Executive Director Blog: Eric Berlin of Dentons Speaks About Medical Marijuana

Eric Berlin

Recently I sat down to talk with Eric Berlin, an expert in the field of cannabis law.

Sharon:  So, tell me about yourself and your work.

Eric: Thank you and thank you for the opportunity to speak with you. I lead the US and global and cannabis sector groups at Dentons, which is the largest law firm in the world. I spend 100% of my time for clients in or impacted by the emerging cannabis industry. I’ve been recognized as one of the leading cannabis law lawyers both in the US and internationally, and Chambers, Legal 500, and Law 360 have given me their highest recognitions. We have a large team helping different companies impacted by cannabis legalization and reform.

Sharon: How did you get interested in this?

Eric: I have been a lawyer my entire adult career and interested in the rule of law. Also,I have a personal story with cannabis. I was an attorney and a partner at Jones Day, which is another large international firm, working on large litigation matters, mostly in healthcare and antitrust. I have Crohn’s disease and have generally been healthy, but around 2006 came out of remission and was having trouble getting  healthy again. I had read about people using cannabis for digestive diseases. When I asked folks involved in that community about that, knowing really nothing myself, about half of them looked at me surprised and asked, “aren’t you?” The use of cannabis was so normal in that patient population, and it struck me as just wrong that patients or their family members needed to go to the illicit market to get something to help provide them some relief. And so, I worked pro bono to help draft and get passed the Illinois medical cannabis law, which was in the first wave of legalization laws to go through legislation as opposed to the ballot initiative. From there I was asked to go into other States and help them, and I have been involved in the federal bills as well.

Sharon: C4UHC is an organization with a mission to garner greater efficiencies in the healthcare system by achieving national adoption of our interoperable accredited ANSI NEMA 2020 standards for hospital vendors.  How does the issue of state and federal marijuana laws impact this process?

Eric: All but three states have legalized cannabis to some extent, with twenty-two having legalized it for all adults. Additionally, some states are permitting sales of various intoxicating hemp derived isomers. This has vast implications for all employers and employees, and our healthcare system in all sorts of ways. The implications for the healthcare system are enormous from lots of different angles in terms of having uniform standards or greater efficiencies. One of the issues that we see is that employee testing has antiquated rules around cannabis that don’t match the legislative reality. The industry and industry’s intersection with healthcare could be standardized a great deal, and you make accredited standards to help hospitals and suppliers. How to handle the vast legalization of cannabis and how that intersects with old testing rules creates a great deal of confusion and wasted time.

Sharon: Tell me where we are in state legalization versus Federal laws and explain how this impacts hospitals. 

 Eric: First, we need to recognize that cannabis is not going away. It can’t be brushed aside, and our old rules don’t apply. There are 38 states that have legalized medical cannabis sales for patients. Twenty-two of those states  have legalized marijuana for adult use (like here in Illinois). Any adult can walk into a dispensary and make a purchase. This year, retails sales of state legal cannabis will be about $35 billion. It’s a significant amount and has significant implications across the US. Yet, cannabis remains federally illegal, with limited exceptions. The US has not prosecuted any state legal company for almost 8 years. Folks need to recognize that a vast number of their employees and vendors have access to state legal cannabis and, from their perspective, it’s legal.

There are really four cannabis markets in this country. First, the wholly Illegal market – sales of cannabis not state legal or federally legal – totally  is around $40 billion,  larger than the state legal market. Second, there are the state legal markets.  Third, there is hemp, which has been removed from the list of controlled substances, and all sorts of hemp products are being produced – some containing THC, some not. Last, there is the federal legal program for research, product development and export. Cannabis is getting normalized, and we can provide more uniform approaches for it.

Sharon: What would improve the current challenges we face in supplier representatives going into hospitals in states with different laws around marijuana use?

Eric: tThere are several impacts of this patchwork of laws on hospitals. One is patient use in hospitals. Hospitals generally say, “we can’t let you use cannabis because it’s a drug, and we control all drugs that our patients take. That causes a tremendous amount of friction. We also have employees using cannabis off the job, perhaps recreationally or perhaps for a medical condition. Whether a person uses cannabis in the last week is a waste of time to test, so we need better policies there. Hospitals and employers generally need to find policies that accommodate state-legal cannabis use in sensible ways.

Sharon: What are trends you are seeing?

Eric: Given cannabis’s increased legalization and prevalence, more employers are no longer testing for cannabis or are changing their policies to accommodate the reality of the widescale use of cannabis.

States continue to legalize, and there is no one in Congress proposing that we need to increase federal enforcement against state-legal businesses. All the bills pending in Congress are continuing down the path toward decriminalization and legalization of cannabis.

Sharon: Do you have any data on the cost to the healthcare system of differences in state/vs Federal regulation around marijuana?

I don’t have specifical numbers on cost.  I have seen many hospitals bury their heads in the sand about cannabis in terms of what to do about patients, employees and vendors. At minimum, hospitals should adjust for the state laws and their requirements on employers, recognize how in fact folks are using cannabis, and have policies and standards that align with what’s really going on in the world. There are ways to get to better results for the hospital and hospital system.

Sharon: Are there any lessons to be learned from the challenges in state/Federal difference in marijuana laws for the healthcare hospital vendor credentialing process?

Eric: I think that education is the key. Only three states have no cannabis legalization. There are 22 and counting that permit any adult use of cannabis.  The economic impact of state legalization is over $100 million and growing, and cannabis is not going away. Hospitals can right-size policies to accommodate this reality better.

Sharon: Any parting thoughts?

Eric: Meta studies on cannabis are revealing that there are all sorts of positive impacts of cannabis, on inflammation, neurology and immunity. We must educate the medical system on the legality and reality of what’s going on.

I do foresee incremental changes coming in federal law. Studies show that almost 70% of the US public support cannabis legalization.  There are changes happening with banking that could impact further legalization.

There are other federal reforms on the horizon. President Biden had an executive order requiring his Attorney General and Secretary of HHS to reanalyze the scheduling of cannabis. I’m hopeful that Congress will pass the SAFE Banking Act, which would increase public safety and access to capital in the industry.

Again, it’s important to note for the last  eight years we have not seen federal enforcement under the Controlled Substances Act against state legal operators.

The bottom line is c4UHC’s accredited ANSI standards help the healthcare system, and there are ways to get hospitals to adopt more uniform and current standards.

C4UHC Executive Director Sharon Gleason

This is part of a series of posts authored by C4UHC Executive Director Sharon Gleason Jenkins, which are designed to inform, educate, and engage the credentialing community, and to offer the opportunity for feedback and idea-sharing. We look forward to hearing your thoughts and ideas.

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