This is Part One of a four-part series discussing European cannabis regulations. Part One serves as an introduction. Part Two, coming next week, will analyze the differences between the UK, the EU and the US. Stay tuned for more.
As I walk through any European cannabis expo – events like Cultiva Hanfexpo, Cannafest Prague or Spannabis – it is easy to be struck by the differences to those in the U.S. First, there are no THC products, nor are there any CBD food products such as drinks or confectionaries. This is because of the EU Novel Food regulations: “which applies to any food stuffs not commonly used for human consumption before 15 May, 1997.”
As a result, American CBD manufacturers – with virtually no regulation of cannabinoid infused products – have an enormous advantage. In the EU, any “novel food” must be tested and proven to be safe for human consumption.
Still, hemp was not always considered “novel.” In 1997, hemp plant products were considered outside the scope of the regulations EC 258/97.” And more specifically, “that hemp flowers … are considered to be food ingredients” (e. g. used for the production of beer-like beverages).Hence, not ‘novel.’
So, right until the end of 2018, nature more or less aligned with the legal establishment, and many products made it safely to market because extracts of cannabidiol (CBD) were considered ‘novel’ only if the levels of CBD were “higher than the CBD levels in the source of the plant itself: Cannabis sativa L.”
However, in January 2019, the catalogue entries for “Cannabis sativa L.” were updated, such that even a naturally occurring level of cannabinoids are now excluded. For the industry, this was a frustrating turn of events, affecting any and all food products to which CBD might be added – confectioneries such as gummies, brownies or cakes, but also includes oils and tinctures containing CBD extracts and other cannabinoids.
Technically, all products on the EU market containing natural CBD or an isolate or distillate are illegal. So, the industry has been playing a cat and mouse game, where consumer labels display vague information or simply state ‘not for human consumption’. The result is a well-developed gray market, that hinges on benign authorities in your jurisdiction.
Sometimes, a producer is able to convince authorities that their product is allowed under Article 4 submission, whereby the producer claims that any CBD content in the food is naturally occurring and a traditional food.
Article 4 is a provision of the Novel Food Regulation (EU) 2015/2283 that allows an operator to check with the national authority on the status of a particular food before bringing the product to market. In the framework of this EU regulation, the operator checks whether the food is traditional or novel. If the food is considered traditional, then the food can be placed on the market immediately. But, if it is novel, it requires a Novel Food authorization.
Good news emerged on June 2, 2023, where in the EU, it has been agreed that once again, hemp leaves are considered a traditional food and are no longer considered Novel. Hemp leaves and tea can be marketed in the EU without further hurdles, but this does not include extracts.
In the case of extracts, CBD isolate and distillate are Novel, not traditional, and a firm must provide toxicology reporting. Both EU and UK law provides that any product containing a CBD extract placed on the market falls under the Novel Food regulations. Ultimately, tests must verify with a high degree of certainty whether CBD is safe to ingest in any amount. And how much is safe before changes occur to internal organs such as the liver or reproductive systems. The FSA will verify results in the UK, while the EFSA is responsible for the EU.
In the EU, the EFSA will send their final recommendation to the EU commission for approval, where after a 27-member vote, the item will be added to the Novel Food Catalogue. Approval at the individual state level, is next to impossible to acquire, for example, Austrian law states: “Oils/extracts containing cannabinoids placed on the market as such or in foods are considered novel foods and must be authorized in the EU.” No such approval is currently available. Placing it on the market is therefore not permitted.
No ambiguity there!
Some EU countries, such as Greece for example, appear more lenient and others not, but it is retail that is first in line for fines if an investigative authority walks in the door. The situation is certainly nerve-wracking, and having suffered through several of these AGES investigations, I closed my store as a result. Others have had similar experiences. One large retail chain owner reported that he fears the check by the authorities, as each one leads to a fine of some sort, or the demand to remove products. Without notice, he says, the health authorities could decide on even harsher punishments such as larger fines or even removing his business license. Then what, he wonders?
Between 2020 and 2021, cannabis vape cartridges saw 25% year-over-year growth and all-in-one vapes grew a whopping 64% as a category during the same time period. Two years later, the vape space shows no signs of slowing down. There are more strain and extraction style options than ever, not to mention advances in consumption device technology.
That huge growth and diversification means consumers have a lot of choices and decisions to make. Cutting through that noise takes a little know-how, however. For a shopper who’s hesitant or overwhelmed when comparing multiple vape options, brands and budtenders can start with some informative, friendly education on how terpenes deserve their consideration.
Why are terpene profiles so important? Imagine going into a wine store and only getting a recommendation for red or white at different price points. You might end up with something delicious that fits your budget, but you’re missing out on deeper nuances that could enrich the experience. Consumers don’t know what they don’t know. But brands can do better.
Terpenes and the Entourage Effect for Vape Products
Instead of the indica-sativa-hybrid trichotomy, focus on the kind of experience you want to have. Understanding terpenes can go a long way to helping consumers find the strains that produce their favorite flavors, scents and sensations. Also key is understanding how terpenes work together in different strains—a phenomenon known as the entourage effect.
The chemical structure of cannabidiol (CBD)
The entourage effect is often simplified to a collaboration between major and minor cannabinoids like CBD, CBG, CBN and THCV. But a true entourage effect isn’t just the combination of different cannabinoids. It’s the combination of terpenes, cannabinoids, flavonoids and other chemicals such as esters.
Why does this matter? The best cannabis represents the best of each of these elements, not simply terpenes and cannabinoids. As a result, the best cannabis vapes are the ones that can preserve all of these elements and produce an entourage effect.
This is where it’s worth pointing out the pros and cons of low-end cannabis vape products. Cheaper strain profiles typically feature fewer ingredients, including the terpenes, flavonoids and esters that contribute to a distinctive entourage effect. It’s not a matter of upselling: Sure, the price point might be attractive, but one-size-fits-all weed isn’t the experience most consumers are ultimately looking for.
How Extraction Methods Impact Cannabinoids, Terpenes and Other Chemical Compounds
The loss of crucial members of a cannabis cultivar’s entourage is one reason extraction methods make such a big difference. It can be hard for many consumers to cut through the jargon of resin vs. rosin, CO2 vs. butane, ice vs. heat and so forth. But one simple way to break it down is this: botanical, aka distillate, terpene profiles typically have 30-60 ingredients. Meanwhile, cannabis-derived terpene profiles will have over 100.
