Heather Burke Legal: Antitrust Issues in California Cannabis Sales Agreements

Heather Burke Legal: Antitrust Issues in California Cannabis Sales Agreements

Heather Burke Legal: Antitrust Issues in California Cannabis Sales Agreements 
By Heather Burke
 Antitrust laws are a set of state and federal laws that prohibit business practices which impede competition on the theory that aggressive competition ultimately benefits the consumer. In other words, when businesses compete to sell something, the consumer wins, or so says the theory which underpins these laws anyway.

Antitrust issues are predominantly applied to mergers and acquisitions, i.e. when a larger company purchases or assumes a smaller company. Thankfully, many smaller sized farmers in the Emerald Triangle and Nevada County have been able to resist selling their companies to bigger conglomerates or shaving off majority ownership to venture capitalists. Thus, the antitrust issues relating to cannabis-related mergers and acquisitions are less pressing in California’s cannabis agriculture industry, though antitrust issues still show up in cannabis-related transactions, such as purchase agreements and sales-related business activity.

The biggest antitrust vulnerability in California cannabis agriculture is “price fixing,” or “an agreement among competitors that raises, lowers, or stabilizes prices or competitive terms.” In human terms, that means everyone has to determine their own prices without making any agreements with competitors.

Price fixing most often occurs “horizontally,” where two or more competitors agree to sell their product for a set price. I always cringe whenever I hear someone say, “we should all hold at $1000 this year!”  because that statement is arguably an invitation to fix prices. While there are some exceptions to antitrust laws, the rule against horizontal price fixing is set in stone and is considered “per se” illegal.

Price fixing can also occur “vertically,” such as where a producer agrees with someone further up the supply chain to fix a price. For example, because of this prohibition, producers and resellers were not allowed to agree to a mandatory minimum price floor for sale of the product to the consumer; hence, we got  the “manufacturer’s suggested retail price,” or “MSRP.” The rule prohibiting a mandatory minimum price floor was actually invalidated in 2007, meaning that a producer and reseller may agree to a price floor to the consumer if-and-only if the agreement would not be an unreasonable restraint on competition, which is determined on a case-by-case basis.

As an aside, it is insane to me that under the U.S.’s scorched-earth version of capitalism, our rural producers cannot band together to set a minimum price that would allow a modicum of economic and environmental sustainability, but that is the nation we live in and those are the rules under which our businesses operate. Despite antitrust laws purporting to protect the consumer, they have unsurprisingly benefited large corporations who can use antitrust laws to keep agricultural producers from organizing to mandate living wages. I am hopeful that at some point in the future, there will be a watershed moment in this nation where ridiculous laws that harm rural communities will be mitigated or negated, such as the prohibition on price fixing among rural producers, but we are not at that moment yet. Please vote, support your local trade and policy organizations, and elect candidates who take these issues as seriously as we must. Until the rules are changed, they must be followed.

Much respect,
Heather Burke



Cannabis Law Journal – Editorial Board Members

Editor – Sean Hocking

Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild