Federal Law

 

Twenty-four states and the District of Columbia have amended their marijuana prohibition laws to protect doctors, patients, and suppliers (in some states). Four states–Colorado, Washington, Oregon and Alaska–have instituted a system of full (non-medical) legalization. Yet, marijuana remains illegal under federal law for (nearly) all persons in all circumstances, and harsh penalties apply.

The federal marijuana prohibition laws are found in the Controlled Substances Act, 21 U.S.C. sec. 801 et seq. (the CSA). The CSA lists marijuana in “Schedule 1,” expressing the belief of Congress that marijuana (1) has a “high potential for abuse,” (2)  “has no currently accepted medical use in treatment in the United States,” and (3) “lack[s] … accepted safety for use of the d rug or other substance under medical supervision.” Legal and administrative efforts by patients and their advocates to reschedule marijuana and allow its prescription by doctors, based on the solid evidence of its medical benefits, have been resisted by the federal government for forty years.

Notwithstanding the law, since 2003, the federal government has asserted, in its own patent claim, that the cannabinoids contain properties useful in the treatment of a wide variety of diseases. The full abstract:

Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer’s disease, Parkinson’s disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidoil, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting of H, CH.sub.3, and COCH.sub.3

Federal law provides no protection for patients, doctors and suppliers, including cultivators, in medical marijuana states, despite their compliance with state law. Since California’s implementation of the first medical marijuana law in 1997, federal law enforcement have raided state-licensed cultivation and distribution facilities in some states, often without making arrests, but seizing assets and shutting them down. Other states, notably Maine and Colorado, have not been seriously  interfered with by federal authorities.

During the 2008 campaign, candidate Barack Obama pledged that if elected, he would not deploy federal resources against state-legal medical marijuana. In 2009, accordingly, the Obama Justice Department advised federal prosecutors in medical states “not [to] focus federal resources … on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

In 2011 the Justice Department reversed course, however, issuing a new policy inviting federal prosecutors to target “commercial” cultivation facilities despite their state-authorization. Prosecutors threatened asset confiscation and arrest, not only against dispensaries, but their landlords, their banks, and all who “conspire” with them to relieve patient suffering. A federal court has ruled that the Constitution protects the rights of patients and doctors to consult about medical services involving cannabis free from government interference or punishment.

Everything changed in November of 2012, when Colorado and Washington voters approved initiatives, changing state law to tax and regulate non-medical marijuana, available to any adult. Washington, which has a population similar in size to Massachusetts, approved more than 300 outlets statewide. In Colorado, every adult has a right, besides access to state-licensed dispensaries, to cultivate up to six plants. In apparent recognition of the federal government’s inability to employ adequate resources to replace the state and local police who make more than 99% of all marijuana arrests, on August 29, 2013, DOJ announced a new formal policy to tolerate state legal cannabis IF carefully regulated to avoid federal issues such as diversion to other states or illegal distribution channels, access by minors and revenue diversion to criminal organizations.  In 2014, Oregon and Alaska voters enacted legalization laws. 

In congressional hearings on September 10, 2013, the DOJ emphasized its guidance to local prosecutors not to prosecute private entities cultivating or distributing cannabis in compliance with state law and without harm to federal concerns. Since regulation avoids all the areas of federal concern far more than prohibition, the state reform laws should generate reduced harm data to reduce the risk of federal interference. The hearings also highlighted the need to ensure that banking regulators change policy to encourage banks to accept ordinary business accounts from marijuana distributors. DOJ agreed that allowing banks to handle cannabis accounts will enable more financial transparency, which federal policy favors for state regulated cultivation-distribution businesses, than the non-bank cash-transactions federal prohibition policy has demanded. 
This policy is not permanent. Executive or congressional removal of marijuana from the most prohibited level (“Schedule One”) of the federal CSA is needed, as are changes to other federal laws including tax laws. We believe the pressure to change federal and state law and accommodate this newly legal business, medically and non medically (full adult use), will be irresistible. Reforming marijuana prohibition has growing support, among both Republicans and Democrats.  Mainstream commercial legalization is no longer a matter of whether, but when.