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Marijuana is Illegal Under Federal Law, For Now

Regardless of national or state public opinion, under federal law cannabis is illegal – period. In 1970, cannabis was added to the Federal Controlled Substances Act as a Schedule I illegal narcotic and has been there ever since. Congress concluded there is no acceptable use for the drug and, until that policy changes, doctors cannot “prescribe” and pharmacies cannot sell to the public without violating federal law. But that hard-line policy may be changing in the near future. On May 21, 2015, the U.S. Senate Appropriations Committee voted 18-12 to allow Veterans Administration (VA) physicians the ability to recommend medical marijuana to their patients in states where medical marijuana is “legal.”

Until federal law changes, the real question is whether the federal government chooses to enforce its own laws. The U.S. Drug Enforcement Agency (DEA) enforces federal trafficking (possession) penalties for marijuana, hashish and hashish oil. Such penalties carry a first offense of not more than 5 years and up to $250,000 for less than 50 kilograms, and from 10 years to life and up to $10 million for 1000 kilograms or more. But the U.S. Department of Justice (DOJ) has issued two guidance memoranda, one in 2009 and an updated version in 2013, essentially expressing its intent not to pursue federal prosecutions against individuals in states where marijuana is legal. Therefore, you have two conflicting federal agency policies in place today.

In the infamous Ogden memos of 2009 and 2011, President Obama and the DOJ took individuals using “medical” marijuana in states where it was legal off America’s Most Wanted list. The memo specifically states that U.S. Attorneys are directed to make “efficient and rational use of [their] limited investigative and prosecutorial resources” by not focusing “federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The bottom line? Don’t prosecute users or caregivers of individuals with serious illnesses using marijuana as part of their treatment/pain management; do prosecute commercial enterprises that unlawfully market and sell marijuana for profit.

In 2013, the DOJ’s Cole memo further refined enforcement to focus on preventing: (1) the distribution of marijuana to minors; (2) revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; (3) the diversion of marijuana from states where it is legal under state law in some form to other states; (4) state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; (5) violence and the use of firearms in the cultivation and distribution of marijuana; (6) drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; (7) the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and (8) marijuana possession or use on federal property. Once a new president is elected in November 2016, that policy could either stay the same or the federal government could again flex its regulatory muscle.

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