A live rosin vape by Bloom
On the high end of that spectrum is rosin. Rosin products typically will have the largest number and range of flavor components. That’s one reason this category is so popular with cannabis connoisseurs who are particularly dialed into the flavors and effects of the products they consume, vape carts included.
Why Hardware Matters
There are two primary types of vape consumption hardware—510 thread batteries combined with various brands of vape carts, or all-in-one vape devices that come pre-loaded with proprietary concentrates. 510 thread systems were carried over from the nicotine vape space, and quickly became the industry standard because they allow consumers to try vape carts from many different brands with the same rechargeable battery. There is a caveat: Temperature variance can affect the consumer’s experience for the worse, particularly with sensitive terpene boiling points.
All-in-one devices have been gaining popularity because they’re so easy to use. They come pre-loaded with concentrates and don’t require any charging cables or changing device settings. All-in-ones are typically pre-set to a tight temperature range well-suited to their unique concentrate formula—all a consumer has to do is put the device to their lips and pull.
A quality piece of vape hardware won’t produce a burnt flavor or irritate the nose. The flavor will come through cleanly and the draw should be smooth and consistent. Indeed, the latter is another sign of quality vape hardware consumers should know to look for—the resistance of that pull can vary widely between brands. The concentrate should draw easily from the chamber. If it feels like sucking a hefty milkshake through a straw, both the hardware and the concentrates inside are probably not the highest quality.
Whichever terpene profile, strain, extraction technique or device category is on a customer’s mind, it’s critical for brands and budtenders to help guide consumers to their individual best-fit cannabis vape experience.
The vaping technology market is a constantly evolving landscape, driven by the changing needs and preferences of consumers. Staying relevant in this competitive market requires companies to deliver exceptional vape experiences. Airo Brands has risen to the challenge since its inception, offering a diverse product portfolio that includes multiple vaporizers, pod blends and flavor combinations, all crafted with the latest technology, natural ingredients and intuitive features. Airo Brand’s commitment to delivering state-of-the-art products has resulted in impressive year-over-year growth and expansion into new markets.
Maintaining Consistency Across a Diverse Product Portfolio is Challenging
With three types of vaporizers and an array of cartridge oil formulations, Airo Brands needed a machine that could accommodate various products, streamline operations and produce consistent, high-quality devices to grow the business. But given Airo’s complex product offering, there were potential challenges with oil viscosity, temperature and dispense control, making it essential to find a reliable machine that could switch between products easily and streamline operations without compromising quality.
Finding an Easy-to-use Machine that Evolves with Time is Critical
Airo Brands recognized the significance of investing in a machine that could handle product variations, was simple to use and could accommodate their growing footprint. Airo Brands turned to Thompson Duke Industrial, an original equipment manufacturer that creates automated solutions for filling and capping vaporizer cartridges. Early on, our teams worked together to test and revise a custom septum-fill adapter to fit their needs. Airo was impressed with our availability to troubleshoot issues and come up with solutions in real-time. As the industry evolved, Airo Brands updated to a new cartridge design and switched to automated machines, a transition that our machinery and team handled with ease.
With Thompson Duke Industrial’s IZR machine, Airo Brands’ partners can fill a variety of different products, up to 30 variations. The machine’s straightforward design allows its operators to turn over and switch between various products in only a few minutes. The IZR’s simplicity and efficiency with setup, clean-up and maintenance make a huge difference in output. Airo now has the ability to train partners on how to fill their products with one machine versus several, which has also been a huge advantage.
Strong Partnerships Go a Long Way
As a result of our partnership, Airo Brands was able to implement automatic solutions that evolve with the industry to accommodate its diverse product portfolio and growing footprint. Erik Stewart, COO of Airo Brands said, “Thompson Duke Industrial’s machinery handles viscosity, temperature, and processing challenges with ease – and this is exactly what we need to create consistency and quality across our growing business.”
How to Choose the Right Equipment to Set Up Your Business for Success
When choosing cannabis equipment, it is important to work with a partner who is capable of developing innovative solutions that align with evolving industry needs. In the world of machinery, simplicity is key. Streamlined setup, uncomplicated maintenance processes and quick product turnover enhance operational agility. For companies managing multiple partners, the ability to train teams on a single machine is also an advantage.
As your business expands into new markets, consider your equipment’s adaptability, scalability, and capacity to deliver high-quality consistent products. Airo Brands is an example of how automation can drive unprecedented growth. Due in part to the introduction of efficiencies and speed through automation, they were able to expand their footprint across 17 states and increase their SKUs, rising from 38 to 180.
The cannabis industry isn’t a level playing field. It’s disheartening to say. But as someone who has been building a soon-to-open dispensary for the last three years, I’ve experienced this lack of equity firsthand.
It starts with the industry’s foundation. We’re in an era where anyone can start a business. Create a logo, launch a website and upload promotional content on social media. A few clicks and…boom, you’re a business owner. Lovely, but absolutely not the case for the cannabis industry.
Getting started is no easy feat.
Budding cannabis entrepreneurs (pun very much intended) need a ton of capital in order to get started. And as cannabis isn’t federally legalized, entrepreneurs don’t have access to traditional banking loans. They either need to fund their cannabis venture with their life savings or turn to family, friends and their community to fundraise. Unfortunately, not everyone has such privilege or access. This reality contributes to the industry’s unequal playing field – and due to a lack of legalization, shows no signs of letting up.
Jessica Gonzalez
Jessica Gonzalez, a Jersey City-based attorney and cannabis advocate, spoke to this challenge in a recent NJBiz interview. “It’s extremely expensive to enter and survive in this industry, and given the limited capital options, you are forced to seek private investors – which opens a whole can of racial and gender bias. The need to stay capitalized, coupled with constantly changing regulatory environments, expensive service professionals, lack of real estate, a social stigma and IRS tax code 280E, creates high barriers to entry and high survival barriers.”
As Gonzales notes, funding is just one piece of the puzzle. Once you’ve secured said funding and have decided to start a cannabis venture, you’re navigating a minefield of ever-changing regulations. This demands the help of pricey service professionals–attorneys, operators, marketers and more–who remain abreast of current laws and have the subject matter expertise to properly guide you.
The issues with the cannabis industry are clear – funding is difficult to secure, marketing is nearly impossible and pricey consultants are table stakes. On the bright side, operating in cannabis isn’t all doom and gloom. Solutions are ahead–and they’ve been baked into the operating strategy of many fantastic, social-equity led dispensaries, includingSocíale, the soon-to-open Park Ridge, IL dispensary. While getting started is no easy feat, as leaders, we should each take it upon ourselves to empower those wanting to work with this life-changing plant by developing an industry that’s ripe with endless opportunities.
Economically empowering employees should remain top-of-mind.
The lack of equitable wealth creation in the cannabis industry bolsters its inaccessibility. It’s unfair that if a dispensary or cannabis business succeeds, only the entrepreneur wins financially. Yes, employees may get a small discretionary bonus at the end of the year – but they’re not woven into the fabric of the business’s profitability. Employees – and those earlier in the value chain, like growers – are left out in the cold, while dispensary owners seek to profit immensely.
Personally, when I started in the cannabis industry, I thought this dichotomy was blatantly unfair – and vowed to be a powerful force in changing that. At Socíale, profit sharing is a part of our DNA. Employees will take part in dispensary profits from the day they start. This way, everyone wins–and if employees decide to start a cannabis venture of their own, that ambition is more in reach. This is a massive piece of what the cannabis industry preaches when it has conversations surrounding social equity. It’s time the industry and its leaders back up this ideology with a plan of action. Embracing the concept of ownership not only among founders and senior leaders, but among employees at all levels, can provide a valuable taste of entrepreneurship. Situations like these often empower employees economically to create lasting changes for not just the company they’re working for, but for themselves and their families at home.
Social equity license holders should pay it forward.
Social equity dispensaries should embrace the pay-it-forward mentality among the communities of which they serve, especially those disproportionately impacted by the War on Drugs. It’s unfortunate to see dispensaries falsely advertise with a “social equity” label, merely for the vanity of it all.
Socíale is beholden to certain promises we made to the state of Illinois, who granted us our social equity license. This includes employing people from under-represented communities and advocating for cannabis social justice – two causes that we’re deeply committed to. As we look to shape the future, let’s remain hopeful about what it holds. Collaboration over competition needs to be the motto. If we all partner together to think beyond profits and aim to better the greater cannabis community, we’ll all be better off.
While pre-rolls are finally getting their moment, posting notable growth across virtually every market, much of that growth has been powered by the infused pre-roll subcategory. In Michigan, for example, infused pre-rolls now make up over 40% of the category, and 9 of the top 10 best selling pre-roll products are infused. But what’s driving this trend? How can brands capitalize on this new opportunity?
A galaxy of variations… and differentiation.
Once saturation and price compression rear their ugly heads, cultivators in maturing markets quickly realize that producing just flower is a tenuous position. You are beholden exclusively to the price of flower, and it is often the first category that begins a race to the bottom. Diversifying your offerings, specifically with value-added products, is a necessary path to protect your brand and continue to grow as competition heats up. Pre-rolls are a common first step beyond flower because it’s a relatively convenient step. Many smokers roll flower into joints anyways, so why don’t we do it for them? It’s also been the only category to show steady, consistent growth across virtually all markets. The problem is that none of this is a secret, and so the pre-roll category can get crowded quickly. To stand out amongst the crowd, many brands are turning to a subcategory with an almost limitless potential for differentiation: infused pre-rolls.
An infused pre-roll sold at BeLeaf
While standard pre-rolls have only two ingredients (paper and flower), by adding an infused element to the product you introduce an almost limitless potential for differentiated products. “Our team is doing a lot of R&D on pairing the right flower with the right extract to create an entirely new experience,” says Jason Nelson, CEO of BeLeaf in Missouri. “We’re hearing a lot of legacy consumers talking about the entourage effect between flower and extract, which is something that is still being explored.”
Almost anything can be infused into pre-rolls: distillate, diamonds, rosin, shatter, the list goes on. Not only that, the concentrates and extracts world expands nearly every day with some new creation, which means the infused pre-roll subcategory expands along with it. “There are tens of thousands of combinations you could make,” says Nelson. “The sky is limitless, assuming you have the right technology in place to produce them consistently.”
Being the same as everyone else can mean death for a cannabis brand, but creating unique products that few other brands have – that’s the key. Separate yourself from your competitors.
Pack more punch… and more profit
It’s no secret that many brands use their less-than-premium flower in their pre-rolls. That’s a big part of what has historically given the pre-roll category a reputation for poor quality. We often answer questions from customers asking how much trim they can include in their pre-rolls. While we advocate for always using quality flower and little to no trim, there is still a place for budget-friendly products in the category. That’s where many brands find an excellent use-case for infusion. You can infuse average flower with distillate (or some other extract) and even fruit terpenes to give it a significant “glow-up.” With the right combination, a very average budget pre-roll can be turned into a product that tastes better, smells better, is more efficacious and is more profitable than a non-infused, low-end pre-roll.
A preroll infusion automated system
In a competitive market, value-added products are important and infused pre-rolls add value two degrees past flower. That translates to better margins and more cushion from the fluctuation of flower pricing.
“Our infused pre-rolls average retail price is more than double that of our non-infused products,” says Noah Levine, head of Oregon-based category leader Benson Arbor. “But our cost to produce an infused pre-roll is less than double non-infused. We end up with significantly higher profit on our infused products.”
Of course, there is more to consider beyond just profit. But CEO of The Clear, Rich Batenburg, Jr. has an important reminder to everyone in the cannabis business: “Remember, prices never go up in cannabis! Before launching a product into this subcategory, you need to determine if it has sufficient margin to sustain the line over time.”
Collaborate to accelerate
Collaborations between brands are becoming more and more common in the cannabis industry, especially between brands that specialize in separate categories. It’s not a new concept – craft breweries have been using this tactic for years. Fans of each brand get exposed to the other, and in some instances even get introduced to a new category. It’s become so common, in fact, that many brands exclusively create collaborative products.
