assisting clients in the industry and owning cannabis businesses Other states have expressly issued formal ethics opinions protecting attorneys who are certified to use cannabis as patients (see Colorado for an example in Resources Section) This will affect every area of law (some examples): States are beginning to ban or limit ability of some employers to test new hires Missouri’s worker’s compensation statutes would not necessarily prohibit compensation for work-related injuries if an employee with a valid recommendation was not shown to be impaired on the job Patients won’t automatically be deemed unfit parents if they use cannabis and have a valid medical card Recent studies show that THC levels are hard to link to DUIs and field sobriety tests may be a better indicator
“ QUESTIONS? ”
Aubrey Gann-Redmon, Esq. AGR Legal Services, LLC www.agrlegalservices.com Licensed in Missouri, Kansas, and Colorado Resources
State-By-State Legalization Status Map and Links: https://disa.com/map-of- marijuana-legality-by-state Legalization internationally: https://www.cannabisbusinesstimes.com/article/cannabis-legalization-world- map/ Top 71 Uses for medical cannabis: https://www.green- flower.com/articles/574/medical-uses-of-cannabis Cannabis safer than alcohol, tobacco: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4311234/ Cannabis v. alcohol: https://www.businessinsider.com/alcohol-marijuana- which-worse-health-2017-11
Resources, continued…
Missouri Amendment 2: https://www.sos.mo.gov/CMSImages/Elections/Petitions/2018-051.pdf Missouri DHSS Medical Marijuana Page: https://health.mo.gov/safety/medical-marijuana/index.php Is Amendment 2 Constitutional? https://themissouritimes.com/57033/opinion-is-missouris-amendment-2- constitutional/ Colorado ethics opinion – lawyer’s use of medical marijuana: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthi csOpinion_124_2014.pdf