Welcome back to Higher Law, our weekly briefing on all things cannabis. I'm Cheryl Miller, reporting for Law.com from Sacramento. May your NCAA brackets enjoy one shining moment.

This week we're all about CBD and hemp. We talk with a regulatory and compliance attorney for his take on the confusing legal world of CBD-infused foods. And a Colorado hemp company hires some big legal names in its fight to get back a very pricey load of seized product. Plus, Squire Patton Boggs makes it official and registers to lobby for a major cannabis advocacy group.

Thank you for reading. Please keep sending me your feedback, tips and tournament upset picks. Drop me a line at [email protected]. Or you can call me at 916-448-2935. Follow me on Twitter at @capitalaccounts.

CBD and the FDA: Confusion Reigns

Almost everyday I get an email pitch about some CBD-infused drink or snack: beer, powder additives, kiwi juice, coffee, cat treats—you name it. And each time I think to myself, a) would my cat really go for CBD-laced nibbles, and b) can these products pass regulatory muster?

To answer the second question, I checked in with Jonathan Havens, co-chair of Saul Ewing Arnstein & Lehr's cannabis practice.

“I have not come across an issue that is this fraught with confusion in a long time, maybe ever,” said Havens, a former regulatory counsel at the U.S. Food and Drug Administration.

Some of that confusion started in December when Congress, as part of the farm bill, gave its blessing to industrial hemp. But that didn't make hemp-derived CBD food additives instantly legal. In fact, on the same day President Trump signed the farm bill, the FDA issued a statement gently reminding everyone that “Congress explicitly preserved the agency's current authority to regulate products containing cannabis or cannabis-derived compounds.”

Jonathan Havens

“The FDA views CBD as something that was studied in a substantial clinical trial when they approved Epidiolex, which is a CBD-based drug,” Havens said. “And so they say, 'Look, under the Food, Drug, and Cosmetic Act we don't think you should be able to put a drug ingredient into food.”

But CBD is a potential $16 billion market in the U.S., and lawmakers with concerned business constituents pressed FDA Commissioner Scott Gottlieb in February to re-examine its position. Gottlieb agreed and said his agency would hold hearings on CBD-infused foods in April.

Soon after, Gottlieb announced he would leave the agency on April 5. So does the review of CBD and food go with him?

“My fear and that of other people in the industry who want more certainty about what they can do, and don't like the answers the agency has given so far, my fear is that this just gets delayed because of his departure,” Havens said.

So how should a lawyer advise clients eager for a piece of the CBD action?

First, Havens said, companies should be wary of making grandiose medical claims about their CBD products; the FDA may have limited resources but it has gone after manufacturers making unproven promises about effects.

Second, watch out for state enforcement, he said. Local agencies and states from San Francisco to Maine have forced stores to remove CBD-infused foods from their shelves. (California is considering legislation to change that.) Other states, including Idaho, have not welcomed hemp shipments moving through their borders. Shippers should be able to document the precise source of their products and to produce bills of lading and certificates proving the goods' THC content is under 0.3 percent, he said.

“There are some states where even though the farm bill has passed, they don't like CBD, they don't like hemp,” Havens said. “And they think that until the [U.S. Department of Agriculture] issues regulations that forces them to allow this stuff they don't have to allow it in their state.”

>> The U.S. Postal Service recently issued guidelines for mailing CBD oil and products. Cannabis law attorney Rob Kight has a copy of the advisory and some thoughts on the required mailing steps on his blog, Kight on Cannabis

'Big Sky' Hemp Fight Draws Big Law Team

Big Sky Scientific has added some big legal names to its suit seeking the return of $1 million worth of hemp that was seized by Idaho police in January.

Hogan Lovells partners Neal Katyal (above) and Sean Marotta joined a Stoel Rives team Wednesday on a Ninth Circuit brief that argues Chief U.S. Magistrate Judge Ronald Bush of the U.S. District Court in Idaho got it wrong last month when he declined to order the state of Idaho to hand back the hemp.

“This appeal asks whether the State of Idaho has the authority under its Controlled Substances Act to seize legally grown and purchased hemp that was in Idaho only because it was being transported through the state in interstate commerce,” Stoel Rives partner Christopher Pooser wrote. “The answer is no.”

Idaho police nabbed Big Sky Scientific's cargo, and jailed its driver on a felony trafficking charge, as it was shipping from a cultivation site in Oregon to a processing facility in Oregon. The state contends that under its laws any product that contains THC—even if it's less than 0.3 percent, like hemp—is illegal.

