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How Marijuana Businesses Can Win Tax Fairness Under Trump Plan

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Following the repeated failure of Congressional Republican plans to pass healthcare legislation, all eyes on Capitol Hill have turned to a tax reform agenda that President Trump and GOP lawmakers are now pushing.

Some marijuana policy observers believe the overhaul provides an opportunity for cannabis businesses to finally break free from a 1980s provision — known as 280E — that forces them to pay a much higher tax rate than companies in other industries.

WHAT IS 280E?

Enacted in 1982,  Section 280E of the Internal Revenue Code states:

No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.

While it was initially intended to stop drug cartel leaders from writing off yachts and fancy cars, today its plain language means that that growers, processors and sellers of marijuana — which is still a Schedule I substance under federal law — can’t take business expense deductions that are available to operators in other sectors.

And it doesn’t matter if they are strictly in compliance with state or local policies. Federal law is federal law.

As a result, cannabis businesses often pay an effective tax rate upwards of 65-75 percent, compared with a normal rate of around 15-30 percent.

HOW 280E REFORM COULD HAPPEN THIS YEAR

Over the past several Congresses, standalone bills to amend the provision so that it doesn’t apply to state-legal businesses have earned increasing numbers of cosponsors, but haven’t received hearings or votes.

Now that a broader tax reform package is on the agenda with the support of Congressional leadership and the White House, advocates and industry operators are pushing to attach a 280E fix to the moving vehicle.

Restricted Analysis For Marijuana Moment Patreon Supporters Only

Learn which five GOP House members and three Democrats cannabis businesses need to target with advocacy efforts to win a key committee vote on 280E reform language. 

Plus: See which three GOP senators reformers could pick up key votes from.

(Analysis contains 1,200+ words and an embedded spreadsheet tracking lawmakers’ past marijuana votes).

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UPDATE: Neither the House nor the Senate voted on a 280E amendment as part of consideration of tax reform legislation.

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With support from the targeted House and Senate members named above, cannabis businesses would succeed in attaching 280E reform language to the tax plan at the committee level before the legislation reaches the floor.

THE LOBBYING PUSH

Marijuana business advocacy groups like the National Cannabis Industry Association and the New Federalism Fund are mounting lobbying campaigns to build support for 280E reform on Capitol Hill.

But they aren’t alone. Powerful conservative anti-tax crusader Grover Norquist is also working on the issue. In an interview earlier this year, he said he has “brought it up with leadership” but hadn’t yet gotten solid indications that House Speaker Paul Ryan or other members are on board with the plan.

But that could change if a significant number of GOP members make it clear that fixing 280E is important enough to them that they’d make their support for the overall bill contingent on it.

“Marijuana could get into that [tax reform] package if some of the libertarian Republicans made that a condition of voting for the whole package,” Norquist said.

Marijuana businesses that could stand to benefit from a 280E fix and want to bolster the campaign would likely do well to focus resources conducting grasstops and grassroots outreach in the districts of those House Ways and Means Committee and Senate Finance Committee members singled out in the section above.

COMPLICATIONS

In addition to the tough legislative math in House and Senate committees detailed previously, 280E reform advocates may encounter a bigger problem: The deficit.

While rescinding the provision’s application to state-legal cannabis providers is a matter of basic fairness, it would also, on its face, amount to a large tax cut from current rates for those businesses. And that could be a roadblock to success, as Republicans are already struggling to find ways to pay for broader tax cuts they are proposing in the plan.

While most legalization advocates would gladly agree to a federal sales tax on legal marijuana to make up for the 280E fix, the kinds of broader changes needed to existing drug laws seem far beyond the scope of the tax package.

An even simpler pitfall for 280E reform is that even if it is successfully attached to the broader tax legislation, there is no guarantee that the bill will be enacted. Healthcare reform efforts that GOP leaders put a lot of stake and effort into passing have fallen short on several occasions in recent months. Budget proposals necessary for clearing a legislative path for the tax bill to advance have only very narrowly been approved by the House and Senate, meaning that leadership has very few votes to spare when negotiating the finer points of the legislation.

