12 Frequently Asked Questions About Hemp Litigation and Related Litigation

by Staff Writers | Apr 15, 2021 | News & Events

Here are the answers to 12 common inquiries about hemp litigation and the legal developments surrounding it in the United States.

What is hemp?

Researchers discovered hemp thousands of years ago. Biologically, it’s a plant that’s part of the Cannabis genus, which also houses the marijuana plant. People can extract a bast fiber from hemp that they can use to manufacture a number of industrial items. These include paper, textiles, bioplastics, biofuels, and cordage to name a few. Hemp also produces edible seeds manufacturers can utilize in food. A derivative of hemp is cannabidiol, which people commonly refer to as (CBD).

What is cannabidiol (CBD)?

Cannabidiol, or CBD, is a non-psychoactive phytocannabinoid compound. Processors can extract CBD from both hemp and marijuana plants. Hemp CBD is federally legal and should test at or below the legal limits for tetrahydrocannabinol (THC). CBD from marijuana, by legal definition, will test higher. Some who use CBD compounds report therapeutic benefits for pain, anxiety, nausea, or inflammation

Is there a difference between hemp and marijuana?

Both marijuana and hemp come from the same genus, Cannabis, and are taxonomically the same species. Also, they’re both parts of the Cannabaceae family and mainly differ in THC content. Lawmakers recently classified hemp as part of the Cannabis plant if it tests under 0.3% concentration of THC.  While marijuana will be above that percentage, rendering it psychoactive.

Is hemp considered a drug?

The legal definition of a “drug” is any mind-altering substance (legal or illegal) that people ingest with the intention to change or treat a certain physiological or psychological issue. Only recently, however, lawmakers changed the definition to exclude hemp as a drug despite its relation to marijuana (a classified drug). This is because hemp has equal or less than 0.3% of THC, the psychoactive substance in Cannabis. When THC levels are this low, it usually can’t affect or alter someone’s state.

Why did hemp get banned?

Since marijuana and hemp are both Cannabis genus, the law formally banned them in 1970 under the Controlled Substances Act. Specifically, it outlawed any Cannabis plant without differentiating the two, despite hemp’s lack of potency.

How is hemp legally defined?

The 2018 Farm Bill re-defined hemp to the US and beyond, separating it from marijuana and reclassifying it as cannabis (Cannabis sativa L.). Specifically, “any part of the plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers,” with no more than 0.3% concentration of THC by dry weight.

Is hemp legal in Illinois?

Yes. You can have hemp that contains less than 0.3% THC, as long as a formal institution provided the test. Adding to that, if it has more than 0.7% THC, it must be destroyed.

Can I grow hemp in Illinois?

Yes. Farmers, universities, and the Department of Agriculture can grow hemp. However, this only applies if there’s a research aspect. Additionally, anyone who wants to grow the plant must apply and get approved for the Hemp Grower’s License.

Can I process hemp in Illinois?

Yes. According to Illinois law, those who wish to process hemp must register with the Department of Agriculture.

Is CBD hemp flower legal?

Yes. If the hemp-derived CBD has less than 0.3% THC, it’s federally legal under the Farm Bill Act from 2018.

Is the hemp plant federally legal in the US now?

Yes. After the president signed the Farm Bill into law in 2018, hemp and CBD were federally legal in the U.S. However, this was only if it formally tested under 0.3% THC.

What is the legal history of hemp?

The Marijuana Tax Act in 1937 was the first of many to negatively impact Cannabis, including hemp and marijuana. Moreover, this law regulated and taxed anyone who imported, cultivated, or possessed Cannabis. Next, came the Boggs Act of 1951 and the Narcotics Control Act, both of which effectively inflated restrictions and penalties. These limits applied to anyone who grew, processed, used, or manufactured any Cannabis related thing. After that, lawmakers passed the Controlled Substances Act of 1970. This further defined Cannabis as a controlled, illegal, schedule I drug.

In 2004, the Ninth Circuit Court decided to protect the sales of hemp foods and body care products in the U.S. Later, the president introduced the Agricultural Act of 2014 (older farm bill). This gave research institutions permission to farm hemp if state legislation allowed. Adding to that, in 2018, the amended bill removed hemp and its derivatives as a controlled substance if below legal limits for THC.

Recently, the Cannabis Regulation and Tax Act (410 ILCS 705/) legalized the recreational use, consumption, and production of all Cannabis in Illinois. Additionally, it became law on January 1, 2020. a

Do you have more questions about hemp litigation in Illinois or anywhere else in the United States? Please contact one of our attorneys. They focus on related legal matters and are happy to oblige.

Rescend COVID-19 IWCC Rule

by Staff Writers | Apr 28, 2020 | News & Events

On April 27, 2020, the Illinois Workers’ Compensation Commission rescinded the previously enacted “Emergency Rule” regarding burden of proof for injured employees diagnosed with COVID-19.  Specifically, the actions taken today by the Illinois Workers’ Compensation Commission rescinded the actions it had previously taken on April 13, 2020, when the IWCC added an Emergency subsection to its Rules of Evidence addressing the evidentiary burden in proving a claim for benefits under the Illinois Workers’ Compensation Act/Illinois Occupational Disease Act in a case of COVID-19 exposure. 

It appears the action taken today by the Illinois Workers’ Compensation Commission in rescinding its Emergency Rule was in response to the granting of a temporary restraining order in a suit filed in Sangamon County.  On April 22, 2020, the Illinois Manufacturers Association and the Illinois Retail Merchants Association filed a Complaint in Sangamon County seeking a temporary restraining order against the IWCC’s Emergency Rule.  On April 23, 2020, Judge John Madonia entered a temporary restraining order enjoining the IWCC from implementing the Emergency Rule.