The case is shaping up to be one of the first tests of the 2018 farm bill's legalization of hemp. The defendants, the Idaho State Police, Ada County and Ada County Prosecuting Attorney Jan Bennetts, are scheduled to file their answering brief by April 17. They are represented by Sherry Morgan, Ada County senior deputy prosecuting attorney,and attorneys Merritt Dublin and Cynthia Yee-Wallce of the Idaho attorney general's office.

In the Weeds…

• “These companies are testing the limit—and bragging about it” in Massachusetts. ”State policy makers failed to foresee just how hard it would be to control giant investors, often aided by well-paid lobbyists and lawyers, in a field that now has its own Marijuana Index to track the biggest cannabis companies in North America.” [Boston Globe]

• Can an employer be sued by a worker's widow for not enforcing a no-drugs policy? No, an Ohio court said. A Ford Motor Co. employee collapsed on the job and later died at a hospital. A toxicology report indicated he had marijuana and fentanyl in his system, plus a .08 blood alcohol level. The man's widow sued Ford, alleging that its failure to enforce an anti-substance-abuse policy induced workers to use drugs in the workplace. An appellate court held that the widow failed to allege that Ford deliberately intended to hurt her husband. [Law.com]

• Light 'em up, Florida. Gov. Ron DeSantis this week signed into law a bill ending the state's ban on smokable marijuana. Orlando trial lawyer John Morgan sued to overturn the smoking ban, arguing that it violated the medical marijuana measure voters approved in 2016. After taking office in January, DeSantis said that if lawmakers did not repeal the smoking ban by March 15, he would drop the state's appeal of a ruling in Morgan's favor. [Daily Business Review]

• A vote on New Jersey legalization could come Monday. The New Jersey Cannabis Regulatory and Expungement Modernization Act includes an excise tax of $42 an ounce on recreational sales and expungement provisions for pending charges and past convictions. A five-member commission appointed by the Legislature and the governor will oversee regulations [New Jersey Law Journal]

• Massachusetts regulators don't have the power to void community marijuana contracts. Superior Court Judge Timothy Feeley said the Cannabis Control Commission can't review deals, known as host community agreements, between towns and marijuana companies. Critics have complained that some locals are charging exorbitant fees that are unfair to small would-be operators. [The Boston Globe]

• As Illinois contemplates legalization, lawyers are in high demand. “It's really a unique opportunity for lawyers because unlike just about anything we do … once we get into cannabis, we're really in uncharted territory,” Hoban Law Group counsel Larry Mishkin told the Daily Herald. “There's a real demand for lawyers who understand the laws and how the cannabis rules affect what are the normal everyday rules,” Mishkin said. [Daily Herald]

Who Got the Work

• A team from Squire Patton Boggs has formally registered to lobby for the National Cannabis Roundtable. The lobby team includes David Schnittger, former deputy chief of staff to U.S. Rep. John Boehner; Natasha Hammond, former assistant for policy for former House Speaker Paul Ryan; Lem Smith, legislative director to the late Rep. Charlie Norwood, R-Georgia; and Bret Boyles, chief of staff to former U.S. Sen. Trent Lott.

• The former COO of Ohio's medical marijuana program has joined a major cannabis cultivator and processor in the state. Justin Hunt is now executive vice president at Grow Ohio Pharmaceuticals, The Cincinnati Enquirer reported. Hunt is barred from representing Grow Ohio before any state agency for a year after his departure from the Ohio Medical Marijuana Control Program.

• “Legalizing recreational or adult-use marijuana is one of the top priorities of New York Gov. Andrew Cuomo and state lawmakers in the current legislative session, which runs through June. And influencing the laws and regulations that emerge is a top priority for local farmers,” Park Strategies lobbyist Joe Rossi, representing the New York Cannabis Growers and Processors Coalition, told WNYC.

Your Calendar: All the Things

March 22-24: The New England Canna Convention will take place in Boston. Scheduled speakers include Vicente Sederberg partner Valerio Romano and Steve Schain, senior attorney at Hoban Law Group.

March 26: The U.S. House Committee on Financial Services will convene a markup of the SAFE Banking Act at 2 p.m. EDT. The bill would provide legal protections for banks that serve state-licensed marijuana businesses.

March 27: California's Cannabis Advisory Committee meets in Sacramento. Members will hear a presentation on worker health and safety in the cannabis industry.

March 28: The National Cannabis Bar Association hosts the webinar ”The Future of Cannabis and International Law.” The speaker will be Heather Haase, the International Drug Policy Consortium members' link to UN Headquarters on drug policy issues.