Lawmakers Introduce the Michigan Cannabis Safety Act Which Would Impose More Stringent Regulations on Medical Marijuana Caregivers

An ongoing debate between medical marijuana caregivers and large commercial marijuana producers in Michigan over the role and rights of caregivers is now the subject of legislation introduced September 14 by Michigan legislators.

Introduced as the Michigan Cannabis Safety Act, and reflected in Michigan House Bills 5300-5302, the legislation would limit the amount of marijuana that caregivers could grow and distribute.

  • The legislation would reduce the number of patients allowed per caregiver from five to one, beginning March 21, 2022. This would limit the amount of plants a caregiver could grow at one time from 60 to 12 plants, with an additional 12 plants allowed for personal use.
  • The amount of harvested marijuana that a caregiver could keep on hand would be reduced from 15 ounces to 5 ounces.
  • Caregivers would have to register for a Specialty Medical Grower license, pursuant to which growers would be required to pay $500 application fees and have marijuana undergo safety testing.
  • Marijuana plants would also have to be grown in an indoor, secure facility.

As we addressed in a recent post, proponents of the bill argue that having unlicensed caregivers leads to public health and safety risks, and contributes greatly to billions in black market sales of marijuana in Michigan.

Activists who oppose the new licensing proposal argue that the Michigan Cannabis Safety Act would make Michigan marijuana users more dependent on large cannabis companies, which in turn would result in higher prices. Around 100 people rallied in support of individual caregivers at the State Capitol on September 15, a day after the new legislation was introduced.

We will continue to keep you apprised of further developments in this debate. In the meantime, if you have any questions or require assistance, please contact Paul Mallon or your Fraser Trebilcock attorney.

mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at or (313) 965-9043. 

Interactive Long-Term Care Planning Decision Tree: Workshop Breakdown

When evaluating long-term care strategies for clients, the lawyer must ask a series of questions to understand the issues and variables to consider in planning. Every client has their own unique needs, requiring valuable insight from an experienced attorney. Fraser Trebilcock attorney Melisa M. W. Mysliwiec will be sharing key information with other attorneys in Michigan to help them better serve their own clients in long-term care planning. The presentation, titled “Interactive Long-Term Care Planning Decision Tree,” will be delivered to members of the Institute of Continuing Legal Education’s Elder Law Certificate Program on Friday, September 17, 2021.

 The seminar will assist attorneys in identifying the critical information they can collect at the initial client meeting, and explore the issues and variables to consider in Medicaid-focused strategies and how they can impact the options available to their clients. Attorneys will learn using real-world scenarios and going through the decision tree step by step from start to finish.

Melisa, along with Rosemary Howley Buhl, Arthur L. Malisow, Charles S. Ofstein, and Amy Rombyer Tripp, will answer questions and provide advice on each step of the decision tree to have attendees walk away with a completed decision tree that they’ll be able to use as a model in their practice.

Attorney Melisa Mysliwiec

If you would like to talk with an attorney about putting legal plans in place, contact attorney Melisa M. W. Mysliwiec. Melisa focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at or 616-301-0800.

[Client Reminder] October 14 Deadline: Medicare Part D Notice of Creditable (or Non-Creditable) Coverage

Medicare Part D notices (of either creditable or non-creditable coverage)
are due for distribution prior to October 15th.

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 requires entities who offer prescription drug coverage to notify Medicare Part D eligible individuals whether their prescription coverage is creditable coverage. With respect to group health plans including prescription coverage offered by an employer to any Medicare Part D eligible employees (whether or not retired) or to Medicare Part D Medicare-eligible spouses or dependents, the employer must provide those individuals with a Notice of Creditable or Non-Creditable Coverage to advise them whether the drug plan’s total gross value is at least as valuable as the standard Part D coverage (i.e., creditable). Medicare Part D notices must be provided to Medicare-eligible individuals prior to October 15th of each year (i.e., by October 14th).

The initial notices were due by November 15, 2005 and have been modified numerous times. The newest model notices and guidance were issued for use after April 1, 2011. Therefore, any notices you send from this point forward must conform to the new guidelines. Use of the former model notices will not suffice.

Downloads to the updated guidance and various notices can be found on the CMS website HERE and HERE.

As a reminder, there are five instances in which such notice must be provided:

  1. Prior to an individual’s initial enrollment period for Part D;
  2. Prior to the effective date of enrollment in your company’s prescription drug coverage;
  3. Upon any change in your plan’s creditable status;
  4. Prior to the annual election period for Part D (which begins each October 15); and
  5. Upon the individual’s request.

Providing the notice above is important as a late enrollment penalty will be assessed to those persons who go 63 days or longer without creditable coverage (for example, if they enroll in an employer’s prescription plan which is not as valuable as the Part D coverage instead of enrolling directly in the Medicare Part D coverage).

