Marijuana Today: A Mixed Bag


There’s so much confusion about marijuana policy in the United States that it can make a person just want to sit back and take a deep…breath. Or something else.

Pot Is Illegal/Legal.

Marijuana is classified by the U.S. Drug Enforcement Administration as a schedule I drug, which means it has “no currently accepted medical use and a high potential for abuse.” It’s also illegal under the Controlled Substances Act.

But wait, you might ask, what about the 25 states, District of Columbia, Puerto Rico and Guam, all of which allow comprehensive medical marijuana and cannabis programs? Not to mention the 17 states with limited access marijuana product laws.

These states allow the use of certain products—ones with high cannabidiol and low THC—for medical reasons in limited situations or as a legal defense.

These products are believed to offer the therapeutic benefits of medical marijuana without providing the “high” associated with the drug.

Doesn’t federal law preempt state law? How can this be? What did I learn in law school???

DOJ Will Prosecute/Defer Prosecutions.

You are right to be dazed and confused.

In a 2013 memo, the DOJ reiterated that “marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute.”

HOWEVER, it further said that it was “deferring its right to challenge” state legalization laws at this time. And even though the feds might be backing off a bit, law firms are stepping up the game.

There’s a growing number of law firms out there representing the cannabis business and even users.

That’s right, law firms are representing clients who have knowingly violated federal law but not state law.

For instance, the DEA initiates forfeiture actions against dispensaries because they’re trafficking in a controlled substance.

Attorneys like Henry G. Wykowski represent dispensaries in forfeiture actions as well as on banking and tax issues.

The latter two are the largest problems facing the cannabis industry, Wykowski said at an ABA panel on legal issues facing the medical marijuana industry in August.

No Drug Rescheduling But More Research.

So what changes to the legal landscape are on the horizon?

In August, the DEA announced it wouldn’t reschedule marijuana, but would allow more research, which can lead to rescheduling.

“This will change the landscape of marijuana research,” Rick Doblin, founder and executive director of the Multidisciplinary Association for Psychedelic Studies, told Bloomberg BNA in an e-mail.

There’s “finally a pathway towards FDA approval and subsequent rescheduling,” he said.

“FDA approval also opens the door to insurance coverage,” Doblin said.

Doblin believes that rescheduling would be more of a symbolic gesture but it would destigmatize the drug.

An attorney who offers legal representation within the medical cannabis industry agrees with this sentiment. 

“The feds will have to deschedule marijuana to come into alignment with states’ laws,” James Anthony of Oakland, Calif., told Bloomberg BNA.

Making marijuana a schedule II drug won’t make any state laws legal, he said.

Court Case: Feds Can’t Prosecute Today. But Maybe Tomorrow. 

A recent Ninth Circuit decision adds more confusion to [the] pot.

In U.S. v. McIntosh, the court limited federal prosecution of marijuana, holding that a federal appropriations law prohibits the government from using certain funds to prosecute individuals who fully comply with state medical marijuana laws.

This law, the Rohrabacher-Farr Amendment, “at a minimum” prohibits the DOJ “from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws,” the court said.

The court warned, however, that the amendment doesn't provide immunity from prosecution for federal marijuana offenses under the CSA and that “Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding.”

Ok, so here today, gone tomorrow in a puff of smoke?

The significance of the holding is that it’s “going to stymie U.S. prosecutors from being overzealous and will influence their discretion,” Tony Serra told Bloomberg BNA.

Serra is a criminal defense attorney in San Francisco who, in his own words, “has spent his life defending society's outcasts.” 

But for how long will prosecutors hold off? 

A “growing acceptance of marijuana is what influenced the legislation,” Serra said.

Maybe that’s the answer! A growing acceptance of marijuana will eventually resolve all the mixed messages.

In the meantime, some know how to deal with the confusion.