Is the Delta 8 Loophole Closing?

The Nineth Circuit ruling created a loophole to sell psychoactive substances, like Delta-8, without an age limit, without a possession limit, and without any product safety or contamination standards.

Delta-8 is a cannabinoid found in cannabis but its natural quantities are low. Shortly after the glut of hemp and CBD oil in 2019 people started to synthesize the CBD oil into Delta-8 products. As of early 2021, Delta-8 was one of the fastest growing segments of products derived from hemp. The list of psychoactive substances derived from hemp keeps growing with Delta-8, Delta-10, THC-O, THC-P, etc. and they all fall under this loophole.

To recap recent history in this country: The voters in states that have legalized medical and recreational marijuana voted to regulate a psychoactive substance to patients and adults and to require the product be tested for potency and contamination. Then the 2018 Farm bill legalized hemp nationally. The understanding at the time was THC (Delta-9) was THE psychoactive substance. With hemp being define as 0.3% THC, the assumption was no one would ever get high from hemp products. That was obviously a wrong assumption…

When Delta-8 came on the market some states banned or regulated it while most have done nothing. Most people do not know what delta-8 is. Some products make it more confusing, like Delta-8 Flower. Most people I have talked to that have purchased it say they think it’s ‘natural’ and ‘grown that way’. What most don’t know is ‘Delta-8 flower’ is hemp flower sprayed with delta-8, and in many cases, it has not been tested for chemical residuals, pesticides, metals, or for potency other than THC (Delta-9). The lack of understanding of the product has led to product safety issues.

As of November 21, 2022 - 21 states have banned or regulated delta-8 while four are reviewing its legal status. Currently Delta-8 is legal in 29 states and DC, but that might all be coming to an end with another federal ruling.

‘A federal judge threw out a lawsuit against Kansas’ governor and attorney general that alleged $120,000 worth of delta-8 THC products destroyed by police were legal.’

https://mjbizdaily.com/federal-court-tosses-delta-8-thc-lawsuit-against-kansas-governor/

In dismissing the suit Tuesday, the judge wrote that, “in short, no part of the 2018 Farm Act demonstrates an unmistakable focus to benefit plaintiff or other unlicensed possessors and sellers of hemp products.

“The 2018 Farm Act does not create a private right for plaintiff to (possess) and sell hemp and hemp products, either under Section 1983 or as an implied cause of action under the 2018 Farm Act itself.”

The question now is ‘what's next?’. Is this the end of the Delta-8 loophole? If so how do the feds enforce its new position. Many hemp operations will be impacted by this ruling and should prepare themselves for the change.

Author:
Alex Hearding
Chief Risk Management Officer

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You are Justifiably Confused, and Likely at Risk

Merriam Webster defines:

RISK- possibility of loss or injury PERIL

INSURANCE- An arrangement by which a company provides a guarantee of compensation for specified loss in return for payment of a premium.

COMPLIANCE-the act or process of complying (to conform, submit, or adapt (as to a regulation or to another's wishes) as required or requested) to a desire, demand, proposal, or regimen or to coercion

RISK MANAGEMENT - The discipline of forecasting and evaluation of financial risks together with the identification of procedures to avoid or minimize their impact.

Unfortunate for grass roots cannabis businesses, varying “professionals” travel the industry using these terms interchangeably. If you are confused…don’t feel badly…you have every right…

As detailed by the definitions above, however, each are distinctly different with all having their place in a cannabis company’s strategy and business plan.

Let’s try to untangle this web...

Risk management or mitigation is fundamentally defined as taking an action to reduce the possibility of an event taking place. Insurance is designed to supplement these actions by financially transferring the portion of certain risks whose probability can’t be lowered to an acceptable level.

To further understand the differences between risk management and risk transfer, let’s look at the comparison below

Risk Management vs Risk Sharing

Risk Management

  • Lowers the odds of a happening
  • Keeps you whole
  • Makes you better

Insurance

  • Partial compensation for damage if it happens
  • Never, ever makes you whole
  • Always creates a setback

Additionally, many risks cannot be insured affordably, and certain risks can not be insured at all. Take talent optimization for example. One of the largest risks facing not only the US cannabis market but American businesses in general is finding the right people, putting them in the right paces and retaining them. There is no insurance market that transfers an ounce of this risk. Risk management is the only route of control (SEE PRESS RELEASE LINK).

Similarly, typical cannabis insurance and other financial services products are “pricey” as a result of the much overplayed “external risk of cannabis.” This is in a time where loss claims are low because of the presence of substantial coverage exclusions in a market where demand significantly outweighs supply. The likelihood of losses and their associated costs increases without effective risk management and further increases coverage prices.

