Editorial 2023/24

Sean Hocking

If you dig a little deeper into the directory and compare to previous editions you’ll also note that US lawyers are an ever more dominant force in the cannabis legal sector around the world.

The Canadian gold rush is well and truly over and many of the teams assembled at the bigger law firms in Canada have either quietly disbanded or are doing a fraction of the work they were 18 months ago. That said there’s still plenty of work for some lawyers with MJ Biz recently reporting Canada has recently recorded over $100million in regulated sales internationally. A fraction of the black market but not a number to be sniffed at.

The desire for a more open EU market is still there but is taking a long time to get there with German & Czech regulated markets promising some form of activity in 2024 but not anywhere near what was hoped for 12 months ago.

Although German, British, Spanish & Portuguese lawyers are still growing their practices we’ve noticed a trend of what I would call US Cannabis Super Lawyers creating deep and lasting relationships around the world connecting North America to LATAM, Asia and especially Europe.

These lawyers tend to see the US as one element of a global business and can provide advice via the decade plus experience they have from working daily in markets south of the border and across the Atlantic.

With CVs’ that encapsulate regulation, legislation, compliance, policy advice, M&A, IP,  tax ; you name it the list goes on forever. Their contacts ever growing  in the US and international market over the last decade, these individuals have become the Lionel Messis’ of the cannabis ecosystem.

Some have already been drawn into larger firms or private sector.

Those remaining independents will, to use the soccer analogy, have generate ever bigger transfer fees the closer we get to US federal regulation and subsequent UN re-scheduling once Washington DC has taken the plunge.

Do you know a US cannabis super-lawyer?

Just glance through our top 200 and see if you can identify one or two of them.

Cannabis practices can broadly be subdivided into 3 categories

• Respected solo or under 5 partner firms with solid local state experience, history and clients
• Early adopter firms who specialise in cannabis offering full service client support with an emphasis on state based compliance services
• Existing full service law firms who have drawn individuals with specific skill-sets from their existing practice to build national full service cannabis practices.

Regional

Latam

It was only a decade ago in 2012 that Uruguay announced it would be the first country in the world to legalize full ‘adult-use’ cannabis. In large part, the move was aimed at replacing links between organized crime and the cannabis trade with more accountable government regulation. These were the first steps in the creation of the global regulated cannabis economy across Latin America. Since then, we have seen cannabis policy reform and commercial markets initiated across LatAm in: Colombia, Panama, Costa Rica, Mexico, Argentina, Brazil, Chile, Peru, Paraguay, and beyond.

Latin America has a competitive advantage. With its rich agricultural history and emerging economic stature as one of the fastest growing regions of the world, Latin America has demonstrated that one does not have to create a perfect law from the very beginning, but rather, it has to be adaptive, evolving, and responsive to the marketplace. And to the region’s credit, it has done so. In fact, various countries across LatAm have adapted their regulations in conjunction with cannabis regulatory and export agencies on various occasions over the previous four years to enact needed changes to allow its licensees a chance to compete globally.

It is worth noting lawyers and the legal profession throughout the continent have led the charge in this regard. In doing so, this region has served as a model for the world regarding the required flexibility in regulating cannabis, a plant which has come out of the illicit market and into the mainstream. With the Republic of Mexico set to enact a new comprehensive cannabis law, this lesson is critical.

It is worth reiterating that it is active lawyers within these countries who have taken on the difficult job of crafting, enacting, and evaluating regulations concerning the business licensing, cultivation, processing, and distribution of cannabis and its derivatives, globally. These lawyers have been essential in nearly every jurisdiction across the region in creating the rules, the guidelines, the business opportunities, and the legal documentation for this brand-new industry.

With some of the most well-established international cannabis companies headquartered across the region, the sector is embarking on a pathway whereby it will compete on a global scale with Canada, Switzerland, Israel, African nations, Germany, and numerous other European countries for access to medical markets, adult use markets, research and development, technology innovation, and overall industry advancement. The sky is indeed the limit for these lawyers and for the adult user and patient populations that they serve.

Europe & The UK

The 2023 story has been that of the spluttering stop start of the German path towards regulated cannabis with the latest chapter being the German cabinet’s approval of legislation that was watered down due to political expediency to please some in Brussels as well as pockets of internal opposition to the original broader swathe of legislation.

In Europe, Berlin & Lisbon still look like leaders to us and recent legislation in Switzerland and parts of Italy will no doubt increase transactional work in those jurisdictions.

It should be noted that practices in Spain & Portugal have many years experience of operating in a decriminalised environment and firms are growing their commercial cannabis practices steadily. That said we have not seen any new legal players of note come into the market in any of the above jurisdictions and don’t expect any major surprises on this front in 2024 either.

As a legal centre for cannabis and hemp related work London was early out of the blocks and apart from Berlin is still the major European transactional centre, especially so for CBD work but lack of progress in Westminster on medical cannabis and as yet no discussion of adult use suggests that there’ll actually be more activity in Germany and other parts of the EU than the UK for the foreseeable future.

There may be a small uptick in the UK Hemp & CBD market due to a recent landmark’ Court of Appeal ruling in the UK that has set a new legal precedent for businesses in the UK importing and selling CBD or low-THC hemp flower making it clear that it does not consider hemp flower with a THC content below 0.2% as ‘a narcotic drug’.

We shouldn’t exit Europe without mentioning our inclusion of Swedish lawyer Lars Olofsson for his work on building a class action based around what is without a shadow of doubt the biggest cannabis industry scam / ponzi that there’s been yet, “Juicy Fields”. He has taken on a thankless task and is upsetting a few apple carts in the process.