If your plan does not offer creditable prescription drug coverage and if the Part D eligible person enrolls in your plan instead of the Part D plan for at least 63 days, a permanent late enrollment penalty of 1% of the premium is added to the Medicare premium for each month the person does not enroll in Part D.

Please contact us if you need assistance with your Notice of Creditable (or Non-Creditable) Coverage.

Reminder: Submit Medicare Part D Notice to CMS

As discussed above, employers offering group health plans with prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was “actuarially equivalent,” i.e., creditable. (Coverage is creditable if its actuarial value equals or exceeds the actuarial value of standard prescription drug coverage under Part D.) This notice is required to be provided to all Part D eligible persons, including active employees over age 65.

The regulations also require group health plan sponsors with Part D eligible individuals to submit a similar notice to the Centers for Medicare and Medicaid Services (“CMS”). Specifically, employers must electronically file these notices each year through the form supplied on the CMS website.

The filing deadline is 60 days following the first day of the plan year.

At a minimum, the Disclosure to CMS Form must be provided to CMS annually and upon the occurrence of certain other events including:

  1. Within 60 days after the beginning date of the plan year for which disclosure is provided;
  2. Within 30 days after termination of the prescription drug plan; and
  3. Within 30 days after any change in creditable status of the prescription drug plan.

The Disclosure to CMS Form must be completed online at the CMS Creditable Coverage Disclosure to CMS Form web page HERE.

The online process is composed of the following three step process:

  1. Enter the Disclosure Information;
  2. Verify and Submit Disclosure Information; and
  3. Receive Submission Confirmation.

The Disclosure to CMS Form requires employers to provide detailed information to CMS including but not limited to, the name of the entity offering coverage, whether the entity has any subsidiaries, the number of benefit options offered, the creditable coverage status of the options offered, the period covered by the Disclosure to CMS Form, the number of Part D eligible individuals, the date of the notice of creditable coverage, and any change in creditable coverage status.

For more information about this disclosure requirement (instructions for submitting the notice), please see the CMS website for updated guidance HERE.

As with the Part D Notices to Part D Medicare-eligible individuals, while nothing in the regulations prevents a third-party from submitting the notices (such as a TPA or insurer), the ultimate responsibility falls on the plan sponsor.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or

Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or

Video Surveillance Rules for Marijuana Licensees in Michigan

Marijuana licensees in Michigan must adhere to statutory mandates established by the Michigan Regulation and Taxation of Marihuana Act and regulations promulgated by the Michigan Marijuana Regulatory Agency (“MRA”). One such requirement, as discussed in a recent MRA bulletin, is having a properly functioning surveillance system in place 24 hours a day, seven days a week, at all licensee locations.

Surveillance systems must be able to record the following areas:

  • Where marijuana products are weighed, packed, stored, loaded, and unloaded for transportation, prepared, or moved.
  • Entrances and exits.
  • Point of sale or retail areas.
  • Security and back offices including rooms where the surveillance system itself is stored.
  • Anywhere marijuana or marijuana products are destroyed.

Failure to comply with the following requirements may result in disciplinary action.

Immediate response with recording is required

According to the MRA, a functioning, compliant surveillance allows for proper oversight of regulated products and businesses, and helps to ensure the safety of licensees, the licensee’s employees, and the general public. The MRA may request that a licensee provide a video surveillance recording, and if it does the licensee must provide it immediately, or at a later time approved by the agency.

Video surveillance must be maintained and stored for designated periods of time

Licensees must maintain surveillance recordings for 30 days, but the MRA may request that licensees maintain them for a longer period of time. Licensees should have the proper storage devices to provide to the agency on hand and should maintain backup copies of requested surveillance footage. Failure to comply with requests for video recordings may subject licensees to disciplinary proceedings.

Equipment must be working properly and staff training is advisable

Video surveillance equipment must be working properly at all times with a minimum resolution of 720p. In addition, surveillance logs must be updated and accurate. The name of the employee or business owner responsible for monitoring the system must also be made available. The MRA recommends that a licensee designate at least one employee to be trained in using the video surveillance system so that licensees can comply with all requests for the preservation and production of video surveillance.

Suspending operations if surveillance system isn’t working

The MRA recommends that a licensee discontinue operations if its surveillance system isn’t working due to a power loss or otherwise. Any surveillance system must be equipped with a failure notification system that provides notification to the licensee of any interruption or failure of the video surveillance system or video surveillance system storage device. Again, operating without the required video surveillance coverage in place may subject the licensee to disciplinary action.