A DialedIn and Terrapin Care Station collaboration
Although they focus on live-rosin edibles, DialedIn Gummies in Colorado used this tactic to power their meteoric rise over the past several years. Every single DialedIn SKU is a collaboration with a different grower. DialedIn’s VP of Sales Keith Portman says, “Our collaborations have been a huge factor in our success. Including our partner’s logo on our tins helps promote their brand as well as ours, and helps us establish great relationships. We’re proud to say we’ve collaborated with over 100 rosin makers and cannabis growers.”
A side-bonus is that co-marketing and co-branding products usually comes with either a discount on purchased ingredients (like flower) or simply a revenue share or royalty without any additional capital needed. We’re now seeing this trend pop up in the pre-roll game as well; co-marketed infused pre-rolls are becoming common projects between concentrate and flower brands.
It’s about gaining something you might not normally have access to. Noah Levine at Benson Arbor points out, “We partner with farms that grow strains that we normally don’t, so it widens our selection. And, it helps with the hype. We leverage the popularity of both brands to create something that’s unique, and often a limited-run, which builds a sense of FOMO (fear of missing out) and curiosity with the consumer.”
Infused pre-roll manufacturing gets easier
When infused pre-rolls began hitting the market several years ago, they were difficult and time-consuming to make, so they were primarily marketed as a luxury option. That is no longer true. With machines like the RollPros Blackbird that can handle homogenized, infused plant material, or the Sorting Robotics Jiko, that automates injection infusion, producing infused pre-rolls is becoming more cost effective and more automated.
Nohtal Partansky, CEO of Sorting Robotics says, “The infusion process was the most labor intensive part of manufacturing a pre-roll. It was impossible to do at scale. But now with the right automation equipment it’s easier and more affordable. You can make a significantly better, more consistent product with a dramatically lower labor cost.”
The Blackbird atuomated system
Beyond the lower labor costs, the right equipment even allows you to create products that simply weren’t possible to make by hand in a commercial setting. “We have a customer on the East Coast that makes a blunt infused with live rosin and then coated in by crushed diamonds,” Nohtal continues, “that product really wouldn’t have been possible to manufacture even two years ago.”
The RollPros Blackbird presents another example of infused pre-roll manufacturing becoming more automated and easier. The Blackbird can create certain types of infused pre-rolls without any additional equipment. Kyle Loucks, CEO of RollPros says, “More and more of our customers are using the Blackbird to produce infused. Some use it exclusively for that purpose. They infuse and homogenize the flower first and run it through the Blackbird to roll it up. We are seeing some really unique products come off our units.”
What’s next?
Data from virtually every market shows significant growth in the infused pre-roll subcategory, and the momentum shows no sign of slowing down anytime soon. By adding an extra element to their pre-rolls, brands can stand out in a crowded market by diversifying their offerings and using infusions to increase potency and profits. Pre-roll automation equipment has made the manufacturing process easier and more affordable, allowing brands of all sizes to create complex infused products. With popular options ranging from distillate infusion to kief dusting to crushed-diamond coating, there is something for everyone in this burgeoning product category. In the midst of this flourishing landscape, the infusion of creativity, technology and advanced manufacturing processes continues to propel the infused pre-roll category forward, solidifying its place as a dynamic and lucrative dimension within the cannabis industry.
Tahir Johnson is the founder and CEO of Simply Pure Trenton, the first black-owned social equity dispensary to receive a license in New Jersey. He’s a well-known cannabis advocate who’s held leadership roles at the Marijuana Policy Project, the National Cannabis Industry Association (NCIA) and the United States Cannabis Council. Tahir was born and raised in Trenton, New Jersey, so coming full circle and starting a dispensary in his hometown is something truly special.
From growing up in New Jersey to graduating from Howard University, working in finance and wealth management at companies like Morgan Stanley, to finally launching a business back in his hometown, he embodies the Trenton success story.
Tahir is speaking at the upcoming Cannabis Quality Conference in Parsippany, New Jersey on October 18. Ahead of his presentation there, we caught up with Tahir to learn a little more about his background, his thoughts on social equity and some advice he could offer to other minority cannabis entrepreneurs.
Cannabis Industry Journal: Tell us a little about yourself – what’s your story?
Tahir Johnson, Founder & CEO of Simply Pure Trenton
Tahir Johnson: My name’s Tahir Johnson and I am the founder and CEO of simply pure Trenton. I was born and raised here in Trenton. I am a Howard University alumnus. I’ve spent most of the past few years of my life in the DC Maryland area. I came home to apply for the licenses and thankfully won them. I am one of the first 11 dispensary licenses to be issued last year. I licensed the brand from my good friend, Wanda James, who is the founder of the original Simply Pure back in Denver, Colorado. She started the very first black-owned dispensary in the country. I am excited to be carrying this legacy.
Before cannabis, I spent most of my career working in finance. I came into the industry in 2019 and started out as a budtender after quitting my job in finance, starting to work at a dispensary. I began working in advocacy, joining the NCIA in 2019 then went on to the Marijuana Policy Project and the US Cannabis council in 2021, where I was up until I started this dispensary. It’s been amazing being back home and close to the family after being away for 22 years. I am just really excited that I am on track to open the first black-owned social equity dispensary in the state of New Jersey.
CIJ: Tell us about Simply Pure. How did you start this dispensary and how did you meet Wanda?
Tahir: So, I met Wanda back in 2019, back when I was with NCIA. Initially, it was never about opening a dispensary or anything back then. I was just building a network and finding like-minded minority folks in the business for possible future collaboration. You know, Wanda, I think of her as an OG. She’s been a friend and mentor from Day 1. So, when I initially wanted to apply for a license in New Jersey, I knew that Wanda wanted to grow and take her business outside of Denver. I went to her and asked possibly about partnering, seeing if she wanted to do this with me. She thankfully agreed to it and the rest is history.
Tahir Johnson (left), Wanda James (center) and John Dockery (right)
CIJ: Could you give us a timeline of how Simply Pure Trenton got started? Where are y’all at right now and what sort of roadblocks have you had to overcome?
Tahir: Sure, So I got the conditional license in May of last year, then I got the annual license in April of this year. Early on, hurdles were definitely access to capital. Thankfully, me being one of the first licensees and I think my background and network helped me get access to the money. The biggest barrier, when you look at getting a license, there are so many moving parts. Getting the license is just one small piece of it. Then getting local approval is another obstacle. But man, getting the building permits has been one of the biggest roadblocks I’ve ever faced. If somebody asks me what my biggest roadblock was, it’s building permits. Because in New Jersey, you have to get approval from multiple different outside agencies that really have nothing to do with building or cannabis ore anything. The latest approval we’re waiting on is from the Raritan and Delaware Canal Commission and I’m wondering what the hell does that have to do with building out the interior of my space? You know what I mean, it’s just a lot of red tape and diplomacy that I have to go through. A lot of it is very unexpected!