With the Illinois Workers’ Compensation Commission rescinding the Emergency Rule, it makes the Order entered in Sangamon County on the temporary restraining order moot.

It is important to note that this not likely the end of this issue.  Comments from both the Illinois Governor and the IWCC Chairman make it clear there will be ongoing discussions about how to extend additional protection to Illinois workers during this COVID-19 pandemic.  Our office continues to monitor this situation and provide our clients guidance during these very difficult times.

If you have any questions about the latest action by the IWCC regarding COVID-19 IWCC or any other workers’ compensation questions, please contact attorney Jennifer Barbieri.  Ms. Barbieri focuses her practice on representing employers and insurance companies in claims including workers’ compensation and labor and employment litigation.

Employer’s Liability for COVID-19

by Staff Writers | Apr 14, 2020 | News & Events

On April 13, 2020, the Illinois Workers’ Compensation Commission through its rule-making authority added an Emergency subsection to its Rules of Evidence addressing the evidentiary burden in proving a claim for benefits under the Illinois Workers’ Compensation Act/Illinois Occupational Disease Act in a case of COVID-19 exposure.  Below is a brief synopsis of this new rule and how this new rule is going to impact employers of essential workers. 

Emergency Rule:  Section 9030.70 Rules of Evidence:

            In added section 9030.70(a)(1), the IWCC has indicated that in any proceeding before the Illinois Workers’ Compensation Commission where the injured employee is a “Covid-19 First Responder” or “Front-Line Worker” (as defined in the next subsection), if the injured worker sustains a COVID-19 injury, there is a rebuttable presumption that the injured workers’ exposure arose out of and in the course of the employee’s employment.  There is also a rebuttable presumption that the injured workers’ condition is causally connected to the hazards or exposures of the injured workers employment.

            In added section 9030.70(a)(2), “COVID-19 First Responder or Front-Line Worker” includes police, fire personnel, emergency medical technicians, paramedics, all individual employed and considered as first responders; health care providers engaged in patient care; correctional officers; and crucial personnel identified in various executive orders including grocery store employees; food, beverage and cannabis employee’s in production and agriculture; organizations that provide charitable and social services; gas stations and businesses needed for transportation; financial institutions; hardware and supplies stores; critical trades; mail, post, shipping, logistics, delivery, and pick-up services; educational institutions; laundry services; restaurants for off-premises consumption; supplies to work from home; supplies for essential businesses and operations; transportation; home-based care and services; residential facilities and shelters; professional services; day care centers for employees exempted by other executive orders; manufacture, distribution, and supply chain for critical products and industries; critical labor union functions; hotels and motels; and funeral services.

How this Rule impacts Employers of “Front-Line” Workers:

It is important to note that this is an evidentiary rule that shifts the burden of proof from the employee to the employer.  In the case of COVID-19, this new rule states that if a “front-line worker” becomes infected with COVID-19, the presumption is the condition was contracted from his/her employment.  At that point, the employer is not required to eliminate any occupational as a possible contributing cause of the employee’s COVID-19 condition.  Rather, at that point, the employer must introduce some evidence of another potential cause of the employee’s COVID-19 condition.  If such evidence is produced by the employer, then the Arbitrator/Commission would be free to determine the factual question of whether the occupational exposure was a cause of the employee’s COVID-19 based upon the evidence presented without the benefit of the presumption to the claimant.

As the rule is currently written, there is a large pool of employers that will have potential exposure for employees who contract the COVID-19 disease.  Documentation and immediate investigation at the time an employer learns of an employee’s COVID-19 diagnosis will be imperative to properly evaluate the employer’s potential exposure for such a claim.

If an employer is found liable for an employee’s COVID-19 diagnosis, exposure will include the following benefits:  medical expenses (including, but not limited to, doctor’s visits, any hospitalization, and any follow-up care), the employee’s time off of work, and permanency benefits.  The permanency benefits could result in significant exposure as with some cases it unclear what the future holds for individuals diagnosed with this condition.  PPD benefits in these types of cases could include awards for “loss of man as a whole” or even death benefits.

With this new rule, there is a lot for employers to consider.  If you have any questions about the new COVID-19 IWCC Rule or any other workers’ compensation questions, please contact attorney Jennifer Barbieri.  Ms. Barbieri focuses her practice on representing employers and insurance companies in claims including workers’ compensation and labor and employment litigation.

Donation to Illinois Center for Autism

by Staff Writers | Aug 15, 2019 | News & Events

BELLEVILLE, ILL. (August 15, 2019) – Clayborne & Wagner LLP has joined the Illinois Center for Autism’s Pedal for Autism as a Bronze Sponsor for this year’s fundraising event held on August 19th.

The Illinois Center for Autism (ICA) is a not-for-profit, community-based, mental health treatment, and educational agency dedicated to serving people with autism. Referrals are made through local school districts, hospitals, doctors,and the Department of Human Services.

“Our firm shares the same vision as the ICA – ‘that each individual is unique and defined by possibilities and not limitations,’” said Michael L. Wagner, Partner at Clayborne & Wagner LLP. “Anything we can do to help raise awareness of this great organization and their efforts, is something we will gladly do, time and time again.” 

“The ICA is a one-of-a-kind organization we are very proud to support,” notes James F. Clayborne Jr., Partner at Clayborne & Wagner LLP. “Children and adults with autism spectrum disorder deserve to be presented with the same opportunities as their neighbor, and we couldn’t be happier to encourage that endeavor with this sponsorship.”

For more information about Clayborne & Wagner LLP, please visit www.cswlawllp.com.