Companies in the cannabis industry need leaders to help navigate a complex and continually evolving regulatory and legal landscape.

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Overview

Companies in the cannabis industry need leaders to help navigate a complex and continually evolving regulatory and legal landscape.

Identifying and responding to the industry’s challenges is especially sensitive and complex because of the patchwork of local and state laws, not to mention federal ambivalence to the plant. To remain viable, cannabis companies must avoid potential legal and regulatory problems by obtaining the best possible legal support.

Perkins Coie’s national Cannabis Law industry group comprises more than 120 attorneys committed to providing premier cannabis counsel throughout the United States. As an AmLaw 50 firm, our industry work is comprehensive; we advise companies that directly handle cannabis and cannabis products, clients that are considering entering the sector, and businesses that provide ancillary support to the cannabis industry. We are active members of the U.S. Cannabis Council and the ABA’s Cannabis Law and Policy Committee. Our ranks include the vice chair of the ABA’s Cannabis Law and Policy Committee, former members of the National Cannabis Industry Association (NCIA) Policy Council, and a crime and drug policy advisor for then-Vice President Biden. Due to his significant industry work, industry group chair Barak Cohen was named a leading cannabis law lawyer by Chambers USA.

Areas of Focus

Identifying and responding to the industry’s challenges is especially sensitive and complex because of the patchwork of local and state laws, not to mention federal ambivalence to the plant. To remain viable, cannabis companies must avoid potential legal and regulatory problems by obtaining the best possible legal support.

Perkins Coie’s national Cannabis Law industry group comprises more than 120 attorneys committed to providing premier cannabis counsel throughout the United States. As an AmLaw 50 firm, our industry work is comprehensive; we advise companies that directly handle cannabis and cannabis products, clients that are considering entering the sector, and businesses that provide ancillary support to the cannabis industry. We are active members of the U.S. Cannabis Council and the ABA’s Cannabis Law and Policy Committee. Our ranks include the vice chair of the ABA’s Cannabis Law and Policy Committee, former members of the National Cannabis Industry Association (NCIA) Policy Council, and a crime and drug policy advisor for then-Vice President Biden. Due to his significant industry work, industry group chair Barak Cohen was named a leading cannabis law lawyer by Chambers USA.

Areas of Focus

Compliance, Investigations and Due Diligence

Cannabis-related businesses face many risks as a result of conflicting licensing, regulatory, and compliance issues inherent in the existing mix of federal and state laws. We represent companies throughout the industry, from multistate operators to e-commerce platforms, in a wide range of complex matters at the federal, state, and local levels and internationally. Perkins Coie’s team includes former regulators and prosecutors with years of experience designing and implementing effective compliance programs, conducting internal investigations, negotiating with enforcement authorities and regulators, and representing clients in high-stakes litigation and trials.

Transactional Law

As cannabis regulatory regimes mature, cannabis companies are increasingly focused on success as multistate operators and fueling growth with strategic acquisitions. Perkins Coie transactional attorneys create the right team and mix of skills and experience on every transaction, helping clients understand approaches to specific types of deals, relevant market trends, and the perspectives and expectations of their counterparties. We have significant experience representing clients in connection with their acquisition programs and roll-up strategies, as well as with acquisitions and sales of public and private companies. Our attorneys regularly handle complex deals and offer efficient, cost-effective insight into the terms and structures our clients can and should seek for their transactions. We also provide specialized cannabis due diligence support, with experts in key regulatory areas.

Litigation

Cannabis businesses have been the subject of numerous civil actions, particularly consumer class actions involving data privacy, consumer protection, securities laws, and products liability. Perkins Coie litigators regularly advise consumer products companies across industries, from cannabis, to food and beverage, supplements, pet products, personal care, and technology. Our clients’ objectives drive our strategy, whether that is immediate injunctive relief, timely resolution of a business dispute, private arbitration, or victory at trial or on appeal. In the most sophisticated litigation, from class actions and mass torts to individual cases, we assist our clients in matters that could expose them to product liability claims and brand-damaging lawsuits.

