About Cannabis

Cannabis laws, regulations, rules & ordinances in the US are currently only determined on a state by state basis and enforced at all levels of state and local government. As of mid 2021 there is still no over-arching federal legislation for cannabis

Legislation is currently being introduced into the Congress and it is hoped that there will be federal laws operating by 2022 -2023 with regard to cannabis business, products, processing and agriculture in the USA

Cannabis law covers many different aspects of US law. From criminal, business, intellectual property (patents & trademarks), banking & finance, insurance, transport, environmental, pharmaceutical and many many more.

Finding The Lawyer You Need

As with any area of the law it is first best to define the legal issue you have and then determine what specialist legal professional you may need to solve your issue.

If your legal problem is criminal (DWI, illegal possession or distribution etc) it is best to contact a criminal lawyer with experience with these issues in your state

If you are a business with a legal issue regarding cannabis you will now find specialist cannabis lawyers and law firms in every US state. Also if you conduct cannabis business across multiple states you will now find that most medium and large US law firms have created a cannabis practice to help clients do everything from undertaking an IPO , registering Intellectual Property, managing employment issues , manage real estate issues as well as many other legal matters.

Cannabis businesses are expected to have a very high level of legal compliance both in their registration for licenses and in the daily management of their business and their stocked products. Specialist state by state compliance firms have carved a niche serving the cannabis industry and may be the solution to some legal matters

The Law

Per our introduction currently all laws regarding cannabis defer to the states but as with any other aspect of life, tax and the IRS are the exception to the rule. Cannabis businesses like any other must pay both mandated state taxes and satisy IRS demands. In terms of the law this means that tax cases are heard by relevant state circuit courts and can be appealed up to the Supreme Court. As of May 2021 the Supreme Court has declined to hear any cannabis tax related cases.

Cannabis tax issues can be very complicated because of issues relating to banking & finance services being only provided by state operators. It is highly recommended that IRS issue are handled by an expert tax professional.

Medical Uses of Marijuana

State Medical Marijuana Laws

The following information comes from the National Conference of State Legislatures website Oct 2021

MEDICAL-USE UPDATE: As of May 18, 2021, 36 states and four territories allow for the medical use of cannabis products.

In November 2020, voters in Mississippi passed a ballot initiative to allow for medical use, but it was overturned by the state supreme court on May 14, 2021, and is not counted in the state totals on this page. Please see Table 1 on NCSL Website for more information.  

NONMEDICAL/ADULT-USE UPDATE: As of June 22, 2021, 18 states, two territories and the District of Columbia have enacted legislation to regulate cannabis for nonmedical use.

  • Voters in Arizona, Montana, New Jersey and South Dakota approved measures to regulate cannabis for nonmedical use. 
  • On Feb. 8, 2021, South Dakota Circuit Judge Christina Klinger ruled that the measure was unconstitutional. The decision is being appealed as of March 31, 2021.
  • New Jersey’s governor signed enacting legislation on March 1, 2021.
  • New York’s legislature and governor enacted AB 1248/SB 854 on March 31, 2021. 
  • The Virginia General Assembly passed legislation on Feb. 27 and approved the governor’s amendments on April 7, 2021. 
  • The New Mexico legislature passed legislation on March 31 and the governor signed it on April 12, 2021.
  • The Connecticut General Assembly passed SB 1201 on June 17 and the governor signed it on June 22, 2021.
  • These actions bring the number of states with nonmedical (adult-use) regulated cannabis to 18, plus two territories and the District of Columbia (D.C. does not regulate nonmedical sales).
  • This total does NOT include South Dakota’s court-over-turned measure, which is pending appeal.  

Please see Table 1 on NCSL website for more information.

A total of 36 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have approved comprehensive, publicly available medical marijuana/cannabis programs. 

Please see Table 1 on NCSL website for more information.

Approved measures in 11 states allow the use of “low THC, high cannabidiol (CBD)” products for medical reasons in limited situations or as a legal defense. (See Table 2 on NCSL website for more information). Low-THC programs are not counted as comprehensive medical cannabis programs. NCSL uses criteria similar to other organizations tracking this issue to determine if a program is “comprehensive”: 

  1. Protection from criminal penalties for using cannabis for a medical purpose.
  2. Access to cannabis through home cultivation, dispensaries or some other system that is likely to be implemented.
  3. It allows a variety of strains or products, including those with more than “low THC.”
  4. It allows either smoking or vaporization of some kind of cannabis products, plant material or extract. 
  5. Is not a limited trial program. (Nebraska has a trial program that is not open to the public.)

April 14, 2021: South Dakota’s overturned nonmedical (adult-use) ballot measure is currently under appeal as of March 11, 2021.

United States map of State Cannabis Programs

 

POST 2020 ELECTION UPDATE: As of Nov. 4 2020, voters in Mississippi and South Dakota approved a measure to regulate cannabis for medical use, bringing the total to 36 states and 4 territories.

POST 2020 ELECTION UPDATE: As of Nov. 4, 2020, voters in Arizona, Montana, New Jersey and South Dakota approved measures to regulate cannabis for adult-use. This brings the total to 15 states and 3 territories.

A total of 36 states, District of Columbia, Guam, Puerto Rico and U.S. Virgin Islands have approved comprehensive, publicly available medical marijuana/cannabis programs.