Based on the above, one can only conclude that…

Risk management without insurance is imperfect …but insurance without risk management is illogical”

Now let’s look at compliance. The definitions cited above clearly point to compliance as something that YOU do to satisfy SOMEONE ELSE. I am in no way stating that compliance is not important as it provides many of the tools required for successful operation. Compliance is also key in maintaining licensing status and conformance with any multitude of regulatory requirements.

Where compliance falls short is that it does not necessarily teach one as to what tools to use and how to use these tools in certain situations. This is where risk management comes in. Where compliance is the tool box, risk management is the real application of the right tools to solve a cannabis company’s problems efficiently, reduce their fixed and variable costs and enhance their profitability.

Hopefully this clears some of the confusion. Now take action to put your compliance investment to work by clicking on the link below and completing the NCRPS 5-minute risk assessment.

Author:
Rocco Petrilli
CEO and President

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Reviving Seeds

Before legalization, most cannabis breeding was done with very limited numbers of plants to select from, and almost entirely with the aim of increasing yield and THC content. For these reasons many alleles—or specific variants of a gene that code for different traits—were lost. Some of these alleles contributed to the plant’s ability to survive, and reintroducing them into modern strains could result in plants that are more productive, disease resistant, and stress tolerant.

Enter the Seed Enthusiast! Dedicated seed collectors have been putting away cannabis seeds for decades, and there are many important collections. Despite the value of these seeds to our industry, many people are too afraid to try to germinate old seeds for fear of destroying them. There is very little good data on the viability of cannabis seeds in storage, but there are corollaries in mainstream agriculture. A date palm was grown from seeds that were 2000 years old a few years back, and the seeds of many other plants have been extensively researched. I also know an orchid grower who germinated 35 year old cannabis seeds from Afghan cannabis with a 75% success rate just by planting them.

More study is needed to determine the optimal methods for germinating old cannabis seed so that we can restore vigor and variety to the sea of cannabis strains on the market. If we want better cannabis, we need better genetics. Keep saving those seeds, but I challenge the industry to start cautiously figuring out how to get these genes out of storage and into our crop, the future of cannabis depends on it.

Author:
Andrew Hatch
Director of Product Safety

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New Service Partner: Kairos

Kairos Insurance Group Cannabis Division offers employee benefits plans including medical, dental, vision, disability, and life insurance. An agency founded in Colorado, we have over eight years experience helping cannabis businesses build multi-year strategies to provide the best value for the lowest premiums. Kairos is appointed with most major carriers and shops your plan every year so you don’t have to. Our founder, Summer Westerbur, has over twenty years experience designing employee benefits packages.

Open Enrollment:

The easiest way for a business to increase profitability is by decreasing costs. Does your broker quote every carrier at renewal? We have access to all major carriers. If you’ve been with the same carrier for several years, there’s a good chance you’re overpaying. Even if you’ve already renewed next year’s benefits, you’re not locked in. Carriers are required to honor those rates for a year, but you are allowed to switch carriers at any time. We still have time to reduce your premiums so your business can put that money to better use.

Current Trends in Group Health Insurance:

We’re seeing many healthy groups move to level-funded plans. Historically, these plans were only available to large groups. They’re now available to businesses with as few as five employees in some states. They require additional work upfront, but can be a great multi-year strategy for long-term premium stabilization. For healthy groups with lower claims, they also have the possibility of a refund at the end of the year. We also see businesses offering fully-insured plans with multiple plans options offering different levels of coverage to fit any budget.

What about Disability Coverage?

Many carriers continue to decline disability insurance to cannabis companies. Kairos has at least one carrier in each state willing to write disability insurance for cannabis businesses. We only write with A-rated carriers. Disability is a valuable benefit for businesses, especially during the Great Resignation. It’s important to offer a wide range of coverages in your benefits package to retain employment.

Easy Online Enrollment:

We understand the challenge of gathering your employees in one room for an annual enrollment meeting. However, employee benefits communication is an important strategy for employee retention. We work with you to schedule multiple in person or Zoom meetings to explain benefits, demonstrate finding in-network providers, and answering questions about benefits.

Call us at 719-331-1832 or email summer@kairosinsurancegroup.com for a free policy review. 

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Cannabis and Hemp Companies Disregard Emerging Product Liability Risks at Their Peril

Novel cannabis products and our understanding of how they interact with our bodies are evolving in tandem, which is unique compared with any other consumer product. Although cannabis research has been outpaced by consumer behavior and public policy, it is now catching up. Relying on new studies, attorneys may soon seek to establish medical causation that links the use of high-THC products to cardiovascular conditions, mental health issues and susceptibilities in certain consumer populations. The hemp industry is not immune, given the recent explosion of unregulated but intoxicating hemp-derived products that contain levels of THC similar to regulated cannabis products.

In this article we describe how this evolving product risk has the potential to result in enormous future liability for which cannabis and hemp companies are currently unprepared. Those industries should embrace a mix of legal reform, policy changes and adoption of traditional risk management principles to prevent future product risk issues from damaging market sustainability.

