Cannabis

Clark Hill’s approach differs from other law firms. Clark Hill is a leader in providing cannabis legal services because of our multidisciplinary approach: our cannabis industry team includes more than 100 diverse practitioners from numerous business units and practice areas, including healthcare, retail, hospitality, highly regulated industries, government services providers, and domestic and international business operations. These professionals provide expansive knowledge of various needs and subjects, including regulation, taxation, intellectual property, mergers and acquisitions, securities, general corporate representation, cybersecurity and privacy, litigation, among many more.  

Our professionals have led in the cannabis industry as business executives, entrepreneurs, investors, and policy advisors. This experience, coupled with our endless desire to educate and expand the knowledge of our cannabis industry group, sets us apart. We deliver results for all types of cannabis industry participants, from single-state operators to multi-state operators, individuals and entities participating in the global economy, and ancillary services that include technology providers, investment groups, capital advisors, and more.  

While government and public opinion have swayed positively toward cannabis reform in recent years, cannabis industry participants still navigate many inconsistencies between jurisdictions. Clark Hill attorneys work with stakeholders across the cannabis industry to provide comprehensive business counsel for clients seeking to capitalize on emerging growth opportunities.  

Cannabis industry participants and stakeholders have relied on our attorneys since the beginning of the cannabis legalization movement. We have advocated for industry groups, trade associations, and other clients on a broad range of legislative initiatives and regulatory policy matters. In this advocacy, we have helped draft numerous state statutes, ordinances, ballot measures, referenda, in addition to litigating election law disputes.  

In many jurisdictions, our cannabis attorneys have won and helped fortify cultivation, processor, and dispensary medical and recreational marijuana licenses. From start-ups to multi-state operators, and from clinical registrants to retail operators, Clark Hill’s approach to obtaining licenses integrates all four cannabis enterprise stages: formation, application, operation, and exit.  

In the growing hemp industry, Clark Hill attorneys counsel clients on continuously evolving laws, regulations, and policies. We help clients of all sizes by advocating before governmental agencies, compelling regulatory advancements, and providing institutional knowledge to clients at each step of the regulatory process. Growers, processors, caregivers, transporters, lenders, investors, and other cannabis-industry clients seek counsel from our attorneys on issues familiar to companies in any sector. Our guidance reflects our understanding of the evolving requirements of federal and state law enforcement officials and regulatory agencies.  

Our cannabis attorneys help clients with regulatory needs, corporate/securities/M&A legal services, tax needs, cybersecurity, litigation services, and much more. If you require next-level, AM law-rated legal services in conjunction with industry expertise, please contact us.  

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Regulatory (Hemp) 

Lawyers hold institutional knowledge of the hemp industry. The global hemp market has grown tremendously over the past decade and the constantly evolving nexus of law, regulations, and policy requires experienced counsel to navigate this complex sector of the cannabis industry.  

Clark Hill is a global leader in hemp and hemp-derivative law and policy. Our hemp regulatory team possesses extensive experience worldwide in assisting clients throughout the complexities of evolving federal, state, local, and international regulatory schemes. From advancing our clients’ interests before government agencies to compelling game-changing legislative advancements to providing institutional knowledge at each step of the regulatory process, our experienced regulatory team provides practical counsel to clients, whether they are start-ups or multinational corporations, to position them for success at each winding turn.  

Our regulatory hemp services include providing advice relating to:  

• Local, state, and U.S. federal regulatory advocacy 
• USDA compliance 
• FDA/FTC compliance—including labeling 
• State/local licensing and regulatory compliance 
• Supply chain considerations 
• Cross-jurisdictional considerations at international, federal, state, and local levels 
• Risk-mitigation, management, and implementation of best practices 
• Cross-disciplinary, regulatory-integrated issues related to corporate, intellectual property, litigation, and other matters  
• International affairs and advocacy 
• Regulatory due diligence 
• Legal guidance relating but not limited to ancillary services—banking, payment processing, financing 

Clark Hill’s global scope and international experience positions our clients to capitalize on market opportunities around the world. We are a resource for facilitating global commerce, navigating legalization, implementing compliance measures, enforcement, and research, among other prominent issues.  