COMPROMISE APPROACHES

If reformers aren’t able to earn enough support for a full 280E carveout for cannabis businesses, there are two potential compromise approaches they may consider.

One would be to push for a reform that only protects medical cannabis, and not recreational marijuana, businesses. While that would certainly leave a significant portion of the industry behind, it may be more palatable to certain lawmakers. GOP Sen. Susan Collins or Maine, for example, said during a 2014 committee debate on a marijuana banking amendment that she would have supported the measure if it only protected medical cannabis businesses. But, because of its broader reach, she voted against it.

Similar concerns led to the complete removal of banking language between last year’s version of the comprehensive Senate medical cannabis bill known as the CARERS Act and this year’s introduction of new legislation, according to marijuana lobbyists.

Another potential compromise, floated by former Joint Congressional Committee on Taxation staffer Pat Oglesby would enact a 280E fix but maintain the non-deductibility of marijuana businesses’ advertising expenses. NORML has signed off on the plan.

TIMING

This will all move fairly quickly. The House bill will be introduced this week, and the Ways and Means Committee is set to begin marking up the legislation on Monday. The Senate will move sometime after that. Lawmakers have said they plan to have a bill on President Trump’s desk by the new year.

OUTLOOK

The chances of attaching a 280E fix to the broader tax reform plan are non-zero, but broader political factors and whip count math mean that it will be far from an easy task.

A serious, targeted and well-funded lobbying effort aimed at four Republican House members, three Democratic House members and three Republican senators is needed to ensure any chance of success.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

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Company Gets Trademark For The Word ‘Psilocybin,’ Frustrating Decriminalization Advocates

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As psychedelics reform efforts pick up across the U.S., there’s an increasing weariness among advocates about the potential corporatization that may follow.

That’s why many found it alarming when a California-based company announced on Thursday that it had successfully trademarked the word “psilocybin,” the main psychoactive constituent of so-called magic mushrooms.

Psilocybin™ is a brand of chocolates that do not contain the psychedelic itself but are meant to “begin educating, enlightening and supporting the community in upgrading their inner vibrations in order to get everything they want of their time here on earth,” according to a mission statement.

Soon after founder Scarlet Ravin shared news of the trademark on LinkedIn, advocates raised questions and concerns: What does that mean on a practical level for other psilocybin organizations? Why should one brand get exclusive rights (to a certain legal extent) to the scientific name of a natural substance?

The reality of this particular trademark is more nuanced than it might appear at first glance. While it’s true that the company was granted the distinction by the U.S. Patent and Trademark Office, it’s specifically for educational materials and it’s listed on the supplemental register, rather than the principal register, which means it would be incumbent upon the brand to prove that it has earned distinctiveness of the mark if the issue went to court.

“It’s certainly good for her business to have that mark, but I think at the end of the day, it’s going to be somewhat weak,” Larry Sandell, an intellectual property attorney at Mei & Mark LLP, told Marijuana Moment. He added that this example is “indicative that people are trying to stake early claims to IP.”

“Even if they might be somewhat overreaching, people see a potential new market here and they want to stake out their ground,” he said. “It’s a big next space that people are anticipating a legal market. Maybe it’s where cannabis was five to 10 years ago.”

Despite those legal limitations, reform advocates view the trademark as emblematic of a bigger issue—that someone would presume to take ownership of a substance that’s at the center of a national debate on whether or not to criminalize individuals for using it.

Kevin Matthews, who led the successful campaign to decriminalize psilocybin mushrooms in Denver last year and is the founder of the national psychedelics advocacy group SPORE, told Marijuana Moment that he didn’t doubt Ravin had the right intentions—to promote education into the substance—but he said the decision to trademark is nonetheless questionable.

“This being an open-source movement, trademarking the word psilocybin, in some ways it feels like—although I don’t think this is her intention—it’s lacking perspective,” he said. “Does that mean we can’t use psilocybin as SPORE because we’re an educational non-profit and she’s a for-profit branded company? It doesn’t make a lot of sense to me. She needs to let go of the trademark.”

Ravin said that her goal in trademarking psilocybin was to prevent the substance from being becoming the next cannabis, which she said has been corrupted from its “true spiritual, medicinal benefit” and turned into a corporate commodity.

