Since 1996, starting with California, states have acted independently to legalize cannabis at the individual state level. Additionally, at least some form of federal cannabis regulation has been before Congress of the last 7 years. However, federal decriminalization of cannabis has yet to be attained, leaving the states to continue to regulate cannabis on a state-by-state basis. The resultant patchwork of state regulatory schemes has recently come under threat by the Dormant Commerce Clause (DCC). Specifically, recent case law has taken aim at certain residency eligibility provisions inherent in a state’s cannabis regulation, finding that these residency requirements – arguably necessary to respect the Commerce Clause in the Constitution – discriminates against out-of-state goods or non-residents in violation of the DCC. This presentation is intended to explore the impact of the DCC on the existing state-specific regulations, as well as an eventual legal national cannabis marketplace.
Key topics to be discussed:
What is status of state and federal regulation of cannabis?
What is the DCC?
Why is cannabis unique regarding the DCC?
What can the industry expect to see next as the states and federal government reconcile the interplay between the federal criminalization of cannabis under the Controlled Substances Act and the DCC?
Date: December 28, 2022
Whitney Hodges | Sheppard Mullin
Whitney Hodges is a partner in the Real Estate, Land Use and Natural Resources Practice Group in the firm’s San Diego office. She is a co-leader of the firm’s Cannabis Industry Team and the office Recruiting Chair. Whitney’s practice focuses on the representation of clients involved in real estate development.
She advises and represents major residential, industrial, commercial and mixed-use development projects, as well as Native American Indian tribes, cannabis operators and renewable energy developers through all phases of the land use regulatory process and environmental compliance. Whitney was recognized a “Cannabis Trailblazer” by the National Law Journal in 2020.
Sarah Blitz | Sheppard Mullin
Sarah Blitz is an associate in the Business Trial Practice Group in the firm’s Los Angeles office. Sarah is a co-founder and leader of Sheppard Mullin’s Cannabis Team, which has been recognized as a “Cannabis Practice Group of the Year” by Law360. Sarah has been individually recognized as a “Top Cannabis Attorney” in California by the Daily Journal and was named to the Global Top 200 Cannabis Attorneys list in 2022.
Sarah’s cannabis practice spans the legal-cannabis industry value chain. She represents cannabis, hemp, and ancillary businesses in litigation and she also provides counsel on regulatory compliance, business strategy, and risk management. A commercial litigator by training, Sarah is valued by her clients for her strategic insights and ability to anticipate and account for issues before they arise.
I. What is status of state and federal regulation of cannabis? | 1:00pm – 1:30pm
II. What is the DCC? | 1:30pm – 2:00pm
Break | 2:00pm – 2:10pm
III. Why is cannabis unique regarding the DCC? | 2:10pm – 2:40pm
IV. What can the industry expect to see next as the states and federal government reconcile the interplay between the federal criminalization of cannabis under the Controlled Substances Act and the DCC? | 2:40pm – 3:10pm