CIJ: Alright switching gears a little bit here. How would you define social equity in the cannabis industry’s current climate and where we’re at today? What does economic empowerment mean to you?
Tahir: I would say first that social equity in cannabis specifically is the idea that people who have been the most impacted by the war on drugs should have the opportunity be a part of the industry. And that’s super important because we’re building a completely new industry and one that’s doing billions of dollars in sales. In my opinion, when we say people who have been most impacted by the war on drugs, those are by and large the black, indigenous and Latino populations. So, it’s been black and brown folks that have been largely affected by the war on drugs. If we’re going to have a new legal system, those same people who were 4x more likely to be arrested for cannabis should at least get the opportunity in ownership of this new industry.
A rendering of the Simply Pure dispensary storefront
Economic empowerment is one of the biggest parts of social equity. It’s actually what drew me to cannabis in the first place. When you look at the opportunities in cannabis, it’s a business that’s hard to get into, but It’s a lot harder to do if you have a lack of access to capital. Drawing from my career in finance, when you look at black communities, we have 1/10 of the wealth of our white counterparts. Looking at such a cash-oriented business where you can’t just get a normal business loan from a bank, you have to have personal wealth and access to venture capital or private equity. Well, our communities have less access to that because of our background, our networks and upbringings. So social equity is the idea that there should be some support systems in place, some help in bringing opportunities of the cannabis industry to us.
One part of that is licensing and giving us access to the licensing process. Another part of this issue that is being administered more recently is actually making sure that wealth is distributed through programs and policies. Not everyone may want to start a dispensary like me, but they were still severely impacted by the war on drugs. Seeing money from the tax dollars generated by the cannabis industry now going back to the communities to fund rebuilding and revitalizing projects is great. It really comes down to leveling the playing field to create those opportunities for people that should have them.Tahir Johnson will be presenting at the upcoming Cannabis Quality Conference in Parsippany, New Jersey, October 16-18. Click here to learn more.
CIJ: What does community mean to you? How does your business fit into and support the Trenton and larger NJ cannabis community?
Tahir: For me, one of the biggest things I’m proud of growing up in Trenton is that sign on the bridge, “Trenton Makes, The World Takes.” Growing up, this area was an industrial town. Both of my grandparents had good factory jobs and were able to support a family, but a lot of that has left the city over the years, leaving it economically depressed. I’ve been pulled over, arrested, we’ve had family members locked up all just because of cannabis. So the idea that now, through cannabis, to be able to have an opportunity to build something positive in our community, to create jobs and wealth in our community, giving back in this same place is wonderful. I think of this as the economy and opportunity of the future. In New Jersey specifically, the state has one of the biggest racial disparities on arrests. A lot of that is due to cannabis. I remember growing up, every time we get pulled over, you know we’re getting searched. There’s been real life situations, where there was a seed or a roach in the car and we’d have to decide who’s going to jail today just because of a roach. You know, how many people’s lives have been impacted and changed just because of a cannabis arrest? Now, looking at New Jersey and this ability to right those wrongs, it’s really a beautiful opportunity.
When I talk about my community, the way that I’ve been able to inspire people and make our community proud has been the biggest thing for me. For us, we haven’t seen a lot of people make it and get to achieve success. So, to be able to have this opportunity and to be from here actually doing this is one of my biggest motivators, showing people from my community and from across the state that we can be successful in business. We often hear how difficult it can be and how making it in business seems like mission impossible to so many, being able to achieve that mission and give some hope and inspiration to people where I come from is truly special.
CIJ: If you could give yourself advice ten years ago, what would it be? What advice would you offer to other BIPOC entrepreneurs trying to make it in the cannabis industry?
Tahir: Let’s see where I was ten years ago. I would say just always continue to keep the hope and keep the faith. Stuff gets tough, but as long as you keep the vision and the path, it’s going to be okay. What I would say to other cannabis entrepreneurs is largely the same thing. This is hard as fuck. It is very hard. No matter how many times you get knocked down, you have to get back up. Don’t believe the hype. Don’t let anybody make you believe that you can’t do it because you can. It takes believing in yourself, even if people don’t believe.
This would be something that if you are a minority entrepreneur, this is really true. You really do have to be better and stronger. Educate yourself. Take the time to network with people that look like you and don’t. First you want to build a team and a support system. You also want to be able to build. Some of your allies that can help support you, they might not come from your same community or background. I wouldn’t be here if it wasn’t for a lot of very diverse people that believed in me. Work hard, network, believe in yourself because nobody else is going to believe in you. Put in the work and that’ll bring success to anything you want to do.
Tahir Johnson (left) with John Dockery (right)
CIJ: Any final thoughts you want to share with our readers?
Tahir: Yea, so in addition to me winning my licenses, my close childhood friend, John Dockery, will be opening another Simply Pure location in downtown Trenton too, which is really exciting. I am really looking forward to getting to the finish line with all of this and being able to open. I think one of the biggest things I’d like to add is that there are so many people depending on us for this, so many jobs on the line, the community I am waiting to serve, all of these things and we’re encountering delays that are typical of this industry with the long road from getting licensed to opening and operating. A lot of people are expecting us to be open and we’ve encountered some slight delays, but we’re excited to be opening soon and expect that to happen no later than October.
Universities across the country are working in all areas of research and development to advance cannabis cultivation, medicine, drug delivery and technology. But these innovations are collecting dust because the universities are not in the business of commercializing products in the marketplace.
In 1980, the federal government passed a law that said universities that receive federal funding, which most of them do, will have the option to own whatever intellectual property or invention they develop from that federal funding. Initially, universities resisted the idea feeling they were selling their souls to the private sector and corporate America. But opinions have changed, and the marriage between universities and industries is a common and rewarding business strategy for both sides.
