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DOH Announces Important Updates On PA’s Medical Marijuana Program Including Draft Regulations for Growers/Processors.

On August 18, 2016, Secretary of Health, Karen Murphy held a press conference to give four important updates on Pennsylvania’s Medical Marijuana Program. One update was the previous announcement of John Collins named as the director of the Office of Medical Marijuana.

The biggest update was Secretary Murphy’s announcement that the Department of Health finished drafting temporary regulations for growers/processors. The DOH website includes two sets of draft regulations. The first is a general set of regulations focused primarily on the permit and application process. The second set of draft regulations is titled as specific set for growers/processors and is primarily focused on operational requirements. The draft regulations will be available for review and feedback on the DOH’s website until August 26, 2018. This is an important opportunity for those interested in Pennsylvania’s Medical Marijuana Program to help shape the regulations with any input and feedback.

The second update was the release of a survey on the DOH’s website seeking input from the patient and caregiver community. The update states that the survey’s purpose is to help in drafting regulations but the survey is primarily focused in what patient /caregiver information should be required in their respective applications and what information should be on the their respective identification cards. The questions concerning information visible on the identification cards may raise some issues with regards to privacy.

The third update was concerning Safe Harbor Letter. The Secretary announced that 53 Safe Harbor Letters had been approved to date and that the DOH is processing another ten more applications. The Safe Harbor Letter allows parents, legal guardians, caregivers and spouses of minors under the age of 18 certified with serious with medical conditions to posses marijuana in its approved from for the minor within Pennsylvania. The next question is where will these 53 possessors of Safe Harbor Letters obtain the approved form of medical marijuana. Maryland has just started to issue dispensary permits and that may in the near future be an initial source of medical marijuana.

If you would like to read more of Secretary Murphy’s updates, you may visit the website below.

Four Important Updates You Need to Know About PA’s Medical Marijuana Program

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The Possible Ethical Conflict Facing Pennsylvania Marijuana Attorneys

As readers of my blog are aware, there is a conflict between state laws legalizing medical or recreational/adult marijuana use and federal law which continues to classify marijuana as an illegal drug. Despite federal law, the marijuana business is booming and states are rapidly changing their laws to allow some form legal marijuana (medical or recreational). Pennsylvania just enacted its own Medical Marijuana Act opening the door for entrepreneurs who want to be part of the medical marijuana business. As a Pennsylvania lawyer, it is my job to advise potential clients on federal, state and local laws and assist my client to navigate within those laws. However, there is a potential ethical problem with a client who wishes to start a medical marijuana business due to the tension between state law and ostensibly controlling federal law. Essentially, I would be advising and/or assisting a client to commit a crime and violate federal law (which theoretically could expose an attorney to federal liability).

Rule 1.2(d) of the Pennsylvania Rules of Professional Conduct states “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” (Emphasis added).

Comment 9 to Rule 1.2 states that Paragraph (d) “prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” (Emphasis added).

Comment 10 to Rule 1.2 essentially states that when the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client ……, must, therefore, withdraw from the representation of the client in the matter.

Rule 8.4 states, inter alia, that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

If an attorney provides legal advise and/or assists a client in the formation or operation of a medical marijuana business, the attorney could be found to have violated the Rules of Professional Conduct by advising and or assisting that client to commit a criminal act under federal law.

Other states with medical marijuana laws have addressed this conflict with differing conclusions. Both Ohio and New Mexico’s respective ethics committees have issued decisions saying that lawyers within those states who represent marijuana businesses or marijuana touching businesses would be helping clients violate federal law and. therefore, the lawyer would be violating the state’s code of conduct.

Other states such as Arizona, Colorado, Illinois, New York and Washington State have explicitly advised attorneys within those states that it is not a violation of the attorney code of conduct to assist clients with marijuana related businesses. While other states have passed statutes or enacted policies to protect attorneys advising and/or assisting clients with marijuana related businesses. Ohio is now looking to amend their rules of professional conduct to address this conflict.

“Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.” –  HENRY WARD BEECHER

While waiting for state and federal laws to be set to true time, Pennsylvania lawyers will continue to represent their clients and provide advice on and assistance with Pennsylvania’s Medical Marijuana Act. Any potential violations of the Rules of Professional Conduct can be dealt with a latter time should it become an issue.

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9th U.S. Circuit Court Of Appeals Says DOJ Can Not Prosecute Medical Cannabis Businesses That Comply With State Laws.

