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Can the Federal Government Limit Local Regulation of Marijuana?


by: 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 prison sentences.


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In 1996, 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. Cantafio & Song PLLC 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 marijuana businesses.

For more information, call us at (888) 458-0991.

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