Final thoughts for licensees

Obtaining and maintaining a license to legally operate a business under the Michigan Regulation and Taxation of Marihuana Act requires a clear understanding of the rules and regulations, and continual operational vigilance by entrepreneurs and their employees. The detailed rules concerning video surveillance are just one example of the types of issues that must be addressed and adhered to. If you have any questions or require assistance as a licensee in Michigan, please contact Paul Mallon or your Fraser Trebilcock attorney.

mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at or (313) 965-9043. 

Sixth Circuit Limits the Scope of Personal Jurisdiction in FLSA Litigation

On August 17, 2021, in Canaday vs. The Anthem Companies, Inc., the United States Court of Appeals for the Sixth Circuit became the first appellate court to hold that individuals with a connection to the forum state may only join a collective action under the Fair Labor Standards Act (FLSA). This ruling protects employers by limiting their liability and expense in litigating claims of nonresident opt-in employees who join an FLSA collective action. It also prevents an employee from engaging in forum shopping of federal courts for the most favorable outcomes.

What is the background of this case and the resulting analysis by the Sixth Circuit?

In this case, The Anthem Companies, with corporate offices in Indiana, employed nurses to review medical insurance claims to determine if claimant payments are authorized under a medical necessity. Nurses who were contracted from all across the country were paid a salary and classified as exempt. As a result, they weren’t entitled to overtime pay.

Laura Canaday, a nurse based in Tennessee, reviewed The Anthem Companies medical insurance claims. She argued that Anthem misclassified her as “exempt” and she was entitled to overtime pay under the FLSA. Canaday moved to certify a nationwide collective action claim of review nurses who worked in several different states. The Anthem Companies moved to dismiss the suit from all out-of-state nurses since they lacked personal jurisdiction. The District Court and the Sixth Circuit agreed.

In its reasoning, the SIxth Circuit relied on the Supreme Court decision in Bristol-Myers, 137 S.Ct. 1773 (2017). This case involved Bristol-Myers, a California-based company, and its manufacture of a blood thinner, Plavix. California residents and nonresidents alleged defects of Plavix and related injuries. The Court ruled that the nonresident plaintiffs did not claim a relationship with the forum state (California). These nonresident plaintiffs did not purchase Plavix in California or suffer any harm from the drug in the state. The Supreme Court ruled “that any similarity between the resident and nonresident plaintiffs’ claim offered an insufficient basis for exercising specific jurisdiction.”

The Sixth Circuit in Canaday relied on Bristol’s reasoning, stating: “Anthem did not employ the nonresident plaintiffs in Tennessee. Anthem did not pay the nonresidents in Tennessee. Nor did Anthem shortchange them overtime compensation in Tennessee. . . a court may not exercise specific personal jurisdiction over claims unrelated to the defendant’s conduct in the forum state.”

Canaday contended that she must only show that their claims arose out of Anthem’s contacts within the United States, not specifically Tennessee. The Sixth Circuit disagreed: “Many federal laws provide for nationwide service on defendants and personal jurisdiction over them in any federal district court in the country. . . The FLSA, however, does not offer nationwide service of process.”

The court disagreed with Canaday’s claim that as the named plaintiff she must comply with the Fourteenth Amendment, but the nonresident plaintiffs aren’t required to do the same.

“Whether a court has personal jurisdiction over a defendant depends on the defendant’s contacts with the state in which the plaintiff filed the lawsuit. Two types of personal jurisdiction exist for corporations. A court may assert ‘general’ … jurisdiction over a defendant in its home state, where the defendant is incorporated or headquartered. Or a court may exercise ‘specific’ … jurisdiction over a defendant if the plaintiff’s claims ‘arise out of or relate to’ the defendant’s forum state activities.”

The Anthem Companies, which is incorporated and headquartered in Indiana has no “at home” status in Tennessee.

How does this ruling impact employers?

The scope of litigation under FLSA—at least in states within the Sixth Circuit—is limited in terms of size and geography, and as a result employers will likely enjoy reduced expense and liabilities of “out of state” employees who lack personal jurisdiction where the company is headquartered. It prevents employees from forum shopping to provide the “ideal” federal court to hear their claims.

If you have any questions about this case, or questions about the FLSA more generally, please contact Aaron Davis or your Fraser Trebilcock attorney.

Aaron L. Davis is Shareholder and Chair of Fraser Trebilcock’s labor law practice. You can reach him at or (517) 377-0822. 

CDC Eviction Moratorium Struck Down – How Are Michigan Courts Responding

On August 26, 2021, the U.S. Supreme Court struck down the CDC’s section eviction moratorium. That opinion can be found here.

At the time it was uncertain what this meant for Michigan courts handling evictions in light of the July 2 amendments to Michigan Supreme Court Administrative Order No. 2020-17 (“Order 17”), found here.

