Welcome back to Higher Law, our weekly briefing on all things cannabis. I'm Cheryl Miller, reporting for Law.com from Sacramento. Stay well everyone.

This week we're looking at: • A big weed-in-the-workplace ruling in New Jersey • The FDA's request for more data on cannabis and CBD • A new office and new cannabis partner for Burns & Levinson • Executive search firm sues a cannabis company • A Big Four accounting firm eyes cannabis work in the U.K.

Thanks as always for reading. Got a story idea? An interesting legal development? Send them to me at [email protected] or call me at 916.448.2935. Follow me on Twitter @capitalaccounts.

New Jersey's High Court Sides With Employee Using Medical Marijuana

In a much-awaited ruling, New Jersey's Supreme Court this week said a funeral director who was fired after testing positive for legal medical marijuana use can sue for disability discrimination.

My colleague Suzette Parmley reports that the high court said "there is no conflict" between the state's Compassionate Use Act, which says employers don't have to "acommodate the medical use of marijuana in any workplace," and the New Jersey Law Against Discrimination.

"In a case such as this, in which plaintiff alleges that the Compassionate Use Act authorized his use of medical marijuana outside the workplace, that Act's provisions may be harmonized with the law governing LAD disability discrimination claims," the court said. Read the ruling here.

After a minor accident in 2016 for which he was not at fault, Wild told his employer, Carriage Funeral Holdings Inc., that he was using medical marijuana to treat his cancer. The funeral home fired him, and Wild sued under New Jersey's anti-discrimination law.

>> Pashman Stein Walder Hayden associate Dillon McGuire, who filed an amicus brief on behalf of the American Civil Liberties Union of New Jersey, said "the Court has expressly adopted the appellate division's conclusion that employers may be required to accommodate an employee's use of medical marijuana when it is consumed at home after work hours … The Court's decision was an important step toward securing the rights and dignity that medical marijuana patients deserve."

>> "The big takeaway here is employers must reasonably accommodate individuals who are legal users of marijuana in the state of New Jersey, just as they would have to reasonably accommodate an employee taking any prescription medication," Maxine Neuhauser, an Epstein Becker Green partner told northjersey.com. "If the individual's ability to perform the job is not impacted by their use of medical marijuana, then you can't just fire them for a positive drug test."

The FDA Wants to Hear About CBD—Again

The U.S. Food and Drug Administration wants to hear more from the public about products that contain cannabis and CBD—and not just angry rants that the agency should have come up with regulations a long time ago.

The agency this week re-opened the public comment period, extending it indefinitely, "in light of the continued interest and increased research activity in this space, as well as the need for additional scientific data on this topic," according to a filing in the Federal Register.

The FDA said it's "particularly interested in data that may help to address uncertainties and data gaps related to the CBD," including potential liver damage and the effects of its use with medicine, alcohol and tobacco.

The move follows the FDA's submission of a report to Congress this month that, as a Perkins Coie alert put it, "echoes the hard-line approach to CBD safety that the agency took on Nov. 25, 2019, when it announced that CBD is not 'generally recognized as safe' among qualified experts for use in human or animal food," but, importantly for CBD businesses, also confirms agency interest in developing a risk-based enforcement approach in order to keep up with the burgeoning market for CBD products."

>> Eversheds Sutherland partner Greg Kaufman, said in an email that the FDA is likely "concerned about issuing a rule that can be attacked and possibly vacated on grounds that it is arbitrary and capricious. It will be important for the FDA to have a factual basis to support a rule where the underlying rationale and factual assertions can be deemed reasonable. The rulemaking process is a potential path forward but it will not be a short path."

>> Harris Bricken attorney Griffen Thorne tweeted "FDA just reopened public comments on CBD "indefinitely". Just more proof that we're not getting regs this year."

