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Distressed Cannabis Business Takeaways – Canna Law Blog™

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On February 28th, I moderated our firm’s “Distressed Cannabis Businesses” webinar. In that webinar, Griffen, Ethan, Vince, and I discussed the current financial and economic pressure the entire cannabis industry is facing today. We covered reorganization, litigation, dissolution, M&A, receivership, secured interests, and liquidation. And we of course discussed how state-by-state cannabis regulations impacts all of the foregoing. If you missed distressed cannabis buinsses webinar, here are the highlights:

Bankruptcy

Because cannabis remains federally illegal, filing for bankruptcy in U.S. federal court isn’t really an option for a distressed or insolvent cannabis business. However, as Ethan explained in the webinar, the case is less clear when the debtor is just an ancillary cannabis business. This is a nuanced, fact-specific area of law, with courts coming to seemingly inconsistent conclusions across jurisdictions.

Bankruptcy is a distressed business tool for re-organization in order to survive. Without it, the cannabis industry is left with a few (often inadequate) alternatives to deal with financial fall out.

Receivership

Court-appointed receivers are neutral, third-parties that will take over a distressed cannabis business’s operations. A receiver’s sole purpose is to preserve and protect the business during a problematic period – and, if you take care to ensure that your receiver is well-versed in the cannabis industry, he, she or it can typically handle everything from sales to personnel to accounting (their powers can be very broad).

Keep in mind that the point of the receiver is not to run the business for the benefit of creditors or even to re-structure–it’s to run the business until the underlying legal proceedings are concluded. The appointment of receivers and their treatment by cannabis regulators is also going to change from state to state (see here for Oregon, for example) with things like disclosures, changes to the license, and continued reporting.

Assignment for the benefit of creditors

An assignment for the benefit of creditors (“ABC”) is controlled by state statutes. An ABC is a contract by which an economically troubled entity (“Assignor”) transfers legal and equitable title, as well as custody and control, of its assets and property to an independent third party (“Assignee”) in trust, who is required to apply the proceeds of sale of the property to the assignor’s creditors in accord with priorities established by law. ABCs really only make sense if there are significant assets to liquidate.

ABCs are most successful when the Assignor, Assignee and creditors cooperate but can be imposed even if the creditors are not supportive. Further, like a receivership action, ABCs do not result in a reorganization of a company. While ABCs may technically be available to the cannabis industry, they don’t make a ton of practical sense. This is mainly because of all of the regulatory reporting and regulatory prohibitions around the sale of licenses, inventory, and/or cannabis cash. Still, they’re on the table for distressed cannabis businesses.

The Uniform Commercial Code (UCC)

Many cannabis companies offered up security interests to lenders in order to score some cash. And now, in this financial climate, no loan is going out to a cannabis company without some kind of collateral. To have a valid security interest, you need to follow the UCC, and pay attention to any state variances under state UCC laws.

Article 9 of the UCC covers secured transactions. In a secured transaction, the parties are typically the debtor and the creditor. The creditor’s goal with a cannabis company security interest is to attach and then perfect its interest in the collateral so that the creditor can later take possession of that collateral in the event of a default (without having to go to court). The creditor then liquidates the collateral and takes from the proceeds the remainder of whatever it lent in order to make itself whole. The rest then goes to junior creditors, if any, and then back to the debtor (which seldom happens). For more on the structure of UCC-1s in cannabis, see here.

M&A

Lots of cannabis companies are looking to sell now before they lose everything they’ve put into the business. This presents a unique opportunity for certain buyers who may be looking at deeply discounted cannabis business purchases. For a distressed cannabis business, like any other business, buyers need to run serious M&A due diligence. Particularly though for distressed cannabis businesses, due diligence is crucial when it comes to things like litigation, contract breaches (non-performance, insolvency, and/or breaches of operating covenants), and encumbrances on various assets.

It’s not pretty out there right now in the cannabis economy, and we sincerely hope that this phase of distressed cannabis businesses can pass quickly without too much blood in the water.



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Arizona Cannabis Sales Go Beyond $1.4 Billion

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Arizona’s record-breaking cannabis market

In the landscape of booming and busting cannabis markets, Arizona emerges as a standout success story. A naturally beautiful state that attracts a sizeable group of tourists every year, Arizona skyrocketed past $1 billion in total cannabis sales for 2023. Unlike its northern neighbor of Nevada, Arizona has exceeded $1 billion in sales for three consecutive years, with 4.9% increase from ‘22 to ‘23 to boot. (Nevada, conversely, suffered from a nearly $115 million shortfall from FY 2022 to 2023 despite several millions more tourists than Arizona.)