A New Breed of Cannabis Product Litigation
As a society, we hold product manufacturers liable for placing an unreasonably dangerous product on the market. What is “unreasonably dangerous,” however, is an open question when it comes to cannabis since, until recently, federal illegality largely precluded the availability of reliable studies on questions of safety and efficacy. The number and quality of such studies have increased over the past few years, coinciding with cannabis legalization at the state level, relaxation of rules around cannabis research and removal of hemp from the Controlled Substances Act (CSA).

Armed with these new studies, potential plaintiffs may start seeking to use the courts as quasi-regulators for the cannabis and hemp industries. Some lawsuits already have alleged, for example, that cannabis companies seek to take advantage of the public’s perception of cannabis products as safe and healthy despite the fact that THC and other cannabinoids have been linked to various adverse side effects. It also has been alleged that although edible cannabis products are linked to more severe adverse effects than smoking marijuana, those products have been marketed by some companies as the safer and healthier alternative. The hemp industry, meanwhile, should brace itself for similar allegations brought against hemp-derived THC products that are becoming increasingly popular and available.

This new breed of cannabis product liability lawsuit may seek to establish alleged serious adverse health consequences from the ingestion of cannabinoids using an expert-driven legal strategy that has the potential to be used against any company that sells products containing THC, CBD or any of the minor cannabinoids. Those companies should pay close attention.

The Endocannabinoid System
To understand these emerging product liability concerns, it is necessary to briefly describe the endocannabinoid system (ECS). First identified in the early 1990s, the ECS is a system of chemical signals and receptors that help to regulate numerous bodily functions. The two primary receptors for cannabinoids are called the CB1 and CB2. The CB1 receptors, which are located primarily in the brain and central nervous system, help regulate coordination, pain, mood, appetite and other functions. CB2 receptors are located throughout the body and are common in the immune system. They primarily affect inflammation and pain.

THC’s power of intoxication results from its ability to mimic anandamide, a naturally occurring endocannabinoid that binds to CB1 receptors in the brain associated with improved mood. THC binds to anandamide’s CB1 receptor even more tightly than anandamide can, which inhibits the release of other neurotransmitters. This results in an exaggerated mood response associated with feelings of euphoria.

CBD, on the other hand, loosely binds with the receptors and acts like a modulator that can amplify or decrease the receptor’s ability to transmit signals, similar to a dimmer switch. It is thought that this modulation of brain activity may be the basis for CBD’s ability to reduce seizures and the symptoms associated with mood disorders such as anxiety and depression.

THC and CBD have a synergistic effect by working in tandem. Cannabis users have long observed that high concentrations of CBD have a modulating effect on the intoxicating potency of a cannabis product, even for products with high levels of THC. This phenomenon has been clinically confirmed by researchers at University College London, who used functional MRI (fMRI) technology to demonstrate that high-CBD cannabis varieties result in less impairment to brain function than varieties with lower CBD concentrations but similar levels of THC.

Method of Ingestion
How cannabis interacts with the body also is dependent on the method of ingestion and the physical characteristics of the cannabis user. Though seemingly counterintuitive, the consumption of edible cannabis has been associated with a higher risk of adverse events and the resulting need for acute medical care compared with smoking or vaping cannabis.

Many consumers are unaware that, unlike smoking or vaping cannabis, the onset of effects with edibles is delayed until 30–60 minutes after ingestion with a peak effect within 3–4 hours. An oral dose of 10–20 mg of THC is sufficient to cause psychotropic effects and an oral dose of 30–40 mg of THC would cause significant intoxication in most people.

Edible consumption also can result in highly variable effects. Eating a high-fat meal, for example, can significantly exacerbate the effects. The budtender’s mantra for advice to new consumers of edibles is therefore to “start low and go slow.”

Impact of Legalization
As more people use cannabis due to increased access from legalization efforts, the likelihood of medical and health consequences also has increased. In the United States, disparate state regulations with no federal oversight has resulted in a lack of uniformity in dose, cannabinoid concentrations, product labels and warnings. The United Nations World Drug Report 2022 describes a “simultaneous quadruple confluence” of increasing prevalence of use, intensity of use, THC content and hospitalizations that “all likely interact multiplicatively in the context of studying the impact of legalization.”

Increasing THC Concentration
Many experts point to the increasing THC concentration in modern cannabis products as a leading cause of uncertainty when attempting to quantify cannabis product risks. The vast majority of studies that physically handle cannabis have used samples provided by the federal government that contain THC concentrations in the 3% to 6% range. That is only a fraction of the THC content of modern cannabis products sold in dispensaries and adult-use retail stores, on which few meaningful studies have been performed. Many older studies may therefore no longer be relevant.

