Miller Nash Graham & Dunn attorneys represent start-up and established cannabis businesses in state and local jurisdictions and have worked with highly regulated businesses for decades. When Initiative 502 passed in Washington in 2012, followed by Oregon's Measure 91 in 2014, clients approached us for our regulatory and business advice. At first, we hesitated. We did not have experience with the then-existing industry, nor was this type of representation addressed by the Washington State Bar Association or widely accepted for traditional law firms.
As our own clients pointed out, we had extensive experience providing guidance and counsel to highly regulated industries—including the gambling and liquor industries. After the Washington Supreme Court adopted a new comment to the Rules of Professional Conduct for attorneys, paving the way for such representation, we took on our first cannabis client.
We found the initial work to be something we were quite used to: providing advice on business structure, formation, and corporate governance. Our next assignment was offering comment and suggested revisions to the initial draft rules that now govern the industry. Our prior experience in other highly regulated industries had well prepared us and given us a frame of reference for providing insight on those regulations.
We also found that, while regulatory compliance must always be top of mind and govern every transaction, cannabis clients really needed the same business counsel that our firm has provided to new and emerging businesses in the Pacific Northwest for over 100 years. And now, having taken part in drafting the initial regulations—and countless amendments and legislative bills since then—we fully understand the context of how the rulebook has changed since the inception of the regulated cannabis industry and are able to apply that understanding to our clients' businesses.
Businesses Holding Cannabis Licenses
Cannabis industry members face more legal hurdles than many other business owners. Although our cannabis clients find their work very rewarding, keeping up with ever-changing regulations and compliance requirements can be difficult and frustrating. We understand these challenges and have built a multidisciplinary team of attorneys to provide clients guidance on achieving their business goals while staying compliant.
Our Cannabis Team provides assistance to a wide range of licensed cannabis clients and clients seeking licenses on issues that may arise anytime in the life cycle of a company. We have assisted cannabis clients with business formation, license application and updates, general business operations and contracting, regulatory compliance, tax planning, administrative violations, business disputes, and acquisition, sale, divestiture, and dissolution—all within the unique context of a licensed cannabis company. Our Cannabis Team applies its deep knowledge of the applicable rules and regulations to craft agreements and transactions that are sophisticated and in line with those rules and regulations. When disputes arise, or when business practices are called into question by governing state agencies, our Cannabis Team stands ready to help. In addition to business and transactional matters, we assist clients with a full range of dispute resolution services involving regulatory enforcement actions, business partner disputes, receiverships, and tax disputes. We have also successfully assisted clients with agency rule making and legislative strategy, helping our clients’ voices be heard when it comes to the creation and the amendment of laws and regulations that will have a lasting impact on the industry or business operations.
Businesses Supporting Cannabis Licensees
Although the cannabis is a new industry, it’s already making its mark. Engaging with the cannabis industry may create new opportunities, but also comes with new risks.
Our Cannabis Team has assisted individuals and businesses outside the licensed cannabis industry to successfully engage with the industry. We have helped a wide range of clients, including real estate developers and owners, financial institutions, software developers, technology companies, investors, and vendors navigate the risks involved in working with the licensed cannabis industry. We have also assisted in the development of policies and guidelines to document and govern how and to what extent these clients engage with the industry. We have structured, negotiated, and documented a multitude of business arrangements between industry members and supporting businesses, all in the spirit of regulatory compliance. Making meaningful business connections with the cannabis industry requires careful navigation. Our multidisciplinary Cannabis Team can help individuals and businesses outside of the industry understand legal risks and assist in creating long lasting and compliant relationships.
Our Cannabis Team assists businesses engaged in the cultivation, processing, distribution, and sale of hemp and cannabidiol (“CBD”) products. We help our clients successfully navigate the confusing and still-developing legal and regulatory landscape for hemp and hemp-derived CBD products. Our work includes guidance on the laws and regulations being introduced at the federal and state levels, such as working on Farm Bill-compliant state and tribal legislation and regulations; the protection of intellectual property; issues surrounding shipping, packaging, labeling, marketing, import and export; advice on research and research partnerships; and CBD product manufacturing issues. Our Cannabis Team’s consistent monitoring of federal agencies and frequent communications with state regulators allow our attorneys to offer sophisticated and meaningful insight to best meet the challenges faced by our clients.
A Note on Federal Law
Our cannabis practice is limited to advising clients on conduct permitted under California, Washington and Oregon state law, and our advice is limited to Washington Initiative 502 and Oregon Measure 91 and the statutes, regulations, orders, policies, and other state and local provisions implementing them. Such activities may violate applicable federal drug laws and therefore carry risk of criminal penalties, including forfeiture of property. The current policy of the U.S. Department of Justice regarding its enforcement of federal criminal law in this area is reflected in the memo of January 4, 2018 (the "Memo"). The United States Attorneys for the Western and Eastern Districts of Washington and the District of Oregon have also issued statements regarding federal marijuana prosecutions in light of the Memo. United States Attorneys in other jurisdictions have also issued statements in response to the Memo which are publicly available. The Memo may result in some change from prior federal practice in this area, although what that change may be, if any, we are not able to predict. Further, these policy statements are subject to change, in part because the United States Attorney General and United States Attorneys are political appointments who are also subject to change. We are not criminal lawyers and are unable to advise on criminal matters relating to cannabis.