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What Does It Mean To Be A Cannabis Lawyer? Part One Of An Interview With Marijuana and CBD Advocate Rod Kight

Mar 22, 2018

As cannabis legalization spreads and the old guard pushes back against progress, advocates like North Carolina’s Rod Kight find themselves at the center of the movements most important battles. A lawyer by trade, Kight’s practice focuses on the cannabis industry, and the fine line walked between state and federal laws. His blog, Kight on Cannabis, has become the definitive word on weed for marijuana industry insiders looking for the latest news and information on cannabis’ political and legal landscape.

In part one of our interview with Rod Kight, we discuss his history of advocacy, what it means to practice cannabis law, and the legality of cannabidiol (CBD).  

So Rod, from what I understand you have a very personal reason for becoming involved in cannabis advocacy. For the benefit of our readers, can you talk a bit about what led you to dedicate your practice to the cannabis industry?

So, I smoked pot in college like a lot of people do, and I always enjoyed it, and it always seemed kind of silly to me that it was illegal. But, then I had testicular cancer. I was diagnosed in 2009 in my 30's. At that point I was going through chemotherapy - I'm in remission now. I live in Ashville, North Carolina. My hometown is Augusta, Georgia. My then girlfriend, current wife, and my other family members were kind of taking turns coming up from Augusta to check on me and help me out through chemotherapy. One of the rotations was my younger brother. He came up to see me, and I was having a pretty rough day. I was feeling nauseated and achy and didn't have an appetite. I couldn't sleep, and I couldn’t get comfortable. These are all normal things for chemotherapy.

Bowl

I already had whatever medication I could take, and it wasn't helping. Then, he went downstairs and he-- I smelled weed coming up the stairs. So, I thought, you know, I've been in bed all day, and I thought I'll just give it a shot. I've read that marijuana helps. I frankly didn't really believe that it did. I always assumed that the medical marijuana piece was just a trojan horse for full legalization-- which I was in favor of-- but I just never bought into the medical thing. I went downstairs thinking I had nothing to lose and I took a couple hits off of his bowl and literally within about two or three minutes I felt substantially better. I could eat. The aches subsided. I didn't feel nauseated at all anymore. So we ended up spending a couple of hours just hanging out talking. I ate a couple of plates of food. It gave me energy, and at that point, I realized well, you know, there really is something to this whole medical thing with marijuana.

So I started using it throughout chemotherapy, and it really helped me. Then, after that, I began to investigate all the medical pieces that go along with cannabis, and I learned an awful lot. I think at that point I realized that I needed to become an advocate. It wasn't just hey, this is a personal freedom issue. This is about medicine for people. So I studied all I could.

And what’s the learning curve like? I’m guessing they don’t teach this in law school.

I appreciate that. I haven't practiced criminal defense law in over a decade, so in my advocacy, I couldn't really do it in the form of representing people who had been charged with marijuana crimes. I was at a little bit of a loss. Most of my practice is business and bankruptcy, in particular, business reorganization. So, I decided that I wanted to start representing these different businesses and individuals in the legal cannabis industry. I didn't know how to do it. I know business law, so I went online to try and find what we call hornbooks-- these are legal books specific to different areas of the law.

Like you said, there's nothing to explain how you do this. So, I started investigating on my own the different issues that these businesses would face. Everything from taxes to trademarks to real estate issues to joint venture. There’s all the different variations of what happens with marijuana from the different medical laws, the different recreational laws, so on and so forth. I started to pull these things together. I had written a couple of books on bankruptcy law, my specialty, for a legal publisher. They called me up about during this time period when I was doing my investigation and asked about me writing another bankruptcy book.

I said well, you know, I'm actually interested in writing a book on cannabis business law. I pitched the idea to them, and they took it. So, I used that next year pulling all this information together and wrote a book, and that helped me to learn the issues. I started taking on clients, and there we go.

And just so our readers can have a better understanding of exactly who you are, can you tell us what it means to practice “cannabis law”? As a lawyer/consultant to the cannabis industry, what is it that you find yourself doing most days?

Sure. That's a great question, and it's actually a question that’s sort of tossed around in cannabis legal circles too. What does it mean to be a cannabis lawyer? I think generally speaking I’m a business lawyer that represents businesses in the cannabis industry. So a lot of what I do are things that are typical for any business lawyer. We draft and vet and negotiate contracts. We help form businesses, and we help in asset purchases and sales, and we help in transactions involving all sorts of assets including plant material, like international hemp transfers. So all of the things that you might imagine that any business does whether it's for selling shoes or bikes or cars or cereal, but specific to the cannabis industry. The cannabis industry is simultaneously highly regulated and exists on various legal plains.