In a decision which can only be classified as a win for the marijuana industry, the U.S. Court of Appeals for the 9th Circuit in San Francisco (the “Court of Appeals”) ruled Tuesday August 16, 2016, that the U.S Department of Justice (the “DOJ”) must comply with a Congressional rider which prohibits the DOJ from spending money to prosecute cannabis businesses which comply with state medical marijuana laws. United States v. McIntosh, 2016 U.S. App. Lexis 15029. (the Court of Appeals consolidated ten cases on appeal arising out of orders in three districts and two state courts within the 9th Circuit). The Court of Appeals was asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the DOJ from spending funds to prevent states’ implementation of their own medical marijuana laws. The rider in questions, Rohrabach-Farr Amendment, was adopted originally by Congress in December of 2014 and has been extended repeatedly.

The rider states:

  • None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

In a nutshell, Defendants argued to the Court of Appeals that the DOJ violated the Appropriations Clause of the United States Constitution by spending funds which Congress said it could not. The Court of Appeals ruled that the DOJ is prohibited from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

The Court of Appeals further stated that if the DOJ wishes to continue with these prosecutions, Defendants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which they mean that Defendants strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. The Court of Appeals sent all of the cases back to the U.S. District Courts for evidentiary hearings to determine whether each defendant had complied with their respective state laws.

The Court of Appeals further noted that while the lack of funds to prosecute is currently temporary it may become more permanent if Congress continues to include the same rider in future appropriations bills. The other side of that coin as stated by Judge Diarmund O’Scannlain is that Congress could chose to restore funding to the DOJ at any time in the future and the DOJ could continue these prosecutions under Federal law.

While it is entirely possible that Congress could choose to not include the rider in any future appropriations bills and allow funding for DOJ prosecutions, I believe that Congress’ position will continue to reflect the growing national movement relaxing prohibitions against marijuana and medical marijuana. The Court of Appeals decision is a huge step forward in alleviating the fear Federal prosecution which may in turn spur greater investment in the medical marijuana industry.

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The FDA has decided that it will not re-schedule marijuana under the Federal Controlled Substance Act but will allow more research of marijuana.   After months of speculation of whether the FDA would reschedule marijuana from a Schedule I drug to a Schedule II, the FDA is electing to take this half-hearted measure. The Federal government’s policy on marijuana has relaxed some in light of the nation’s changing laws and opinions toward marijuana -25 states have legalized medical marijuana and four states have legalized adult use or recreational marijuana.   However, the continued classification of marijuana as a Schedule I drug with no currently accepted medical use and a high potential for abuse does not reflect the views of the American people. A new Gallop poll shows that 1 in 8 – 13% – Americans currently use marijuana, and 43% said they have tried marijuana. Let’s face it, marijuana is no more harmful than alcohol and has been shown to have substantial benefits and applications to numerous medical conditions.

While only a baby step, it is welcome news to the marijuana industry that greater research will be allowed.   The change in Federal policy will allow universities and other licensed research facilities to grow and conduct research which will, hopefully, lead to greater supply of research grade marijuana and further changes in the law.   However, the federal government will likely create another level of regulation, and the criminal stigma and penalty associated with a Schedule I drug remains.

The move does represent a further relaxing of the views of the Federal government toward marijuana which first started with the DOJ’s Cole Memos.

The Federal government may publish the new policy as soon as today in the Federal Register.

For the DOJ’s explanation for rejected rescheduling, see DOJ Acting Administrator, Chuck Rosenberg, August 11, 2016 letter. DOJ Letter Rejecting Rescheduling


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ATF Responds to 4473 Comments and Apparently Does Not Care that It Violates Its Own Regulations

atf logo

Earlier today I received an email response from ATF in relation to FICG’s Comment in Opposition to ATF’s Proposed Changes to the 4473 Form which I drafted. You can find a copy of their response here.

In the comment I raised a number of issues including that ATF is the incorrect federal administrative agency for determinations of prohibition under 18 U.S.C. 922(g), that ATF cannot redefine a “fugitive from justice” in these proceedings, and issues relating to the certification statement. It was also requested that ATF revise the 4473 Form, consistent with the ATF Form 1 and Form 4, whereby it would include fields for fictitious entities, instead of requiring FFLs to draft and attach a fictitious entity form as required by 27 C.F.R. 478.124(g), for which, ATF provides no sample form. Most noteworthy, I challenged the language that ATF required individuals certifying information on the form to attest to.