Emergency Department Visits and Hospitalizations
The number of cannabis-related emergency department visits and hospitalizations generally see an increase after state legalization, followed by a leveling off. For example, those numbers increased in Colorado after 2013 but generally stabilized by 2018. California likewise saw an initial 56% rise in ER visits and hospital admissions from 2016 to 2019. The most common reasons for seeking medical care include anxiety, panic attacks, vomiting and other nonspecific symptoms. Cannabis edible products are attributed with the largest increase in ER visits and hospitalizations, particularly involving children. Emergency departments also have seen a significant increase in cannabis hyperemesis syndrome caused by heavy chronic use, particularly in young men with low body fat, characterized by stomach pain, nausea and intractable vomiting.

Cardiac and Vascular Effects
A key concern is whether cannabis can trigger a major cardiac or vascular event such as a severe cardiac arrhythmia, heart attack or stroke. Statistical limitations and confounding factors have thus far prevented a firm conclusion of cause and effect, but several associations have been observed. This has prompted statements issued by the American Heart Association in 2020 and the American College of Cardiology in 2021.

The ratio of THC to CBD may be an important but under-appreciated factor in determining whether a specific cannabis product has the potential for cardiovascular harm. THC is known to stimulate the sympathetic nervous system while inhibiting the parasympathetic nervous system. THC can increase heart rate and blood pressure. CBD, in contrast, can reduce heart rate and blood pressure, while improving vasodilation and reducing inflammation.

In states where cannabis has been legalized, an increase in emergency department visits and hospitalization has been observed for heart attacks, including in young men without ischemic disease. In addition, there is some evidence that cannabis use may result in an increased risk for stroke. One recent retrospective study found a greater than three-fold risk of stroke in regular cannabis users within the past year. Other studies, such as the long-term prospective CARDIA Study (Coronary Artery Risk Development in Young Adults) did not show an association between long-term or recent cannabis use and cardiovascular events.

Data on the true cardiovascular risk from cannabis remains unreliable because most studies have been short-term, observational and retrospective in nature, as opposed to more reliable long-term prospective studies that are controlled with product and dose standardization. Available studies also suffer from confounding factors such as selection bias and uncontrolled adverse health behaviors such as tobacco use. As noted above, older studies may no longer be relevant due to the increasing concentration of THC in today’s products.

For these reasons, evidence of a causal relationship between cannabis use and cardiovascular harm remains inconclusive. The cannabis industry should nevertheless pay close attention to emerging studies on this topic.

Microbial Contaminant Health Effects
The microbes associated with cannabis are mostly harmless, but some species can cause human illness. Invasive mycoses such as fusariosis, aspergillosis and mucormycosis can cause fatal illness in the severely immunocompromised. This group includes those undergoing chemotherapy, recovering from severe illness or taking immunosuppressive drugs after organ transplantation. These diseases often have mortality rates greater than 50%. In total, cannabis users also experience a roughly 350% increase in fungal infections when compared with nonusers, according to commercial insurance data.

Illness from bacteria such as E. coli or salmonella has been reported, as have life-threatening asthma attacks triggered by inhaling mold spores in commercial cannabis grows. Mycotoxins are potently carcinogenic, fetotoxic and neurotoxic chemicals produced by Aspergillus, Fusarium, Penicillium and other mold species commonly associated with cannabis. These can accumulate in cannabis products, are difficult to remove and cause severe illness.

Mental Health Effects
It has been observed that as cannabis use has become more frequent and cannabis products have become more potent, certain psychiatric illnesses and cannabis use disorders have risen. Some mental health professionals have drawn attention to the rising THC and falling CBD content in many modern cannabis products, positing that an increased THC ratio may heighten dependency and the chance of psychiatric disorders.

Evidence exists of an association between high-THC cannabis and an increased risk of psychosis and schizophrenia. This risk may be heightened in individuals with a predisposition to those disorders and people who use cannabis early in adolescence.

There also is some evidence that cannabis is present in an increasing proportion of suicide deaths when compared to alcohol, in a trend that started before legalization. Data from Colorado suggests that the proportion of suicides in which cannabis was present tripled between 2006 and 2018. By comparison, the proportion of suicides where alcohol was present increased only slightly over the same period.

Other recent studies have noted similar associations between cannabis use and psychiatric disorders. A Canadian study, for example, observed that after marijuana was legalized in 2018, there was an increase in cannabis use from 20% to 37% of ER patients who sought consultations with a psychiatrist, and particularly among patients aged 18–24. Lancet Psychiatry published a 2019 study of a possible association between cannabis use and psychotic incidents across Europe, concluding that “daily cannabis use was associated with increased odds of psychotic disorder compared with never users, increasing to nearly 5 times increased odds for daily use of high potency types of cannabis.” A 2021 Danish study concluded that schizophrenia cases associated with cannabis use disorder have increased 300% to 400% over the past 20 years as the potency of cannabis his increased 200% over the same period.