Via Psilocybin.

“Knowing that psilocybin is going to be next [to be legalized] I feel strongly guided by the deepest part of my heart to really offer a sense of education of what could be when you take such a strong, beautiful medicine and to give people an education platform here and now to let them know what’s coming, how to receive it, how to get the most benefit from,” she told Marijuana Moment in a phone interview.

“We paved the way for this being a medicinal offering and not a consumer, recreational shitshow. That was our intention,” Ravin said. “The only way that we are going to have access to mainstream consumers is by having some sort of trademark on the word so that we can use it for something that’s not what it actually is.”

“With this being something that we can now put into market with a box of chocolates that has no psilocybin in it, but as you can already see, it creates a platform for discussion of what the beauty of this plant can do,” she said. “Me and my movement and my team, we don’t own the word. We’re not going to ever sue anyone who also uses the word—we’re opening a doorway for ourselves and anyone that wants to see this educated upon so that we can hit people who are unfamiliar with it now with downloads to actually have this be a safe, successful psychedelic transition.”

Asked to react to criticism about the trademark from advocates, Ravin said “we’re all here to follow spirit guidance to show love and light, and the visions I had of doing what we’re doing now was based upon breaking boundaries and breaking perceptions and allowing people to have an opportunity to sink into being one unit.”

“Yeah, it might be coming out, we might be using the platform of psilocybin. We can use any platform to do this,” she said. “We can use any platform to come together as a whole, and the longer that people sit in duality and say, ‘oh now she’s going to have a stronger voice than me is just looking at something not through their heart,’ it’s looking at it through ego and judgement.”

“The more that we describe what we’re doing, the more people I think will start to feel our unity and we’ll be able to move together as a stronger force than pointing fingers and trying to separate one another,” she said. “Those days are done.”

Ravin said that once the Psilocybin™ chocolates are ready for market, she plans to contribute 10 percent of profits to the Multidisciplinary Association for Psychedelic Studies (MAPS), which is involved in researching therapeutic benefits of psychedelic substances.

Congressman Backs Ballot Measure To Legalize Psychedelic Mushrooms For Therapeutic Use

Photo courtesy of Wikimedia/Workman.

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China Must Import More Hemp From U.S. Under New Trade Deal

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After years of being one of the United States’s main sources of hemp imports, China will now be required to buy a lot more of the non-intoxicating cannabis crop from the U.S. under a new trade deal.

Hemp, which was federally legalized under the 2018 Farm Bill, is one of a long list of agricultural products that China agreed to import on a larger scale over the next two years as part of an international trade agreement that was signed on Wednesday.

“The Parties acknowledge that trade and economic structural changes resulting from this Agreement and from other actions being taken by China to open up its economy and improve its trade regime should lead to improved trade flows, including significant increases in exports of goods and services to China by the United States and other countries,” the accord says.

“The Parties believe that expanding trade is conducive to the improvement of their bilateral trade relationship, the optimal allocation of resources, economic restructuring, and sustainable economic development, given the high degree of complementarity in trade between them. The Parties recognize that the United States produces and can supply high-quality, competitively priced goods and services, while China needs to increase the importation of quality and affordable goods and services to satisfy the increasing demand from Chinese consumers.”

While the deal didn’t specify just how much more hemp China will be importing, the document states that the country must spend at least $12.5 billion more than it did in 2017 on more than 200 agricultural commodities, including the cannabis plant, for calendar year 2020. The following year, it must spend at least $19.5 billion more.

Included in the deal is a particular form of cannabis, which is referred to as “true hemp” in the document.

“True hemp (cannabis sativa l.), raw or processed but not spun; tow and waste of true hemp (including yarn waste and garnetted stock),” the description of the item states.

Via USTR.

Jonathan Miller, general counsel for the U.S. Hemp Roundtable, told Marijuana Moment that hemp’s inclusion in the trade deal is a “really good development.”

“The fact that China would be importing our hemp and would be giving a new market for American farmers is pretty exciting,” he said, referring to the fact that the U.S. has historically imported the crop from China and that it has sometimes been criticized as being of inferior quality.