Regulatory (Marijuana) 

From industry-titan multi-state operators to start-ups to clinical registrants, our legal services to cannabis operators integrates all four cannabis enterprise stages: formation, application, operation, and exit.  

Formation 

Planning is the secret to enterprise profitability. Forming an entity that provides maximum legal protection, ease of operation, and the most favorable tax structure is extremely valuable. Our experience in forming and growing profitable marijuana businesses in every legal cannabis jurisdiction provides clients a foundation for success. Before the license application is drafted, Clark Hill attorneys aid clients by helping them choose an appropriate entity form, select and obtain financing, secure bank operations, and establish an accurate valuation.  

Application 

A viable application requires a 360° perspective. Clark Hill’s multi-jurisdictional experience obtaining licenses fuels our ability to:  

• Build and coordinate our clients’ teams by connecting them to invaluable industry growers, processing, dispensary, medical, and social justice and diversity professionals  
• Break down and explain the components and timetables of license applications and ensure compliance with regulations  
• Manage client’s application team, system, and process to ensure that all deliverables are comprehensively provided on a timely basis 
• Draft sections of client applications and related legal documents, including leases, letters of intent, employment agreements, and by-laws 
• Redact and file applications and attachments as needed 

From drafting entire applications to serving as a “second set of eyes” in reviewing an on-going application process, our comprehensive command of the marijuana regulatory landscape, laws, and policies positions our clients for a strong chance of success.  

Operation 

Operating compliant and profitable cultivation, processing, and dispensing facilities requires finesse. In a cost-effective manner, our attorneys swiftly and responsively provide industry-specific federal, state, and local guidance regarding: 

• Risk management and best practices implementation 
• Regulatory and licensing compliance 
• Packaging, labeling, marketing, and advertising restrictions 
• Environmental law compliance and waste disposal issues 
• Regulatory-integrated supply chain, corporate, and intellectual property issues 

Exit 

Clark Hill attorneys have decades of experience positioning businesses for high valuations and swift and lucrative sales and license transfers. Clark Hill helps clients achieve favorable and timely exits by counseling clients through the business life cycle of formation, application, and operational decisions and the resulting long-term implications. Our global reach enables our clients to capitalize on domestic and international market opportunities.  

CANNAMARK^®

Did you know that you can obtain nationwide protection of your cannabis trademarks? Although registration of trademarks and brands used with psychoactive THC products remains prohibited under federal law, registration may be available for many other goods and services of your growing business. This includes soils and fertilizers, skin products, batteries for vaporizers, packaging, hemp goods, pipes, rolling papers, grinders, lighters, consulting and technical services, and retail store services, just to name a few.

Trademarks can distinguish your goods and services from the competition and enable your customers to quickly identify and buy their favorite products from you. Additionally, trademarks are equity business assets that can increase in value and be licensed and sold to others. Our CANNAMARK^® services can help you secure your cannabis brand.

Corporate, Securities, and Mergers and Acquisitions 

Throughout all phases of the business life cycle, from start-up to exit, businesses must navigate a variety of challenges and nuances to manage growth and risk and to achieve success in the cannabis industry. Clark Hill attorneys offer decades of experience working on the nation’s most significant transactions in the cannabis industry. Our diverse, high-energy corporate attorneys provide full-service, strategic business and corporate counseling to new and existing cannabis businesses at all critical points of business growth, including start-up, finance, securities, corporate governance, business transactions, and mergers and acquisitions.  