Approved measures in 11 states allow use of “low THC, high cannabidiol (CBD)” products for medical reasons in limited situations or as a legal defense. Low-THC programs are not counted as comprehensive medical marijuana programs. NCSL uses criteria similar to other organizations tracking this issue to determine if a program is “comprehensive”:

  • Protection from criminal penalties for using marijuana for a medical purpose.
  • Access to marijuana through home cultivation, dispensaries or some other system that is likely to be implemented.
  • It allows a variety of strains or products, including those with more than “low THC.”
  • It allows either smoking or vaporization of some kind of marijuana products, plant material or extract.
  • Is not a limited trial program. (South Dakota and Nebraska have limited, trial programs that are not open to the public.)

Medical Uses of Marijuana

In response to California’s Prop 215, the Institute of Medicine issued a report that examined potential therapeutic uses for marijuana. The report found that: “Scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation; smoked marijuana, however, is a crude THC delivery system that also delivers harmful substances. The psychological effects of cannabinoids, such as anxiety reduction, sedation, and euphoria can influence their potential therapeutic value. Those effects are potentially undesirable for certain patients and situations and beneficial for others. In addition, psychological effects can complicate the interpretation of other aspects of the drug’s effect.”

Further studies have found that marijuana is effective in relieving some of the symptoms of HIV/AIDS, cancer, glaucoma, and multiple sclerosis. In early 2017, the National Academies of Sciences, Engineering, and Medicine released a report based on the review of over 10,000 scientific abstracts from marijuana health research. They also made 100 conclusions related to health and suggest ways to improve cannabis research.

State vs Federal Perspective
At the federal level, marijuana remains classified as a Schedule I substance under the Controlled Substances Act, where Schedule I substances are considered to have a high potential for dependency and no accepted medical use, making distribution of marijuana a federal offense. In October of 2009, the Obama Administration sent a memo to federal prosecutors encouraging them not to prosecute people who distribute marijuana for medical purposes in accordance with state law.

In late August 2013, the U.S. Department of Justice announced an update to their marijuana enforcement policy. The statement read that while marijuana remains illegal federally, the USDOJ expects states like Colorado and Washington to create “strong, state-based enforcement efforts…. and will defer the right to challenge their legalization laws at this time.” The department also reserves the right to challenge the states at any time they feel it’s necessary.

More recently, in January 2018, former Attorney General Sessions issued a Marijuana Enforcement Memorandum that rescinded the Cole Memorandum, and allows federal prosecutors to decide how to prioritize enforcement of federal marijuana laws. Specifically, the Sessions memorandum directs U.S. Attorneys to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.” Text of the memo can be found here: https://www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement

NCSL’s policy on state cannabis laws can be found under Additional Resources by clicking here.

Arizona and the District of Columbia voters passed initiatives to allow for medical use, only to have them overturned. In 1998, voters in the District of Columbia passed Initiative 59. However, Congress blocked the initiative from becoming law. In 2009, Congress reversed its previous decision, allowing the initiative to become law. The D.C. Council then put Initiative 59 on hold temporarily and unanimously approved modifications to the law.

Before passing Proposition 203 in 2010, Arizona voters originally passed a ballot initiative in 1996. However, the initiative stated that doctors would be allowed to write a “prescription” for marijuana. Since marijuana is still a Schedule I substance, federal law prohibits its prescription, making the initiative invalid. Medical marijuana “prescriptions” are more often called “recommendations” or “referrals” because of the federal prescription prohibition.

States with medical marijuana laws generally have some form of patient registry, which may provide some protection against arrest for possession up to a certain amount of marijuana for personal medicinal use.

Some of the most common policy questions regarding medical marijuana include how to regulate its recommendation, dispensing, and registration of approved patients. Some states and localities without dispensary regulation are experiencing a boom in new businesses, in hopes of being approved before presumably stricter regulations are made. Medical marijuana growers or dispensaries are often called “caregivers” and may be limited to a certain number of plants or products per patient. This issue may also be regulated on a local level, in addition to any state regulation

If you would like to see more information please visit the NCSL website.

https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx#2

Cannabis Case Law

Gonzales v. Raich

California is one of at least nine States that authorize the use of marijuana for medicinal purposes. The question presented in this case is whether the power vested… click to see more

United States v. Oakland Cannabis Buyers’ Cooperative

On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit The Controlled Substances Act, 84 Stat. 1242, 21 U. S. C. §801 et seq., prohibits… click to see more

Florida v. Jardines

We consider whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment… click to see more

People v. Strasburg

Following the denial of his motion to suppress, defendant Gabriel Reed Strasburg pleaded no contest to misdemeanor possession of more than 28.5 grams of marijuana… click to see more

RONALD ALLEN HARMELIN v. MICHIGAN

JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Part V, and an opinion with respect to Parts I, II, III, and IV,… click to see more

CLICK TO SEE MORE CANNABIS CASES 

Cannabis Case Summaries

Conant v. Walters

309 F.3d 629 (9th Cir. 2002) Overview This case stemmed from an appeal for a permanent injunction entered to protect doctor’s First Amendment rights. Specifically,

Read More »

Cannabis Resources

Cannabis Stories

Disclaimer: The views and opinions expressed in AnyLaw Case Summaries and Law Thoughts are those of the authors and do not necessarily reflect the official policy or position of this website.

Articles do not constitute legal advice.

© Lexsphere LTD. Reproduction of the material contained in this publication may be made only with the written permission of Lexsphere LTD.