For example, in Oregon recreational or adult-use of marijuana is lawful, but of course, it's completely illegal at the federal level. So you've got two different opposing legal statuses going on, and that's highly, highly, highly unusual in the law for that to exist. Also, a lot of the work we do is with hemp and specifically CBD. CBD is legal under certain circumstances. A lot of the time that I spend is advising clients on how to stay on the right side of the law. I do a lot of drafting of opinion letters. You're just sort of ferreting out, what is specifically legal? Because CBD right now is-- there's-- it's complicated, and it's rapidly evolving. So we do a lot of that sort of heavy, you know, this is what's legal, this is what's not. Here's how things are evolving and we project for clients in that respect as well.

CBD
CBD is the next big legal fight in the world of cannabis

Let’s talk a little about CBD because in some ways its become more popular than cannabis itself. But there still seems to be some confusion on its legality. Can you clarify for our readers the legal status of CBD?

The quickest summary I can give is that CBD is legal or not based on its source. Just to expand on that a little bit, CBD is not a scheduled substance. Unfortunately, there have been-- there’s a huge misunderstanding about that statement in and of itself, and that has to do with a lot of statements that the DEA has made in the past, but CBD is not legal or illegal in and of itself. So, as you're probably aware, marijuana is defined in the law as the cannabis plant and all of its constituent components except for the stalk of the plant. So, that means that anything that comes from the marijuana plant is itself when it comes to the law defined as marijuana. So, if we have a marijuana plant and we pulled the pure CBD isolate from that marijuana plant, that is still considered illegal marijuana under federal law.

Now, on the other hand, there are three lawful sources of CBD. One of the mature stalks of the marijuana plant which are not included in the definition of marijuana. The next source is industrial hemp that's lawfully grown under a state's pilot industrial hemp program. That just means it's cannabis that's grown under the program that contains .3 percent THC or less. CBD dried from industrial hemp is lawful. Then, the third category of lawful CBD is CBD that's derived from what's called non-psychoactive hemp that's cultivated outside the United States. That derives from a 2004 case called Hemp Industry Dissociation versus the DEA.

We could go down a rabbit hole and talk about synthetic CBD or CBD can be pulled from other plants other than the cannabis plant. There's some evidence that that can occur, but for the most part, CBD is a product of the cannabis plant.

Recently on your blog, you wrote about the FDA’s position on CBD and how they appeared to be trying to blur the line between marijuana and CBD. What is the FDA's position on CBD exactly?

The FDA has said that CBD products cannot be classified as dietary supplements. That has a lot of legal meaning, but one of the things it means is that you can't call it a supplement. You go to the store, and you can buy supplements-- Saint John’s Wort and vitamin products and everything else, but you can't call a CBD product a dietary supplement. The other thing and the only thing that the FDA has really done so far is it has indicated that you cannot make medical claims, and I'm just using that term generically, about CBD. So, for instance, you can't say our CBD product helps with headaches or cures cancer or helps with anxiety or whatever it is that the CBD product may actually be able to do. There's peer-reviewed research that it can do all of those things under certain circumstances, but you can't make any health claims with CBD products. There's a lot of technical language in the food, drug, and cosmetic act about the boundaries of that. We do a lot of educating our clients on those boundaries, but speaking in general terms. That’s the only act that the FDA has really taken.

Now, to get to your question about how it really views CBD. You're probably aware that GW Pharmaceuticals, a British Pharmaceutical company, works with the cannabis plant. They have gone through all of the test trials for a medication called Epidiolex, a CBD medication.And it has not been approved yet. Everyone sort of assumes that it will be approved by the FDA as a prescription drug this year. The big question is, what happens when the FDA approves Epidiolex as a drug? Is that the point the FDA will say okay, well, now CBD is a restricted drug. You can get it through Epidiolex if you're prescribed it, but you just can't use it to enrich other products or sell it over the counter for people to take, or will the FDA leave it alone? There's sort of some precedent for both views. One view is that the FDA is almost certainly going to restrict CBD. The other view is that well, the World Health Organization just came out with a preliminary report stating that CBD has a lot of medical potential. It's non-toxic, it doesn't have any abuse potential at all, so on and so forth. If it's a completely safe ingredient, why would the FDA ban it? So we're kind of holding our breath to see what the FDA says.

So then, what would you say the public needs to know about CBD that they don’t?

I think the crucial piece is now we're working to a distinction between hemp extract and CBD isolate. By hemp extract, I'm just referring to what's known on the market as full spectrum, where we're not taking the CBD isolated molecule and enriching other products with it. Would that product just be coconut oil and CBD isolate in suspension or CBD mixed in with all sorts of other natural products for an end user? That's, you know, CBD isolate, but I'm talking about hemp extract where you pull out all the cannabinoids and terpenes and phytonutrients from the plant and mix that into an end use product. The FDA can't regulate that. That's wholly different from CBD isolate which is the thing that's going through test trials right now. So I think we're going to see a split between isolate based products and the way the FDA views those and full spectrum or hemp extract products and the way the FDA views those.

*Look for part two of our interview with Rod Kight tomorrow, where we discuss U.S. Attorney General Jeff Sessions, Rod’s Letter to Senator Tillis, and the move to overturn marijuana convictions across the country.

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