I interviewed Lance Anderson, a partner at the law firm Dickinson Wright who is uniquely positioned to play matchmaker to research universities, entrepreneurs and VCs to help them uncover cannabis innovations and create partnerships. Lance is also educated in life sciences, including proprietary plants, genetics and plant-derived products, and served as in-house counsel and lead IP attorney for a large public research university system and an early-stage venture capital company.
Pam Chmiel: What led you to play matchmaker to universities and cannabis businesses?
Lance Anderson: I learned that universities are interested in commercially benefiting from some of their innovations when I worked in the technology commercialization office at Texas Tech University right out of law school.
The concept of “technology transfer for commercialization” already exists in universities and presents a vast opportunity for cannabis businesses to commercialize their innovations.
Lance Anderson, an attorney at Dickinson Wright
“Technology Transfer” agreements refer to moving technology, knowledge or innovations from one organization, such as a research university, to another entity, such as a cannabis company, through licensing agreements that grant permission to use intellectual property (IP), patents or proprietary technology for commercial purposes.
Even though legalization is sweeping the country, I’m finding that academic institutions and their administrators are concerned they will lose all federal funding and are hesitant to take the chance on a cannabis research project. They are still getting comfortable with the opportunities to work with the industry, and the farm bill act of 2018 gave them the push to do so.
And why not tap into these universities, which receive millions and millions of dollars in funding? You’re not out a lot if you properly structure your relationship with them. You do not have to pay them millions and millions of dollars to get this technology. Knowing what the university wants and how to structure that relationship is key.
Pam: What are some of the benefits a business can gain by forging a partnership with a university?
Lance:
Cannabis companies benefit by gaining access to cutting-edge research, expertise and resources that can accelerate and elevate their product development and market entry.
The association with academic institutions can help build trust among consumers, investors, and lawmakers.
Working with university research students may create a pipeline of qualified employees who may want to work for the company.
Submitting a joint proposal with a university seeking government grants may lead to additional funding for the research project.
Pam: What types of partnerships do you currently see in development?
Lance: Pharmaceutical companies have collaborated with research universities for years on drug development and undoubtedly have their eye on the cannabis industry. Federal agencies like the USDA lean on academic partnerships to develop unique plant traits to improve crop production. You’ve got institutions developing new mind-blowing genetics, like polyploid species, that allow you to fine-tune the plant traits you’re interested in. There are always advances going on.
Clemson and Cornell Universities are leading the charge in cultivation by partnering with farms to develop techniques to grow better crops and increase profitability. And interestingly, many of the land grant institutions that receive federal grants, like Mississippi State, Michigan State and Texas A&M, are now diving into plant trait development. And it’s not unrealistic to think they will transition into plant-touching technologies ripe for the cannabis industry to come in and run with it from there.
“Researchers are now getting more access to cannabis strains that are more like what we’re seeing on the market, but it’s still not where we need to be”
But the research desperately needed to move the industry forward is medical research because lawmakers want proof that cannabis has medicinal benefits before they are confident in pushing for legalization. Unfortunately, the US government has been part of the problem in making it hard to conduct research, whether clinical trials, clinical research or simple preclinical studies on cannabis. Until recently, the University of Mississippi was the only university allowed to cultivate for research. So the researchers are now getting more access to cannabis strains that are more like what we’re seeing on the market, but it’s still not where we need to be. Not even close.
Academic partnerships are not a new concept, but the cannabis industry has yet to embrace it fully. Opportunities are beginning to develop where government agencies will participate and or fund the work in cannabis from the university standpoint. The National Institute of Health has a program that’s getting kicked off for cannabis research. And they all understand and recognize that the fact we don’t have enough clinical data available is a major hindrance to the advancement of this industry.
Pam: What is legally involved in a technology transfer partnership?
Lance: Collaboration between cannabis companies and research universities can take various forms, such as research partnerships, sponsored research agreements, joint ventures, or licensing arrangements. The specific model depends on the goals, resources, and intellectual property involved in the collaboration. An attorney can structure an agreement in a manner that lets everyone slowly advance into the relationship and get satisfied with the milestones they want and at which point this thing begins to take shape.
“Opportunities are beginning to develop where government agencies will participate and or fund the work in cannabis from the university standpoint.”
Cannabis businesses are no strangers to utilizing multiple entities in their corporate structuring. They may have a holding company that owns the real estate, a staffing company that manages the HR for the flower-touching operations, and another that holds the intellectual property. You’re seeing an entire industry familiar with IP licensing for the first time in a long time, and universities want in by licensing their intellectual property.
The university may require a licensee to have a product in the marketplace and a first sale within two years. So that introduces the concept of perishable intellectual property rights where you can default or don’t meet the licensing requirements. That perishable concept sometimes makes it hard to raise money because the investors prefer a guarantee that you have the license and will not default.
The takeaway is universities are thirsty for partnering and looking for strategic initiatives. Universities have access to patient populations, and the cannabis industry has the business know-how to take their innovations to market. It will take some culturing of both sides to understand the opportunities. But once everyone’s on the same page, the deals will look like the licenses and joint venture deals we see now with multi-state operators.
Pam: Lance, do you have any closing thoughts for our audience?
Lance: I’ve thought about this potential synergy for years as I’ve watched these two areas I practice in often. Academic partnerships are the catalyst to move the cannabis industry forward and are right in front of us. The time is now, and I’d love to be there.
The problems facing the cannabis industry arising from its ongoing status as a federally illegal enterprise are numerous and well documented: 280E tax burdens, limited access to banking, exclusion from capital markets, uneven access to federal intellectual property right protections and the inability to access the stream of interstate commerce. The recent woes faced by cannabis companies operating in mature markets reveal another key legal hurdle for cannabis companies, their investors and their creditors: the inability to access federal bankruptcy protection. However, cannabis companies may have access to a number of contractual and state law remedies to deal with insolvency and other financial woes.
Background
Bankruptcy laws in the United States are unique in the world; nowhere else is access to bankruptcy so available or forgiving for ordinary citizens and companies alike, allowing debtors a fresh start by either liquidating their assets or reorganizing their debt. Commentators have observed that such favorable bankruptcy laws encourage entrepreneurship and have been at least partially responsible for American innovation. Indeed, the ability of Congress to enact bankruptcy laws is enshrined in the United States Constitution. Like almost all laws in the U.S. at the time, bankruptcy was originally the domain of the various states; it was not until the late 18th century that Congress saw the importance of a uniform set of protections for debtors and passed the first federal bankruptcy law in 1800; since then, bankruptcy has been exclusively the purview of federal law, with current bankruptcy law governed by the United States Bankruptcy Code.