Cannabis taxation and market comparisons

Compared to other states with recreationally legal cannabis, Arizona packs a considerably lower tax rate, levied as a 16% excise levy. Compare:

  • Nevada levies a 25% tax rate, combining both wholesale and retail excise taxes
  • Washington has an absurdly high 37% retail excise tax rate
  • Montana taxes recreational cannabis sales at 20%

As of FY 2022, the per capita rate for excise taxes is also incredibly lower in Arizona than other recreationally legal states, at only $18. The only two states as of FY 2022 that had a lower per capita rate were both Maine and Michigan. Ironically, the two states with the highest per capita rate are also the first two states to legalize cannabis recreationally, Colorado and Washington, which have rates of $61 and $67 respectively.

Shift towards recreational cannabis sales

Recreational sales have become the life blood of the Arizona cannabis industry. Medical cannabis sales and the number of registered patients in the process are in decline. Whereas recreational sales accounted for only 45% of sales during the first year of retail sales in 2021, adult-use sales then increased to 70% in 2022. In 2023, recreational cannabis sales reached 72%, almost 30% larger than two years prior. Every month since July of 2022, the Arizona cannabis industry has exceeded $80 million in total retail sales.

Impact of regulatory environment on market performance

Like Nevada, Arizona cannabis retail stores benefit from rules that allow cannabis sales after midnight, and allow dispensaries to operate 24/7. Interestingly, unlike e.g. Montana or Minnesota, Arizona doesn’t benefit from any geographic advantage and is mostly surrounded by states with recreationally legal cannabis. This means that out-of-state visitors and business that Arizona receives from Utah certainly wouldn’t be as much as what Nevada draws in its two biggest cities. Yet, the Arizona cannabis industry is outperforming their northern neighbor, despite not possessing all the glitz and glamor of Las Vegas.

While cannabis professionals in the not so prosperous states of California and Oregon are watching some of the biggest juggernauts of business fully exit from their respective states, the billion-dollar Arizona market is seeing no such industry exodus. In particular, Curaleaf has become the best known example of a multi-state operator exiting a state completely, announcing their departure of “the majority of its operations” in California, Oregon and Colorado in 2023 and other East Coast states as well. Yet, that same MSO company has found thriving success in the Arizona market.

“Arizona has been a strong success story for us, and has become one of the top markets in the country for Curaleaf.” explained Curaleaf Vice President of Real Estate Luke Flood. “Uniquely, Arizona offers one of the lowest prices per gram at the retail level in the country.”

Allocation of Arizona cannabis tax revenue

Unlike other states which keep cannabis tax revenue allocations vague, Arizona specifically provides which causes and projects will benefit from the $172.8 million in 2023 excise tax revenue, and at what percentages.

  • 33% will be allocated to community college and provisional community college districts.
  • 25% will be sent to the Arizona Highway User Revenue Fund.
  • 10% will go to the justice reinvestment fund, a program focused on providing health services and other social services, as well as job training for those unfairly impacted by previous cannabis prohibition.
  • 10% will go to the justice reinvestment fund, a program which focuses on providing health services and other social services as well as job training for those unfairly impacted by previous cannabis prohibition.
  • 10% will go to the justice reinvestment fund, a program which focuses on providing health services and other social services as well as job training for those unfairly impacted by previous cannabis prohibition.
  • 3% will go to public safety, which means all branches of first responders.

Arizona’s cannabis industry outlook

Arizona’s cannabis industry stands as a beacon of success, breaking records and showcasing sustainable growth. The politically diverse state’s ability to surpass the $1 billion mark in sales for three consecutive years, despite having less tourists than adjacent Nevada, demonstrates the industry’s robustness. The state’s comparatively lower tax rates have also contributed to its success, making it an attractive market for both consumers and businesses. Finally, Arizona’s strategic location and regulatory environment have allowed it to thrive, even without the glitz and glamor of Las Vegas.

As the Arizona cannabis industry continues to evolve and expand, it will be fascinating to observe its future trajectory and impact on the broader cannabis landscape. Stay tuned.