Many of the available studies on the mental health effects of cannabis use suffer from the same limitations and confounding factors discussed above for cardiovascular risks. Additional research is therefore needed through well-controlled prospective studies.

Chronic Use and Addiction
Though cannabis is widely considered to be far less addictive than other recreational drugs and alcohol, it nevertheless does have addictive potential and is associated with the development of cannabis use disorder (CUD). The National Institutes of Health reports that CUD has been observed in approximately 9% of users, 17% of those who begin use in adolescence and 25% to 50% of daily users. The incidence of CUD has been impacted by higher rates of edible consumption and vaping – products with higher ratios of THC to CBD and increased initial use in adolescence.

Adolescents
The regular use of cannabis before age 18 has been associated with harmful consequences later in life, including mental health problems as well as deficits in attention, executive functioning and IQ. Studies suggest that regular cannabis use during adolescence may lead to permanent structural changes in the brain. Although cannabis has been observed to help some older patients with psychiatric conditions such as anxiety and depression, similar effects on adolescents are less clear.

In 2019, JAMA Psychiatry published the results of a meta-analysis of 11 studies that included almost 25,000 individuals to assess the extent to which cannabis use during adolescence is associated with the risk of developing subsequent major depression and suicidal behavior. The conclusion was that adolescent cannabis users were 37% more likely to develop depression than their peers. Increased risk of suicidal ideation and suicide attempts also was observed. The findings translate into more than 400,000 cases of adolescent depression in the United States that are potentially attributable to cannabis exposure. The authors recognized, however, that given limitations and confounding factors, a strong causal association could not be made between cannabis and later depression or suicide in adolescents.

Conversely, the recent June 2022 “CannTeen” study published by the Journal of Psychopharmacology found that “16- to 17-year-olds were not at an interactively greater risk of cannabis-related mental health problems, compared to 26- to 29-year-olds.” The study did conclude, however, that adolescent cannabis users are more likely to have severe CUD and greater psychotic-like symptoms than adult cannabis users. The authors acknowledged that more research is needed.

Pregnancy
The perception of harm from cannabis use by pregnant women may be decreasing as state legalization expands. Data suggests that cannabis use by women before, during and after pregnancy has increased in states that have legalized marijuana. This includes data collected from almost 40,000 women by the Pregnancy Risk Assessment Monitoring System. A 2018 paper published in the Annals of Internal Medicine reported that “approximately 70% of both pregnant and non-pregnant women believe there is slight or no risk of harm from using marijuana once or twice a week.” Shockingly, the paper also observed that “18% of pregnant women who used marijuana in the past year met criteria for a marijuana use disorder.”

THC can enter the fetal brain and can disrupt the endogenous endocannabinoid system in the fetus. Prenatal cannabis use may impact birth weight and brain development with long-term consequences. The National Academies of Science has emphasized, however, that there remains insufficient information on the health implications of cannabis use in pregnant women and other vulnerable populations.

The cannabis industry must better educate itself on risks to vulnerable patient and consumer groups. A recent survey of Colorado cannabis dispensaries, for example, resulted in nearly 70% of respondents admitting to recommending cannabis products to pregnant women for nausea.

Drug Interactions
In response to the increasing prevalence of medical marijuana patients and those who self-medicate with adult-use cannabis, physicians are grappling with how to prevent harmful drug interactions. This is of particular concern for older individuals who tend to take more prescription drugs. Cannabinoids can interact with various medications, including certain antidepressants, antipsychotics, beta-blockers, benzodiazepines, statins, protease inhibitors and anti-seizure medications. These interactions can be difficult to identify and prevent due to the wide variability in cannabis products, potencies, doses, cannabinoid ratios and methods of ingestion. A solution is further complicated by lack of physician education and the ongoing reluctance of many patients to admit to cannabis use.

What Is the Solution?
Decades of myth and disinformation around the supposed harm of cannabis use culminated in its inclusion on Schedule 1 of the CSA, which is reserved for those most dangerous drugs, such as heroin, that have a high potential for abuse and no accepted medical use even under the supervision of a physician. It is now widely accepted that cannabis is simply not in the same league as commonly abused drugs such as narcotics or even alcohol. Physicians across all disciplines, meanwhile, are beginning to understand and embrace the promise of cannabinoid medicine.

It must nevertheless be acknowledged that many in the cannabis and hemp industries quickly embrace new evidence of the benefits of cannabinoids while largely overlooking studies that raise potential health concerns. There is an understandable urge to believe that cannabis cannot be harmful because it is a plant and therefore “natural.” Such positive messaging, amplified by the media, politicians and celebrities, has normalized cannabis use to the delight of millions of Americans.

This exuberance, however, should be tempered with clear-eyed realism about the potential for harm that can be associated with cannabis use, and the associated liability risks. For the reasons laid out above, the cannabis and hemp industries should embrace a mix of legal reform, policy changes and adoption of traditional risk management principles to prevent future product risk issues from damaging market sustainability.