Yuefan Wang, attorney at Husch Blackwell
This exclusivity, however, poses a problem for state-regulated cannabis businesses: because cannabis is federally illegal, in the eyes of the United States Trustee Program, a division of the United States Department of Justice responsible for overseeing the administration of bankruptcy proceedings, the reorganization of any cannabis business amounts to “supervis[ing] an ongoing criminal enterprise regardless of its status under state law.” Therefore, since there is no such thing as state law bankruptcy, even cannabis companies operating in full compliance with state laws do not have access to any bankruptcy protections.1
All financing transactions, whether debt or equity, occur in the shadow of bankruptcy. The basic distinction between debt and equity is predicated on the favorable treatment of holders of the former compared to holders of the latter (within debt, the favorable treatment of secured debt over unsecured debt), and this is true, especially in bankruptcy. Even beyond distribution priorities, the Bankruptcy Code’s provisions on automatic stays, avoiding powers, and discharge fundamentally shape the relationship between debtors and creditors: a bankruptcy judge has the power to impose the Bankruptcy Code on the relationship between a debtor and its creditors, no matter their previous contractual relationships. Just as the possibility of litigation is a Sword of Damocles hanging over any legal disputes, the prospect of a bankruptcy filing affects any negotiations between a debtor and its creditors ab initio. Therefore, when financial problems arise and a cannabis company must begin the difficult task of approaching its lenders for relief, it does so without an effective incentive for creditors to come to the table available to other companies in otherwise similar situations.
Alternatives to Bankruptcy
Just as disputants often prefer the contractual certainty of a settlement agreement to the capriciousness of a jury, debtors and creditors may choose extra-judicial solutions for insolvency. The downward trend in bankruptcies over the last few decades may partially be the product of such out-of-court arrangements, and debtors and creditors are increasingly comfortable with them as an alternative to voluntary or involuntary bankruptcy filing. While the effectiveness of these solutions is, in industries other than cannabis, ultimately evaluated with bankruptcy in mind, these solutions may also be preferable for a creditor of a cannabis company that is defaulting on its obligations.
Contractual Remedies: Lender Workouts, Exchange Offers and Composition Agreements
Given that the relationship between a debtor and its creditors is essentially contractual, the parties may choose to modify their relationship in any manner to which they can mutually agree. A lender workout is an agreement for a financially distressed company to adjust its debt obligations with a creditor (or often multiple creditors given that a lender’s payment obligations to one creditor necessarily affect its obligations to its other creditors). These contractual adjustments are tailored to the particular situation and can take the form of deferrals of payments of interest or principal, extensions of maturity dates, covenant relief (e.g., adjustment of the lender’s debt-to-asset ratio or other financial covenants which would otherwise trigger an event of default), and/or debt-for-equity swaps. This last option (including its related concepts, such as grants of options or warrants) is especially prevalent in the cannabis industry, given that cannabis companies often do not have traditional bank debt (though, at the same time, such solutions may be increasingly unattractive to creditors given lower valuations and the prevalence of equity as a form of consideration in cannabis mergers and acquisitions transactions).
Brent Salmons, attorney at Husch Blackwell
Similarly, an exchange offer restructures a faltering company’s capital stack. Typically, a company facing a default will offer its equity-holders new debt or equity securities in exchange for its outstanding debt securities, which new securities have more favorable terms, such as covenants, events of defaults and maturity. Exchange offers have the same goal as lender workouts in that they seek to eliminate a class of securities with an impending maturity date, event of default or breach of a covenant.
Composition agreements are contractual arrangements between a debtor and its creditors whereby the creditors agree to accept less favorable claims in order for the debtor to reorganize its operations so that the debtor’s future inflows can meet its reduced outflows, with the alternative being a complete collapse of the debtor (in which case no one, or perhaps only the most senior secure lenders, is repaid). These agreements often provide for oversight by a committee of the creditors and will often involve contractual promises by creditors to forbear from exercising their previously existing rights until a defined triggering event.
Statutory Remedies: UCC Article 9 Sales and ABCs
If the contractual remedies described above are akin to Chapter 11 bankruptcy proceedings, whereby a company in dire (but ultimately salvageable) straits continues to operate while its debt obligations are reorganized, state law statutory remedies are analogous to Chapter 7 bankruptcy proceedings; the business is a sinking ship and must liquidate its assets to maximize payments to its creditors (in the bankruptcy context, per the rules of absolute priority). Such liquidation is governed by rules under state law which may be available to cannabis companies.
If a creditor has a security interest in the collateral of a debtor, then the most popular option is usually a sale under Article 9 of the Uniform Commercial Code (UCC). The UCC is a standardized set of laws and regulations for conducting business, including lending. The UCC itself is not law; rather it is a codex that has been adopted by most states and incorporated into their statutes as law, usually with some variations. UCC Article 9 deals with secured transactions and, in particular, provides for the sale and disposition of collateral subject to a security interest upon a default by the debtor. Similar to a §363 sale under the Bankruptcy Code, a sale under UCC Article 9 provides for a “friendly foreclosure” whereby a defaulting debtor and its lenders cooperate to facilitate a sale of the secured collateral.
Article 9 imposes certain parameters on such dispositions, including that foreclosure sales be “commercially reasonable”, which the UCC specifies as meaning that the collateral be sold in a reasonable and customary manner on a recognized market, at then-current market prices. If the sale was approved in a judicial proceeding, by a bona fide creditors’ committee, by a representative of creditors or by an assignee for the benefit of creditors, then this creates a presumption of commercial reasonability under the UCC.
A less common option is an assignment for the benefit of creditors (ABCs). Laws governing such assignments vary by state and are generally rare, with California being a notable exception where both ABCs are more common and where cannabis is legal. An ABC is initiated by the debtor, which then enters into an agreement to assign its assets to a third-party assignee, which holds such assets in trust for the benefit of the creditors and is then responsible for their liquidation, similar in principle to a trustee in bankruptcy.