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Hemp Bioplastics to End Forever Chemicals and PFAS Molecules?

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hemp bioplastics for forever chemicals

Ohio Hemp Company, based in Dayton, has signed a substantial deal with Heartland Industries, headquartered in Detroit. According to this new deal, the Ohio Hemp business will supply hemp fibre to aid the development of bioplastic, which will then be used in the fabrication of automobile components by a Belgian business.

 

Following the federal legalization of hemp under the 2018 Farm Bill, Ohio Republican Governor Mike DeWine supports the state’s legalization of the substance in 2019. TJ Richardson and Justin Helt, proprietors of Ohio Hemp Company, were among the first farmers in Ohio to produce hemp. They began a planting effort in 2020 with 11,000 cannabinoid hemp plants in an attempt to capitalize on the then-growing CBD business.

 

Through this partnership, Ohio Hemp Company increases its customer base to include a processor in Michigan, marking a significant new milestone. The company’s position in the market is strengthened by this strategic collaboration, which allows it to source raw hemp material to create bioplastics.

 

Shifting Focus: Transitioning to Hemp for Grain and Fiber Production

 

Following the downturn in the CBD market, Richardson and Helt shifted their focus to cultivating hemp plants optimized for grain and fibre production rather than CBD and other cannabinoids. Recognizing the versatility of hemp, the company continued to explore various opportunities within the crop.

 

Helt shared insights with agricultural news outlet Farm and Dairy, citing his grandfather’s belief that hemp represents a significant development in agriculture akin to the emergence of soybeans in the 1950s. This perspective underscores the potential growth trajectory for hemp within the state.

 

From the inception of their venture, Richardson and Helt understood the manifold applications of hemp. Transitioning away from CBD-centric hemp cultivation, they sought out local businesses in Ohio utilizing hemp in their products. This quest led them to Heartland Industries, a Detroit-based hemp processing facility established in 2020. In 2022, a partnership was forged between Heartland Industries and Ravago, a Belgian bioplastics manufacturer, wherein hemp fibre supplied by the former would be utilized.

 

Tim Almond, chairman and co-founder of Heartland Industries, acknowledged the challenges faced by his company and collaborating farmers in navigating the cultivation and processing of hemp. With decades of prohibition, much of the knowledge and equipment associated with hemp had either been lost or redirected to other crops like corn, soybeans, and wheat. Consequently, there was a learning curve in reacquainting themselves with hemp cultivation techniques and technology.

 

Heartland Industries utilizes hemp fibre sourced from Ohio Hemp Company and other Midwest farmers to produce small hemp pellets known as nurdles. Following this initial processing stage, the nurdles are dispatched to Ravago, where they are blended with plastic nurdles to create a bioplastic comprising 70% plastic and 30% hemp fibre. This bioplastic is subsequently employed in the fabrication of automotive parts.

 

Almond emphasized the importance of environmental considerations in product development, highlighting the challenges of balancing environmental benefits with cost and performance factors. He noted that Heartland Industries has achieved a harmonious equilibrium within the plastic manufacturing realm, incorporating hemp as a 30% ingredient in the recipe. This approach not only yields cost savings and weight reduction but also maintains performance standards while significantly reducing the carbon footprint.

 

Expansion and Innovation: Ohio Hemp Company’s Growth Strategy

 

Initially, Heartland Industries established partnerships with farmers in Michigan to streamline its hemp sourcing and enhance operational efficiency. However, as the hemp fiber market expanded, the company extended its collaborations to include growers from neighboring states such as Indiana, Illinois, and Ohio.

 

In 2022, Ohio Hemp Company embarked on cultivating and researching dual-purpose hemp varieties capable of yielding both fiber and grain. With the successful cultivation of 100 acres of this crop last year, the company is poised to double its efforts, aiming to plant 200 acres of dual-purpose hemp this year, fueled by the recent contract with Heartland Industries.

 

This new agreement between the hemp grower and Heartland Industries constitutes a purchase contract, operating on a non-binding, year-to-year basis, ensuring a steady supply of hemp fiber. Ohio Hemp Company is actively expanding its infrastructure to accommodate its growing operations, investing in a new processing and storage facility while also researching innovative hemp varieties.