First, marijuana must be removed from Schedule 1 of the CSA and regulated much like alcohol with federal oversight of state regulatory structures that are harmonized with respect to product testing, labeling and warnings. Legal reform at the federal level will allow for greater investment in cannabis research, especially involving modern high-THC products, and better education opportunities for consumers and medical clinicians.

Lessons can be drawn from the alcohol, tobacco and pharmaceutical industries on how not to pursue commercial interests at the expense of vulnerable groups. To reduce product liability risks, myths and misperceptions about cannabis use must be dispelled so that companies can engage customers in an informed evidence-based conversation about their cannabis products.

Education is therefore essential to properly mitigating the true liability of products that contain cannabinoids. Eventually, companies will embrace more-robust cannabis product warnings, but these warnings must be factual to result in effective risk reduction. Allowing the establishment of a standard that stops short of this demand for accuracy will only exacerbate the confusion that already plagues the industry.

More thorough product warnings may happen suddenly through new regulations or it may be a slower process that is accelerated by large jury verdicts. Either way, it is difficult to imagine a future without cannabis and hemp product pamphlets of the type that accompany most “over the counter” medical products and other regulated consumer products. Warnings may include statements about the difference between smoking and orally consuming cannabis, the duration of effects, cannabinoid ratios and the impact on impairment, the risk of adverse health effects and warnings directed to specific vulnerable groups.

Finally, effective product liability risk management and insurance are critical for all companies that sell cannabis or hemp products. It is vital that companies differentiate between risk management (which actively reduces risk) and insurance (which transfers or shares the risk that cannot adequately be reduced). No insurance coverage has ever reduced risk, so it is important that the two processes work in tandem to create a barrier against the increasing threat from cannabis product liability. Working with competent risk managers, legal counsel and insurance brokers who are familiar with the cannabis insurance market and committed to true risk management is recommended to ensure that cannabis and hemp companies are prepared to defend against claims and litigation that allege injury or illness from cannabis use.

Author:
Ian A. Stewart
www.wilsonelser.com

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African american woman opening bottle of weed close up

Consumption Lounges: Seeing Through the Smoke

The next frontier in the rapidly expanding legal cannabis industry is the consumption lounge.  This development in the growth of our industry poses several obstacles in both a regulatory and insurability standpoint.  Like other operations up the vertical, the rules and regulations surrounding the licensing and operation of a cannabis consumption lounge will vary by state and municipality, but it will be the next model that will see significant expansion over the next few years. 

Consumption lounges are an inevitable, but necessary evolution in the industry.  With the development of legal cannabis in large metropolitan areas such as New York/New Jersey, where many residents live in rented or HOA controlled condos and apartments, consumption of purchased product is at odds with rules set forth by landlords or HOAs.  Add this to visitors to legal cannabis destinations such as Las Vegas and Colorado, who may wish to consume cannabis while vacationing in hotels or rented homes where smoking of any kind is forbidden, and you wind up with a significant need for a safe, controlled space for legal cannabis consumption.  Many states have recognized this and are issuing licenses for standalone and dispensary adjacent consumption lounges.

But wait! What regulations will be put in place? Can we sell and serve cannabis products in the lounge, or should it be BYOB? How can the operators of a consumption lounge minimize their liability exposure and insure the rest? These are all questions potential operators should be asking themselves because much like other legal cannabis regulations, they vary by location. 

As a cannabis insurance professional, I can’t help but dwell on the myriad combinations of exposures that a business can create in launching a cannabis consumption lounge.  Does the location operate an attached dispensary? Are they planning to cook and serve food? Does the location require visitors to be transported by car, and is it accessible to ride-share drivers? The insurance industry is obviously risk adverse and is still catching up to the needs of the cannabis industry, so the current options for a consumption lounge can be best described as “case by case” and hinges on the regulations set forth by the location’s state of operation and the insurer’s willingness to wade further into uncharted waters. 

To get a better idea of what current operations look like, I did a survey of some consumption lounges to determine, from an insurance standpoint, which might be more attractive to an insurance company when seeking coverage.  I’d like to highlight two different approaches I found:

Lounge 1 –

  • “Private” Club with daily, monthly, or annual membership required for entry
  • No cannabis sales onsite
  • Members sign a liability waiver which outlines expectations of members and advises of the effects of consuming cannabis
  • No alcohol OR food service
  • Members must be 21 or older to enter

Lounge 2 –

  • Entry fee, but not “membership”
  • Cannabis sales in lounge including infused drinks and pre-rolls
  • Food service
  • 30-minute time limit for consumption of purchased products (Limit increased with each purchase)
  • No alcohol sales
  • 21 or older to enter

Which location would insurance companies be more apt to cover?