ABCs, however, are generally not suitable for cannabis companies as the third-party assignee would not be able to take possession of a licensed cannabis business, or certain assets such as cannabis plants, distillates and other products, without itself being licensed by the relevant state regulatory agency. A similar problem occurs under Article 9 sales, whereby the purchaser of the collateral must be licensed in order to possess and operate cannabis product and, more importantly, the all-important state-issued licenses which provide a cannabis company with the authority to operate as such; the pool of potential purchasers is therefore limited to those purchasers already licensed or which are willing to undergo the burdensome process of becoming licensed, hence shrinking the market for such assets and reducing their value. These issues may be resolved in some states by the assignor/seller entering into a management services agreement with the assignee/purchaser, pursuant to which the assignee/purchaser effectively manages the operations of the cannabis business. These agreements, however, need to be carefully drafted so that they are not seen as constituting ownership of the business by the assignee/purchaser (until the actual transfer of the licenses occurs), as defined under applicable state law.
While absolutely true for “plant-touching” companies, recent cases in the federal Ninth Circuit Court of Appeals provide some (fact-dependent) hope for cannabis-adjacent companies such as those housing the employees or intellectual property of a plant-touching operational cannabis company (this structure itself largely a solution to deal with federal illegality).
As the legal landscape surrounding cannabis continues to evolve, the creation of robust, sensible and consistent safety regulations remains stalled. A patchwork of broadly inconsistent state rules and regulations, along with years of federal inaction and policy stagnation have the potential to create significant risks for consumers. Given the industry’s explosive, multi-billion-dollar growth, consumers have access to an ever-increasing number of products produced by an increasing number of actors, pursuant to widely divergent standards and rules. Given this, the industry would be well-served to take on the responsibility of promulgating a coherent regulatory framework with robust (but sensible) safety regulations. The importance of collaboration among cannabis industry stakeholders cannot be overstated if we are to develop and adopt consistent standards that guarantee product safety at every step of the supply chain.
To mitigate these risks, it is vitally important for the cannabis industry to collaborate in the ongoing development of safety standards. This means understanding and implementing safety measures starting with the cultivation process. Careful consideration should be given to factors such as the use of pesticides and herbicides, soil quality and irrigation methods. Standardized safety testing to ensure uniformity between products for potency, contaminants, heavy metals and microbial organisms is crucial to consumer safety. Accurate and comprehensive labeling is likewise necessary for consumers to be adequately informed.
For as long as consistent state and federal guidelines governing cannabis safety remain elusive, the need for industry self-regulation will be paramount. Cannabis companies must work together to share best practices, establish standard operating procedures and adopt stringent safety measures. By promoting transparency and collaboration, stakeholders can build credibility and consumer trust while fostering a safer and more reputable industry.
As the industry continues to grow, it is incumbent upon all stakeholders to continue prioritizing consumer safety through, among other things, a focus on education and inter-industry collaboration, if we are to continue cultivating a trustworthy and sustainable cannabis market for the future. The path forward will require stakeholders to pursue continuous education, improvement, and collaboration in the development of a holistic safety framework capable of ensuring consumer safety.
Following the German cannabis reform movement is like watching a snowboard jump competition. We launch into the big jump with lofty promises, only to face the difficulty of gaining meaningful, immediate momentum at the bottom of the halfpipe. Nevertheless, we persevere through smaller political moves that set us up for more advanced regulatory jumps, all the while believing that broader cannabis legalization requires sacrifice and the skills to navigate the course properly.
The Cannabis Act is a significant step forward. Although we rarely get exactly what we want, it holds promise for the EU-GMP cannabis producers that have invested heavily in creating a global, pharmaceutical-grade market.
Reforms to Medical Cannabis in Germany
The Cannabis Act proposes reforms to how doctors prescribe cannabis, removing the narcotic designation that stigmatized prescriptions and created liabilities for doctors. If passed, doctors and telemedicine groups will be able to prescribe cannabis for almost any condition without fear of lengthy paperwork or the stigma of controlled substance liabilities.
This framework is reminiscent of early medical programs in the USA and Canada. In these countries, obtaining a prescription for cannabis became steadily easier as patient-driven demand took over. As we can see, the cannabis industries in these nations have flourished.
Home Cannabis Cultivation for German Citizens: A Small Step Forward
Photo: Ian McWilliams, Flickr
Allowing citizens to grow three cannabis plants at home is not monumental. However, it is a strong symbolic statement about how accessible the cannabis plant should be to the broader population and is the first step toward a decriminalization bill.
This Act signals growing national acceptance from politicians and a shift toward treating the plant as a right for all Germans. Though small, this change needs applause from both institutional cannabis producers and the cannabis advocates that have fought so hard to bring it to fruition.
Cannabis Social Clubs in Germany
Social clubs are a completely unproven economic model, reminiscent of “coffee shop” models paired with small legal grows to service the club. These social clubs are a legal version of those around Barcelona and mirror proposals in Malta and Switzerland.
Though novel, the social club model is a positive shift toward a smaller-scale adoption of cannabis. It addresses a niche market for flower connoisseurs and appeals to cannabis entrepreneurs who want to explore their green thumb. The effect on the illicit market is yet to be seen, just like home grows, but progress here sets us up for the next move.
Looking Toward German Dispensaries
Cannabis institutional investors and producers are all looking towards the next step: American- and Canadian-style dispensaries that allow any adult to walk into a store and purchase a high-quality, regulated product. These establishments will likely compete directly with the illicit market and produce the capital necessary to push cannabis toward national legalization. Although not in the current text of the bill, all eyes are on the future as we celebrate our progress thus far.
The Cannabis Act Holds Promise for the Future
There is something for everyone in the latest Cannabis Act, whether you are a home enthusiast, advocate, members-only green thumb enthusiast or large-scale institutional player. This bill leaves little doubt that we are moving through the legalization course. There is much more work to come, but we are moving forward together and have hope for the future of regulated cannabis in Germany.
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So, right until the end of 2018, nature more or less aligned with the legal establishment, and many products made it safely to market because extracts of cannabidiol (CBD) were considered ‘novel’ only if the levels of CBD were “higher than the CBD levels in the source of the plant itself: Cannabis sativa L.”
Good news emerged on June 2, 2023, where in the EU, it has been agreed that once again, hemp leaves are considered a traditional food and are no longer considered Novel. Hemp leaves and tea can be marketed in the EU without further hurdles, but this does not include extracts.
