As a growing number of states have authorized businesses to produce and distribute medical marijuana, or have even gone so far as to legalize the drug's recreational use within the state, entrepreneurs have eagerly established businesses and dispensaries that produce, process, or distribute marijuana products. The federal government, however, continues to view marijuana as an illegal drug with no medicinal use.
The conflict between these views puts cannabis business owners in a tricky situation. This article discusses the risks marijuana businesses face, the caselaw and statements indicating the federal government's position, and how some businesses seek to shield themselves from exposure to liability for federal crimes while still conducting business within their state.
In a climate of increasingly liberal attitudes toward marijuana, as reflected in state marijuana laws, federal marijuana laws remain strict. The Controlled Substances Act (CSA) establishes a system for the classification of controlled substances, dividing substances into groups depending on their potential for abuse, the potential for harm to users, and potential use in medical treatments. Marijuana is classified as a Schedule I drug, meaning that the federal government views marijuana as having a high potential for abuse and no acceptable medical uses. Other Schedule I drugs include heroin and methamphetamines.
Because of the federal view of the drug, doctors do not write a prescription for marijuana, which might subject them to liability, but rather provide a "recommendation." This is different than a prescription for Marinol, a synthetic THC drug that is used for pain management. Cultivators and distributors of marijuana are unable to insulate themselves from liability since they are in direct contact with a product that is contraband under federal law.
The Drug Enforcement Administration (DEA) is responsible for enforcing federal marijuana laws. Since states such as Colorado, and Washington D.C. began to legalize medical and recreational marijuana and others like New York and New Jersey are drafting marijuana reform bills, there have been significant changes in the DEA's position regarding cannabis industry businesses that comply with state laws. Initially, they brought many federal enforcement actions against medical marijuana cultivators and distributors. The Supreme Court's decision in Gonzales v. Raich firmly established that even businesses that were fully compliant with state regulations risk conviction for federal offenses. Now, the DEA says that while it has the ability to prosecute these businesses it will choose not to do so.
A desire to avoid infringing upon the rights of each state, recognition of changing public attitudes toward marijuana, and the unpopularity of prosecutions involving sick and elderly users and their caregivers have resulted in the federal government doing some backpedaling away from strict enforcement of adult use. A policy decision by the United States Department of Justice was announced in a 2013 memorandum relating to marijuana prosecutions. In the memo, the Attorney General indicated that prosecutions would focus on production, distribution, and sale activities that clearly fall outside of state legalization schemes, such as the distribution of marijuana by organized crime networks, the distribution of marijuana to minors, the diversion of marijuana to states without legalization schemes, drugged driving, and other clearly unlawful activities.
Despite this policy statement, new law enforcement actions have commenced against some marijuana businesses that comply with state law and don't otherwise appear to fall outside of the guidelines presented in the memo. Businesses in California were particularly concerned about the federal civil forfeiture action against Harborside Health Center, a large marijuana business with locations in Oakland and San Jose. The case has continued despite the announced change in national prosecution policy and remained unswayed by a lawsuit filed by the city of Oakland (dismissed for procedural reasons) filed in defense of the business.
If the trend continues, legal marijuana, medical cannabis, new cannabis laws, and the marijuana industry will expand greatly in the coming years. Until the federal view of marijuana legalization changes, this will mean continuing uncertainty for marijuana business owners and customers looking for legal marijuana use. Careful compliance with state and local drug policy and public health regulations regarding marijuana businesses may prevent many legal problems. However, the potential for the federal seizure of assets or criminal prosecution for conducting a marijuana business makes it such that consultation with an experienced cannabis law attorney is a wise investment for most marijuana businesses.