We’d also mention Albania as more than just an aside for 2 reasons. It is another country that is trying to introduce a regulated medical cannabis market, will it work, who knows? But what we do know is that when it comes to controlling the cannabis black market, and especially in the UK, their efficiency is frightening. Their tentacles we’ve recently learnt have spread as far as Australia.

If European governments had the hunger and organisational drive of the Albanian mafias there might be less of a Sisyphean task ahead.

Middle East

There are really only two markets in the region. Last year we mentioned Israel and the Lebanon.
It is the same this year except we’d note this year that whereas Israel has moved forward with a widening of its medical program the Lebanon’s internal political situation is even more precarious than last year meaning that the hope for a regulated market is effectively dead in the water and the illegal trade is booming more than ever if one takes a look at hashish and cannabis seizure rates in Spain & Portugal.

Africa

Southern Africa is leading the way with a fully regulated legal market in South Africa looking increasingly likely, maybe not in the next 12 months but expect strides here and plenty of debate on who, how & when.
10 April 2023 the usage of cannabis is only allowed in private spaces by adults. Consuming cannabis in public is still illegal. Private space is defined in law as your own home or any other space for your own purposes.

Medical cannabis use in South Africa is currently regulated under the 1965 Medicines and Related Substances Act, which splits up substances into schedules from 1 to 8, with 8 being the most toxic and least medically useful. The Medicines Act originally had both plant-derived THC and CBD listed as schedule 7 substances, but in 2019 it was ammended and CBD is now a schedule 4 substance, or potentially unscheduled. Schedule 4 substances need a prescription and are purchased at pharmacies but unscheduled CBD products are widely sold across South Africa in a variety of businesses, but have a very low cannabinoid content.

THC products can be used medically but are regulated as a schedule 6 substance and, like Schedule 4 CBD products, can be used only with a prescription from an authorized prescriber and only purchased at pharmacies or a business that holds a dispensing license under the Medicines Act. THC products additionally require a permit from the Department of Health.

The court case that ultimately decriminalized cannabis for personal use began with a police raid in 2010 on the home of Myrtle Clarke and Julian Stobbs, who were charged with possession and distribution charges as a result of the raid. Plaintiffs Clarke, Stobbs, and Ras Garreth Prince sued the government in 2017, and a year later in September 2018, the South African high court ruled  in their favor, decriminalizing cannabis possession and use in private. The definition of “private” the court used was broad enough where privacy was not just in their home but any private location. While raw plant cannabis was decriminalized, pure isolated THC is still regulated under the Medicines Act. The  1992 Drugs and Drug Trafficking Act  is still in effect and still criminalizes any cannabis use that is not in a private space.

Zimbabwe, Botswana Malawi may not be creating robust legislative environments for cannabis but discussion is ongoing and a modicum of business appears to be in play, essentially this is the same thing we said last year and it appears not much has changed.

In West Africa, in Ghana, Senegal & Nigeria debates, are slowly progressing with Ghana appearing to lead the pack, that said we haven’t seen much progress in reality since writing our last editorial.

In North Africa, Morocco is really the only jurisdiction that’s processed any meaningful developments. After a flurry of decisions at ministerial level in late 21 and into 22 we haven’t heard too much more about concrete developments, that said they have just planted their first legal crop. But there’s a long way to go.

Pacific Region

In the Asia Pacific there are really only two jurisdictions to highlight.

Firstly, Thailand, whose market shot out of the blocks last year in the same semi-legal way that most US states started their markets and the Thais are now having the same issues trying to button down the grey market while building the regulated market. Politics has further complicated the issue with an election ousting the ruling military administration and supposedly bringing in a civilian government who had suggested putting the brakes on regulated cannabis. Political events and a lack of government mean that, as of publication, what may happen in 2024 for cannabis in Thailand is anybody guess.

Australia’s development of a pharmaceutical medical industry approach very tightly controlled by both federal and state governments with a plethora of rules and regulations is in effect and effectively it appears if people are prepared to pay high prices to access medical cannabis in all its forms it currently isn’t that difficult to do so.

With regard to a fully fledged recreational market, recent state elections have shown via proportional representational voting, that in the main the general public aren’t opposed to some form of adult use cannabis regulation. The Australian Cannabis party has in its first round of elections done surprisingly well and the Greens for the first time have introduced their first adult use bill into the national parliament.

But there really isn’t a market that can yet support more than half a dozen lawyers, most of whom transact cannabis work as part of a larger practice.

Summary

In the US, as we said last year, the number of legal professionals working in the regulated cannabis sector has grown immeasurably specialising in every aspect of legal practice.

The sector itself is still not out of its growing pains and won’t be until Washington DC makes the decisions it needs to.

That means for most of 2023 we’ve seen a lot of fluctuation keeping bankruptcy lawyers as busy as M&A practitioners.

Compliance is still the name of the game though, because of the state by state approach. We are seeing more IP specialists and also the industry merging with other sectors such as F&B and all that that entails.
We’re also learning that a big growth area for some practices is DUI as states bring in ever stricter and more thought out regimes for cannabis driving enforcement.

Again we see the legal services market serving cannabis and hemp growing ever larger and more influential in North America over the next 12 months with a win win situation for legal professionals.

A final note for the US. We are also now seeing the first generations of law students coming out of college and deciding on a fully fledged career in cannabis law. It’ll be 3 or 4 years as they learn the ropes filtering through firms and businesses. But as they then move on and gain roles in practices or go out on their own we expect to see some interesting and as yet unknown sea-changes in the perception of lawyers working in the sector and the sector itself.

Sean Hocking
Editor
Global Top 200 Cannabis Lawyers