Medical Cannabis in a Balkanized Legal Landscape

InVisible Project

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PUBLISHED ON: April 18, 2018

As a result of the conflicting laws and policies of the federal government and the various states, users of medical cannabis are faced with a host of practical challenges.

The Federal Controlled Substances Act places cannabis (including CBD, a constituent chemical) in Schedule I, the most tightly restricted category, with substantial criminal penalties for its sale and distribution and adverse implications for banking, taxation, intellectual property, and litigation. State law is subject to the primacy of federal law. For most of the 20th century, states mirrored the federal policy. Over the past two decades, however, a large majority of states have permitted the regulated distribution and possession of cannabis for medical and/or adult-use purposes. Some states permit such uses only for CBD; 21 other states (along with D.C., Guam and Puerto Rico) have comprehensive medical cannabis programs; and 8 states have authorized adult-use cannabis programs.

There are currently limited exceptions to the federal ban that help states maintain cannabis programs. Through the Cole Memoranda, a series of Department of Justice guidances, the federal government, in an exercise of its discretion, has advised that it will not prosecute cannabis offenses under the CSA if (i) the offense relates to medical cannabis; (ii) it takes place in a state which has a robust medical cannabis regulatory regime in accord with certain DOJ requirements; and (iii) the alleged offender operates in accordance with state law. If a distributor violates state law, e.g., by shipping cannabis out of state, it loses this protection.

Further, Congress has enacted a series of amendments to the federal budget authorization acts for fiscal years 2015, 2016, and 2017 that prohibit the use of congressionally allocated funds by the DOJ to prosecute alleged violators of the CSA, if they acted in compliance with the laws of certain enumerated states.

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