AACE: Richard Y. Cheng JD CHC
Richard Y. Cheng
“...the focus of the Texas Cannabis Industry Association (TCIA) during my representation was focused on patient access to medical cannabis and the regulatory framework of the Texas medical cannabis program, specifically the Texas Compassionate Use Program”
I had the pleasure of meeting Richard in Las Vegas during MJBiz earlier this month, he is as charismatic in real life as he is online. As more Asian Americans enter the cannabis industry, we are seeing a class of individuals that in any other industry be comfortable in any C-Suite, yet they enter this emerging industry with the goal to change the landscape for the better of the community. We thank people like Richard for taking the pioneering steps into the cannabis industry to bring better health choices and education to our diverse communities. - Ophelia Chong
With your expertise in care providers, do you see cannabis (after federal legalization) as applicable to patient health?
There are a lot of cross-over elements between healthcare and cannabis. Prior to attending law school in 2003, I worked as an occupational therapist for four years so I came from a clinical operations background. Given that background, as an attorney I focus on healthcare regulatory and corporate transactions, representing a variety of healthcare providers (e.g. physicians) and investors in healthcare. I fell into cannabis through the healthcare side in 2013 when I started working with a client inquiring about physician liabilities prescribing vs. recommending medical cannabis. State medical cannabis programs have been on the rise for the past 10-15 years with states expanding the number of qualifying conditions and physician enrollment into such programs. Healthcare facilities, such as nursing facilities, assisted living facilities, hospitals, etc. are all seeing more patient care issues pertaining to the storage of cannabis, patient consumption, and provider administration of cannabis.
Having helped guide the Texas Cannabis Industry Association with CBD products with the FDA, do you see more regulation coming down from the FDA on CBD products that are stronger than CBD (Delta 8)?
Just to clarify, the focus of the Texas Cannabis Industry Association (TCIA) during my representation was focused on patient access to medical cannabis and the regulatory framework of the Texas medical cannabis program, specifically the Texas Compassionate Use Program (TCUP). The program was created as part of the Texas Compassionate Use Act that was passed in June 2015. However, the Texas CBD market started to grow when the 2018 Farm Bill was passed and when the Texas Controlled Substances Act was amended in June 2019, thereby legalizing hemp and hemp cannabinoid products. As we all know, there have been numerous FDA warning letters have been issued since 2019 because of Food Drug and Cosmetic Act (FD&C Act) restrictions. Some of my clients have been impacted by the FDA warning letters and restrictions, requiring legal representation on those matters. So far, despite Congressional efforts, the FDA has not issued additional guidance or changed its stance on CBD products, and there is no clear indication that any new guidance on CBD will be issued by the FDA. In fact, on November 21, 2022, five warning letters were issued by the FDA for “illegally” selling CBD products.
If you could speak to APIs entering the cannabis industry, what advice would you offer them?
I strongly recommend self-education and doing your research before entering the cannabis industry. After that, APIs entering the cannabis industry should understand this is a heavily regulated industry with many challenges including, but not limited to, taxes, banking, insurance, and capital raising. Also, I recommend creating a business plan and understanding what your resources are and what segment of the industry you are good at.
Minnesota is a mixed state, meaning it has limited medical “marijuana” programs for qualifying patients, but adult use is off the books, do you see MN legalizing Adult use in the next five years?
I wouldn’t be surprised if Minnesota passed adult use by 2023. Minnesota had a failed bipartisan legalization proposal in 2019 and once again in 2021, which was passed by a Democratic House but blocked by a Senate controlled by the GOP. However, the Republicans lost control of the Senate chamber this year and the rhetoric provided by Minnesota Gov. Tim Walz is that legalizing adult-use cannabis is a priority. Rumor has it that Tim Walz may even collaborate with Jesse Ventura on his efforts with cannabis.
In California we are seeing a movement amongst caregivers and doctors seeking the use of psychedelics in hospice care and for end of life, do you see this being possible in hospice care in the future?
I think anything is possible given how much healthcare has changed over the years. Had someone said healthcare providers would incorporate cannabis into medical treatments 25-30 years ago, people would have laughed and severely discounted it. Now, there are specific state laws addressing healthcare issues and providing immunity to certain healthcare providers. For example, in California, you have Ryan’s Law compelling healthcare facilities to allow terminally ill patients with valid medical ID cards to consume medical cannabis on the premises. I think in order for government bodies to allow hospices to use psychedelics on a widespread basis, more research and empirical evidence is needed. I know many states, such as Texas, have passed psilocybin research laws. In short, I believe that is possible and should not be discounted.
In 2020, you co-authored an article “ 3 Risk Categories for Providers Whose Patients Use Cannabis”, traditionally in some circles, RSO (Rick Simpson Oil, a potent condensed form of cannabis oil) has been offered to cancer patients for over 2 decades in the underground care community. How do you counsel any caregiver offering cannabis to a patient?
There are so many legal concerns for healthcare providers as it relates to cannabis because cannabis issues are socially polarizing (albeit less now than before) and healthcare is heavily regulated as well. Physicians and healthcare facilities (e.g. nursing homes, assisted living facilities, etc.), usually have questions about whether patients or residents are allowed to consume cannabis, how it can be stored and how much assistance can be provided. I usually start off advising them on what the law says, both federally and on a state level. It is imperative that healthcare providers know cannabis meeting the definition of “marihuana” is federally illegal and may impact their business. For example, many healthcare providers are paid for their services through Medicare certification or Medicaid contracts. As Medicare or Medicaid providers, providers attest to complying with federal law and conditions of participation (CoPs), along with state licensure obligations. In addition, physicians usually have questions about their DEA registration, state medical board guidance, and their own federal healthcare program contracts (e.g. Medicare, Medicaid, Tri-Care, etc.). In short, I educate my clients so they are aware of the risks and legal obligations under state and federal law.
What was the most surprising moment you had in the cannabis industry?
There are two. One, when I first got into the industry, I met an attorney who was required to respond to an alleged professional responsibility and ethics violation for representing cannabis clients. While that was concerning, in some ways, especially being in the south, I wanted to learn the rules and push the envelope even more. Every individual and business in the cannabis industry should be allowed to retain adequate legal representation. The second one is learning how profitable the pet industry is for cannabis products.
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