Who Got the Work

• Bradley Arant Boult Cummings associate Kimberly Ingram is representing Tennessee executive search firm Focus Search Partners in a breach-of-contract suit against Sunniva Inc. Focus Search says the California cannabis company owes $213,752 for work the firm did in helping to hire chief financial officer David Lyne and chief marketing officer Stephen Matt. The suit was filed Wednesday in the U.S. District Court for California's southern district.

• Burns & Levinson announced that Katrina Skinner (at left) has joined the firm as a partner in its cannabis business and law advisory group as the firm opens a new office in Denver. Skinner, who will work in Denver, previously served as president and general counsel of Safe Harbor Services, which provides banking services for state-legal cannabis businesses. "She is joining one of our busiest practice groups, and her experience helping covered financial institutions, such as banks, credit unions, merchant processors, and money transmitters throughout the country navigate the challenges and opportunities inherent in servicing the cannabis industry will be of great benefit to our clients," said Burns & Levinson partner Frank Segall.

• Attorneys at Pomerantz and Bronstein, Gewirtz & Grossman filed a securities class action complaint against Tilray Inc., the Toronto-headquartered cannabis company. The company has been a target of plaintiffs given its slumping stock price. This complaint alleges that Tilray overstated the advantages of a 2019 revenue sharing agreement with Authentic Brands Group.

• Calfee, Halter & Griswold is representing New York marketing and advertising company Crossmedia Inc. in its breach of contract lawsuit against CBD product manufacturer Green Growth Brands LLC. Attorneys Albert Lucas and Jason Blake allege that Green Growth has not paid $730,831 due for provided services. Green Growth Brands has not filed a response yet in the suit filed in the Southern District of Ohio.

• The American Property Casualty Insurance Association has retained Emergent Strategies to lobby federal policymakers on two marijuana-related issues, recently filed disclosures show. The organization is looking at legislation related to the development of a marijuana impairment standard and the SAFE Banking Act.

In the Weeds…

>> PwC is moving into the U.K.'s nascent cannabis market. The firm's auditing arm is currently advising a client working on a transaction in the space and has another cannabis-related matter in the pipeline, my colleague Krishnan Nair reports, citing a person close to the matter. The client interest spurred the Big Four auditing firm auditor to examine possible cannabis-related work, and it is currently working with its regulatory and compliance teams to determine next steps. [Law.com]

>> Marijuana lobbying skyrocketed in New Jersey last year. "In 2019, the marijuana industry spent $1.9 million on lobbying, up 32 percent from the year before, according to state data." The top industry spender was Acreage Holdings, which last month opened the first medical marijuana dispensary on Atlantic City's boardwalk [The Philadelphia Inquirer]

>> Is interstate cannabis the solution to Illinois' supply problems? If only it was that easy. Outlets' struggles to shelve enough recreational marijuana have been well chronicled. "We can literally move millions of people in ]legalized] states out of illicit markets years sooner, and get the industry actually up and running in a real way within a year if we could move product from state to state," said Adam Smith, director of the Alliance for Sensible Markets. Some western states with a lot of extra pot would like to move it, too. But that's not going to happen without federal action, something that doesn't seem to be in the near-term cards. [Chicago Tribune]

>> Meet the Cleveland attorney leading the charge for Ohio legalization. Frantz Ward partner Tom Haren represents a group trying to create a regulatory program for all marijuana use in the state. "Full legalization in Ohio is a matter of when, not if, so we tried to put an amendment together that made sense in 2020," he said. Attorney General Dave Yost this week rejected the summary language for the proposed amendment. [WKSU]

>> Harvest of Ohio pays up to open up. As part of a settlement with the state, Harvest will pay $500,000 and, pending inspections, get the green light to open three medical marijuana dispensaries. The money will help pay for a system to track prescription drug abuse. The state said Harvest violated a law requiring that listed owners of licenses set aside for economically disadvantaged groups have true majority ownership, and oversee day-to-day operations of the company. Harvest admitted no wrongdoing. [cleveland.com]