Both would require diligent underwriting and warranties but Lounge 1 would be more attractive to more insurance carriers for a few reasons.  First, no onsite sales or consumable product preparation removes any product liability exposure.  The operation is BYOB (Bring Your Own Buds).  Second, the exclusion of food service from the operations.  Obtaining comprehensive insurance for a cannabis business is hard enough, adding food preparation and service to your operations only complicates matters.  Third, and most alarming is the time limit imposed by Lounge 2.  Putting such a short time limit on the consumption of a product that will impair the abilities of the consumer is, in my opinion, ill advised.  Depending on the tolerance of the consumer and the concentration of the product consumed, the impairment can last several hours.  Add to that the requirement to purchase more product to extend your time and you have the potential for significant issues stemming from the consumers impairment. 

So, if you’re currently operating a cannabis business and have an eye to open a consumption lounge, I would advise doing some diligence on your state and local regulations, then go even further to protect yourself.  It may seem like a great idea to open a flashy night club-like lounge with table service and THC infused mock-tails but limiting your liability exposure by requiring product to be purchased elsewhere might be the safer (and cost effective) option, at least in the short term.  As regulations and insurance coverage for these operations evolve, you may have more options available to you, and can expand your services in the future.

Author:
Thomas Cioletti
Trichome VP of Underwriting

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Cannabis marijuana investment indicator graph charts

Efficiency

Inefficiency is one of the biggest problems I see in the cannabis industry today. One major consequence of the rapid expansion of the cannabis industry is that companies had to scale so quickly to meet market demand that efficiency was often an afterthought. In the early days in Colorado vertical integration was a huge asset because it allowed companies to maximize their profit margin and grow quickly, essentially as fast as they could produce product and sell it. The need for warm bodies to expand the ranks of a business often outpaced the number of qualified candidates available, with long-lasting consequences to the organization.

As companies rapidly expanded, small inefficiencies were overlooked for the sake of progress--or due to lack of knowledge--and eventually these grew in magnitude and number. As basic best practices began to emerge, companies just entering the marketplace were able to draw on a more reliable knowledge base than those that entered the marketplace earlier and avoid some of the more costly mistakes. This, coupled with the leveling-off of demand, have created a situation where vertical integration is a liability if the company is inefficient. The same scale that allowed some companies to dominate the market early on has hamstrung some of these same companies as more agile producers gain competitive advantage.

The high market price of the early days allowed many companies to operate extremely inefficiently and still be profitable, but those days are over. In today’s more mature market the consumer is savvier, the competition is fiercer, and the regulations are tighter. The successful modern cannabis operator must make efficiency a priority from the start, and the way to do this is by developing a business framework that is based on established best practices rather than regulatory constraints. The real leaders emerging now are those that can accurately track cost, quality, and productivity across their organizations, allowing them to produce superior product while keeping costs to a minimum. This proactive approach allows companies the flexibility to allocate resources to new challenges as they arise, rather than face the business continuity issues and reallocation of resources that a more reactive approach creates.

In Colorado the wholesale price of cannabis has dropped below the cost of production for many operators, and these same operators are having to sell at a loss to move inventory and pay their costs, feeding the price collapse further. I have talked to multiple operators over the years who could not tell me what it cost them to produce a pound of cannabis. If an operator is already on the edge of profitability a sudden change in regulations, a product recall, or even a few batches that fail testing could put them under. The most important part of building any structure is the foundation, and NCRPS provides a complete framework for cannabis businesses that draws on the decades of experience we possess in the fields of risk management, cannabis R&D, large-scale cultivation, plant pathology, product safety, environmental site assessment, compliance, finance, and more.

Author:
Andrew Hatch
Director of Product Safety

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farm growing cannabis for a medical marijuana supplier

New Course Announcement: Site and Facility Evaluation and Feasibility

A new course has been added to the National Cannabis Risk Management Academy entitled, “Site and Facility Evaluation and Feasibility”. This is a critical step in the pre-operational planning for a new cannabis business. The course outlines basic screening and assessment methodologies to avoid many of the pitfalls that are delaying and disrupting new business owners as they rush to get a foothold in the cannabis industry.
The objectives for this course are to:

  • Increase your awareness of potential threats to your business associated with property acquisition and use of existing structures.
  • Recognize possible problems that can delay and disrupt opening the doors due to not properly screening, assessing, and selecting a property.
  • Understand the importance of establishing foundational business elements before starting a property search.
  • Learn a simple, yet proven process to identify, screen, evaluate, and select the best available location(s) for your business.
  • Learn key practices and considerations to include in the site selection process that go beyond basic location and zoning.
  • Understand that the work you’re doing to select a location for your business is the start of taking control of your business for future success.