While cannabis has been cultivated in China for thousands of years, the country has only recently begun expanding the industry domestically. Part of the delay has to do with strict anti-drug laws, but as the legalization has spread internationally, more businesses are getting into the hemp, and particularly CBD, market.

Meanwhile, in the U.S., the hemp industry has exploded, with bipartisan lawmakers working with regulators to ensure that hemp farmers have access to the resources they need to expand and meet booming consumer demand for CBD products. The U.S. Department of Agriculture (USDA) is currently finalizing its regulations for the crop after releasing an interim final rule last year.

USDA clarified in guidance last year that hemp plants and seeds are able to be imported from other countries. In 2018, the U.S. imported about $3.3 million in hemp from China, according to Hemp Industry Daily.

Congressional Hearing Exposes Marijuana Research Limitations Imposed By Federal Law

Photo courtesy of Pixabay.

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Coca-Cola Denies CBD Beverage Rumor Spurred By Video

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Coca-Cola denied that it has plans to enter the CBD market in a statement to Marijuana Moment on Thursday.

The comment comes after a man who said he obtained a prototype of a childproof can of Coke claimed to have insider knowledge of the soda company’s intent to launch a line of CBD-infused drinks in partnership with the Canadian cannabis company Aurora.

In a video shared on YouTube on Wednesday, the individual, who goes by Gabor the Blind Guy, said his father is an engineer for a company that “produces bottling and capping machines” for pharmaceutical and food businesses.

“Recently he was approached by Coca-Cola in Canada to design a machine that puts a childproof cap on cans of Coca-Cola,” he said. “In Canada, Coca-Cola is coming out with a new line of Coca-Cola that contains CBD extracts—pretty much cannabis-based drugs.”

“Obviously, they don’t want little kids popping open those cans and drinking them…so my dad was tasked with designing a cap that will prevent little kids from opening these cans of CBD Coca-Cola,” he said.

The description of the video on YouTube mentioned the alleged partnership with Aurora.

Watch a mirrored version of the now-deleted YouTube video below:

But on Thursday, a media relations officer for Coca-Cola told Marijuana Moment that the “rumors are untrue.”

“As we have stated many times, we have no plans to enter the CBD market.”

Gabor claimed that his father gave him a prototype of a non-CBD can with the cap he designed because he wanted to see if a blind person could open it. The video led some to speculate that he inadvertently disclosed confidential information that could be in violation of a non-disclosure agreement.

Not only did Gabor later delete the video from his YouTube account, but he also deleted the channel itself, as well as his Twitter and Facebook accounts.

On Reddit, users questioned whether the video was authentic. Some wondered if the claim was an attempt to boost Aurora’s stock. However, marijuana wasn’t a main focus of Gabor’s YouTube prior videos posted over a period of years.

Marijuana Moment also reached out to Aurora for comment, but a representative was not immediately available.

This isn’t the first time that people have speculated about Coca-Cola’s potential interest in entering the cannabis space. Bloomberg reported last year that the company was monitoring the industry but hadn’t made any decisions yet.

Coca-Cola CEO James Quincey has said on several occasions that the company isn’t planning to get involved in the cannabis market.

“There’s been no change in my position, which is: there’s nothing happening,” he said in July.

“We want to sell drinks that people can drink each day. So it’s not like you have something once,” he told CNBC last year. “You have one a day. And if you can’t cross [off] those three things of legal, safe and consumable, it’s not an ingredient that’s going to work for us.”

Also in a statement last year, Coca-Cola said the company has “no interest in marijuana or cannabis.”

“Along with many others in the beverage industry, we are closely watching the growth of non-psychoactive CBD as an ingredient in functional wellness beverages around the world,” the statement read. “The space is evolving quickly. No decisions have been made at this time.”

With respect to prior rumors about talks specifically between Coca-Cola and Aurora, the soda company declined to comment when previously pressed. Aurora said in a statement that it had “no agreement, understanding or arrangement with respect to any partnership with a beverage company.”

Elizabeth Warren’s Campaign Denies Claim It Rejected Job Applicant Over Marijuana Offense

Image via Gabor the Blind Guy.

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