As of Friday August 27, 2021, when the author personally filed landlord-side eviction actions at a district court near you, the district courts were still requiring use of SCAO form DC 511 – a form modeled after the CDC moratorium and allowing tenant declarations consistent with it. Thus, with various administratively-ordered procedural changes to eviction cases, it was unclear what changes, if any, would follow from the striking of the CDC moratorium. Since that time the State Court Administrator’s Office has removed links to form DC 511 and are verbally advising that the office pulled the form. It is not a mistake or a dead link. At the time of publication of this update however, there does not appear to be a Michigan Supreme Court order so directing. Specifics have been requested from the SCAO office on this.

Please check back for updates on this issue. We will update this blog if further procedural changes are ordered. In the meantime, form DC 511 should not be necessary for filing new eviction cases.

Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared is Chair of the firm’s Real Estate department, and also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at and (517) 482-0887.

Michigan Regulatory Agency Clarifies Strict Guidelines for Marijuana Packaging Will Be Enforced Effective February 2022

One of the important objectives of legal marijuana regulations in Michigan is keeping the product out of the hands of minors. To that end, the Michigan Marijuana Regulatory Agency (“MRA”) recently released an advisory bulletin that outlines packaging rules and enforcement guidelines for edible marijuana products in Michigan. This advisory comes in the wake of media reports indicating the number of cases of children ingesting marijuana products has risen based on data from Michigan Poison Centers.

“The MRA is aware of many non-compliant marijuana-infused edible packaging and products available in the market today,” the agency wrote in a statement. “Some of the marijuana packages that appeal to children have images of fruit, animals, or food on the packaging. Others use words that are commonly used in commercial candy such as milk chocolate, peanut butter, gummies, or chews without using the words THC, marijuana, or cannabis as modifiers.”

The MRA also announced that its Enforcement Division’s Field Operations team will be educating marijuana businesses regarding the contents of its bulletin and, effective February 2, 2022, will begin conducting investigations when necessary for marijuana-infused edible products or packaging that fails to comply with the rules. Violations could lead to significant fines.

Relevant Regulations

As set forth in the bulletin, Rule 3(9) of the Marijuana-Infused Products and Edible Marijuana Product Rule Set states a producer of edible marijuana product shall comply with the following:

  • Edible marijuana product packages shall not be in a shape or labeled in a manner that would appeal to minors aged 17 years or younger. Edible marijuana products shall not be associated with, or have, cartoons, caricatures, toys, designs, shapes, labels, or packaging that would appeal to minors.
  • Edible marijuana products shall not be easily confused with commercially sold candy. The use of the word candy or candies on the packaging or labeling is prohibited.
  • Edible marijuana products shall not be in the distinct shape of a human, animal, or fruit, or a shape that bears the likeness or contains characteristics of a realistic or fictional human, animal, or fruit, including artistic, caricature, or cartoon renderings. Edible marijuana products that are geometric shapes and simply fruit flavored are permissible.
  • Edible marijuana products must be in opaque, child-resistant packages or containers that meet the effectiveness specifications outlined in the Code of Federal Regulations (16 CFR 1700.15). Edible marijuana products containing more than one serving must be in a resealable package or container that meets the effectiveness specifications outlined in 16 CFR 1700.15.

The MRA explained that it is aware that there are many non-compliant marijuana-infused edible packaging and products available in the market today. According to the MRA, producers of non-compliant packaged product have the following options:

  • Repackage the products into new, compliant packaging.
  • Place non-transparent stickers on the package to clearly label the product as a marijuana product, THC product, or cannabis product using the same or larger font as the words commonly used in commercial candy.
  • Place non-transparent stickers on non-compliant portions of the packaging for marijuana- infused edible products.
  • Voluntarily destroy the non-compliant product.

Provisioning centers and adult-use retailers who possess packaged products that are non-compliant have the following options:

  • Place non-transparent stickers on non-compliant portions of the packaging for marijuana-infused edible products.
  • Voluntarily destroy the non-compliant product.
  • Adult-use retailers can compliantly send marijuana products back to adult-use processors via a secure transporter.

The MRA also advises that licensees need to correct products or packaging that are “egregiously non-compliant” immediately – or as soon as possible – rather than waiting until February 2, 2022. Examples of egregiously non-compliant products or packaging are identified in the bulletin.

What this means for marijuana product producers

Marijuana manufacturers and retailers should review the advisory bulletin and the underlying regulations, and take steps to begin correcting non-compliant products or packaging immediately in order to ensure compliance by February 2, 2022. For assistance, please contact Paul C. Mallon, Jr., Shareholder and Chair of Fraser Trebilcock’s cannabis law practice.

mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at or (313) 965-9043.