Check it out as well as our entire curriculum

Author:
Jack Palis
Lead ESG Risk Manager and East Coast Regional Manager

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Insecticide Sprayer in Cannabis Farm

6 Ways to Protect Your Employees from Pesticide Exposure

Working in a cannabis cultivation has the risk of pesticide exposure which can lead to serious harm to the employee. The major types of pesticide toxicity are: acute toxicity (occurring from a single incident or exposure) and chronic toxicity (occurring from repeated incidents of exposure for many months or year). Toxic effects by pesticide exposure can range from mild symptoms, like minor skin irritation or other allergic symptoms, to more severe symptoms, like strong headache, dizziness, or nausea. Some pesticides can cause severe symptoms, like convulsions, coma, and possibly even death. The good news for cannabis workers is that most of the most dangerous pesticides to human health are typically not allowed in cannabis facilities, but the dangers are still there. No one deserves to be injured at work and we do not want to bring the pesticide residuals home to our families. So how do we protect ourselves and employees from pesticide exposures? Here are 6 ways to keep everyone safe:

  1. Work Shoes – You must assume every surface in an area that has pesticide applied has pesticide residue and any floor you walk on will leave residue on the sole of your shoes. Shoes that you bring from home should be removed when you get to the facility and replaced with your work shoe. Shoes that are slip-resistant and washable like chef clogs are ideal for cultivations.
  2. Wash Hands – Again we must assume pesticide is everywhere, so every surface or plant you touch will leave residue on your hands or gloves. You must wash your hand before you touch your face, drink, and or smoke. After you touch something in a cultivation area you immediately know I must wash my hands before I touch anything else. When in doubt wash your hands. And if you are using gloves or additional ppe make sure you are removing them correctly. (You can find the CDC guidelines for putting on and removing ppe here)
  3. Read Labels – It is illegal to use any chemical outside the way the label directions say to use it [except in used less quantiles and concentrations, and less frequently] A pesticide label will tell how to mix it, use it with a specific devise, the dangers of the chemical, and apply the chemical correctly. It also describes the specific personal protective equipment (PPE), which leads to number 4
  4. Proper PPE – The label will tell you what specific type and material PPE to use for the best projection from the chemical. This includes type of glove, eye and skin protection, and if respirator is needed. Even if the label doesn’t require it you can voluntarily protect yourself from the chemicals by wearing any PPE that you like. It should be noted if you use respirators (including N-95s) either mandatorily because the label says to or voluntarily your company must have a written respiratory protection program, as defined by OSHA.
  5. Apply Pesticides Off-hours- Many people have sensitivity to pesticides and the obviously pesticide residues are greater after application. It is a good idea to apply pesticides during off-hours as to allow the chemical residue to reduce over time and give your sensitive employees a break for the higher exposure.
  6. Adhere to the Worker Protection Standard – And last but not least your business must adhere to the Worker protection Standard (WPS). This is a federal standard that applies to all agricultural workers and pesticide handlers, which is essentially anyone who works in a cultivation facility. While it is an federal EPA standard it is typically enforce by the state agricultural department in legal cannabis states. The WPS includes pesticide safety training and a central location where certain information must be displayed, and other safety standards. For complete information about the WPS rule requirements, refer to the final WPS rule

Author:
Alex Hearding
Chief Risk Management Officer

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Commercial Growth of Cannabis on a Farm

Cannabis Companies Can't Make Money? My Response

In this month's column, Rocco responds to a recent Politico article pointed to high taxes, siloed state markets and access to capital as the three main reasons as to why cannabis companies cant make money.

My response:

While all are contributors to the absence of financial success today's cannabis markets, the article overlooks the interaction of capital access and the vital importance of a major discipline in achieving positive financial results.

Cannabis business leaders have become versed at blaming "external" risk factors, or those that are, for the most part, out of their control for their poor financial performance. While the negative impact of these contributors can not be discounted, true business success comes from maximizing the benefits from issues in a leader's circle of influence and not the less accessible issues in their areas of concern. The time is now to replace blame with accountability <footnote>

Cannabis needs to show profitability to create sustainable growth. Profitability, in turn, is generated at the COST line, not the REVENUE line. EFFECTIVE RISK MANAGEMENT is not only a process but a culture that fuels the discipline, accountability and execution required to drive cost out of a business or operation. Discipline, accountability and execution are cornerstones of successful companies that gel to create successful markets. Thriving markets are then led by best in class who raise the bar and drive improvement in others.

Additionally, capital availability traditionally trails profitability. Now the irrational exuberance of early cannabis valuation has been replaced by concern and expectation, the limited capital will flow to the companies who are profitable. This will establish sustainability and growth within this group of companies, while the others will stumble and some will die.

Market leaders in cannabis will follow the proven market leadership route of "operational excellence" by securing the best total product costs. EFFECTIVE RISK MANAGEMENT provides the roadmap through its combination of process and discipline.

Author:
Rocco Petrilli
CEO and President

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