 

Helt expressed enthusiasm regarding the contract with Heartland Industries and other developments within his company, emphasizing the burgeoning demand for hemp in the region. He remarked on the significance of having a major processor with substantial demand, noting that all the elements necessary for building a comprehensive hemp industry—from cultivation to consumer products—are finally falling into place, heralding a promising future for the sector.

 

Cultivating Sustainable Solutions: Ohio Hemp Company’s Commitment to Environmental Stewardship

 

Ohio Hemp Company is still very much devoted to environmental stewardship even as it grows and develops strategic alliances. The organization has adopted a concept of sustainability that goes beyond just profitability, realizing the ecological advantages inherent in hemp growing. Ohio Hemp Company responds to the changing market conditions while staying true to its fundamental principles of supporting sustainable farming methods by giving priority to the growing of hemp optimized for grain and fiber production rather than CBD-centric variants.

 

Ohio Hemp Company is involved in the development of bioplastics, a viable substitute for traditional plastics with a far lower environmental effect, in partnership with Heartland Industries and other local farmers. This collaboration enables hemp fiber to be used as a vital component in the production of bioplastics, providing the automobile sector with an environmentally responsible and sustainable option. This dedication to using hemp to produce bioplastics is a reflection of Ohio Hemp Company’s proactive approach to tackling environmental issues while promoting regional economic development and innovation.

 

Ohio Hemp Company is firmly establishing itself as a pioneer in sustainable agriculture as it expands its hemp crop to include dual-purpose varieties capable of producing both fiber and grains. The company positions itself at the forefront of the expanding hemp sector by investing in infrastructure and research, enabling it to meet the growing demand for environmentally friendly alternatives. Ohio Hemp Company is dedicated to innovation and environmental stewardship, and it aims to guide the industry and agricultural sectors towards a more sustainable future.

 

Bottom Line

 

Ohio Hemp Company’s partnership with Heartland Industries marks a significant step forward in the development of sustainable solutions within the hemp industry. By prioritizing environmental stewardship and innovation, Ohio Hemp Company not only navigates market shifts but also drives positive change in agriculture and industry. Through strategic alliances, research initiatives, and a commitment to sustainability, Ohio Hemp Company is poised to lead the way towards a more environmentally responsible and economically viable future for the hemp sector and beyond.

 

HEMP BIOPLASTICS, READ ON…

WHY AREN'T WE USING HEMP PLASTIC

WAIT, WHY ARE WE NOT USING HEMP PLASTICS YET? READ THIS!

 



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How Worried Should You Be about Heavy Metals in Your Rolling Papers?

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heavy metals rolling papers

Inhaling dangerous metals from rolling papers is a possible health risk for cannabis users, according to a recent study published in ACS Omega. These studies had high concentrations of heavy metals such as copper, chromium, and vanadium, which alarmed researchers since they may pose health problems.

 

The investigation delved into the metal composition of 53 varieties of rolling papers and cones widely used in the cannabis industry. The findings should serve as a warning to both occasional and frequent cannabis consumers alike.

 

Uncovering Significant Findings and Associated Health Risks

 

The investigative team at Michigan’s Lake Superior State University embarked on a thorough examination of 53 different types of rolling papers and cones utilized within the cannabis industry. Their findings, published in ACS Omega, revealed a startling discovery: approximately one-quarter of the tested products surpassed established safety thresholds for metal inhalation, with copper levels being particularly noteworthy. These heightened concentrations were notably prevalent in papers featuring colorful designs or metallic embellishments, often favored for their aesthetic appeal by consumers.

 

Of grave concern to researchers was the potential neurological impact of these metals, especially when present in colored papers. The study underscores the alarming prospect of neurotoxic effects linked to prolonged exposure, potentially implicating a heightened risk of neurodegenerative diseases. Derek Wright, co-author of the study, expressed dismay at the lack of governmental oversight, particularly in states where regulations for cannabis flowers do not extend to rolling papers. This regulatory gap underscores the urgency for comprehensive oversight to safeguard consumers, especially those relying on cannabis for therapeutic purposes.

 

Wright’s observations illuminate a disconcerting reality: many consumers assume that regulatory bodies oversee the safety of products associated with cannabis consumption. However, the absence of stringent regulations surrounding rolling papers poses a tangible threat to public health, particularly for vulnerable populations. Individuals leveraging cannabis for medicinal purposes, often grappling with pre-existing health conditions, could unknowingly expose themselves to further harm through the inhalation of toxic metals.