We are deeply experienced in forming, advising, and assisting the management of investment funds in the cannabis industry, whether they are venture capital, private equity, debt, or other types of investment funds. We are immersed in international cannabis capital markets and regularly participate in high-profile deals. Clark Hill attorneys often help investor clients identify key deals for investment purposes and help business clients identify key investors and strategic partners to help grow their businesses. We know how to evaluate deals early-on, and we identify deal-breakers before they become impediments to our clients’ growth. Our corporate and securities team understands the financial and business impacts of various legal structures, helping clients navigate, structure, and execute complex corporate transactions in an efficient and effective manner.  

Clark Hill’s corporate, securities, and mergers and acquisitions practice encompasses numerous services and subject matters for cannabis businesses: 

• General corporate and transactional representation 
• Mergers and acquisitions 
• Cross-border transactions 
• Corporate governance 
• Financing and securities 
• Restructuring, workouts, and distressed investments 
• General corporate counsel and outside general counsel services 
• Venture capital and private equity  
• Fund formation 
• Cybersecurity and privacy law compliance 
• Intellectual property transactions 
• Employment law and executive compensation matters 
• Tax  
• Strategic business and financing counsel 

Our attorneys have rich backgrounds and experience in executing business and investment strategies in the cannabis industry. We are intimately involved in our clients’ business matters, whether it be by guiding clients though growth and long-term profitability and success or by helping investors through vetting deals, providing due diligence, negotiating, and providing documentation services in executing investments and deals.  

Secured Debt Financing 

Clark Hill finance attorneys advise on complex debt financing as counsel to some of the most significant institutional and private lenders to the cannabis industry, including banks, institutional funds, and real estate investment trusts. We also counsel borrowers and guarantors and have considerable experience in implementing a wide variety of financing and corresponding subordination and inter-creditor arrangements, including:  

• Asset-based, bridge, cash flow, direct, syndicated, and first and second lien-secured loans  
• Cross-border financings  
• Leveraged, mezzanine, and multi-currency financings  
• Special situations financing 
• Working capital facilities  

Energy

Clark Hill’s cannabis practice is proud to collaborate with and be supported by Clark Hill’s energy attorneys. The nationally recognized group advises clients on energy procurement and how to navigate the legal, regulatory, and financial hurdles that often arise in the energy-intensive cannabis industry. Some specific examples of services our energy attorneys can provide clients are:

• Assisting with site selection and utility interconnection
• Structuring and negotiating power purchase agreements, self-generation and micro-grids
• Navigating licensing and regulatory requirements for non-traditional energy sources
• Sourcing of clean energy and alternative energy sources
• Drafting energy-related utility contracts, including utility buy-back and credit programs
• Defining and meeting corporate ESG goals

Environmental

Clark Hill’s cannabis practice is similarly proud to be supported by Clark Hill’s environmental attorneys when it comes to client needs specific to environmental compliance and related land use. The nationally recognized group has extensive experience in advising our clients on manufacturing and agricultural concerns regarding federal, state, and local environmental laws and regulations. As cannabis operations become more mainstream, the industry’s environmental impact will be heavily scrutinized and operators will be required to be prepared for audits and inspections. Some specific examples of services our environmental attorneys can provide are:

• Support in engaging and interacting with environmental professionals: consultants, regulators, advocates, etc.
• Environmental due diligence and liability protections related to real estate and corporate acquisitions
• Environmental permitting related to air emissions, surface and groundwater withdrawals and discharges, stormwater management, wetland dredging and filling, and contaminated soil management
• Guidance regarding hazardous material storage, disposal, and use
• Guidance regarding cannabis remediation services and practices, along with related guidance to finding source contamination
• Defend against administrative and judicial enforcement

Cybersecurity and Privacy Law Compliance 

Globally, there are hundreds of cybersecurity and privacy laws. Complying with them can be a significant operational undertaking for growing cannabis businesses and corporations doing business in the United States, European Union, and other leading economies. Cybercriminals are constantly developing new tools and tactics to hack computer networks, steal or encrypt critical business data, and blackmail or extort companies. The cybercrime industry is lucrative. As such data breaches, insider threats, malware attacks, and ransomware attacks are on the rise. In recent years, several prominent cannabis industry data breaches were covered in the news, alerting everyone to the potential legal and reputational risk that await businesses that ignore or downplay their legal obligations.   