Advertising and Marketing

Cannabis and cannabis-derived products are governed by a regulatory scheme involving nuanced differences in treatment under the law between cannabis plants and cannabis derivatives. The legality of advertising cannabis products largely depends on state laws, as such advertising is generally illegal under federal law but permitted in certain states when done in accordance with their regulations. Perkins Coie attorneys understand the unique legal and practical challenges faced by cannabis companies and help position our clients to avoid costly and damaging pitfalls. We work with in-house legal and marketing teams as they plan and execute advertising, marketing, and promotional campaigns. We regularly audit advertising copy, marketing materials, websites, software apps, and labeling for false advertising, claim substantiation, regulatory compliance, intellectual property infringement, and right-of-privacy and publicity issues. We also draft and negotiate advertising agency, co-promotion, influencer, celebrity endorsement, sponsorship, and other marketing services agreements. Our attorneys advise clients on how to comply with Federal Trade Commission (FTC) rules and guidelines as well as on how to avoid consumer, competitor, and regulator challenges associated with marketing campaigns.

Labor and Employment

Employers must continuously readjust their policies and procedures to differing and evolving standards for use and regulation of cannabis by federal, state, and local legislatures. As cannabis legalization continues to expand, our Labor & Employment attorneys are actively tracking the trends and advising our clients on compliant policies and procedures on subjects including background checks and consideration of cannabis-related arrests and convictions in the hiring process; preemployment drug testing; on-duty use or possession of cannabis products; off-duty use of cannabis products; post-hire drug testing; and accommodating cannabis use. We negotiated industry-first labor agreements applicable to delivery operations, are providing ongoing strategic planning and advice, and lead the defense of multiple aggressive wage-and-hour class action litigation unique to the cannabis industry.

Environmental Regulations

Cannabis companies must comply with environmental regulations at both the federal and state levels, including facility siting and permitting, water and energy usage, hazardous materials handling and disposal, and other pollution-related issues. Perkins Coie’s Environment and Natural Resources practice is widely recognized for its ability to help plan a project’s development, secure the necessary permits in a timely manner, work with stakeholders to reduce the likelihood of litigation or other opposition to a project, and help facilitate ongoing operational compliance. We work with our clients to develop and advocate for or against legislative and regulatory proposals and continually monitor relevant legislative and regulatory developments. Our attorneys frequently appear before both federal and state agencies on policy issues affecting the businesses and projects of our clients. We also represent the regulated community in the full range of environmental litigation and regulatory enforcement matters.

Intellectual Property

Intellectual property (IP) is a core asset for cannabis companies looking to increase their value and differentiate themselves from their competitors, but they often face challenges due to varied state regulations that may conflict with federal law. While the U.S. Patent and Trademark Office (USPTO) has issued cannabis-related patents, it does not allow cannabis companies, including those selling CBD-infused products derived from hemp, to obtain a federal trademark registration. Protecting IP assets is mission critical for cannabis companies, as are the IP strategies and programs that can keep competitors at bay. Our internationally recognized IP team develops proactive brand protection strategies and aggressively defends these rights in court when disputes arise. 

Bankruptcy

Because cannabis remains an illegal Schedule 1 substance under federal law, individuals and businesses tied directly or indirectly to the cannabis industry consistently have been unable to take advantage of bankruptcy laws and have found bankruptcy court to be an unfriendly forum. Blocked from bankruptcy relief, distressed cannabis companies (and those who do business with them) may resort to alternative vehicles for resolving financial disputes such as receiverships or assignments for the benefit of creditors (ABCs) that are governed by state laws rather than federal law. However, unlike the U.S. federal courts, Canadian courts provide an opportunity for cannabis businesses to reorganize or recapitalize due to Canada’s legalization of recreational cannabis. We provide counsel for debtors, creditors, and third parties in out-of-court negotiations as well as representation in state and federal court litigation across the country. Our attorneys collaborate across multiple practice areas, disciplines, and regions to assist our clients in bankruptcy or restructuring matters of any size.

Experience

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In June 2023, CCSR released a comprehensive report on the classification of cannabis under the Controlled Substances Act and the urgent need for reform. The report details the advantages of descheduling cannabis or rescheduling it at schedule III, IV or V. Perkins Coie is proud to be a member of the CCSR and an author of the report.

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