Charles Feldmann, Esq.
In 1937, marijuana was outlawed by the federal government via the Tax
Stamp Act (this legislation was later found to be unconstitutional). The
Controlled Substances Act of 1970 recriminalized marijuana and the 1980s
“War on Drugs” saw the full weight of the federal government’s
prosecution of marijuana offenders with the enactment of mandatory minimum
California legalized medical marijuana and Colorado followed suit in 2000. Since then, California has seen numerous
raids by the Drug Enforcement Division, and both states have experienced
massive letter writing campaigns by U.S. Attorneys offices giving notice
of “1000-foot.” violations, sent to local businesses and landlords
(threatening prosecution and seizure of assets for dispensaries or cultivators
operating within 1000 feet of a school). Additionally, starting in 2013,
Colorado's Marijuana Enforcement Division shifted from a good faith
substantial compliance regulatory approach, to one of strict enforcement
and strict compliance of all state and local regulations.
The concept of Federalism, although never appearing in the U.S. Constitution,
is a revolutionary one. Sharing power between state and national governments
is its core objective. The U.S. Constitution is a struggle to define the
role of a national government’s interaction with state governments,
which existed before the federal system did. In that vein, states are
not required to follow all federal laws, and states are not required to
make illegal everything that the federal government makes illegal. Case
in point: the 23 states that have some form of legal marijuana regulation.
Even the Controlled Substances Act does not explicitly preempt state marijuana
law. The federal Act only preempts state laws that are in “positive
conflict” with it. In the absence of a positive conflict, the states
and local governments are not precluded from regulating marijuana, whether
it be medical or recreational. This means that marijuana is legally regulated
at the state and local level, while remaining illegal at the federal level
under the auspices of the Controlled Substance Act.
How does that make any sense? In Colorado and California, anyone who fully
complies with all of their state’s medical and/or recreational marijuana
rules and regulations still faces the possibility of federal prosecution
and punishment under the Controlled Substances Act (federal courts have
made clear that state marijuana compliance is no defense to prosecution
under the Act). Colorado, for example, avoids direct confrontation with
the federal government because Colorado’s marijuana regulatory system
is not in “positive conflict” with federal laws that outlaw
marijuana, and they are not preempted by the federal government. Again,
how does that make any sense?
Colorado marijuana laws only exempt Colorado citizens from state prosecution.
They do not provide any protection to prosecution under the federal Controlled
Substances Act. Can the Federal government limit local regulation of marijuana
by the states? Not really. Current federal law does not directly prevent
state or local regulations in regards to marijuana, but it does have a
real-world impact on it. Today, the federal government is taking a hands-off
approach towards state marijuana commerce, but that can change at any time.
So what is the best way to avoid the potential for federal attention if
you are in the marijuana business? The simple answer is to ensure that
your business in 100% compliant with all state and local regulations and
rules. Feldmann Nagel Margulis have significant experience in helping clients
get and remain fully compliant with all applicable state laws and regulations.
Our attorneys are former DEA task force commanders, state and federal
prosecutors, and experienced legal professionals in all areas of marijuana
commerce. MJ Business Attorneys helps clients who want to mitigate federal
risk and who want to succeed in the most highly-regulated industry of
For more information, call us at (888) 458-0991.