 

In essence, the study’s revelations serve as a clarion call for swift action within the industry and regulatory spheres. Strong supervision procedures must be put in place as soon as possible, and safety regulations must be strictly followed in all areas of cannabis use. In addition to endangering customer safety, delaying the resolution of these issues damages the legitimacy and long-term viability of the emerging cannabis industry.

 

Advocating for Industry Response and Regulatory Reform

 

The cannabis business and regulatory agencies have both loudly called for action in response to the release of these data. Concerned about the study’s ramifications, experts stress the urgent need for stricter laws and a radical change to safer production methods. Co-author of the research Derek Wright emphasizes how crucial it is to pinpoint the origins of potentially dangerous compounds in order to facilitate the creation of safer goods.

 

Daniel Curtis, an analytical and atmospheric chemist consulted on the matter, underscores the importance of future research endeavors. He advocates for a deeper understanding of how metals transfer from rolling papers through the combustion process. Such insights could inform targeted interventions aimed at mitigating exposure risks and enhancing consumer safety. With cannabis consumption on the ascent, the imperative to identify and address sources of toxic chemicals grows ever more urgent.

 

The study’s consequences go well beyond the confines of scholarly research and have a significant impact on the hallways of industry. In order to put consumer welfare first and enact evidence-based reforms, stakeholders must work together in a coordinated effort. Regulatory agencies may protect the public’s health and promote innovation by establishing a culture of openness and responsibility. In order to overcome these obstacles and reach its full potential as a catalyst for responsible growth, the cannabis sector will need to work together and demonstrate unshakable dedication.

 

Pioneering Safer Smoking Solutions: Innovations Towards Harm Reduction

 

As worries about the safety of rolling papers grow, forward-thinking businesses are leading campaigns to reduce dangers and encourage safer smoking environments. Leading the pack of these innovators is RAW, which is well-known for its dedication to transforming the cannabis industry. In their most recent project, RAW presents a novel rolling paper designed to reduce any impurities while highlighting the organic tastes found in cannabis. With a focus on the health and happiness of the customer, this invention signifies a paradigm change in product design.

 

The foreword to RAW’s groundbreaking study highlights the industry’s increasing realization of how important it is to give damage reduction methods top priority. RAW is working to raise the bar for cannabis accessory safety and purity by using state-of-the-art manufacturing methods and strict quality control procedures. The notably thinner paper not only makes smoking more enjoyable, but also demonstrates RAW’s ongoing commitment to customer welfare.

 

Beyond product innovation, RAW’s mission represents a larger culture of business responsibility and social concern. By promoting safer smoking options, the firm hopes to provide customers with educated choices and build a harm-reduction culture within the cannabis community. Furthermore, RAW’s proactive strategy establishes a precedent for industry-wide collaboration and responsibility, igniting a collective effort to solve systemic concerns while maintaining the greatest levels of safety and integrity.

 

Customer safety must continue to be the priority as the cannabis business develops and diversifies. RAW’s creative efforts are a ray of hope, encouraging other industry participants to take the lead in damage reduction. Through leveraging innovation and teamwork, the cannabis sector may steer towards a more secure and sustainable future where the welfare of users is the top priority.

 

Bottom Line

 

The study’s findings underscore the urgent need for regulatory reform and industry response to address the presence of toxic metals in commercially available cannabis rolling papers. With significant health risks posed by inhaling heavy metals such as copper, chromium, and vanadium, consumers, especially those using cannabis for therapeutic purposes, are at risk. The absence of stringent regulations governing rolling papers highlights a critical gap in oversight, emphasizing the necessity for comprehensive safety measures to safeguard public health. Advocacy for safer production practices and innovative solutions, exemplified by initiatives like RAW’s pioneering rolling paper, is essential to mitigate risks and promote harm reduction within the cannabis community. Ultimately, prioritizing consumer safety and implementing evidence-based reforms are paramount for the sustainable growth and legitimacy of the emerging cannabis industry.

 

TOXIC METAL LEVELS IN CANNABIS, READ ON…

TOXIC METAL LEVELS IN CANNABIS USERS BLOOD AND URINE

WHY ARE HEAVY METALS TESTING OUT SO HIGH IN CANNABIS USERS BLOOD?



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