Clark Hill’s cybersecurity and privacy law attorneys have more than a century of combined experience in all aspects of cybersecurity and privacy law compliance, transactions, workforce training, government investigations, and litigation. We work closely with the technologists, consultants, and advisors of Asset 360 and Information Governance 360 to design and implement custom information security and privacy management systems and other solutions for our clients. 

Among the services Clark Hill provides are:  

• The design and management of consumer and workforce privacy law compliance programs for various regulatory schemes, including:  
  • Health Insurance Portability and Accountability Act (HIPAA)  
  • State healthcare and medical information privacy laws  
  • Children’s Online Privacy Protection Act (COPPA) 
  • California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA) 
  • Colorado Privacy Act (CPA)  
  • Virginia Consumer Data Protection Act (VCDPA) 
  • European Union General Data Protection Regulation (GDPR) 
• Custom website privacy notices, terms of use, and end-user license agreements  
• Incident and breach response investigation, planning, training, and management  
• Cybersecurity audits of companies  
• Crisis communications services 
• Data processing agreement drafting, negotiation, and review  
• Cybersecurity and data privacy due diligence for mergers and acquisitions 
• Government regulator investigation representation 
• Litigation services, including but not limited to, defamation, invasion of privacy, trade secrets theft, and class action data privacy litigation services  

Tax 

Clark Hill’s attorneys advise cannabis clients on efficient tax structures and business tax planning for all types of business structures, including corporations, limited liability companies, and other state-specific entity structures. We also help our clients navigate tax issues arising from corporate and securities transactions, and complex tax regulations.  

Our tax attorneys help clients with: 

• Navigating federal and state tax laws and regulations 
• Interpreting and understanding the implications of IRS Code Section 280E (26 U.S. Code Section 280e) that prohibits cannabis businesses from deducting expenses from gross income 
• Discerning tax implications arising from corporate structuring, corporate transactions, and public and private securities offerings 
• Understanding tax consequences of receiverships  
• Employment tax 
• Recognizing tax effects of international transactions 
• Resolving and navigating tax audits, litigation, and administrative proceedings  

Litigation 

Clark Hill attorneys have years of industry and cannabis litigation experience and counsel cannabis businesses on a broad range of comprehensive cannabis litigation issues. Cannabis litigation is complex due to substantial state regulation and intricacies between state and federal law. Disputes can arise at every stage of a business’s growth. Regardless of the legal challenges a business may face, our experienced litigators are trusted advocates that our clients depend on to meet those challenges and protect their businesses. Our attorneys think outside of the box and use their deep understanding of dispute resolution, industry knowledge, and cannabusiness law to develop and implement creative solutions to disputes.  

Our litigation team can help with:  

• Commercial litigation of disputes including breach of contract, construction, debtor/creditor, employment and labor, insurance, intellectual property, LLC and partnership disputes, cybersecurity and privacy, real estate, and other related disputes 
• White collar litigation relating to investigations, criminal and civil racketeering, tax fraud, mail and wire fraud, healthcare fraud, bank fraud, public corruption, insider trading, securities fraud, accounting fraud, and environmental crimes  
• Administrative proceedings for the defense of alleged regulatory violations 
• Dispute resolution services, including arbitration, mediation, and other-related services 

Business Development 

Beyond Clark Hill’s broad offering of legal services, our firm offers business consulting services focused on helping cannabis industry operators navigate supply chain complexities, find trusted partners and service providers, and increasing revenue. Clark Hill attorneys have been instrumental to the growth and development of the cannabis industry across the world. We are entrepreneurially minded—many Clark Hill attorneys have operated their own cannabis enterprises—and have unprecedented levels of access to cannabis industry titans. We combine our extensive networks and top-tier knowledge to enable our clients to grow their businesses, open new doors, navigate unforeseen challenges, and realize their business goals.