Cannabis law in the United States is complicated, unevenly applied, and fraught with controversy. It is also a relatively new area of focus, so even many attorneys are unaware of the many contradictions and intricacies of the laws and policy initiatives. With all the confusion surrounding this issue we at CITIVA wants to help with understanding this hazy legal maze.
Any discussion of cannabis law should begin from the federal perspective. In a federal system like the US, the national and local (state) governments share power, with certain authorities assigned to each side. Currently, in 29 states and 3 overseas territories, the laws regarding cannabis are in conflict with federal law.
In 1970, the Controlled Substances Act became law and allowed the federal government to “schedule” (classify) drugs, ostensibly, based on the inherent dangers and benefits. Schedule 1 drugs have been deemed to have no recognized medical applications. Under this scheduling we find drugs like heroin, PCP, LSD, and… cannabis(!).
Unlike drugs like cocaine, fentanyl, and methamphetamine, the federal government believes that there are no safe medical uses for cannabis. While many states have contested this plainly absurd classification by legalizing the use and sale of cannabis, this distinction still has profound consequences. Research into cannabis is hobbled because researchers still require federal approval, which is rarely given. Companies that sell or handle cannabis cannot use most banks and are unable to write off business expenses like normal businesses. Most importantly, patients who require medical cannabis cannot bring their medication with them or purchase more when they leave their home state.
Though the federal government has taken a consistent hardline approach to cannabis there are a few cracks in facade indicating changing attitudes.
The first signal that the federal government’s position on cannabis was beginning to change came in 2009 in the form of the Ogden Memorandum. This document provides guidelines to federal prosecutors from the Department of Justice regarding cannabis in states where it has been legalized. The memo informs federal prosecutors in states where cannabis is legal, to not prosecute those engaged in the cannabis business as long as they are compliant with state law and do not trigger federal enforcement priorities. These priorities include: unlawful possession or unlawful use of firearms; violence; sales to minors; financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law; amounts of marijuana inconsistent with purported compliance with state or local law; illegal possession or sale of other controlled substances; and ties to other criminal enterprises. This document did not have the force of law and was simply guidance but it had the effect of allowing the industry to breathe a little easier and thrive.
Another major advance for cannabis at the federal level is the Rohrabacher–Farr Amendment. This was a budget amendment that, while not legalizing or reducing penalties for cannabis, barred federal authorities from using resources to prosecute cannabis in states where it is legal. While this amendment has been instrumental in protecting thousands of businesses and millions of patients, it is a very precarious protection. If it is allowed to apse by congress, prosecutions could resume immediately.
DEA’s Decision on Cannabis Research
This initiative probably does the least to protect medical cannabis, it is significant nonetheless. Previously the DEA had strictly controlled all of the cannabis that could be used for research in the US. They enforced this monopoly rigorously which in turn had a chilling effect on cannabis research nationwide. In a weak attempt to compromise with the growing chorus of medical cannabis advocates, the DEA has loosened restrictions on research and is even allowing more universities to grow the plant for such purposes.
Before 1996 cannabis was fully and highly illegal in all 50 states. Now, 29 states and the territories of Guam, Puerto Rico, and the District of Columbia have legalized cannabis use and production in some form or another. These programs can be profoundly different in very important ways.
A few states that have legalized medical marijuana have only done so for so called CBD products. States like Alabama and Mississippi allow people with a qualifying condition to recieve low THC, high CBD products.
These states are not much different from states with outright bans on cannabis in two important ways. First, they usually limit the qualifying conditions in such a way as to keep the eligible population small and reduce it even more by making regulations very difficult to navigate. Second, cannabis products with THC levels below 0.3% can already be imported to any state in the country as a hemp product. CBD only laws are simply a way to quiet opposition without doing anything meaningful.
In 1996, California was the first state to legalize cannabis use and sales for medical purposes. Since then many states have followed their lead. In states with a medical cannabis program patients can buy cannabis or cannabis products from licensed dispensaries with a recommendation from their doctor.
Medical cannabis states vary widely in their application. In states like Arizona, patients with a recommendation can consult with dispensaries and choose from a variety of strains and products. In states like New York on the other hand, the medical cannabis program functions a lot more like a traditional pharmaceutical approach. The doctor recommends a specific product and dosage, no raw cannabis is sold, and recommendations must be renewed for refills.
A small but growing number of states have decided to abandon the medical approach to cannabis all together and legalize use and sale for all adults in the state. Colorado was the first to take this approach. There, all adults 21 and over can purchase cannabis and cannabis products freely, without prior recommendation or approval. Though initially wary of legalizing cannabis, the government of Colorado was taken aback by the many benefits that legalization provided. Due to its massive success other states have followed and many more are sure to come.
* This information should not be construed as legal advice. If you have questions about your particular circumstance you should contact a licensed attorney in your state.