Specifically, the individual is certifying that based on the

“…information in the current ATF Publication ‘State Laws and Published Ordinances’ – it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise disposes of the firearm(s) listed on this form to the person identified in Section A.”

The problem with that language is the the current publication of State Laws and Published Ordinances is the 31st version which dates from 2011. This means there is at least a 5 year lapse of information in the current guide.


The important part is that ATF’s own regulations require that “[t]he Director shall annually revise and furnish Federal firearms licensees with a compilation of State laws and published ordinances which are relevant to the enforcement of this part.” See27 C.F.R. § 478.24.

ATF’s response was rather comical.

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Essentially, ATF said that they don’t care the regulations, which they drafted, require that book be updated but rather they would change the language so the individual signing the form would not need to certify they relied on that book for information.

As ATF has a long history of abusing its authority one cannot help but roll their eyes at the nonsense and lack of accountability the agency has. Perhaps some calls from concerned citizens to congressional leaders will help get ATF back on track.


Who is my Representative?

Who is my Senator?


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Extremely Interesting Developments Relating to ATF’s Re-Opening of the Comment Period for the ATF 4473

As our readers are likely aware, I previously blogged that ATF had re-opened the comment period for the ATF 4473 form. After digging a little deeper, I determined that OMB issued a PRA Primer Memo of April 7, 2010 directing that an agency, after providing the initial 60 day notice period required by 44 U.S.C. 3506(c)(2)(A), summarize the public comments received and any response by the agency, then submit that information to OIRA and thereafter provide an additional 30 day comment period so the public has an opportunity to respond to comments submitted.

Accordingly, on August 5, 2016, I submitted a correspondence to OIRA and ATF citing to the PRA Primer Memo and explaining that in relation OMB Number 1140-0020 “ATF has failed to provide either (1) the actual comments submitted or (2) any summary of the public comments received (as well as any response by the agency); therefore, depriving the public of any opportunity to know what comments were submitted and depriving the public of an opportunity to respond to those comments and thereby eviscerating the purpose of the 30 day comment period.”

Although I received no response from OIRA or ATF, today, Attorney Adam Kraut, who drafted our Comment in Opposition, initially received an email from the ATF Firearms Industry Program Branch (FIPB) in relation to his June 1, 2016 email inquiring as to why ATF was not posting or providing access to the comments submitted regarding the proposed changes to the ATF 4473. FIPB stated that “Comments received from this information collection will soon be available on the website.”

Shortly thereafter, Attorney Kraut received a second email from FIPB with a response to Firearms Industry Consulting Group‘s Comment in Opposition. You can download a copy of ATF’s response to our Comment here. Additionally, I recently learned that ATF also emailed a response to our friends at Cannabis Industry Law Group in relation to their Comment in Opposition to the ATF 4473 and ATF provided this response.

It appears that OIRA was not exactly happy with ATF’s failure to comply with OMB’s requirements and directed ATF to correct its errors. It will be interesting to see if the 30 day comment period is extended to provide all interested parties with the requisite 30 days to respond, after ATF provides access to all comments received and its responses thereto.

If you are in the Firearms Industry and desire to file comments in relation to ATF, DDTC or any other federal agency’s rulemaking, contact us today to discuss how we can assist.

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John J. Collins Named As Director Of Pennsylvania’s Office Of Medical Marijuana

On August 4, 2016, Pennsylvania Secretary of Health, Dr. Karen Murphy, announced that John J. Collins had been named the director of the Office of Medical Marijuana. Collins is in an internal appointment from the Department of Health. Collins joined the Department of Health in April of this year and currently serves as a public health program assistant administrator in the Division of HIV Disease.

According to the DOH’s press release, Collins will be responsible for guiding the implementation of the state’s medical marijuana program, which is expected to be complete by early 2018. The DOH states Collins is a certified allied health professional and holds an MBA with a concentration in marketing from Lindenwood University. Collins also completed leadership training at the Wharton School, Aresty Institute of Executive Education, University of Pennsylvania. Collins also has extensive executive experience in the private sector, most recently as chief operating officer for Triad Isotopes, Inc., in Orlando, Florida.

According to Collins his has “experience in a heavily regulated medical enterprise, market research and new product development, strategic planning, logistics, communications, and customer service is a perfect fit for the requirements of overseeing the implementation of Pennsylvania’s Medical Marijuana Program.”

Collins will assume his new role on August 8, 2016.

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